LAWYERS : WHAT'S IN A NAME? MORE THAN YOU THINK

AN ESSAY

Lawyers are always in the news. They like talking to the press. And the press likes talking about them. They always have something to say; lawyers are pretty glib. They like free advertising, too. So they are happy to speak up when cameras roll.

But no matter how much press lawyers get, it's usually bad. In most cases, news stories involving lawyers discuss their avarice, moral bankruptcy, hypocrisy or outright criminality. Most recently, for instance, several newspapers reported on the proposed settlement between New York City and 9/11 workers. Apparently, the lawyers in that case (it's a big class action suit) advised the 9/11 workers to settle for around $675 million. That would give the lawyers at least 33%, or $225 million. The 30,000 workers would get the rest. A judge rejected the proposal. The press described it like this: "Judge refuses to bow to greedy lawyers. Rejects 9/11 settlement."

People expect lawyers to be greedy in America. That's their reputation. That's what they do. They intervene in private disputes, work mysterious magic behind the velvet curtain then take their fee. That's just how it works. At the same time, people expect lawyers to break rules as often as they enforce them. Vulgar punners like to cross the word lawyer with "liar;" and the pun is not too far off the mark. When hearing about lawyers, people expect elusiveness, craftiness, dishonesty, theft and nasty-spiritedness. It's all part of the public image. It is no wonder that the public does not respect lawyers. Viewed in the abstract, they are a lousy bunch.

But it's all part of the trade. Lawyering is a lousy business. Government tries its utmost to cultivate respect for the law as a beneficial social construct designed to bring about good. Yet a quick brush with lawyers undermines any respect a citizen might have developed for the law. With lawyers, it's not about doing good. It's about winning. And if winning means subverting good--or even allowing evil to prevail--then so be it. That's business. After all, that's what the client wants. As law firms like to say: "We are result-oriented." How true: Lawyers get results for their clients, even if those results seem despicable to everyone else on earth. The word "result," after all, does not necessarily imply "good" or "ethical." Results depend on who's getting them. A good result for the labor baron is a bad result for the workers. A good result for the State is a bad result for the Defendant. A good result for the employer is a bad result for the employee.

Lawyers sell results. They get them however they can. That is why people don't respect lawyers; they are crass partisans who zealously go to bat for scoundrels. In the process, they milk everyone for money and accuse everyone of lying--except themselves.

Maybe our language has something to do with lawyers' poor reputation in America. Yesterday I thought about the word "lawyer," as well as its interchangeable synonym, "attorney." Then I thought about the German word for lawyer, Rechtsanwalt. I have often uncovered compelling conceptual relationships among English words by comparing their equivalents in foreign languages. Perhaps I could understand why lawyers have such a bad reputation in America by making some linguistic comparisons.

Literally, Rechtsanwalt means "rights advocate." That sounds somehow more detached than "lawyer." Although lawyers are not the most respected members in German society, either, their name reveals something more transcendent than "lawyer." After all, a "rights advocate" is someone who stands up for rights. Rights are principles that mean something greater than individual self-interest. Rights stand for something beyond commerce and winning. Rights symbolize personal worth against government intrusion. Rights are somehow "sacred" and "inviolable." When someone violates a right, the aggrieved person has a claim against the violator. We enshrine rights. They exist beyond life. They encapsulate our deepest values. They express our fundamental expectations as individuals in society. Men have gone to war over rights. They have written philosophical treatises about the "Rights of Man" and launched revolutions to secure "inalienable rights." While rights may just be a human invention, they nevertheless represent something larger in people's lives. People willingly fight for rights. While it is ignoble to die for money, it is noble and just to die for rights.

In this light, a "rights advocate" seems a much nobler name than "lawyer." While lawyers in America--just like Rechtsanwälte in Germany--make their living by defending clients' "rights," their name suggests something far less honorable. "Lawyer" is embarrassingly common. It says nothing about "advocating for rights." Rather, it sounds like just another petty craftsman. In English, after all, the suffix "-yer" historically connotes a street-level artisan, like a "sawyer" (man who crafts wood with a saw) or "bowyer" (man who makes bows). Linguistically, then, lawyers fit into this tradition as "petty craftsmen who bend the law just as a journeyman bends a bow."

This interpretation goes beyond mere mockery. It is surprisingly appropriate in describing the lawyer's role in America. After all, lawyering is all about results in America. It is commercially straightforward. It is no different than manipulating tools to saw planks or build bows. People who want to buy plywood and bows don't care about others' rights. They merely want products to be crafted and built. And lawyers hawk the law in stores, just as sawyers hawked sawcraft in old England.

In a word, the word "lawyer" perfectly expresses the commercial nature of legal practice in America. It is not about "transcendent rights for all." Rather, it is about tailor-made products for particular clients who want particular results. The word's origin conceptually places lawyers exactly where they belong: Among street peddlers and common craftsmen.

But what about "attorney?" Does the synonym save the concept "lawyer" from moral destitution? To determine this, we must examine its etymology. "Attorney" derives from French. It takes its form from the French verb "tourner," meaning "to turn," then adds the Anglicized prefix "at-", meaning "to" or "toward." In French, the past participle of "attourner" is "attourné," meaning "turned to." The suffix "-ey" indicates that at some point an Englishman changed the French past participle into letters he could pronounce: He transformed the foreign-looking "é" into "-ey." Behold: Attorney. Literally: "Person turned to."

So how does this differ from "lawyer?" Is it any "better?" Not much. If anything, the word "attorney" refers to the lawyer's role as confidant and advisor in times of trouble. People need to "turn to" others when something bad happens to them. In some sense, the word "attorney" is paternalistic because it implies that people are too weak to fend for themselves and they need a "father-like" lawyer to shepherd them through difficulty. But in another sense, "attorney" implies that a lawyer is a partisan mercenary who will do anything his client tells him. After all, why would you "turn to" a lawyer if not to win your case at all costs?

