The Law … A Profession Betrayed, Part I

THE OPEN MIND
Host: Richard D. Heffner
Guest: Sol M. Linowitz
Title: “The Law…A Profession Betrayed”
VTR: 1/13/95

HEFFNER: I’m Richard Heffner, your host on THE OPEN MIND. Now when Edward R. Murrow, the old friend I quote at the end of each of these weekly programs, concluded his questionable, quite controversial television attack on Senator Joseph McCarthy in the 1950s, he borrowed from this bit of Shakespeare: “The fault, dear Brutus, lies not in our stars, but in our selves”. Well, my guest today, Statesman, Attorney Sol M. Linowitz makes the same literary allusion as he and Martin Mayer conclude their new Scribner’s volume on American lawyering here at the end of the 20th century.

When he and his fellows at the bar decide whom we respect, Ambassador Linowitz insists civic leaders should count for more than hourly rates; a sense of justice for more than a record of victories at trial; a service for those who need the law for more than a representation of those who merely use the law. “The fault is not in our stars, but in our selves”. Well, the title of the ambassador’s frightening, yet morally exhilarating call to arms, to reform in his profession, is “The Betrayed Profession”. And I would begin by asking him who betrayed it and how. And whether or not it ever again can, from the vantage point of a very different American, re-discover and re-assert its older professionalism.

LINOWITZ: The betrayal that I talk about which is responsible for the title is a betrayal from within. That is to say we lawyers inherited a noble profession, one that represented the apex of community and civic achievement, and we made it a business. Increasingly, it has turned into a product-selling operation where all the nobility of the profession has been lost. And we find ourselves striving for the usual bucks and the bottom line and all these things which hitherto have distinguished a profession from a business. Is there a way we can go back and do the things as we were intended to? Yes. I believe we can if first we accept recognition that things have gone wrong. We need to do something about them. Two, if we recognize it’s a job with a whole profession, and three, if we also understand that the practice of law has to do with people, and we make it a human profession again.

HEFFNER: But if the change, the betrayal came from within, how does the reform come from within?

LINOWITZ: Because you find considerations which will lead lawyers to move from the course we’re on now to another course. How do you do that? Well, there are several things that are happening at the same time that I think lead us to some confidence that it can be done if we will it. First, we are at a time now where lawyers are getting sick and tired of lawyer bashing. We learned for a long while to join in the laughter, to help in the applause when dirty digs are made at the practice of law, when Jay Leno gets off a crack, when somebody indicates that the practice of law is not something you admire, to get away from. All that is no longer funny for most lawyers, and I realize that even our kids are in some ways affected by this and it isn’t an exhilarating feeling. Second, if we continue with the present practice, on the assumption that we will continue to get the high fees from these corporations that are hiring inside lawyers and making them wealthy and that we could count on this if only we would stop all this talk and continue as we’ve been doing…We’re now recognizing that if we don’t, in fact, make the changes necessary there will be continuing of legal work for these corporations but is will be internal. They will set up their own law firms within these companies as so many of them are doing, and the large offices will lose their business anyway. And third, and to me the most frightening, is the fact that in my judgment, if we don’t do something about it, legislators will. That this is not something that we can undertake to do if we see fit, but there’s heavy breathing going on. There are people very much concerned about what the law is up to and what lawyers are doing and the way they’re going about it, and I think we’ll all be under that pressure if we don’t hoist up our socks and do things that ought to be done.

HEFFNER: Now, Mr. Ambassadors, most legislators are lawyers. Are they likely to do it to themselves?

LINOWITZ: I have talked to those very legislators who are lawyers about our mutual problem, and there is today a recognition that I have not seen previously. Now whether it will hold up even if you go through some steps that are painful, I don’t know. But what I do k now is, is that today there is acknowledgement. I spoke…I delivered the keynote speech at the American Bar Association in August, and I was immensely gratified, surprised and gratified at how many of the thousands of lawyers there either wrote me or called me or came up to talk to me to express their gratitude and their appreciation for the fact that I was saying out loud what so many of them knew was a fact.

HEFFNER: You know, puzzling to me…the question…the title is wonderful, “The Betrayed Profession”…What is…what is there in the canons of the legal profession? Where is there in the rules that presumably guide the profession that could have, should have prevented the trends from developing as you describe them?

