Legal Ethics and Reform
Legal Ethics and ReformNote: This page presents ideas for future essays that are currently being considered. If you, the reader, have some information, or facts, and/or a viewpoint on any of these proposed essay ideas please contact the author. In like fashion, if there is a subject which you feel should be added to this list - please contact the author. e-mail to the author at hvm@aol.com.
25) Doctors and lawyers are the best known and most numerous professional groups in America. Therefore it is interesting to compare and contrast the difference between reforms advocated for doctors and reforms advocated for lawyers. 1) Reforms for doctors involve such things as DRG's and rigorous financial and accounting controls from third party reimbursement entities like medicare. These cut the flexibility that doctors formerly enjoyed in treating each patient individually. More and more doctors are forced to use a "cookie cutter" approach to delivering health care. Concerned doctors have been forced to diagnose ailments that are not really present in a frail patient in order to win for that patient the extra day or two of hospitalization that patient needs. These rigorous rules are inspired by lawyers and the legal mentality that pervades the Washington bureaucracies. These all encompassing reforms have taken much of the professionalism out of the medical profession. 2) Reform in the legal arena is always strictly limited to one or other area of the law or one or other type of case. Never is all encompassing reform seriously debated. Take a few recent examples: the Congress is, after many years, debating limitation on tort judgements and lawyers' fees in asbestos litigations and negligent doctor litigation. Could they have debated an overall cap on all tort judgements and/or a cap on lawyer's fees generally. Of course, Congress could have but they didn't want to broaden out the scope of their reform. The reason asbestos and medical negligence were singled out were two striking realities: these lawsuits were driving certain specialized doctors out of the practice of medicine as their annual malpractice premiums were going through the roof, and certain companies that were only tangentially involved in asbestos were being forced into bankruptcy as lawyers sought out deep pocket defendants regardless of their knowledge or degree of involvement.
26) America's legal system is the last American frontier. This essay would point out that while America's physical frontier shut down over a century ago, the frontier spirt has survived inside our law offices and court rooms where American can watch their "hired guns" do verbal battle for "good causes". The deposition, the settlement negotiation, the hearing to argue the merits of a motion, the trial to a jury are all examples of the modern Gunfight at the OK Corral. If America were to go to legal system (such as the continental European system) that was cheaper, quicker and gave better results, America would lose this format which provides such excitement. The heat and excitement of an OJ Simpson trial would be replaced by a quiet deliberation where better results were reached more quickly and less expensively. The collective blood of the nation would not be stirred, its creative urges would not be energized. America might get a better legal system, but lose something more precious to the national psyche in the process.
27) The recent Court decision questioning the use of Family Partnerships in estate planning has created a windfall for the probate lawyers, who urged these partnerships on their clients in the first place. This essay would point out the double fees (or perhaps the triple fees) which probate lawyers will pocket. When clients came in to plan their estates, lawyers all across the country suggested they put their assets in family partnerships that contained strings on how quickly the decedent's assets can be liquidated. The strings make the assets less valuable than the market would normally indicate. For instance, if a stock was priced at $50 per share outside the partnership; inside a partnership with strings, it might be valued at only $33 per share. Lower value means lower estate tax. Along comes a Federal court and says this is a scheme to avoid estate taxes. Now the case has to go to the US Supreme Court to get a final ruling on how the IRS has to view these things. Getting to the Supreme Court is a multi year process, so in the interim new documents have to drawn up for perhaps 150,000 rich people nationwide. At $1000 per revision, that's a $150,000,000 windfall for probate attorney across America. Of course if the Supreme Court overturns the lower court, new revisions will be needed for another amount perhaps another $150,000,000 more or less. All this assumes that the lawyers in Congress don't engage and change the underlying statute law in the interim. The state of flux continues, the legal fees flow, and all is well with America's legal aristocracy.
