The Law … A Profession Betrayed, Part II

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

HEFFNER: I’m Richard Heffner, your host on THE OPEN MIND and this is the second of two programs with statesman, Attorney Sol M. Linowitz, whose new Scribner’s volume with Martin Mayer on American lawyering here at the end of the twentieth century, is so intriguingly entitled “The Betrayed Profession”. Last time I pressed Ambassador Linowitz to tell us who had betrayed his profession and how, and whether, indeed, it ever again can, from the vantage point of a different America, rediscover and reassert its older professionalism. That question, and others, deserve our further attention today.

So, Mr. Ambassador, I will sort of put a punctuation mark to what we were talking about last time in this way by saying: I’m sure there were those who watched our first program and said, “Well, there’s Linowitz, there’s Heffner…these two fellows remember the past, and are so stuck in the past that they can’t really deal with the dynamics of now, of the twenty-first century.” Do you ever think, as I do, about the notion that our nostalgia, our traditionalism may be a function of not wanting to deal with what the new world really is, and letting it go at that?

LINOWITZ: If you’re going to be honest, you have to do that. You have to keep your mind open examining why you feel as you do, and whether the good old days are really the good old days, and so forth. So I would acknowledge at the outset, that with any appraisal comparing now to then you have to be candid, and you have to say, for example, as I have said in the book…what went on in connection with discrimination, for example, was a very ugly chapter in the history of my profession. I myself was subject to discrimination when I got out of law school and applied to law firms in New York. I was told, “Apply to the so-called ‘Jewish’ firms” I was told, “because the others won’t give you a hearing”. Well, there was one that did, as it turned out. But this shook me, this took me aback. I had never thought of having to prove that I was better than other people that I wasn’t something, rather than prove that I was something. But Higginbotham, Judge Leon Higginbotham, who had been on your program, graduated from Yale Law School, I believe, and found that when he applied for a job in Philadelphia he was told that he might get an interview at a firm with two colored lawyers, but that’s all they could recommend to him. So we had this…women…in 1960 I believe there were 1,700 women in law school, and now there are, I don’t know, 25,000, whatever, go figure it. But the fact is that we made great progress in that area. So today you don’t find that Jews and Blacks and Catholics are excluded from law firms. They are indeed, welcomed. That’s been great progress. There’s some other things that we’ve made great progress at. Pro Bono. This was not very well known or very highly regarded when I was first starting in the practice alone. There were people who wanted to do that as part of the Legal Aid Society. But it was not a concept readily accepted, that every lawyer had a responsibility to do some pro bono work, which is increasingly being accepted today. So that looking at the past with that kind of an eye, you say to yourself, “Okay, there were some things that were wrong. We made some progress there. How does it compare, then, to what goes on today?” My point is that it is precisely because we have made progress, that we should take hold and make greater progress. We can do it by making the profession what we have always known it should be, and that’s what we’ve been talking about.

HEFFNER: You know, you mention women. In terms of your criticisms on our program last time, and of course you present so well in “The Betrayed Profession” is the increased, by far…the increased presence of women at the Bar, made a difference, in terms of the things you’re concerned about?

LINOWITZ: It’s very interesting. I’ve tried to research that question and I must tell you that I couldn’t get a good answer. But I got an answer that pleased me. I…

HEFFNER: The best kind.

LINOWITZ: The best kind. But I must qualify it by saying that it’s not a scientific one. I found that the woman lawyers during my talk, were much quicker to accept the notion that you have to do the right thing, much more apt to say “Yes, we would agree that this kind of matter was one we would not want to handle”. Now, whether I just happened to reach people who were moved by those kinds of considerations in a manner that was unique to that group, or whether they represented a larger grouping, I don’t know. But my guess is that there is a helpful and a beneficial influence from having women at the Bar who now ask themselves “What is our responsibility, men and women, in the practice of law?” And they’re more apt to come out in the moving in a direction that I would find gratifying.

HEFFNER: Meaning moving backwards. You don’t mind my putting it that way, do you?

LINOWITZ: I do a little. Let me see if I can tell you why. I’m not sure why, except that I don’t see it as moving backwards because backwards means with all the problems they had then which we’ve taken care of. I like to say moving on a different course, but closer to what we used to do than what we do today.

HEFFNER: There’s certainly a parallel between what you’re saying about the practice of the law and what many have pointed out about the practice of medicine.