LINOWITZ: It’s not a matter of looking at protocols or rules or regulations. It’s a matter of going back and remembering what a lawyer is and what we’re supposed to be. Lawyers are given certain rights to impose, to summit, to direct, not because we call ourselves lawyers, but because society grants it to us in understanding that we will accept certain responsibilities, certain obligations to that broader society. One of those very great obligations is to serve the people, to be there, to be helpful, to undertake to adjust matters that need adjusting because we uniquely have been given this authority. If we are true to ourselves and true to our profession and to our calling, then this will mean a change from many of the things we have been doing. For example, the assumption that we re there to serve clients, period. That’s not the fact and it never has been. The great accomplishments that so many lawyers have had in our history have been, in large part, in dealing with their community, their state, their nation, and to help in dealing with problems that are real and need some kind of solution. Lawyers have seen that as their charge, and therefore, we have so many lawyers in the history of our country, or as you said earlier, in the congress of The United States today. If we believe that that is the true calling of the lawyer, then it’s not a matter of saying “How soon do we have to do it”, it’s a matter of saying “When can we get back to doing it?” Because there’s no question. Every lawyer will acknowledge that we have a special responsibility.

HEFFNER: But if there is more to the law than serving clients, as you suggest, as you insist, what happens when the lawyer does serve a client? Is he, at this very table…earlier today there was a discussion about what lawyers must do to represent their clients’ interest. I find it very difficult to set in parallel columns one, the notion that the lawyer is an officer of the court, that he is, in your words, an officer of the community, and this notion that his charge…when he is to represent a client to the fullest and maybe beyond that client…now, mustn’t those be at odds with each other, those claims?

LINOWITZ: No, I think not. Let me say it very briefly. A lawyer must not only be an advocate for his client, he must be an advocate for law and lawfulness. That’s the charge we have, and it’s part of our calling, it’s part of what we’re all about. To ignore that part of it, and to say, “I’m only here to serve ’X’, and to make sure he gets so much money and so much off of this or that charge”, is precisely the betrayal that worries me.

HEFFNER: You write that so eloquently in this book. You say it’s nonsense.

LINOWITZ: Yes.

HEFFNER: But you say not only, that something has to have primacy. What does have primacy in the real practice of the law?

LINOWITZ: As it is or as it should be?

HEFFNER: Well, that’s an interesting question. Where is it written…it must be written somewhere, what the obligations of the legal profession are?

LINOWITZ: You can go way back and find references to what lawyers are for and what counselors are and go back to Cook, and go back to some of the earliest writings about the law and there’s always implicit, this communal, societal responsibility.

HEFFNER: As primary?

LINOWITZ: Well, no, I was talking about that…now the question is as to where the primary responsibility lies. I have not found that there is conflict, if you practice law the way you should practice law, between law and lawfulness, as your client and your client as client. In other words, I think you can do both and must do both if you are going to fulfill your responsibility. And I don’t see conflict there. That means that you have to turn away some clients who want you to do something that your interest in serving law and lawfulness would say don’t do. It means as Elihu Root once said to a client, and I quote him in the book, he said, “The law lets you do it, but don’t. It’s a rotten thing to do.” We must learn how to say “It’s a rotten thing to do, and I won’t do it”.

HEFFNER: Yes, but then the question comes up, you know this, the question comes up…if you, a distinguished attorney, Sol Linowitz, will not, because you don’t choose to whirl around in the muck to represent this client…what about the point that is made…doesn’t everyone deserve the best representation?

LINOWITZ: Sure. Edward Bennett Williams, a very distinguished trial lawyer, once told me that he was at a reception and a lady came up and said to him, “Why do you represent someone like Frank Costello?” And he said, “Everyone is entitled to a lawyer”. And she said, “But they’re not entitled to you”. The answer is that lawyers do have a right to discriminate among potential clients to decide “I will represent you” or “I will not represent you”; because maybe I don’t believe you. If I don’t believe you, then I’m not going to represent you well. Maybe I don’t like what you stand for and the things you’re undertaking. There is no question that there are enough lawyers who are ready to undertake that kind of representation. Lawyers will be assigned by the courts. When you’re assigned, you don’t say “This is a man I want to represent”. You do it as part of your responsibility. But I’m saying you have the obligation to select and to do things in a manner that will honor your responsibility to law and lawfulness.

HEFFNER: Can you see some exceptions to that point? Seriously. Can you see some exceptions that must develop in time? This notion that you don’t have to…so and so is not entitled to representation by YOU…But in the final analysis, I believe it was Chief Justice Berger who was campaigning so vigorously because of his feeling that there was so much inadequate representation in the criminal justice system. If you take parallels to that, both in the civil trials and in criminal trials, how much can you stay aloof from? To what extent can you stay aloof from things you don’t choose to do? And I don’t mean in terms of your ability, your financial ability to do so. But in terms of your responsibilities.