28) An essay is needed about the growing gap between what is legal and what is moral. People with a well developed sense of morality are placed at a disadvantage as the gap widens. This can be true on little things; it can be true on major things as well. A man working in a government office has been trained by his family to be respectful and deferential to women. He behaves this way and is accused of sexual harassment because he compliments women on their outfits and holds the door for them. An employer whose business caters to teenagers, refuses to hire an openly gay person to a sales clerk position. This employer learned from his parents that scandal should not be given to young people; he feels exposing young people to open homosexuality is wrong However, the government says it is illegal to discriminate against homosexuals. Obviously a person who had not been so well trained by his parents would likely have avoided these difficulties.
29) An essay should explore when in the litigation process a person(s) from the government should get actively involved. Obviously in the end the parties are going to end up before an objective third party decision maker. Since this will happen in the end anyway, shouldn't this happen earlier in the process particularly if such involvement would save time or money or both.
30) It would be useful to write on the details of legal practice in England. Lewis Bernstein , a former English barrister, recently gave a talk to the Clayton/Ladue Rotary in Missouri on legal practice in England. (a) He pointed out that the appeals process in England leads to the Judicial Committee of the House of Lords and decisions of that body are final unless the House of Commons decides to pass a law overruling the Judicial Committee's decision. (b) He also pointed out that trial Court Judges sit as Commissioners of the Crown, called Commissioners of Assizes. So at the trial level the judges are classified as representatives of the executive (the King or Queen); and, at the highest appellate level, the body is a committee of a legislative body. In England they make it clear the courts are subordinated to the other branches of government. (c) Solicitors owe their clients undivided loyalty, but barristers the lawyers who actually represent the litigates in court owe a equal loyalty to both the Court and their client. Solicitors may prepare a witness for cross examination at trial, but barristers are prohibited from doing this. (d) Interesting is the role of the Queen Counsel, who is barrister held in particularly high regard, by his peers. These special barristers are sometimes appointed to serve as temporary trail court judges if the docket is so full the King's Commissioner of Assizes is unable to handle all the cases on the docket in a particular jurisdiction. This speeds the handling of cases. (e ) Another interesting fact is the way the barrister's fee is determined. Technically this fee is an honorarium , not a set fee, and is negotiated with the solicitor not the client.
Think of the psychological benefit to the lawyers in England. They are taught from day one that 1) at trial a litigator owns a duty to the court, to truth, and to justice as well as his client, and 2) litigators and solicitors learn that the courts, both trial and appeals, are subordinated in principle to the executive and legislative branches. In America, lawyers know that the judicial branch has the final say in every matter and therefore they know that the judicial branch is pre-eminent in America's government. Lawyers gain this knowledge early in their training and this knowledge colors their view of the other two branches of government.
31) This essay would explore the tension that is likely to develop when a morally sensitive person who is aware of his fallen nature, his sinfulness, and his need for forgiveness encounters a lawyer who is projecting a image of self confidence and righteousness while dissembling in the midst of a legal proceeding. (This tension will be heightened by the fact that the lawyer has an affinity for legal principles and the moral person an affinity for moral principles as promulgated by religious leaders. In earlier times when legal principles were subordinated to and aligned with religious principles this secondary tension was missing, but in recent decades the two have diverged.) The disgust that the morally sensitive person will develop toward lawyers will likely manifest itself is everyday social settings. There are people who won't attend meetings where more than one or two lawyers are likely to attend, there are people who won't listen to talk shows if the host is a legal graduate, there are people who even limit contact with certain family members who happen to be lawyers. A divide is deepening between lawyers and the rest of society; this will have to be reconciled eventually. The reconciliation might come through major reform of the legal system and changed legal educations, or it might come through violent revolution. That it will come is certain, the timing and method are unclear.
32) Lawyers have become so numerous in various government circles that it is hard to put on a talk show or call in show dealing with government issues without having lawyers as guests. On Thursday Nov. 6th 2003 C-SPAN had a morning call in show called Washington Journal which had three guests on three different subjects all of whom where lawyers. The guests were Gail Norton, Peter McPherson, and Diane DeGrete.