LINOWITZ: Let me just say to you I’ve spoken to a number of large groups…mixed…lawyers, others, and so forth…I’m astonished at how many times doctors, dentists, architects, accountants, come up to me and say in words or substance, “Take the word lawyer out of your book and add (whatever their profession is) and you’ve told our story”.

HEFFNER: Yes, but Mr. Ambassador you smile when you say that. I would think it would make you very unhappy because it would document the point that is made frequently in refutation of your optimism. Not of your points, but of your optimism. What we’re talking about is the late twentieth century. What we’re talking about is the twenty-first century. Whether you say doctor, lawyer, dentist, architect, whatever…doesn’t that give you some pause in this wonderful optimism of yours?

LINOWITZ: No, as a matter of fact, I find it stimulating. I’ll tell you why. I see it as a charge to the profession, to our profession, to lead. See, I believe that we lawyers have a special responsibility not only for law, but for morals, for ethical standards. No one else has that. You’d hope that it would come from the church. You would hope that it would come from elsewhere. It doesn’t, and we lawyers have assumed that as part of our profession. We have in our charge, the basis for our credo. Other countries have as their totems a piece of land, a building, a crown, or something else…we have a piece of paper called the Constitution. And it’s in the National Archives, under glass. That’s who we are, around that piece of paper. And who are we? We are the lawyers who are supposed to protect and defend that piece of paper. And so therefore, I find, that if we’re going to have the kind of a change that I would like to see and that you would like to see I hope, it will be because lawyers have led the way. And I do think it’s possible.

HEFFNER: That’s fascinating that you…it’s not unfair to use the word arrogate…to your profession a responsibility that no one else seems fit to take up. Isn’t that why you’re so disappointed? Isn’t that why you talk about “The Betrayed Profession” as you write in the book? And as you said on our first program, the law profession, the legal profession has betrayed itself within, because there is such an assumption on your part of what it is you’re supposed to do as a lawyer.

LINOWITZ: I don’t see it as an assumption. I call it a recognition, a recognition of what goes with being a lawyer. A recognition of what falls upon us precisely because we have entered this profession. I don’t find people disagreeing with that when I say it.

HEFFNER: You mean in the profession.

LINOWITZ: In the profession. I don’t find that I’m the lone voice standing up there saying “This is our charge!” Everybody that I talk to for any length of time is willing to accept that, but is talking about different times, different conditions. Nobody is saying that dentists should be as concerned about freedom and rights as lawyers professionally. Professionally. They may as citizens, we all do, but professionally, that’s our charge. It goes with the territory. And what I’m saying is that we now have got to live the promise of that charge.

HEFFNER: You know, that’s an extraordinarily interesting formulation. Because if it goes with the territory, then you can’t get away from it. I don’t mean you, I mean the people who you say have betrayed your profession.

I’m not switching subjects by any means, but I want to probe your thinking about other elements. What do you think about, if I may be so bold, cameras in the courts, my pet peeve?

LINOWITZ: I’m against them. I was going to say that even before you said “your pet peeve”.

HEFFNER: Why?

LINOWITZ: I think…it has to do…we can use the O.J. Simpson case as one to talk about…we are perilously close to confusing real life with soap opera. The American people sit in front of a box. And on the box they see whatever the name of the soap operas are and they’re involved in the lives of people who are playing out fictional relationships, but we’re involved in them. On that same box, a half an hour later they see a car being chased on the Los Angeles Freeway and there’s a great man named O.J. Simpson who is being followed. And to them it gets very confusing. The line between reality and fictional representation is all smudged, and it carries over into the courtroom. When all this gets known, we people sit around and look at what is going on in a court, forgetting that these are real people…this man is being charged with murder of somebody…the people who were murdered were real human beings…this is not a joke…this is not…you cannot turn it on and turn it off…Suddenly we have found that we have transferred into the world of television the problems, the life experiences, the real sensitivities and emotions of human beings into whose lives we are peering. Now, okay, forget the business of this is really doing so in a manner that is really an invasion of privacy. Look at it at the point of view of what happens to justice under those circumstances. To me, you cannot assume that a fair trial, one we regard as justice in our definition, can be as available if you have cameras constantly there, if you have exposure all the time, if you have lawyers leaving the courtroom telling the press what just what happened and what they’re going to do next. If you…in other words, are going to play it out as a drama. And that is what is going on. And as a result, I think, we are losing…we are betraying what is justice in action.

HEFFNER: You know, it’s often said that, indeed, lawyers came out of the courtroom anyway, and stood on the courtroom steps and did their little routines for the news cameras, whether the cameras were in the courts or not. Now, would you advocate a lid being placed on what your fellows in the profession may do during the course of a trial?