LINOWITZ: Well, if you were to give me the hypothetical case of someone who comes in with a matter very important to him…and you are one of the few great experts in that field, so you are able to say “If I don’t represent this man, then he may never be represented properly”, in which case he is truly being deprived. No matter how you phrase it in semantics, he is truly being deprived representation. You have to think long and hard, “Is this what I have to do?” But that is not the case. We’ve got some 850,000 lawyers in this country. And most of them are very good, good enough, able to practice law.

HEFFNER: You don’t mean that, do you?

LINOWITZ: No, I don’t. I went too far when I said that.

HEFFNER: (Laughter)

LINOWITZ: They’re pretty good. Most of them are pretty good.

HEFFNER: Excuse me, may I stop?

LINOWITZ: Sure.

HEFFNER: Do you really mean that, that most of them are pretty good?

LINOWITZ: Yes. Yes, I do. Let me say something to you. The concern I express in that book has to with twenty percent of the Bar. Twenty percent. They’re the people who work in the big offices. They’re the people who concern me. They’re the ones who do best in law school and come where the big money is. They set the tone for the whole profession. Eighty percent, 75, 80 percent of the practicing lawyers around the country have small offices, or individual practices. They are people who are truly lawyering in the sense that they are fulfilling what they understand the responsibility of a lawyer is. They are as dismayed as I am by what they see happening in these larger offices. And that’s why I say “pretty good or even better”. Those are able, thoughtful, committed people who really want to be helpful.

HEFFNER: What’s happened? Have lawyers become hired guns whether they’re working inside corporations or, by and large, outside? Is that what they…that the lawyer is not the…Well, I use the analogy with doctors, with medicine. There is the Hippocratic Oath. First we know, “do no harm”. Have lawyers’ responsibilities been seemingly eroded because they are the hired guns now?

LINOWITZ: That is what has happened. And that, too, is one of the things that has dismayed me and led me to write the book. Lawyers have forfeited their independence. They have, in a way, sold out in order to retain clients, or in order to get the kind of clients they think they’d like to have. Paul Freund, the great professor at Harvard…you may have had him on one of your programs…

HEFFNER: Indeed I did.

LINOWITZ: …Paul Freund once said that the three tests for the legal profession are independence, accessibility, and learning. First is independence. I believe that when lawyers say “I have to do it because my client wants me to do it, I’ve got to represent him”, they are immediately forfeiting their rights to be called independent. They are depriving the client of the thing that he is most apt to need and to want and that is the best judgment of the lawyer as to whether what the client wants done should be done. Lawyers have been quick to give that away, however, and that troubles me deeply because it means that we are chopping away at our profession. We are eroding some of that.

HEFFNER: You say “lawyers have been quick to give that away”. Wouldn’t you say that lawyers have been quick to sell that? To have it bought?

LINOWITZ: All right, that’s a more precise way of putting it. I said to give it away in the sense that I don’t think we’ve put up much of a struggle against it. If lawyers have clients come in who say “I want you to do so and so, they’re not the people who say, “Wait a minute, let’s talk about it. Let’s see if this is really what you want done”. In the old days…when you get an old timer you’re always going to hear that phrase…in the old days we had retainer arrangements. I remember representing companies in Rochester, where I was in practice. I knew the entrails of the company. I knew what was going on. I knew what made them kick. I had a sense of being part of what they were thinking and planning and doing, so I could advise them much better. That isn’t what’s going on today. Today you’ve got to retain per transaction. And you’re out for bids. You want to know how much you would charge against how much others would charge. That’s depriving the corporation of the best kind of guidance and advice. And that too, we’ve been willing to do. All right, you say for money? I don’t deny it.

HEFFNER: You know, you mention Paul Freund, and just this morning, taping another show, the one with Floyd Abrams, I referred to the fact that early in the history of this program, it was the first summer, probably back in 1956, maybe ’57, and I had to take the program on the road to Boston to do it down at WGBH half the summer, and I needed another title. And I chose the title “Search for Truth”. Paul Freund said to me, at one point he said, and I was a much younger man, obviously…he said “You obviously want to be a lawyer, but you’re under the illusion that the law is the search for truth. Let me tell you otherwise.” (Laughter) And he did. And I read, in “The Betrayed Profession”, that to you it IS a search for truth. And how do we get back to that in the kind of society in which we live today?