In my view, the word "attorney" represents the lawyer's role as adversary in the American system. People "turn to" lawyers when they have a commercial problem. They expect their lawyers to vigorously advance their interests, even if those interests stand at odds with all the world. As a partisan, the attorney will "bend the law" in whatever way he can to win. In this way, the words "attorney" and "lawyer" mutually reinforce the commercial--and result-oriented-- nature of legal practice in America. People expect lawyers to do their bidding, so they "turn to" them. And once they do, they expect lawyers to sell them a ready-made product without quibbling over larger issues like conscience or ethics.

This is not to say that some American lawyers are not "rights advocates." On many levels, they are. Every legal case involves rights. But not all rights are noble. In fact, most legal rights involve contracts, property and other social mechanisms designed to maintain private ownership. As a consequence, legal rights perpetuate unfairness because those who can assert them generally have much more power than those who do not. To speak broadly, those with more riches often have substantially more legal rights than those without riches.

But these are merely "technical," private legal rights. There are public rights, too. And those rights have a largely positive connotation. Most people think about public (constitutional) rights when they hear the word "rights," like the right to free speech and the right to equal protection under law. That is why the German word Rechtsanwalt conveys a more positive connotation with regard to the law than the English words "lawyer" and "attorney." It focuses on rights, not commerce or craftsmanship.

In America, people "turn to lawyers." Yet that is the reason why lawyers always get bad press. No one likes a crafty, small-minded, contentious partisan who bickers and backstabs for a fee. Yet that is what lawyers do here. They are crafty craftsmen who bend bows for a set price, not noble "rights advocates." They sell products, just like any other peddler. But unlike other peddlers, they are paid to fight for one person's "rights"--and trample you if you get in their way.

LAWYERS ARE BAD MEN AND CLIENTS ARE ONE-DIMENSIONAL SIMPLETONS...AND THERE'S NOTHING WRONG WITH THAT

AN ESSAY

Over the last few days, I have been paging through my old law school ethics casebook, The Law and Ethics of Lawyering (Foundation Press 4th Ed. 2005). When I took this course in law school, I immediately recognized it was different. No other course investigated ethical quandaries in law practice. Sadly, our professor seemed less concerned with the abstract philosophical dimension to the course than with its technical aspects. After all, it is hard to get lawyers to understand ethics because lawyers understand law.

Contrary to popular belief, law and ethics are distinct from each other. Ethics are internal, subjective conceptions concerning the "right" decisions to take in life's ever-changing circumstances. Ethics depends on individual conscience. Law, by contrast, is nothing more than an official collection of written rules that a State formulates to govern external behavior. Law does not require conscience; it requires only technical compliance.

Applying these definitions, it is easy to see that a person can act legally without being ethical at all.

I have written at length about the incongruous relationship between ethics and law. The relationship is uneasy not just because ethics and law stand at opposite philosophical poles. Rather, the relationship is doubly uneasy because "lawyering" in America is adversarial. It is hard to adhere to ethical norms when you are constantly trying to "beat" your opponent and win money. By the same token, American lawyering is extremely commercial. Successful lawyers win their cases because they want to make money. This makes them "result-oriented." That's bad for ethics because ethics is less concerned with results than with means. An ethical person refuses to act in certain ways or even conceive certain actions. Put another way, ethics disqualifies particular means from consideration. Yet a "result-oriented" person--like the average American lawyer--refuses to take any means off the table. When you want to win, you don't refuse to play all your cards.

Yet this is how lawyers must think. After all, they serve the law, not ethics. The law prescribes conduct through language. Lawyers advise clients how to exploit ambiguities in language to avoid the law's reach. All language is imperfect. The law is no exception. Lawyers seize on the law's linguistic imperfections every day to make a living. How can ethics survive in an atmosphere where everyone just wants to game the system?

Sure, lawyers all must take "ethics courses" just like I did. But teaching "ethics" to a lawyer is something like teaching dining room etiquette to a wild animal. Law students take the ethics course because they must: It is required to graduate. And even then, most students view the course as a meaningless formality. Rather than using the course to cultivate ethical sensibilities and become "ethical people," they learn how to read "official ethics rules," then tailor their behavior to avoid censure from professional boards. In essence, then, the "ethics" course devolves into yet another course on law: How to read written standards and make arguments designed to exploit weaknesses in language.

But I am not your average guy. I might have done well in law school, but I hesitate to call myself a "lawyer." No, I am too interested in theory to be a lawyer. I am too interested in ideas and philosophy to blindly advocate a client's selfish financial interests until I die or retire. Put simply, I think deeply about the law and its relationship to civilization. That disqualifies me from everyday "law practice." My commitment to theory might drastically reduce my income. But it dramatically increases my understanding about the world we inhabit.

When I read text from my old ethics casebook, I relate it to all my other ideas about law and civilization. Recently, for example, I re-read Oliver Wendell Holmes' musing on the lawyer's role in American society. He said: "If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good man, who finds his reasons for conduct, whether inside the law or out of it, it the vaguer sanctions of conscience." The Path of the Law (1920) at p. 169.

Holmes' remark closely tracks my own views about the law and human nature. In short, Holmes understands that the law essentially serves "bad men" who just want to know whether they will lose their bodily freedom or their money, not "good men" who seek answers in the "vaguer sanctions of conscience." In essence, Holmes suggests that the law is fundamentally cynical; it merely provides explicit written standards that enable men to modify their behavior for maximum personal gain. And because the law is cynical, so too are the men who empower it: They just want to enrich themselves.

Holmes calls such men "bad." But in fact, he just means "selfish." It is not necessarily morally "bad" to be selfish. But no one would dispute that "selfishness" is neither noble nor especially praiseworthy. No one remembers men who just want to remain free and make the most money they can. They are selfish; and the law exists for them. Bad or not, the law advances an entirely selfish view of human nature. And there is nothing really wrong with that, because the law holds power over money, property and bodily comfort. Those are selfish men's concerns.