LINOWITZ: Yes.

HEFFNER: As the British do?

LINOWITZ: Yes I would. I’d put restraints, I’d put limits. And I’d do it all under the heading of assuring that justice is done, that a fair trial is held, that peoples’ rights are preserved. I don’t k now if I were representing O.J. Simpson, if I would feel that having this kind of hullabaloo is going to be helpful to him or harmful to him. But I’d be worried. I’d be worried as to whether I was countenancing an approach that was going to affect his rights, his future, his life.

HEFFNER: Well, of course, when Alan Dershowitz has been here, he’s come to the conclusion that he knows that the media is going to be played one way or another no matter what he does, therefore he’s going to play them for the benefit of his client. And he believes that the court of public opinion is an enormously important one in which to play out a trial that in the real courtroom a jury may be somewhat affected.

LINOWITZ: What troubles me about that is why do you go to the court of public opinion? That’s not where our system of justice works. It works in the courtroom. The court of public opinion is represented by the twelve people who sit there.

HEFFNER: Yes, but Ambassador Linowitz, his assumption is, and he’s a darned good lawyer, is that in fact, that although you believe that where it takes place is the courtroom with those twelve jurors, in fact there is an ambiance, there is a sense of community attitude that incorporates the court of public opinion and that he’s playing to that court. That he would not be doing the right thing by his clients in our society, not in the one that you and I would like to live in, but in our society that jury is going to be affected.

LINOWITZ: I don’t want to get into an argument with Dershowitz on this, but I do want to say this: When I get into a cab, and a taxi driver turns to me and says…not knowing me…turns to me and says, “Well, did O.J. do it?” And I lecture him. I say “That’s the worst question you could ask! How do I know and how do you know?” But people are sitting around “Today he really hurt himself”. Or “I don’t think he really did it because if he did it he wouldn’t have been able to do so and so”. That’s a mishmash. That’s bringing what goes on outside of a courtroom into the courtroom on the assumption that the court of public opinion can now play a role. I don’t understand how that role gets played. Is it that people who are there to see that justice gets done are going to be tuning in to see what public opinion is? How does it…

HEFFNER: Well, one thing is certain. That given the court of public opinion, given the fact that we have two sets, two justice systems now, even when one is acquitted, the fact of cameras in the courts and the fact of all this going on in public means that someone cannot be fully acquitted in our day. It’s not possible. Because the public is not sitting around and waiting upon the determination by the jury. It makes its own determination.

LINOWITZ: And therefore you act as though the public is part of the judicial system.

HEFFNER: Isn’t that what’s happening?

LINOWITZ: Well, it is because of people doing the things we’re saying are wrong. I believe they’re wrong.

HEFFNER: Okay, now I believe they’re wrong, too, but in most of the states of this nation permission has been given for cameras to come into the courtroom.

LINOWITZ: Yeah.

HEFFNER: Do you think there is any possibility that the Supreme Court would ever reverse itself and say “de novo”, “ipso facto” and whatever else…Cameras in the courtroom lead ultimately to a dual system of justice in this country and therefore they may not be permitted.

LINOWITZ: I don’t know, but I’d love to have them look at that issue because I think it is an important one. I think it’s going to take an answer from that court. And to me, to summarize my own position, I think it’s demeaning of the process and I think it’s a deprivation of the kind of atmosphere and the kind of system of justice that we pride ourselves in and which makes us the kind of country we are. And I don’t like to fiddle around with it.

HEFFNER: Now tell me, as an eminent attorney, what is your response to those who say “If you are concerned indeed with our Constitution”…and you are…there is a First Amendment to the Constitution…and the First Amendment really is violated when you prohibit in the courtroom the eye…the beady red eye of the camera.

LINOWITZ: Well, I think the first thing is everybody invokes the First Amendment for almost anything that people try to stop them from doing. They always say “You’re interfering with my First Amendment rights”. I believe that a court that has a situation like that before it would be wise enough…the judge would be wise enough and careful enough or thoughtful enough…to come out with some kind of a statement, a kind of a regulation or ruling that would minimize the impact on freedom of speech. Not, as you know, not every speech deserves freedom, is entitled to freedom. Go back to your crying “fire” in a crowded theater. Is there freedom of speech to yell “fire” if you’re in a crowded theater? Well, obviously not. So you have a right to tailor it, to curtail it in some ways that are respectable. And I would think that a judge who is charged with that responsibility would be able to put something together that would not be regarded as a significant impairment of freedom of speech, because of other considerations which have to do with the rights of the people affected.