LINOWITZ: See, I’m an optimist that we can do it. I’m an optimist by nature, but I’m an optimist that we can do this because I believe, as I said before that lawyers really…are no longer happy with what has happened to their calling, to the way they are regarded, and the way they come out on the list of the most admired and the list of despised professions, and so forth. And it doesn’t call for a tremendous change in doing the things that we know are right. For example, to say that lawyers shouldn’t lie does not require a thunderbolt from heaven. Lawyers shouldn’t lie. If there are cases where lawyers are arguing for lying, as there are, then you are affecting the way your profession is practiced and it rubs off on all the rest of us. I think the Bar Associations need…take the American Bar Association…it’s on an image-building program right now that is costing money and they hope will do some good. More important by far, is what goes on in the actual practice. How many of these lawyers that are involved in this image-building contribute pro bono work? To set an example in their office for the younger lawyers “This is how the law is practiced with dignity and nobility”. Do the things that remind the young people, as well as the community at large, this is what the practice of law has always been and we should go back and start it up again. I think that that could happen. I think that it’s not a matter of saying that it’s all lost. It’s a matter of reminding ourselves by insisting, through Bar Associations and elsewhere, that we’ve got to get back and earn the respect of the American people.

HEFFNER: Do you think that the judiciary can play a major role, must play a major role in the return to tradition?

LINOWITZ: Yes, I do. And I indicate some of the things in the book. I think, in the first place, what’s happened to the judiciary is another indication of how far we’ve come on the wrong path. I remember when you tipped your hat to a judge, when we all wanted to stand up when he entered a courtroom. There was some personal dignity and justice in law and all these things that we admire and like to think represent our country. Courtrooms were dignified places. They were, in a way, cathedrals of justice. You came there and you went there and you regarded the people who were doing this with some awe and with great respect. We’ve lost that. You walk towards courtrooms today and you’re dismayed by what you see. The judge comes in and occupies the bench. Very often he’s the fellow who holds the (???) while the other two guys fight. There is not strict enforcement of discipline, and there has to be. There is the sense that the judge is there to be a referee and to evoke certain powers that they have. They’re not quick to do it. For example, the business of discovery proceedings, to take one example, which has been so abused and so out of hand, that today there is hardly anybody who defends it as an instrument in the pursuit of justice. Courts could, I think, be much tougher, in insisting on demonstrations that will actually be needed and e relevant. It’s not enough to say “We want to have fishing expeditions”, as we used to call them. I think courts ought to insist that I f you’re going to be doing this, tell me in advance why you want it.

HEFFNER: But you see, that’s the part of this book that puzzles me the most. The “fishing expeditions”, discovery…it seems to me to have been no reason…no one was waving dollar bills, or ten thousand dollar checks, to bring about discovery that goes on and on. What happened to the discipline?

LINOWITZ: When it was first introduced by Judge Clark, who was the guy who first came up with that idea at Yale, it was for the noblest of purposes. It was to keep the calendars of the court from becoming so clogged, getting out of the way things that could be dealt with prior to the trial itself, and it had all the virtues that could flow from that. As time went on, it became clear that discovery could go beyond that into areas that might be relevant but could not yet be determined. That’s how you open the door. You say, “If you cut me off from investigating this area I don[‘t know what I’ll find. And when one court does it and another court does it pretty soon you find that the courts are hesitant to say you can’t go into this area because they may be cutting off something that in some situations may be relevant and helpful. And they don’t want to have to get into a fight on all their rulings.

HEFFNER: Well, if you can’t cry “Fire!” in a crowded theater, it seems to me, equally, that you can’t extend and extend and extend what may be a thoroughly appropriate device in one instance, and becomes so inappropriate in so many more. How do you reverse that?

LINOWITZ: Well, I’ve talked to some judicial groups since I did the book about this. Not everyone is in agreement, but there is a great deal of head shaking that goes on in our court world on the part of the judges themselves. There is a feeling that we can do a lot better in making justice available more promptly, clearing out the cases that are clogging the calendar, and so forth. Rehnquist, Chief Justice Rehnquist has very recently again expressed his great concern about that. I think that the judiciary does have a separate part to play, can play a leading role, and ought to be doing it.

HEFFNER: Now, ought to be doing it…we have thirty seconds left…I would like to ask you to sit where you are, if you will, and let’s do another program, because there are so many more questions I want to ask you about the law. Will you do it?

LINOWITZ: Oh, sure.

HEFFNER: Thanks, Mr. Ambassador. Thank you for joining me today, Ambassador Linowitz.

And thanks, too, to you in the audience. I hope that you will join us again next time, too. And if you’d like to share your thoughts about our program today please write The Open Mind, P.O. Box 7977, F.D.R. Station, New York, NY 10150. For transcripts, send $2.00 in check or money order.

Meanwhile, as that old friend used to say, “Good night, and good luck”.