33) This essay would discuss the degree of effort which legal reformers should put into their legal reform efforts. If a person is aware of a system which causes injustice (and particularly if he has actually experienced injustice at the hands of that system) that person has a duty to warn people about the inherent injustice in the system and to work to replace the system with a more just system. But moral theologians would argue that no man is required to attempt impossible tasks. So if a person can honestly say there is no chance that any amount of effort will lead to any reform, then that person might "throw in the towel" and give up the legal reform effort. Additionally if a person can see that he or his family might actually be injured if he continues to agitate for reform, then a moral theologian might say that he has a positive duty not to speak about reform. This is a difficult area where the virtues of prudence and fortitude intersect .
This essay would explore the duty which falls upon a citizen who has had some painful experience at the hands of lawyers and/or the legal system itself. Normally when a person encounters a difficult or dangerous situation he has a duty to warn others (or fix things) so others don't have similar experiences. But if the difficult or dangerous experience is cause at the hands of lawyers, or the legal system, does a similar obligation to raise a warning apply? After all, raising such warnings are tantamount to advocating major changes to a significant part of our government and thus incurring the ire of those who benefit from the status quo..
A related aspect is the problem that develops when the society in general in unable to insist on common sense changes to a occupation or profession. If auto dealers are abusing people with broken odometers or are offering financing deals while failing to disclose the true interest rate. Such problems lead to legislation that require odometers and published interest rates to be accurate. Such legislation satisfies the public's need for a change. The auto dealers know down deep in their hearts that the changes was needed to clean up their occupation. With lawyers the people realize the costs are too high and are depriving them of their "day in court" when they have a dispute that needs to be settled, but the lawyers steadfastly refuse to accept that reform is needed and justified. There is a major disconnect between the people and the legal occupation. The people are unable to get changes through the legislature because there are so many lawyers serving there or if the reform is passed the courts strike down the laws reforming the profession. This difference in perception is in the long run troublesome, but the greater problem is the inability of citizens to institute common sense reform.
34) This essay would discusses the comment of the head of the Congressional Budget Office (CBO) (Mr. Douglas Holtz-Eakin) who was interviewed on C-SPAN by Brian Lamb on Nov. 26, 2003. This man, a trained economist, was asked by Brian Lamb about the effect of having such a large number of lawyers in Congress. These are people the CBO works with almost daily. Douglas said that he liked lawyers from one perspective and he was concerned about them because of another aspect of the lawyer personality. The part he liked was their intelligence and their ability to take things apart logically looking for the interrelationships between and among the parts. The trait he had trouble with was their unwillingness to accept economic limitations that should logically restricted the range of legislative options. The lawyers seemed willing to simply state that their preferred result would be able to operate somehow outside the laws of economics and nevertheless accomplish the desired results. This comment is very interesting because lawyers learn that the law they deal with (man-made law) can be changed by legislators or courts; in addition, lawyers learn through their life experience that a skillful lawyer can get jurors to nullify the law. These are carefully learned lessons, and lawyers have trouble submitting to immutable laws such as "supply and demand" or perhaps "gravity". Of course, this is a very dangerous trait particularly if about 50% of the nation's federal lawmakers possess the trait. This is a form of self delusion, which is tolerable in the individual operating alone or within a small group, but is very dangerous when exhibited by hundreds of people making law for a nation of nearly 300,000,000 people.
35) St. Augustine, when he was a young man in North Africa, was trained in rhetoric and his father had hoped he would go on to become a lawyer. Augustine used his oratorical and debating skills to shape peoples views and defeat opponents in debate.