If the law only serves "bad men," where does that leave the "good men?" Holmes draws an important distinction here that mirrors the distinction between law and ethics. He says the law stands for selfish men and their petty motivations, not men who find "reasons for their conduct…in the vaguer sanctions of conscience." By that reasoning, "good men" must have nobler motivations than property acquisition and freedom from jail. "Good men" must craft their lives to follow the "vaguer sanctions of conscience," not just cynical legal commands. In essence, then, "good men" are ethical. Unlike law, ethics is internal. It depends on conscience. An ethical man looks within his own heart to know whether something is right or wrong, not a statute book. He does not exploit ambiguity to slither away from consequences. That is noble and "good."

Does this mean that a person who depends upon his own conscience has no place in the law? It almost appears so. After all, to properly serve the law, one must be cynical. One must look at it as a "bad man." If the law enshrines the "bad man's" motivations, then conscience apparently has no place in it. An ethical man might be cynical about others' motivations. But he will not always act cynically. True allegiance to the law, however, requires constant attention to cynical concerns. Litigants would not win their cases if they suddenly started following their own conscience rather than their hunger for money. If ethics means allegiance to conscience and "higher" motivations than the body and property, then it really has little place in the law. Holmes said as much.

Later in my casebook, I ran across an article that criticized Holmes' "bad man" argument. See William H. Simon, The Ideology of Advocacy, 1978 Wis. L. Rev. 29. In it, Professor Simon contended that Holmes' cynical conception about law compromised clients' "individual dignity" and "personal autonomy" because it required lawyers to assume that all clients have the same ends: Property and bodily comfort. The professor found it distressing that the law induces lawyers to both presume what clients want and "to lobby for a peculiar theory of human nature." Id. at 30-52. He found it lamentable that the law basically reduces "individual clients" to one-dimensional "hypothetical people" with a "few crude ends," namely "maximization of freedom of movement and the accumulation of wealth." Id.

I strongly disagree with this critique. First, while I agree that human individuality is precious, a person cedes any claim to uniqueness the moment he seeks legal redress. When a person invokes the law, he is not trying to soothe his conscience or prove his individuality. Rather, he is trying to win as much property as possible or to avoid going to prison. No matter what a client says, "justice" and "right" are not the main objects for his decision to take legal action. He takes legal action because he seeks to gain what the law can offer. The law does not offer abstract justice or right. It offers property and freedom from bodily restraint. This is all a person can hope to win from legal intervention. It is sheer ignorance--or sheer delusion--to believe it can deliver anything else. Courts do not award "good feelings" or a "sense of justice" with their rulings. No, they enter judgment in particular monetary amounts. If a client wants a spiritual reward, he should go to a church, not a lawyer's office.

Second, there is nothing wrong with imputing goals to a client. The law is not about conscience. It is not about ethics. There is a reason courts are called "Courts of Law," not "Courts of Ethics" or "Courts of Conscience." Clients could rightly complain about sacrificing their individuality if they sought to voice their conscience or their ethics. But when they file suit in a law court, they necessarily subscribe to far baser values. The law can deliver only money or bodily freedom. There is nothing wrong with imputing those base goals to a client, because those are the only things he can hope to gain from the law. If this renders lawyers "lobbyists for a peculiar view of human nature," it is not the lawyer's fault. It is the law's fault. The law is about cynicism, not conscience.

That is why the law really does exist to serve "bad men." And that is also why "good men" have little place in it. Once conscience enters the picture, law supplies no answer. Only ethics can appease the conscience.

Consequently, ethics and law do not mix. I don't care what any Bar Association, court or law professor says to the contrary. Law is external compliance. Ethics is conscientious belief.

And law cares not a fig for either conscience or belief.

ARE LAWYERS ALLOWED TO CARE ABOUT FAIRNESS?

AN ESSAY

I like fairness. I always have. Even when I was a kid, I couldn't stand it when people got preferential treatment when it appeared to me they didn't deserve it. I didn't like it when other kids cheated at games, or when I saw that some kids' parents had more money than mine. "That's not fair," I complained. When I was young, I earnestly believed that everyone should have an equal chance to succeed at things. And I believed that success had something to do with merit. For me, fairness expressed whether a situation was fundamentally right or wrong. It was intuitive. I even thought that our government cared about fairness.

My understanding about fairness changed over time. I learned that fairness had two dimensions, one substantive, the other procedural. "Substantive" fairness referred to the intuitive judgment whether a situation was right or wrong. "Procedural" fairness referred to the technical circumstances that either gave or withheld an equal chance to achieve a particular result. For example, racial realities in America reflect "substantive unfairness" for black people because their economic social situation is largely worse than that for comparable white Americans. On the other hand, court rules and contract terms might reflect "procedural unfairness" because they tilt technical rules to favor one party over another in a dispute. Substantive fairness is basically a "justice" inquiry. Procedural fairness is more technical. But both imply a confrontation between opposing forces with "something at stake."

In law school, I cared about both substantive and procedural fairness. I used to complain about results in particular cases because they were "unfair" to one side or the other. This amused my professors. Slowly, I learned that while the law professes to supply "procedural fairness" to both sides in a legal dispute in an effort to assure "substantive fairness" (AKA "justice"), the reality is that fairness does not really matter. Procedure and form are more important than substance in the law. The side with greater resources and greater procedural tact will win. One motion beats another motion. A dismissal beats a complaint. A judgment beats a plea. Papers must be filed properly or they will be rejected, no matter how cogent their arguments. Sometimes these procedural results lead to "substantive fairness." But it is really irrelevant. Judges simply look to see whether the lawyers' behavior matches the rulebook. Legal officiating, then, is really just a technical exercise; it is not necessary that both sides have equal procedural opportunities. And it certainly is not necessary that the ultimate result be "substantively fair."

