Beyond Confrontation: A Holistic Approach to the Practice of Law
Mel L. Greenberg*
The Nature of the Problem
I have always been suspicious of nostalgia. It is an emotion indulged in only by people who stand a safe distance from the past. At best it trivializes events; at worst it distorts them. I am equally suspicious of instant revivals--of critical retrospective of the immediate past--because we seem to cannibalize our history, gobbling it up as fast as we live it.
Because of these prejudices, I have been sitting at my desk braced. This essay, written for a special edition of the New England Law Review, in part is about the decline of civility in the legal profession. As most lawyers and judges know, the literature teems with concern over the decline of civility in our own profession, with its ancient tradition of vigorous, but nonetheless civil and responsible advocacy.(1) Even as questions are being raised about specific devices, such as Federal Rule 11 and other types of sanctions, talk in the courthouse corridors among older practitioners is about "the practice not being fun anymore, not like it used to be."
This unfortunate phenomenon is not confined to lawyers. In his first column of 1995, David S. Broder began with the thought that "[a]t the start of the new year, . . . the words that express the best hope for this country are almost twins: civic and civil. Nothing would make 1995 a better year in America than a strengthening of civic life and the return of civility in our public discourse."(2)
But now I find that despite all my reservations, I turn nostalgic about 1962 when a letter from the Board of Bar Examiners began my fifteen-year career as a trial lawyer. Perhaps nostalgia was always triggered more by the present than the past, but I would, if I could, merchandise two pieces of memorabilia--a small corner of the sixties legal culture--to the new generation of lawyers: keeping one's word and responsible advocacy.
All too frequently, a lawyer's word is not his or her bond. Sometimes even judges succumb and passively tolerate trial conduct that transgresses ethical canons. Disciplinary Rule 7-106(C)(1) of the Canons of Ethics,(3) regulating trial practice in Massachusetts, does not permit a lawyer to "[s]tate or allude to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence." Another Disciplinary Rule, 7-102(A)(5), states that, "[i]n his representation of a client, a lawyer shall not . . . [k]now-ingly make a false statement of law or fact." Despite these strictures, most lawyers and judges are quick to suggest that this type of wrongdoing within the profession is increasing and is going unpunished, as overburdened courthouses become, like society itself, large and impersonal.
Professional life seems harsher, discourse less reasoned, and legal debate increasingly coarse. The sharpening of dialogue among the many factions of our rapidly growing profession can only lend aid and comfort to the voices of extremism in our society at large and a diminished respect for the rule of law. These are insidious developments; we should recognize them and strengthen our resolve to change them.
It would be easier if practicing law were a more cooperative venture--if mediation and conflict resolution played a more prominent role in our education and experience. It is not simply the pathetic sight of lawyers badgering one another in and out of the courtroom; rather it is the way in which the cacophony reflects on all of us.
The jagged edge is also reflected by the growing culture of law as a business, rather than a learned profession. Scholarship, learning, and balanced reasoning pale in comparison to contemporary emphasis on marketing techniques, public relations, and other tools of the "rainmaking" trade. It is not the first time in our profession's history that such circumstances pertain. A similar sense of loss pervaded during the early part of this century. John R. Dos Passos, the great American social critic, described the epoch as one of "transformation [of the practice of law] from a profession to a business."(4) For him, the civil war divided the older order from the new. He wrote that the postbellum years represented not only an era of change, but of intellectual decadence in the bar. The lawyer's "aristocratic and social prestige [had] disappeared; . . . his moral and intellectual standard [had] been lowered."(5) At about the same time, Dean Roscoe Pound, in an address to the American Bar, styled "The Causes of Popular Dissatisfaction with the Administration of Justice," pointed to some hopeful signs, among which were the efforts of "active Bar Associations in every state [seeking] to revive professional feeling and throw off the yoke of commercialism."(6)
In spite of these antecedents, there has always been a deal--a kind of bargain struck between the generations of lawyers. Traditionally, the social and professional contract between colleagues stated simply: "Today, we won't take unfair advantage of a weakness in your client's position because tomorrow the shoe may be on the other foot."