After his conversion it Christianity, Augustine admitted that he had on many occasions misused his oratorical skills (1) misleading people and (2) defeating in debate good men who had the facts to win but lack debating shills. He recounted in his Confessions how he regretted seeing lawyers and rhetoricians (including himself) selling words for profit, deceit, manipulation, and greed. (See Confessions 1:18.29, 3:12.21, 4:2.2, & 9:2.2)
St. Augustine mastered the great ideas of the ancient world (Christian, Jewish, Greek, and Roman) , and his writings provided a master plan for the new age, the Medieval Age, that was dawning as he was dying. This man warned against the evil inherent in a society that trains men in arts of oratorical manipulation and deceit. Nevertheless, each year America teaches tens of thousands of young law students how to manipulate and mislead using oratorical skills. Teachers of law claim this is necessary so the adversary legal system can continue, but they never propose the adoption of a different legal system.
In any event, America is ignoring the warnings of this great thinker. Is America likely to pay a great price?
36) James Comey is the Deputy Attorney General of the United States. When the government announced that a settlement had been reached with the Scott Fastow over his involvement in the downfall of Enron, Mr. Comey remarked that this settlement shows that America has the best legal system in the world. Fastow had spent over a million in legal fees and the government had no doubt spent an equal amount. With over two million in out of pocket cost, there is no question our legal system is the "most expensive" system but perhaps not the "best" system. Consider how few people in our society have a million dollars to pour into a legal defense? A system that only provides for a quality result when a person has over a million dollars to spend can not be said to be the "best" system.
37) An expensive, cumbersome legal system that has difficulty getting to just results can be a particular difficulty in a society that has lots of immigrants from dysfunctional, tribal, and dictatorial regimes (such as Nigeria, Lebanon, Iraq, Bosnia, Mexico, Haiti, etc.) These people put their friends and family first and are suspicious of those outside their immediate circle. In disputes, fairness and justice oftentimes take a second place to preference for a friend or relative. Since America's legal system is the place where these disputes have to go if informal settlements can't be worked out. And since America's legal system is expensive, cumbersome and likely to generate questionable results, the new immigrant is prone to say "I'll do the unjust thing. I'll favor my relative or friend over the outsider, and take my chances in the morass called the American legal system". Or alternatively I will help my relative or friend to use the legal system to bring an unjust action against an outside; in other words I will use the legal system as a club to beat a settlement out of my relative's opponent even though I know the cause is unjust.
38) The two party system is not serving America very well. Roughly fifty percent of the voters don't participate in elections. Some say these non-participants are simply disinterested in politics, but pollsters find that most are not voting because they don't believe their votes count for anything. They understand that a single vote might mean the election of a Democrat instead of a Republican, but electing a different person oftentimes doesn't mean that different policies will be pursued particularly on important life and death issues or key economic issues.
Lawyers do well in these broad based parties particularly when running in large districts or state wide. These races require glib, nimble candidates who can raise considerable money and then deal with the numerous subgroup that are oftentimes at odds with each other but are part of the same broad based party. Take two examples: country club Republicans and born again Republicans are in the same party even through they differ on the pro-life issue. In like fashion Mexican American Democrats and Midwestern union Democrats are in the same party even though they differ on such things a easy immigration and NAFTA. In a small district where candidates can get to know the voters individually, a non-lawyer is not disadvantaged but in a US Congressional district where tv, radio and large group meeting are the norm lawyers with their oratorical skill are at a distinct advantage.
In order for more parties to emerge, hopefully parties with more varied platforms, the American people need to identify the factors which tend to enforce the two party structure across America. Then they should move to change these factors. Some of these factors are:
winner take all districts,
the reduction of federal government power vis a vie the state government,
the failure to keep the small districts for US Congressmen ( i.e. one Congressman per 30,000 voters) that the founders created,
existing state laws that make the formation and continuance of new parties difficult, and
the state wide winner take all rules for the electoral college.