And how could it be? After all, fairness only enters the analysis when two sides confront one another. Fairness comes into play not just in the law, but also in fistfights, football games and poker tournaments. When two sides compete for a result under common rules, fairness rears its head. When something is at stake, fairness matters. Children scream "No fair" only after investing themselves in a game that offers some reward; without confrontation, fairness does not really matter. People want fairness when they strive to obtain a result that will favor them and disfavor someone else. They want to know that they had every opportunity to vindicate their desire to win. In legal terms, litigants want to know that they had every chance to advance their interests, or to protect them if they are threatened.

This creates a dilemma. After all, lawyers in our legal system--like rabid children vying for victory in a game--badly want particular results. They are not neutral guardians committed to abstract principles like "procedural fairness." Rather, they are biased advocates determined to win. In fact, they take an oath to "zealously" represent their clients' legal interests, and that means pulling out all the stops to prevail. This is problematic because fairness and bias do not go hand in hand. If fairness means giving the other side exactly the same opportunity to win as you, then fairness reduces your chances to win. As a biased advocate, you must increase your chances to win, not reduce them. In that sense, lawyering and fairness appear antithetical to one another.

Still, lawyers inevitably say that they just want "fairness" for their clients. But here they confuse their terms. Yes, they certainly want "substantive fairness," namely, a biased result that intuitively pleases the client. But they do not want "procedural fairness," namely, giving the other guy an equal chance to win. Additionally, lawyers misuse the word "fairness" all the time. They say they care about fairness, but they really mean "favorable results for me." If they win, they say the process has been "fair." If they lose, though, they say they were treated "unfairly." This has nothing to do with abstract fairness. This is mere bias and disappointment.

We should not be surprised that lawsuits are brutally acrimonious affairs because we follow the adversarial system in the United States. That means we basically allow two diametrically opposed, biased parties to battle it out to determine various property and liberty rights. One side gains; the other loses. It is always a zero-sum game. As such, advocacy is essential. The lawyers must go for the throat or their clients lose everything. Courts praise the adversarial system because they say it leads to greater "truth." After all, according to the apologists, the "truth" will inevitably come out as two sworn enemies struggle to gain an advantage over each other. And when money is at stake, they will stop at nothing to win. Truth, then, is the "collateral fallout" from biased adversary confrontations.

And here again arises the dilemma. How can fairness matter in bitter confrontations like this? Will either side in a lawsuit value fairness to the other when they are sworn to ruin each other? That is like asking NFL teams to ensure that their opponents get all the favorable flag calls they deserve. In other words, it is sheer fantasy. When two sides confront each other and stand to lose all if they do not win, fairness to the other guy is the last thing on their minds.

I mention all this because our legal system professes respect for fairness. Everyone in court says they are either "aggrieved" or "wrongly accused." They say they just want an opportunity to be heard in a fair forum. Yet during that opportunity to be heard, they want to treat the other side as unfairly as possible in order to win the fight. No one really cares about securing "ultimate fairness." Individual litigants--and their lawyers--just want biased results.

Judges should care about fairness. But as merely technical stewards committed to determining whether lawyers meet the standards set out in motion rulebooks, they have little power to reflect on power disparities between the parties--or unfairness in the rules themselves. Court rules and civil procedure protocols present fairness problems in their own right. Judges do not have the authority or discretion to deeply think about larger fairness issues. Their job is technical, not philosophical or ethical. Behavior either falls within the rule or without. Sometimes the result is fair, sometimes it isn't. Sometimes it's "fair" to bar an injured person from filing a lawsuit because he missed the date by one day. Sometimes it isn't. But from the judge's perspective, rules are rules. And that ends the judge's role.

This is why so many legal cases arouse disgust in neutral onlookers. From a detached perspective, it appears that fairness means nothing in the average lawsuit. Rather, it appears that mere compliance with rules and deadlines takes precedence over the question whether each side has a fair shot at a particular result. And lawyers do their best to belittle, degrade and discount everything their opponents say in court. This gives the impression that they would be just as satisfied if they won unfairly as if they won fairly--just so long as they win. Fairness seems the last thing on their minds. Indeed, they only mention "fairness" if they lose a point, in which case they say the result is "unfair."

In truth, we cannot blame lawyers for acting this way: They are biased advocates in an adversary system. They are trained to exploit rules in order to obtain private results, not to ensure that abstract fairness flows from every confrontation under the law. Lawyers are not philosophers or ethicists; they are employees hired to do a job. And employees are biased toward their employers because they receive pay to act only in their interest.

Bias and fairness are mutually exclusive. That is why I think it is extremely difficult--if not impossible--for our legal system to consistently deliver fair results. That is not to say that biased advocacy does not sometimes lead to abstract fairness. But that is a side effect at best, not an intentional result.

VALUES IN THE LAW : WHY YOU CAN'T BE A LAWYER AND A COMMUNIST IN AMERICA

AN ESSAY

Values play a huge role in the law. They infuse American legal doctrine just as they infuse all other associational activities in the United States. Still, values do not blare as loudly through the law as they blare through in more visible discourses, such as popular politics. In fact, values dominate the law in a much more subtle way. After all, according to popular understanding, the law "is blind." In other words, it is somehow detached, fair, unbiased, neutral, cerebral, rational and just, even though it governs biased parties and hotly contentious subject matter.

But it is a mistake to think that values do not infuse the law just as deeply as they infuse popular politics. Through ostensibly "fair" and "neutral" rules, our common law actually reinforces a dominant value system, namely: A complex, bewilderingly unbalanced system prizing industry, commerce, individual responsibility and vested property rights. Broadly speaking, legal rules favor those who own property. They provide predictable guidance in disputes over property, land, liability and money. They encourage unbridled property exchange. They arm property owners with numerous advantages to stop claims that their property or business injured someone. Superficially, the rules appeal to justice. Yet when push comes to shove, the common law's commitment to "vigorous, predictable commerce" and "personal responsibility" (a value judgment in itself) takes precedence over "abstractions." Lawyers who dedicate themselves to justice in practice all too often find themselves submerged in a world of unforgiving procedure and dizzying, often counterintuitive "everyday customs." When they insist on justice before grumbling judges with full dockets, they often invite ridicule rather than respect.