HEFFNER: What is your own sense of the absolutists, the free speech absolutists, and what their role is in out society? Is that side of the coin prevailing, the emphasis on absolutism in First Amendment considerations?

LINOWITZ: I think it’s inevitable. As we become more “sophisticated” and allow things in the media and elsewhere that we forbade for years in our earlier century, there will be questions of “Is this an intrusion of freedom of speech?” and so forth. For example, the kind of language that’s now used, which I found very offensive, I just find it…and to say that it was alright to forbid it in the past, but it’s not alright to forbid it today always raises questions. What happened to change that? Why, we’re not moving into a different kind of recognition. You can so those words, or you can show certain things. Is it enough to say that there are certain things you are going to see in this program so turn away, or invite the kids in, or whatever else? To me, the whole notion of absolutism, which means that ANY curtailment of ANY speech is a violation of the Constitution, seems to me to be not only inconsistent with what that was intended to do, but also not good for us as a nation.

HEFFNER: Okay, if one were to say “If Jefferson were here today”…

LINOWITZ: Yeah.

HEFFNER: …you and I know that Jefferson would spin in his grave before he would tolerate or think that his principles tolerated much of what we see and hear.

LINOWITZ: Right.

HEFFNER: But if you look into your crystal ball…realistically, now…not in terms of what you and I want, but in terms of what you see (???) in the twenty-first century, what do you think we’re going to be doing? You think there will be a reaction in this country?

LINOWITZ: You’re going to put this under the heading of my general optimistic approach. I believe there’s a pendulum. And I believe we’ve got that pendulum out about as far as we want it to go. And there’s going to be a retreat. I think the reason the book of virtues by Bennett is doing as well as it has to the astonishment of everybody in the book world is because people are yearning to be reminded of what the virtues are, what the moral principles are, what our standards are and so forth. And I think that is being absorbed by a lot of people looking at it and puzzling as to why this is happening. I think that pendulum is going to start to swing back, and it’s going to be welcomed. And the movies and the television are going to follow suit, because they want to go where the people want them to be.

HEFFNER: But as the pendulum swings back what governmental, what legal steps do you think will accompany the pendulum? Or you just said, you think the media themselves will move one step ahead, or maybe one step behind the pendulum because they want to cater to the needs that were expressed.

LINOWITZ: I really think it’s that, rather than any legislation or any particular rulings. It will be that people reject…they’re not going to go now if it’s going to be showing this kind of thing, or if it’s going to be dealing with this kind of…

HEFFNER: Can I ask you a simple question? We just have a couple of minutes left. What kind of indication is there of that? I don’t mean just William Bennett’s book, I mean in terms of what’s happening in the media in response to what you see as a public…as a deep profound public antipathy to how far out we have gone on that pendulum? What indication is there?

LINOWITZ: I can’t say that…

HEFFNER: …gets worse…

LINOWITZ: I can’t say that I see it in the media yet, but what I do get is reactions of people. You start with your own home, my own family, my own kids, younger people that I talk to and so forth…in this regard I ought to say something. What has been most gratifying to me of all, most gratifying to me since I did this book, is the large amount of responses I’ve had from the young people, young lawyers, kids who say “We were ready to pull out of the practice of law, but now we’re going to continue. Thank you for giving us new reason to believe we may” and so forth. I find that very moving, to me very fulfilling and worth whatever headaches were involved in putting the book together. I, by the same token, when I talk to then about other things going on, they make the argument about freedom of speech and that sort of thing, but they are uneasy. They’re uneasy about what’s going on. They’re not sure. My kids warn me about what movies to go to.

HEFFNER: Not to go to.

LINOWITZ: Not to go to. “This is not for you”. But they’re not comfortable with it either. So I see it in young people that I talk to. I see it in others. I don’t see it in the media yet, I must say. I haven’t come to that point, but I’m an optimist.

HEFFNER: Okay, it’s your optimism that counts. And maybe luring in the end of the twentieth century will run into changes at the beginning of the twenty-first century. Ambassador Sol Linowitz, thank you so much for joining me on these programs.

LINOWITZ: Thank you. I really loved it.

HEFFNER: Thanks, too, to you in the audience. I hope you join us again next time. And if you’d like to share your thoughts about our program today, what Ambassador Linowitz has suggested, 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 an old friend used to say, “Good night, and good luck”.