73 The Alabama Lawyer 208 (2012). Are We the Problem?.

• Author: By Michael E. Upchurch

Alabama Bar Journal

2012.

73 The Alabama Lawyer 208 (2012).

Are We the Problem?

Are We the Problem?By Michael E. UpchurchThere is constant hand-wringing these days about the state of the profession. All agree that something is wrong-bad wrong. Maybe we should ask ourselves whether we are part of the problem.

There was a time when we Alabama lawyers were a more unified and cohesive group than we are now. It is true that there always have been tensions in our complicated relationships with each other. The practice of law was never a Disney movie. Nonetheless, there was a collegiality and a mutual respect among advocates. We understood that we shared the profession and, in many ways, were on the same team-not anymore. The world has changed, and we have changed with it. The social and political conversation has turned toxic. Cooler heads no longer prevail. It is the extreme edges that dominate the conversation. Some of us populate those fringes, but most of us do not. Even though we live in the middle, we have allowed ourselves to be co-opted by the special interests we represent. It has happened to plaintiff lawyers and defense lawyers, prosecutors and criminal defense lawyers, and transac-tional lawyers and consumer advocates. In recent years, we have drifted away from the common purpose of a unified bar and sidled up to our client groups. We have adopted their agendas and their biases. We have embraced their sometimes distorted or myopic view of the world. We now think of ourselves primarily as plaintiff lawyers or defense lawyers, prosecutors or criminal defense attorneys. The healthy separation between us as lawyers and the clients we represent has disappeared, and so has our common identity as "lawyers."

In some ways, we are our own worst enemy. There is so much anger between counsel that sometimes it is hard to tell who is the client and who is the lawyer. All the faces are red. Slowly, but surely, we have divided ourselves into warring camps. We work against each other on legislation and public relations. We fight bitterly in state elections, especially judicial races. We have become unyielding and intolerant of one another. Professional courtesy has eroded to the point that personal trust is the exception now, not the rule. Discovery is trench warfare. Raised voices and accusations of misconduct infect almost every case.

Many of us left law school willing to advocate for anyone who would have us. We found a job with a firm, the government or a company, or we went solo. Then we started acting as if magic dust had been sprinkled on us that opened our eyes to the one truth: the truth of whoever our clients are. Do we really believe that undertaking a career representing plaintiffs, or representing defendants, or working for the state, or for the accused, somehow mystically enlightened us? It is natural for clients embroiled in a legal dispute to believe that they wear halos, and their adversaries have horns. Our role as advocates and professionals is supposed to include a certain degree of detachment from the white-hot emotions of our clients.

Our clients are not enmeshed in the machinery of the justice system every day. They drop in for a visit, work through the system in varying degrees of aggravation, puzzlement and occasionally satisfaction, and then depart. To our clients, legal matters are a...