In the end, the common law is not about justice at all. Sometimes justice happens to flow from the rules. But it's not required.

To be a really effective lawyer in the United States, you have to possess certain values. Specifically, you need to have a basic respect for property rights, social distinctions, governmental institutions, order, "appropriateness," commercial activity and the notion that people exist in the world to profit from one another. These values all find expression in American legal rules. They are not necessarily "correct" or "just" values in themselves; they simply reflect dominant values. After all, law has always reflected dominant social values. Those with power dominate others. They obviously will want to brand their views about the world as somehow "official," "correct" and "sacred." In the West, commercial power generates practical power. That is why the common law so rigorously incorporates commercial values.

You cannot be a really effective lawyer if you do not wholeheartedly accept these values. If you have qualms about the notion that profit is the reason why human beings interact with each other, you will have difficulty advocating for a business client who claims he lost money in a deal. If you cannot understand why a person should lose a lawsuit because he filed something a day late due to unavoidable circumstances, you do not possess the "order values" (ie, "deadlines are deadlines") so necessary to bring reliability and predictability to commerce. If you find it repugnant that a client can get away with fraud by inserting the word "or" instead of "and," you are too morally sensitive to be a lawyer. Lawyers comply with rules and zealously manipulate them in order to win money for their clients. Those are the values necessary to be an "effective advocate" in our system. In the law, a conscience is not an asset. It is an impediment.

On some level, all lawyers know this. Until the late 1960s, Bar Associations in virtually every State refused to admit prospective attorneys who conceded membership in the communist party. Some Bar Associations even asked applicants whether they agreed with communist philosophy or Marxism. Even sympathizing with socialistic ideals was sufficient to deny admission to a hopeful lawyer. This may sound appalling to anyone who believes in the First Amendment. But for anyone who understands the values inherent in the common law, this hostility toward communism is hardly surprising. In fact, it is perfectly warranted.

Why is communism relevant to law practice in the United States? Simple: Because socialistic values clash fundamentally with the values enshrined in most common law doctrine. State Bar Associations correctly presumed that anyone who truly believed in Marxism would not be able to "effectively" or "zealously" represent clients in a capitalist system. After all, communism teaches hostility to free market enterprise, economic exploitation, private property ownership and power relationships built upon commercial inequality. It also teaches respect for the dignity and equality of man as an individual, not as a commercial "instrument." Given these values, no one who truly believes in communism could serve a client committed to owning more property, dominating more employees, making more profits, seizing more land and basically becoming richer than his neighbor.

For better or worse, lawyers in the common law system are essentially accessories to capitalistic enterprise. Their very craft defends these values. A communist lawyer, then, would be a walking contradiction.

Our Supreme Court ultimately concluded that States could not condition Bar admission upon matters of conscience or belief, including belief in communist principles. But this does not mean that communists make good lawyers. In fact, I think that States' former restrictions on communist sympathies among lawyers made abundant sense. In our system, after all, lawyers owe a duty to "zealously" represent clients. It is an "adversary system." One side fights to the figurative death for his client's interests, while the other does the same for his client's interests. In most cases, a client's "interests" mean "property interests:" Will the client make money or lose it? To be "zealous," the lawyer must do everything under the sun to vindicate those interests. How could he do that in good conscience if he believes in communism? How could he pull out all the rhetorical stops to either enrich one person or drive another into poverty? Quite simply, he could not. In fact, his communist principles would disable him from putting up a fight at all on behalf of someone who just wants to make more money. Lawyers are ineffective when something blocks their ability to fight tooth and nail for their clients. If a lawyer truly believes in communism, his beliefs will surely block him from advancing legal rules that result in unfairness, economic inequality, class distinction, exploitation and crass private profit. In this light, determining whether a future lawyer believes in communism has prime relevance on the question whether he can "effectively" represent a client.

I write all this to demonstrate that the law is neither neutral nor detached. Contrary to popular belief, it is not "blind," nor does it always fall fairly. Put simply, it is a human institution that voices the values of the society that creates it. In the United States, power created law to suit its purposes. For the most part, those purposes are commercial. Commercial values dominate the law just as much as they dominate the minds of those who practice them. Why do criminal penalties for theft increase according to the value of the goods stolen? Why is stealing a car worse than stealing an old shoe? Isn't the act the same? Why does the law disfavor restrictions on the ability to sell land? And why does the law equip landowners with defenses that make it easy for them to defeat the claims of people who suffer harm on their land?

In all these cases, the answer is the same: Because the law enforces the values of those who own property and seek to gain more. Common law rules make it easy for them to make profits, sell goods, sell land, develop land profitably and defeat lawsuits brought by those who suffer injury due to these activities. They all reflect a dominant value judgment. Those who write rules will naturally tilt the field in their own favor. This is precisely what property owners have done with the common law: They have inscribed their self-serving commercial values into the rules that govern our society. If you own, you're in luck. If you don't, you're not.

Those who own lots of property certainly want fairness and justice for themselves. They commit themselves to it on paper. But when fairness and justice interfere with vigorous commercial activity, "exceptions can be made" and "procedures must be followed." And they expect their lawyers to defend their values and their interests, not start mouthing about "justice." A client in our system does not want abstract justice; he wants "justice for me." Generally, that means making a profit or saving a potential loss.

Against this background, it is no surprise that State Bar Associations ostracized communists. Communists just do not fit in a club dedicated to greasing commercial wheels and furthering profit ambitions. In fact, they probably would gum up the works by talking about "extraneous issues," like avarice in society, inequality and sympathy for disadvantaged people.

Common law judges don't care about all that. They want to know whether the testator used the words "within twenty-one years of the death of a life in being at the time aforesaid," or whether a paper was stamped on the 14th rather than the 15th.

