Twenty-Second Edward H. Young Lecture in Legal Education: Professionalism: Restoring the Flame

• Author: Colonel Donald L. Burnett, Jr.
• Pages: 03

1998] 22ND EDWARD H. YOUNG LECTURE 109

TWENTY-SECOND EDWARD H. YOUNG LECTURE IN LEGAL EDUCATION:

PROFESSIONALISM:

RESTORING THE FLAME 1

COLONEL DONALD L. BURNETT, JR.2

1. Introduction

   Perhaps I should address you as "senior partners, partners, and associates in one of the world's largest law firms." That description literally would be true, and it would illustrate my purpose today: to emphasize values held in common by lawyers in military service and members of the general legal profession. It is appropriate to underscore common values here at The Judge Advocate General's (JAG) School. This is a schoolhouse connected to the world; people come from the field, teach and learn, and return to the field. The JAG School is a place where we reaffirm fundamental values such as ethical conduct, principled decision-making, and personal selflessness (recognizing that life has a meaning larger than our own pains and pleasures).

   Values are embedded in a culture of professionalism, sustained by this school. Visionary leaders helped build the culture, as we are reminded by the name of this room-the Decker Auditorium. Colonel Decker, then working with the Special Projects Division of the Office of The Judge Advocate General, oversaw the creation of the first permanent installation for the JAG School at the University of Virginia. Colonel "Ham" Young, for whom today's lecture is named, provided the spirit, spark, and pro-grammatic concept for the JAG School itself. Their vision has given us a place with a purpose.

   In my civilian occupation, I work at another place where a visionary figure gave the school its purpose, the Louis D. Brandeis School of Law. Justice Brandeis, whose remains are buried at our school, provided a tangible legacy in the form of 250,000 of his books and papers, and helped us obtain the papers of Justice John Marshall Harlan. He directed that we receive original Supreme Court briefs (a tradition still honored by the Court today), and he even reached into his own pocket to buy light fixtures for our law school during the Depression.

   The most enduring part of his legacy, however, has been intangible. He had a vision of an academic institution expressing the community at its best. "The aim must be high," he declared, "and the vision broad."3

   Today, we in legal education serve a public disaffected with lawyers, and a legal profession, especially on the civilian side, appearing to drift away from high aims and broad visions. I propose to talk about these problems, and the challenge of reclaiming our common values, as a collective responsibility of the academy and the profession. My remarks begin with the early role-what should be the enduring role-of the lawyer as a community leader and as a link connecting persons and groups within a community. Then I will comment on the evolution of legal education, contrasting the Langdell model, which analogizes law to science, with the Brandeis model, which connects law to public service. I will discuss the importance of rekindling our profession's historic values that resonate with the service mission of the academy. Finally, I will ask you to think of how all of us as lawyers and educators-now in uniform, perhaps in civilian attire during a second career-can improve the profession while responding constructively

   to unfair attacks upon it. In short, I will challenge you to help restore the flame of professionalism.

2. Our Historical Legacy: Lawyers, Clients and Communities

   Aristotle observed that three great professions-priests, doctors, and lawyers (or "lawgivers")-confront common ethical questions from different perspectives.4 Priests answer to a divine power and doctors answer to science, but lawyers answer to society. As servants of the public, we lawyers may have the most difficult of professions, for society can be an arbitrary and ungrateful taskmaster. Moreover, unlike a divine power that can fulfill faith, and unlike a body of scientific knowledge that can verify a medical opinion, society cannot validate the lawyer's work by achieving perfect, harmonious justice. Rather, justice is an endless pursuit and, in a free society, the subject of an ongoing debate.

   Nonetheless, the pursuit of justice is ennobling. During the early history of the United States, the role of the lawyer was understood to be that of seeking justice. The lawyer provided a voice for community values and, by serving many clients of different backgrounds, furnished a dynamic of inclusiveness within the community. Of course, inclusiveness then did not mean what it does now-it certainly did not include people of color or, in most circumstances, women-but to the extent there was inclusion at all, a lawyer's work generated and protected it. Thus, de Toqueville wrote that although the United States had no ancestral, landed aristocracy, it did have a democratic aristocracy in the practicing Bar.5 He praised the service of lawyers in holding their communities together.