But now, it appears that the deal is off. Critics and observers suggest that we are in for a shaky renegotiation of relationships between lawyers. David Margolick of the New York Times described the changes this way:
The practice is "hardball," and the practitioners talk of "scorched earth" or "taking no prisoners" or "giving no quarter" in advocating a client's cause. "When I go into the courtroom, I come in to do battle--I'm not there to do a minuet," was how the Wyoming lawyer Gerry Spence explained his philosophy in The American Bar Association Journal. Increasingly, said Marvin Karp, president of the Cleveland Bar Association, the courtroom ethic has become "litigation is war, the lawyer is a gladiator, and the object is to wipe out the other side."(7)
A Look at the Landscape
Why has the bullying of adversaries proliferated? First, now there are so many lawyers that professional bonds have broken. This is a profession founded primarily on collegiality and professional trust. There has always been a tension between zealous advocacy and the need to preserve decent and long-term professional relationships with one's peers. In part, the latter imperative grew out of a less populated profession in which trial lawyers interacted with one another repetitively. The country lawyer at the turn of the century would not be motivated to forge a bad deal or humiliate a fellow lawyer in court if there were another way of winning the case. There was always a return bout. In those halcyon days, this practice represented some attempt, however fumbling, to impose order on a chaotic universe of waywardness and uncontrollable greed or passion of clients. Those who chose the career path of the law saw themselves as peers resolving contentious disputes, and tempered their industry with collegiality and sensitivity.
Unfortunately, there has been an explosive growth in the number of lawyers since the mid-1970s. Some peg the total number at over 750,000. All studies agree that between 1967 and 1983, the number of lawyers in the United States had more than doubled. And it has been predicted that by the year 2000, we will have over one million lawyers, which means that there will be one lawyer for every 267 people. Those daunting numbers exact a price: the decline of the general practitioner; a consequent diminution of small and middle-sized firms; the growth of specialization; consumerism; and increased use of marketing techniques by large firms. These trends tend to degrade public confidence in the profession and erode client loyalty.
The worst part of this picture is that we are losing a sense of community within the profession and beyond. Integrity and candor in our professional labors--and to a great extent scholarship--have been diminished. In place is increased stridency, harsher discourse, and the development of a siege mentality because of misconduct commissions and potential legal malpractice claims.
It has occurred to me that numbers are not the only reasons to explain our present dilemma. The deeper issue is whether blind adherence to adversarial norms learned during a lawyer's formative years contributes to the present difficulty. More lawyers representing more people more adversarially on such controversial issues as murder, race relations, domestic violence, child custody, abortion, employment, and environmental issues, produces an unacceptable level of social conflict and division. Unless lawyers detach themselves from blind adherence to clients' interests at all costs, the lessening of tension that could pave the way for a more harmonious, accommodative practice of law will not come about.
A person who has had legal training is never quite the same again-- is never able to look at problem solving or even social and political issues, free from his or her legal habits or beliefs. Ethical questions become germane only when, in a given case, the lawyer wishes to define the limits of representation, so as to not run afoul of the Code of Professional Responsibility. The trained lawyer appreciates the proliferation of rule making in the ethical area, only to the extent that the ethical rules define outer limits of what is permissible behavior. A lawyer will fight to the death to defend the legal rights of clients against persuasive arguments based on justice, public interest, or the social good. Some lawyers distrust these arguments. They believe, as part of their mental habits, that they are dangerous and too easily used as cloaks for arbitrary action.
Pondering the Ethics of the Trade
More than a century ago, a Philadelphia judge, George Sharswood, gave a series of lectures on lawyers' ethical responsibilities. At one point, he urged lawyers to represent clients with "warm zeal."(8) For over one hundred years, those words served lawyers searching for ethical guidelines, while his lectures formed the basis for a code of ethics adopted in 1887 by the Alabama State Bar Association. The Alabama Code, in turn, was the model for canons of professional ethics adopted by the American Bar Association (ABA) in 1908.(9) The code balanced this zealous advocacy interest by advising lawyers to use their best efforts to restrain a client from doing anything improper.
By 1969, a new code, in fifty-seven pages of very small print, attempted to give lawyers notice of the kind of conduct that was forbidden. But the tone, generally inspirational, was very different. Canon 16 of the original ABA standards instructed lawyers to "use [their] best efforts to restrain and prevent . . . clients from doing those things which the lawyer himself ought not to do." Another, Canon 17, told lawyers that "[w]hatever may be the ill feeling existing between clients, it should not be allowed to influence counsel in their conduct and demeanor toward each other." The standards as written in that earlier period, inveighed against "[p]ersonal colloquies between counsel which cause delay and promote unseemly wrangling." Most of these constraints were left out of the 1969 version.