Justice? That doesn't help resolve a case. Rules do.

LEGAL "VICTORIES" : PURE EXAGGERATION, AND A BAD WORD CHOICE

AN ESSAY

Law firm websites amuse me. I get priceless satirical material from them. Generally, they take themselves extremely seriously and want to show that they are “winners.” They toss around words like “success,” “results,” “every time,” “reliable,” “professional,” “result-oriented,” “highly successful,” “preeminent,” “unique,” “client-focused,” “team spirit,” “effective” and “experienced.” This all makes me laugh because I know what law firms are like. There is nothing rarefied or glorious about them. They are profit mills in which lawyers pool their efforts to twist the law in their favor. Their “experience,” “results” and “success” flow from their dogged ability to wear down their opponents, then either make money or save money for their clients. For all concerns and purposes, American law practice is an elaborate game. One side wins. The other loses. It is adversarial. And it is seethingly bitter, as all competitive games are.

Big law firms like to report their “recent victories.” After all, “victories” show that the law firm has “won many games,” and potential clients want to win “their game,” too. When betting on a sports team, you want to choose the team most likely to win. You can tell whether a team is more likely to win if you know how often they have won in the past. A law firm’s “past victories” create the impression that it can defeat the opposition again, make money and deliver “success” to a new client. The “victory” metaphor is sport-like, even warlike.

But is law practice supposed to be sport-like? Are legal problems really nothing more than games to be manipulated and won? Or are they miniature wars in which the “enemy” must be hunted down and destroyed? Is this really appropriate rhetoric? After all, law is supposed to provide a rational framework in which to resolve civil disputes. It is supposed to provide reasonable, neutral rules by which to adjudicate problems that might otherwise spur violence. Civilizations invented law to neutralize private violence among citizens intended to redress perceived grievances. In that sense, there is nagging irony in the assertion that lawyers should pursue “victory” for their clients. If law is just and neutral, results should flow as a matter of principle, not as a matter of martial triumph. Law, in other words, is supposed to replace armed conflict as a means to solve problems. Yet the rhetoric of “winning” and “victory” suggests that law is no different from uncivilized, violent struggle. Armies win “victories” by killing those who oppose them in battle. Is this what we expect from lawyers in their “legal battles?”

Let us examine the word “victory.” The word has a decidedly martial connotation. There is nothing detached or nonviolent about it; it involves prevailing over another person or group after a fierce competition or struggle. According to Webster, “victory” means: “1. final and complete supremacy or superiority in battle or war; 2. a specific military engagement ending in triumph; or 3. success in any contest or struggle involving the defeat of an opponent or the overcoming of obstacles.” Webster’s New World College Dictionary (4th Ed.). Two of the three meanings deal specifically with war. The third mentions “success” after “struggling with” and “defeating” an “opponent” in a “contest” with “obstacles.” Victory is a hypercharged, even romantic word. It implies the euphoria that flows from armed triumph over an enemy. It feels good to defeat “opponents” and “overcome obstacles.” It feels good to display “complete supremacy or superiority” over an “enemy in battle or war.” There is nothing more primal than proving domination over an opponent through force. It is crude, animalistic and base. Strong lions overpower weaker ones. They win “victory” over their competitors after a “struggle for supremacy.”

But should lawyers be no different than lions in the wild? Or conquering generals bent on defeating their opponents in battle? I thought law was supposed to elevate us from such violent impulses. I thought law was supposed to replace war with rational principle and reasonable discussion. By using the word “victory” to describe legal “success,” however, lawyers debase themselves. They misunderstand the law. They use it as an arena or a battlefield, not as a rational platform for resolving differences. They approach legal questions like battles, not as opportunities to show their civilized ability to transcend warlike thinking. “Victory” is alluring because everyone likes to “dominate,” “defeat” and “succeed” over a recalcitrant foe. But the question remains: Is law really the right forum to pursue that quest?

Perhaps it is. In the English legal tradition, after all, law functions in an “adversary capacity.” Two sides “face off” against each other. Each side has diametrically opposed interests. One wants land; the other one refuses to give it up. One wants compensation for an injury; the other one refuses to pay. One claims he had a contract; the other says there was never a deal. No matter the facts, “adversary justice” places each side in a “competitive” position. The law assumes that people will make the best arguments—and, ironically, “tell the truth”—in order to satisfy their threatened self-interest. Lawyers step in to vindicate each side’s self-interest. They have only one goal: To defeat the opponent’s arguments and convince the court to grant whatever the client wants.

In this sense, we see that “adversary justice” is profoundly “game-like.” Just as two competitors yearn for “supremacy over the other” in a game, two sides in a legal dispute square off to achieve the same thing. Just as sportsmen must adapt their play to acknowledged rules in their quest for victory, lawyers, too, must contend with “court procedures,” “discovery protocols” and various other “steps” on the road to ultimate success. Each side tries to manipulate the rules to obtain an edge over the other. After all, when “victory” is at stake, you do everything you can to increase your chances to win. In the “adversary system,” competition is fierce. After all, only one side can win; and someone has to lose, too. When money is on the line, the gloves come off. Victory becomes an obsession. Just as two generals struggle violently to obtain an edge over each other in battle, so too do two lawyers savagely grapple with one another for the court’s favor. In all these cases—games, war and “adversary justice”—the breathless quest for victory engenders ruthless competition and narrow-minded commitment to one’s cause, even if it is unjust.

This is all very ugly. We all know who people who insatiably pursue victory in all life’s pursuits. We recoil from those who seek in all things to defeat us. True, sometimes we all enjoy competing for accolades and laurels, whether in games or in life. But there is a limit beyond which we refuse to compete for decency’s sake. Those who compete in everything come off as barbaric and swinish, even if they ultimately win. There is something disgustingly selfish about an endless thirst for victory. After all, victory implies a violent struggle for domination. That is a primal, overweening, animalistic impulse. If we live in a civilized community, we seek to avoid coarse brutishness. Yet the insatiable thirst for victory requires exactly that. Those who publicly broadcast and flaunt their “victories”—like so many law firms—appear wretchedly selfish, even gluttonous and shameless. After all, they are advertising their ability to struggle, fight, brutalize and ultimately dominate their opponents in savage conflicts. That is something Genghis Khan might do, not someone who claims to live in a civilized community.