Taking each in order consider - "winner take all districts". Stan Greenberg and Bill McInturff are pollsters for NPR (National Public Radio) and they each regret that the current political structure does not allow new ideas to percolate into the public debate easily. Neither advocates the creation of more political parties, but obviously such parties would provide a avenue for any such ideas to get an extensive high level airing. The trick is to create an environment where new parties can come into existence, have a reasonable chance to get some party members elected, and be assured of "on going" ballot access. In order to accomplish this legislative office holders might have to selected by some combination of at large proportional representation combined with district by district winner take all elections. In the proportional side any party with over say 10% of the total vote state wide would get at least on representative; If a state currently had 100 legislative seats that number might be increased to 200 so there could be 100 new legislators that were selected by this proportional process.
The other items would need to be discussed as well.
39) Politically active Catholics (including to a degree church hierarchy) might be a good change agent to get a third or fourth party going, instigate change in the electoral process such that the new parties might have a reasonable chance to influence policy, and finally to change the system making the courts accountable to the legislature. The Church is very frustrated by the inability of elected pro life leaders to change abortion policy in America. If states had more power vis a vie the federal government the law could get changed state by state. If the Supreme Court was a committee of the legislative branch as it is in England elected pro-life legislators might actually get the abortion situation changed. Why would Catholics breakout on their own politically - why because the Democrats are openly pro-abortion and the Republicans lie about their commitment to the issue.?
40) Walter Olson, of the Manhattan Institute, is doing a wonderful job pointing out problems with current legal practice in the US. His explanation of the problems is to point at the character flaws in current legal practitioners and the expansive thinking of current legal teachers. Olson believes class action litigation and frivolous "creative" lawsuits are the order of the day not because of problems with the structure or the design of the legal system but because of the "misbehavior" of various players in the system.
I once interacted with an older lawyer who had practiced in a rural area. He pointed out that control of the local legal profession was in actual practice vested with an informal group of older lawyers and circuit judges. Members of this informal group conversed often over breakfast or lunch or at social functions, at these meeting the behavior of the young lawyers would be discussed and it was informally decided which young lawyers needed to be "brought into line". The older lawyers and judges would reprimand the young practitioners by refusing them the normal courtesies of the practice or in the case of judges denying motions that would normally be granted. The young lawyer would get the message "practice law our way or leave town". This lawyer went on to point out that this system of "young lawyer control" requires that the total number of judges and lawyers in a geographic region be relatively small, perhaps forty or fifty at most. With the migration of people to the cities such an informal system of "young lawyer control" is obviously not going to work.
Olson, while he is to congratulated for what he has done with his writings to date, needs to look more carefully at the current legal system particularly the abuses it allows to flourish and the worthy cases which it practically excludes because of the costs in time and money of modern litigation. Olson has taken the first steps on the long march toward through legal reform. We should all wish his success.
41) The tension that develops between the lawyer and his client during protracted litigation can be toxic. The lawyers desire to settle combined with the costs and the time delays come into direct conflict with the litigant's desire for his day in court and his desire for justice. This tension can be particularly difficult when the party is the defendant in a case which is multifaceted, complex and frivolous. The lawyer will repeatedly point out that the cheapest course of action is to settle with the plaintiff, while the defendant will repeated point out that the plaintiff is not entitled to anything. That kind of conversation is poison to any relationship. But going further it is poison to the internal self imagine of the lawyer involved. Think of the litigator who over a life time has a few dozen clients who have come to him seeking justice only to hear that justice is beyond reach. Lawyers, particularly litigators, are to be forgiven for their jaded view of life.
42) It would be very interesting to do a side by side comparison of advancements in the quality and delivery methods of medical care over the last 100 years with the quality and delivery methods of legal/litigation services in the last 100 years.
43) As a general rule this society has allowed the legal system to deliver justice by allowing private parties to pursue their own causes of actions against wrongdoers. This system has been slow and costly and the results have varied widely. More recently legislators and regulators have moved away from this model by adopting massive sets of rules which define in detail what can and can't be done. The brokerage industry is a prime example of a highly regulated industry. The rule book gets thicker and thicker; the scope for variation on how the business can be conducted gets narrower and narrower. All this would be bearable if the regulators would exempt the industry from the vagaries and costs of the adversary system and simple set up guidelines that spell out what the compensation clients will get if different violations occur and/or set up a group of industry paid mediators that investigate complaints and impose judgements on the wrongdoers.