In 1983, the Model Code of Professional Responsibility (Code) was revised again. Not only did the revisors eliminate guidelines for civility, but they placed more emphasis on protecting lawyers from their clients' own excesses. In large part, the revisions reflected shifts in the legal profession's profile from the preceding years.
By 1980, no more than one-third of the nation's lawyers practiced by themselves or in small groups. The number of law firms having 100 lawyers named on their letterhead had increased exponentially from the 1970s. Corporate legal departments, which previously could handle existing work with a handful of lawyers, had staffs of fifty or more attorneys in most cases. The 1983 code was geared toward corporate work. Clarifying the corporate lawyer's role and defining the organizational client as an entity in the context of conflict of interest consumes most of the text. Since less than five percent of lawyers try cases today, the codifiers neglected this area.
Even those rules that may apply to trial lawyers are deficient. For example, the desire to win cases at all costs provides an incentive to use, or even abuse the discovery system, in order to drive up the opposing party's expenses and thus obtain a favorable settlement. Model Rule 3.4(d) of the Rules of Professional Conduct prohibits the use of discovery for harassment or improper purpose. But most judges know from experience how difficult it is to determine whether a discovery request was made solely to harass or delay the opponent.
In his article, "The Adversary Character of Civil Discovery: A Critique and Proposal for Change,"(10) Professor Wayne D. Brazil concluded that the "adversary character of civil discovery, with substantial reinforcement from the economic structure of our legal system, promotes practices that systemically impede the attainment of the principal purposes for which discovery was designed."(11) He proposed several radical changes to the discovery system in order to "`find the truth and to prepare for the disposition of the case in favor of the party who is justly deserving of a judgment.'"(12) The Federal Rules of Civil Procedure was intended in 1993 to provide, in part, for mandatory disclosure of names of individuals who likely have "discoverable information," as well as other materials that are "relevant to the disputed facts alleged with particularity in the pleadings."(13) Yet without a corresponding change in the Model Rules, and given the incentives to stonewall an adversary, most lawyers will not abandon their roles as zealous advocates.
Another deficiency of the Code is that many lawyers' jobs now have little to do with the practice of law as conventionally conceived. For example, in mediation and negotiation--areas the bar's leaders say the present code covers--no guidelines are given to practitioners about when and how a lawyer should encourage clients to mediate their claims. Other realities of law practice, such as convincing a client to accept responsibility for some aspect of the harm the client seeks to resolve through litigation against another, are ignored. The importance of fostering introspection among clients--that is, helping a person determine why he or she needs a lawyer--is not addressed by the current code.
There are other fundamental problems about the relationship between lawyer and client that are not illuminated. The once unassailable attorney-client privilege of confidentiality has weakened. Confidentiality has given way to accountability. Clients want competent representation. But the current code makes no distinction between an incompetent lawyer and a lawyer who performs poorly. Increasingly, lawyers in today's world are protecting themselves because of complaints brought by dissatisfied clients. Consumers of legal services, from large corporations to the indigent, are complaining about fees and service. Practitioners have become defensive; nothing in the current code deals with billing practices.
Whether any ethical code can satisfy most needs of lawyers and clients in an adversary system is doubtful. The process has never been easy. As the foregoing discussion indicates, the Code takes an ambivalent position on zealous advocacy. On the one hand, the Code fosters, and even demands, a lawyer's allocation of time, passion, and resources in ways that are not always conducive to a just or fair result for the disputing parties. On the other hand, courts, bar associations, and other regulatory commissions sometimes direct punishment toward public interest attorneys engaged in vigorous defense of their clients' rights.(14)
A Challenge to the Traditional Conception
Some years ago, Ralph Nader, consumer advocate and lawyer, led a group of law students in the picketing of a major Washington law firm. Their complaint was that the law firm, in representing General Motors in a case in which the company had been charged with practices harmful to the environment, had negotiated a consent decree or settlement without trial on terms favorable to the company, and thereby avoided a lengthy public trial at which evidence damaging to the company might have been adduced by the government. Mr. Nader's view was that it was in the public interest to have the adverse information made public, and that the lawyers had violated their professional responsibilities. Such a suggestion, reflecting a vision of a more open, cooperative, and, in some respects, particularized mode of dispute resolution, seems very attractive. Inquiry, information sharing, admitting personal responsibility, and mutuality would be its "procedural values" in contrast to the emphasis on concealment, competition, and control in the present system.