I think lawyers should excise “victory rhetoric” from their vocabulary. “Victory rhetoric” stems from war. In my view, law should replace armed conflict, not imitate it. But this might be asking too much. After all, even “civilized” human beings retain a lurking instinct to dominate their fellow men. They like the euphoria that springs from “victory,” whether in war, sport or commerce. This is why so many things in our lives—including the law—are “gamelike.” Victory in games provides a primal, emotional charge that humans crave. If they can’t get an emotional charge from battle and physical supremacy over other men, they turn to substitute sources, like games, careers and other competitive fields. All these things provide an opportunity to dominate others, even if without violence.

Yet there is nothing noble about “pursuing victory” and the basely euphoric emotions associated with it. Saint Augustine wrote extensively about games and competition in his Confessions. He confessed before God that he routinely pursued the bestial emotions that flowed from “victory in games” as a child: “In competitive games, I loved the pride of winning…even in [these children’s games] I was overcome by a vain desire to win and was often guilty of cheating. Any breach of the rules I would not tolerate and, if I detected it, would fiercely denounce it, though it was exactly what I was doing to others.” Confessions, at pp. 12, 22 (Oxford University Press 1992). Tellingly, Augustine observed that children are not the only ones who seek “victory in games.” He writes: “Behavior does not change when one leaves behind domestic guardians and schoolmasters, nuts and balls and sparrows.” Id. at p. 22. Rather, adults play games, too, and they seek the same base emotions as children. Just like children at play, they cheat, manipulate rules and engage in hypocrisy. He writes: “[The] amusement of adults is called business.” Id. at 12.

Against that background, should lawyers really crow about their “victories?” Are they no better than children? In sum, we should be very wary about transforming life’s pursuits into competitive games. When we do, we lower ourselves into something resembling animal squalor. I find it both sad and ironic that lawyers—through their ugly “victory rhetoric”—bring the law down to the level of children’s games.

I thought we had come further than this as a civilization. I thought law was supposed to elevate us from violent competitions. Apparently not, at least in the American “legal market.” It’s all just a “win-loss column.” Reason and principle have nothing to do with it, especially if you get an “L” for following them. When you thirst for victory, you do anything for a “W.” Principle is an impediment on that path, not an advantage.

THE PRO BONO FARCE : ANOTHER SHAM IN LAW PRACTICE

AN ESSAY

I do not reserve many kind words for the legal profession. In essay after essay, I have criticized “modern lawyering” for its relentless fixation on commercial gain over principle. At the same time, I have written ruthless satires involving “modern lawyering” because “successful lawyers” lend themselves to hypocrisy on many levels. Satire works best when it targets powerful people who claim to advance principle, yet betray it whenever it is profitable. Law practice provides endless opportunities to do exactly that. While the law may enshrine good principles, those who practice it have many incentives to betray those principles. Perhaps this is the necessary result of a legal system that makes both sides “adversaries.” Or perhaps it is just because law is just another business; and all businesses are the same. No matter what the reason, my cynical powers come into sharp focus when analyzing “lawyers’ follies.”

Sometimes I think I will exhaust the rhetorical well when it comes to law practice. But just when I think the well is dry, I stumble upon some new aspect that revives the flow. In short, lawyers are a satirist’s dream. They just keep on giving. True, there are some lawyers out there who truly want to make a difference in society. I do not want to pillory them. Of course, they earn my respect because they actually want to vindicate larger principles, not merely enrich a private law firm. Their motivation differs from the average private attorney. These “public interest” lawyers do not work to get rich; they work to do justice. Private lawyers, by contrast, work to get rich; and they seek justice only to the extent that it appeases their clients’ financial appetites. Yet this is the great tension between law and justice. Justice transcends. It exists without regard to private interest or “advocacy.” It cannot be warped, tailored or obscured to reward one party over another. Private lawyers, however, warp, tailor and obscure for a living. Their chief duty runs to their client, not to justice. They do not want abstract justice; they want to win for their clients, whether or not the result is abstractly “just.”

Still, if you walk into a law firm’s office, you might actually think that lawyers care about justice. Law firms care about winning and making a profit. But they know that doesn’t sound very noble. To attract new business, they can’t honestly tell prospective clients: “Well, we’re in this to win for you and bill the shit out of you in the process.” No, that is too blunt. In America, you can’t just volunteer your motivations like that, even if people really know what they are. Rather, you need to construct a public “veneer,” then let others whisper about “what you’re really after.” In discourse, lawyers want to project a lofty, cerebral image, not a cash-grubbing one. Even if everyone knows that lawyers are cash-grubbers, lawyers never publicly admit to it. Instead, lawyers take refuge in a fog of “elevated professional detachment.” They want outside observers to say: “These are intelligent, well-groomed, well-educated, skilled, successful men and women who understand the law and will work hard to secure justice for me.” That is the impression lawyers want to make when you step into a law firm.

Last week, I stepped into a well-respected law firm. “Well-respected” means that it ranks within the top 250 revenue producers in the United States as reported by a professional magazine called “The American Lawyer.” “Well-respected” is not some muddy, subjective appraisal related to integrity, honor or dedication to principle. No, according to the “American Lawyer” you only make the “well-respected” list if your firm brings in a certain dollar amount every year. You might deliver all the justice in the world, but if you can’t make the dollar cut, you don’t make the “well-respected list.” It was a beautiful lobby: Nice new furniture, immaculate marble floors, a brand new telephone system, glass doors, ice water pitchers everywhere, expensive-looking art on the beige stone walls, gorgeous flower arrangements in sleek purple vases. To the uninitiated visitor, it would seem that these lawyers did very well by advancing justice. After all, lawyers represent the law, and the law is good, right?

