THE ETHICS OF STRIKING BACK: The Noble Lawyer and the Rehabilitation of the Profession* "How we got to this point in the public mind and the ethics of striking back." The Past as Guide to the Present * “The Noble Lawyer” and “The Noble Trial Lawyer” are trade/service marks of William J. Chriss and this is a presentation of William J. Chriss and the Texas Center for Legal Ethics and Professionalism, making fair use of materials in the public domain and/or original content of the presenter – all rights reserved. STRIKING BACK! ETHICS AND REHABILITATING THE PROFESSION: LIBERTY AND JUSTICE FOR ALL THE ROOT OF OUR PROBLEMS: LAW and CULTURE Marc Galanter, Univ. Wisconsin, Lowering the Bar: Lawyer Jokes and Legal Culture (2005). Michael Asimow, “When Lawyers Were Heroes,” 30 U.S.F.Law Rev. 1131 (1996); “Embodiment of Evil: Law Firms in the Movies,” 48 U.C.L.A. Law Rev. 1339 (2001). Reasons the Problem is Important to Ethicists A Very Large Number of Serious Grievances are Attributed to: – Substance Dependence – Depression Which in turn feed on low self-esteem and feelings of helplessness. More Reasons: Ethical Obligations Rule 1.13 Comment: “For reasons of public policy, it is not generally considered a conflict of interest for a lawyer to engage in law reform activities even though such activities are adverse to the interests of the lawyer’s private clients. A lawyer’s representation of a client does not constitute an endorsement of the client’s political, economic, social, or moral views, nor does he forego his own.” Rule 8.02 limits what a lawyer can say about judicial officials because: “false statements by a lawyer can unfairly undermine public confidence in the administration of justice.” Preamble: “a lawyer should seek improvement of the law (and) administration of justice…should cultivate knowledge, …(and) employ that knowledge in reform of the law … Preamble: “A lawyer should demonstrate respect for the legal system and those who serve it…While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.” 1954-1967: Good Times The New Frontier & Striving for Equal Rights Law and Culture: Vintage 1960’s (Movies) Mockingbird: 1962; Witness 1957; Anatomy: 1959; Inherit 1960; Nuremberg: 1961 Law and Culture: Vintage 1960’s (T.V.) Mason: 1957-66; Defenders 1961-65; Judd: 1967-69 ; Marshall 1971-74 The late 1960’s and the Turn Against Law: (This discussion is not a matter of partisan politics but of History and Sociology). 1970s: Progressivism, Good and Bad PRESIDENTS: T. R. & Carter Texas 1973: – DTPA, Ins. Code – Article 2212a (comparative fault) – Mushrooming of product liability and new theories of recovery. The Benefit: Greater protection for consumers and workers. The Cost: Greater regulation and increased visibility of, and imposition by, the legal system. The late 1970’s and the Ultimate Turn Against Law Chief Justice Warren Burger’s 1976 Pound Conference speech: “Unless we devise substitutes for courtroom processes-and do so quicklywe ,may well be on our way to a society overrun by hordes of lawyers, hungry as locusts, and brigades of judges in numbers never before contemplated.” 1978 Newsweek: “Americans in all walks of life are being buried under an avalanche of lawsuits.” 1978-1988 The Turn as Grassroots Anti-Government 1978-9: Howard Jarvis, the Tax Revolt and the Original Proposition 13. The rebirth of small government conservatism: The Reagan Revolution Why This Resonated: Law as Omnipresence and the Demand for Rules Every year, the federal bureaucracy creates 7,000 new regulations. About 3-4,000 of these carry criminal penalties. Rising taxes and government spending. The secularization of society Sociologists describe a post-modern replacement of informal norms by formal norms or rules. The Rest of the Story: 1988-1996 60 Minutes: “Justice for Sale” “Law Reform,” by laypeople beginning in Missouri,Texas, and California: Wedge Issue: – NY Times (August 31, 1992): The President's aides have found something they think is even scarier to voters than Willie Horton: …sharp lawyers in tasseled loafers who, as Mr. Bush put it in his speech to the Republican convention, are running wild, terrorizing doctors and even Little League coaches with personal-injury suits, malpractice suits and other kinds of liability cases. 1996-Present: Neither Party Has a Monopoly on Lawyer-bashing One Political Consultant’s advice circa 1996: “Few classes of Americans are more reviled by the general public than attorneys, and you should tap into people’s anger and frustration…It’s almost impossible to go too far when it comes to demonizing lawyers….Make fun of them mercilessly and they will not know how to respond. They truly are the one group in society that you can attack with near impunity.” Galanter, p. 209. This Corresponds with a Massive and Unprecedented Proliferation of New Lawyer Jokes. Lawyer Jokes as the Key to Understanding the Problem There have always been lawyer jokes. But their number has radically increased since 1985. And they have changed in substance. So What Do We Do Now? Recognize the source of the Problem: Not Lawyers but Bureaucracy. The Libertarian Argument for Lawyers: Medical License claims up 39% since 2003. Stand up like Aggies! KILL THE MYTHS (Wealth, lottery, etc.) The Solution: Striking Back for Rights and the Rule of Law Work together to exclude the uncommitted: Law School vs. Private Practice. Law School Applications dropped 6.7% Understand the difference between advertising and public education. ORDINARY PEOPLE ARE THE PROFESSION’S BEST FRIENDS. STAND FOR LIBERTY AND JUSTICE FOR ALL. The Noble Lawyer Still Survives In a 2003 A.F.I. listing, Atticus Finch ranked #1 among all movie heroes; and in a 1991 survey of reading habits, only the Bible outranked To Kill a Mockingbird as having “made a difference” in readers’ lives.* He stood with the oppressed, even when it was unpopular to do so. *Galanter, p. 7 Ethical Shorthand: The Noble Lawyer Dedicates herself to public service, in whatever form; Is committed to American democratic values and teaches them to others; Values common people, common sense and common ways; Is not in it for the money Is identified, in everything he or she does, with LIBERTY AND JUSTICE FOR ALL. The Noble Lawyer Strikes Back Abraham Lincoln and Dr. Phineas Gurley’s Wednesday night sermons. The Texas Center for Legal Ethics and Professionalism: AT www.txethics.org State Bar of Texas Public Education Project: “Doing Justice for Texas.”