As now, the welfare, personal autonomy, integrity, and self-realization of an advocate's client would be central. The lawyer could be less adversarial and protective against distant, abstract, or speculative interests, and less partisan--more a mediator or facilitator--with respect to those who are close to the client. Lawyers would choose clients or handle their cases for some of the reasons they affiliate with other people (e.g., common values, interests, goals, concerns), and would refuse to do some things for a client that may do irreparable harm to another (e.g., there would be no requirement that the advocate take advantage of the ignorance, psychological vulnerability, or other disadvantages of people with whom the client is in dispute). In a sense, the practice of law would include "professional self-regulation directed toward diverting [lawyers] to the pursuit of the common good--the public interest."(15) Some believe only in the strengths of the ties that bind them. So the question is whether enough lawyers could make the transition.
In such a system, the problem of scarcity theoretically would be resolved by enormously expanding the number and availability of advocates who would function in a less formal, significantly decentralized dispute processing system. Senior lawyers and law school educators are at the heart of the process. Inculcating these values to students and young lawyers would lead to a largely de-professionalized form of advocacy in which the distinctions between personal and advocate's ethics inherent in the adversary system would no longer be necessary or desirable.
Such a cooperative, de-professionalized, personal model of law practice defines the content and direction of many of the most recent proposals for reform of the legal system.
But I leave that subject for another day. For now, I suggest that law students, teachers, and members of the bar examine the adversarial system to answer public criticism of what we do. In its place, perhaps the profession can develop the more delicate instrument it needs: careful, thoughtful interaction between people--a return to civility.
* Mel L. Greenberg is an Associate Justice of the Massachusetts Appeals Court. Prior to his current appointment, Justice Greenberg was a District Court Judge, and then a Massachusetts Superior Court Justice. He also served as counsel to the Civil Liberties Union in Boston, Massachusetts.
1. See Interim Report of the Committee on Civility of the Seventh Federal Judicial Circuit, 143 F.R.D. 371, 382 (1991).
2. David S. Broder, Civic Life and Civility, Wash. Post, Jan. 1, 1995, at C7.
3. See Supreme Judicial Court Rule 3:07, Canons of Ethics and Disciplinary Rules Regulating the Practice of Law (effective Oct. 2, 1972). In adopting these rules, the Supreme Judicial Court did not adopt, "carte blanche," the American Bar Association "Code of Professional Responsibility and Canons of Judicial Ethics," but based many of them on that model code.
4. John R. Dos Passos, The American Lawyer: As He Was--As He Is--As He Can Be 25 (1907).
6. Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, Address Before the American Bar Association (Aug. 29, 1906), in 29 A.B.A. Rep. 395, 417 (1906).
7. David Margolick, The Law: At the Bar, N.Y. Times, Aug. 5, 1988, at B5.
8. George Sharswood, An Essay: Professional Ethics 78 (Philadelphia, T. & J.W. Johnson & Co., 5th ed. 1896).
9. The Canons of Professional Ethics was adopted by the American Bar Association at its 31st Annual Meeting on August 27, 1908. At least six major revisions or amendments were adopted through 1983. On October 30, 1915, the Massachusetts Bar Association and the Bar Association of the City of Boston adopted canons that were in substance identical to the 1908 ABA Code; Canon XV states: "The lawyer owes entire devotion to the interests of the client, warm zeal in the maintenance and defense of his rights . . . ." In 1969, the American Bar Association adopted the Code of Professional Responsibility as a replacement for the previously existing Canons of Professional Ethics. The code was adopted in Massachusetts in 1972. See Supreme Judicial Court Rule 3:07, Canons of Ethics and Disciplinary Rules Regulating the Practice of Law (effective Oct. 2, 1972).
10. Wayne D. Brazil, The Adversary Character of Civil Discovery: A Critique and Proposal for Change, 31 Vand. L. Rev. 1295 (1978).
11. Id. at 1296 (footnote omitted).
12. Id. at 1298 (quoting Irving R. Kaufman, Judicial Control Over Discovery, 28 F.R.D. 111, 125 (1962)).
13. See Fed. R. Civ. P. 26(a)(1)(A)-(B).
14. For specific examples, see Monroe H. Freedman, Lawyers' Ethics in an Adversary System 9-24 (1975).
15. F. Raymond Marks et al., The Lawyer, the Public, and Professional Responsibility 288 (1972).