What would make an uninitiated visitor think that? This “well-respected” law firm did more than merely tastefully decorate its lobby. It also selectively placed two magazines in the waiting area. One magazine discussed the “Law Firm Charitable Giving Foundation.” The other discussed the firm’s “Commitment to Pro Bono Representation.” Each magazine opened with a statement from the firm’s partners, claiming that the firm does not give money to charity or volunteer its services to indigents for “public relations” purposes. Rather, according to these statements, the firm gives money to charity and renders free legal services to the poor because it “wants to give back to the community” and “advance justice.”

Yet “giving back to the community” and “advancing justice for the poor” would not have decorated the lobby. Nor would it have paid the rent in the massive Manhattan office tower.

Did these lawyers expect me to believe that they care about “the community” and “justice?” What unabashed hypocrisy. Pro bono legal work is a wonderful thing. But major law firms don’t do it because they “care” about justice. They do it for precisely the reason they say they don’t: Public relations. Viewed logically, why would they plaster magazines trumpeting their pro bono work all over the visitors’ area? Judged objectively, it appears the firm wants people to know about its pro bono “commitment.” In turn, it likely expects them to say: “What a compassionate firm,” then send them paying business. In short, major law firms undertake pro bono cases for public relations and advertising reasons. Pro bono is not really “free legal work.” It is an investment calculated to seduce paying clients later. It conveys a false impression that lawyers deeply care about “abstract justice,” when in fact they merely want more paying clients to come their way. In brief, lawyers use pro bono as a marketing ploy, not to “placate their conscience,” “serve the community” or “do justice.”

At this point, someone will object: “You are too cynical. Maybe some private lawyers really want to help others.” I counter this objection with personal experience. I interviewed with several large law firms in Chicago several years ago. During those interviews, I repeatedly asked about the firms’ commitment to pro bono work because I actually did care about justice. I wanted to handle cases involving substantial social issues, not just royalties, supply contracts, fees and lost business. My questions made my interviewers uncomfortable. They mentioned that their firms had a “pro bono benchmark” every year, but quickly changed the subject. They did not seem very enthused by my desire to “waste firm time” on cases that did not yield a profit. I did not get jobs at these firms. In hindsight, I’m grateful I didn’t.

Pro bono work reflects lawyers’ calculated efforts to project an “image” at odds with their commercial nature. Despite all explanations to the contrary, private lawyers do not practice law to secure justice or to “make society a better place.” Rather, private lawyers have one goal in mind: To make more money this year than last year. In law practice, lawyers make money by winning legal disputes, or at least perpetuating them for as long as possible. While legal disputes involve supposedly neutral legal rules and doctrines, the business-minded lawyer sets about manipulating those rules in order to “secure favorable results” for his client. Those “results” generally involve two things: Either (1) Winning a monetary sum; or (2) Saving a monetary sum. “Doing justice” may serve those goals. But often it doesn’t. If it comes between “securing favorable results” and “doing justice,” virtually every lawyer in America will opt for the former—provided, of course, he does not risk his own liberty or professional standing as measured by technical rules.

Against this background, pro bono work offers no direct pathway to commercial success. At best, it provides an indirect one: Business-minded lawyers can trumpet their “pro bono commitment” to draw in paying clients with self-serving tales of “their battles for justice.” Yet no matter how they spin it, their motivation is the same: Commercial success. If projecting an image that the lawyer is “committed to justice” leads to greater commercial success, then the lawyer will take a few pro bono cases for “public relations” purposes. And they have the gall to say they do not do pro bono for that reason.

Any other explanation for lawyers’ pro bono work is facetious. If lawyers started taking cases for “justice only,” legal practices nationwide would collapse. For better or worse, lawyers must adapt their behavior—and their motivations—to commercial reality. Commercial reality in a free market system means “staying afloat.” Staying afloat means making enough money to pay all expenses, then making a decent profit. Pro bono brings in no money. You can’t pay expenses or make a profit without money. In this sense, lawyers have a compelling disincentive to handle pro bono work. Every minute representing an indigent beggar is a minute lost billing an aggrieved pharmaceutical company at $500 an hour. And every $500 lost is $500 that cannot be used to pay expenses or contribute to the partners’ fund. While representing the beggar may result in justice, it is not commercially prudent. Representing the pharmaceutical company, by contrast, is not just prudent; it is the economically reasonable thing to do. In that light, commercial reality dissuades lawyers from pro bono work. Justice is all well and good. But paying rent and salaries is better. Money gets you on the “American Lawyer” Top 500 list, not justice.

Yet what is law all about? Society creates law for some beneficial purpose, not merely to secure money for private interests. But lawyers use law to do exactly that. What happens to the beneficial purposes? I understand that lawyers want to make money. Commerce forces everyone in society to think about how to cope with unending financial obligations. I think a life dedicated to money is unsavory and unrewarding. But I reserve my harshest criticism for lawyers because they pursue financial success by applying rules that should stand for something beyond private commercial gain. Lawyers want people to believe they use law to “fight for justice,” when in fact they use law to win, no matter where justice really lies.

In this sense, lawyers are no different from any other hawker or hustler on the street. They merely use bigger words and reference inscrutable books to sell their wares. They know that the public associates the law with “good” and “justice.” They actively cultivate an image calculated to convince the public that they, too, care about “good” and “justice.” Yet in our commercial world, “good” and “justice” are not profitable courses. On the other hand, appearances are more important than reality in many situations. If the appearance of “good” and “justice” brings in more business, then lawyers will adopt it. Lawyers’ “commitment to pro bono”—along with their advertising about it—is all part of a calculated effort to generate a convincing “appearance.”

Who needs to “be” just when it is sufficient to simply “seem” just? No one can afford to “be” just, can they?