44) Noah Feldman, an Assistant Professor of Law at NYU, was on C-SPAN in early May 2004 and he mentioned that lawyers should be "change agents". That strikes the thoughtful person as being just the opposite of what lawyers should be. The law is suppose to be a constant in people's lives, and lawyers should be upholders of the law. Therefore by extension lawyers should be upholders of the status quo and not change agents. If the Supreme Court had been composed of lawyers who where inclined to support the status quo and not interested in writing decisions that changed current societal arrangements, several things might be true today (1) Congress, not the Supreme Court, would be occupying its position as the prime branch of our three part government and it position as the branch most responsible for initiating change in America, (2) lawyers in general across the country would be less interested in using the law to "change" society and more interested in seeking justice within the frameworks set down by Congress, and (3) fewer young men who are interested in government and interested in bringing change to this country would feel that getting a law degree was necessary precondition to fulfilling their life goals.
45) Noah Feldman also remarked in his show that Iraq today has 25,000 lawyers to serve a country of 26,000,000 less than 1/10th of 1%. This number compares to a full 1% in the United States. Prof Feldman reports that Iraq's lawyers are generally of the opinion that Iraq's laws are good on paper, but under Saddam these laws were implemented badly. The judges were underpaid and subject to bribes and intimidation. It would be a shame to see Iraq subjected to the American disease of too many laws most of which are written in legalese that average people can't understand enforced ever so throughly by a bevy of lawyers and bureaucrats.
46) The media in America, movies and television, love to build their story lines around lawyers, litigation, and court proceedings. The judges and litigators become the focal points of the plot, and the viewer begins to think of these contests as non-bloody, oral gunfights. They don't see the costs associated with this approach to dispute resolution. The dramatic two hour movie that keeps everyone on the edge of their seat, depicts a fictitious trial which if it were replicated in real life (1) might cost $100,000+ on each side in legal bills, (2) take two or three years to play out from beginning to end, and (3) end with a unclear result with an appeal lodged a month after the decision is handed down. The disconnect between media portrayal and the actual practice is huge; it does not serve the cause of legal reform well because the average citizen gets the idea that disputes can be settled using the current system, if not in two hours, at least quickly.
47) This essay would explore the changes to the governmental system that might grow out of the American Catholic Bishops (like Raymond Burke of St. Louis) who are prepared to withhold communion from Catholic office holders who do not follow the Church's teaching on such things as abortion. Some bishops have discussed requiring faithful Catholics who vote for pro-abortion candidates to go to Confession before receiving Communion. Exactly how this trend might effect the judges on the courts, office holders, and Catholic voters is hard to predict. Will a viable third party emerge that is compatible with the views of a Catholic liberal? Will this move force changes away from "winner take all" districts? Will there be widespread adaption of a voting system that allows people to specify a first choice for an office and also a second choice? (This would allow electronic voting machines to conduct a runoff election without voters having to return to the poll a second time; pro-life voters could vote for Catholic liberal third party candidate as their first choice and only as a less desirable second choice vote for a conservative pro-life candidate.) This essay could also investigate the separation of church and state in an era where court decisions and legislation are moving farther and farther away from natural law principles. Will the move by the bishops bring the society around to correct thinking or will the misguided lawyers who control the courts and legislature continue to ignore correct thinking and perhaps attempt to silence the bishops through threats to such things as the church tax exemption. All this analysis should be done with an eye on the fact that the Catholic population is 26% of the county, that the Catholic population is growing at about 1% per decade, that it is not spread evenly across the nation so it is very important in some areas, and only 33% of "self identified" Catholics actually go to church regularly. Is there a good chance Catholics will for the most part ignore their bishops?