   Even in the first half of the twentieth century, a lawyer was known primarily for service. Sol Linowitz, who wrote a mournful critique of today's legal profession, recalls:

   When I entered the profession fifty-six years ago, a lawyer was a member of an esteemed and honored profession. Becoming a lawyer meant joining a helping profession-one [that] dealt with the problems of people and did so sensitively and effectively.

   Lawyers regarded themselves as charged with public trust-committed to strengthening our systems of law and justice . . . .

   I knew the fulfillment of having men and women who entered my office in panic and distress leave it grateful and with peace of mind, and I came to understand that human relations is the stuff of which law is made; that no lawyer worth his salt can practice his calling impersonally; that to be a lawyer in the deepest sense of the word is to concern oneself with people and the things which bring people together; and that being a real lawyer involves knowing how to work with those you must serve. The law was for me truly a human profession.6

   There is a close nexus between Linowitz's remembrance of a "human profession" and de Tocqueville's description of lawyers serving communities. Each sees something noble in helping real people in real situations, accepting their human imperfections and serving them in response to a higher calling.

   As judge advocate officers-members of an organization older than the United States itself-we have a special appreciation for lawyers whose service has helped shape the nation's history. Consider these images of American lawyers, past and present:

   Think of a Philadelphian in New York, the first Philadelphia lawyer who undertook the defense of John Peter Zenger, protecting his right to publish what he chose free from censorship or interference. His name was Alexander Hamilton and he was a lawyer.

   You would see another at the trial of Captain Preston, the trial that arose out of the Boston Massacre. His name was John Adams. He would become the second President of the United States. He was a lawyer.

   You would see him at the Miracle at Philadelphia, the Constitutional Convention of 1787, fighting for a statement of rights that

   eventually became the basis of American freedom. His name was James Madison. He was a lawyer.

   You would see him at Gettysburg, tears in his eyes, gaunt and morose, rededicating our country to principles of equal justice for all. He said, "As I would not be a slave, so I would also not be a master." His name was Abraham Lincoln and he was a lawyer.

   You would see him, an elemental man, fighting for one cause or another and in Dayton, Tennessee, preaching the legitimacy of evolution. His name was Clarence Darrow. He was a lawyer.

   You would see him speaking to us from a wheel chair, lifting our spirits, making us stronger with his inspirational philosophy: "The only thing we have to fear, is fear itself." His name was Franklin Delano Roosevelt. He was a lawyer.

   You would see her standing before the podium of the United States Supreme Court and insisting that her client, Gerald Gault, a fifteen year old juvenile, had a right to due process -- a radical proposition at the time. Her name was Amelia Lewis and she was a lawyer.

   You would also see her in the U.S. House of Representatives in July, 1974, during the most serious constitutional crisis of this century. She gave voice to our fear, our anguish, our hope. She showed us the way. Her name was Barbara Jordan. She was a lawyer.7

   In this glimpse of history, we find a noble heritage of lawyers serving as the connective tissue in a society torn by divisive forces. That heritage has special meaning today. John Sexton, dean of the New York University School of Law, and immediate past president of the Association of American Law Schools, has observed:

   From the beginning, America has been a society based on law and forged by lawyers. For Americans, the law has been the great arbiter, the principal means by which we have been able to

   knit one nation out of a people whose principal characteristic always has been diversity. And, just as the law has been a principal means for founding, defining, preserving, reforming, and democratizing, a united America, America's lawyers have been charged with setting the nation's values-a charge that runs not only to "great cases" and major reform movements, but also to the lawyer's day to day dealing with clients. In our society, lawyers are and must be the conscience of both the legal system and the client-for if they are not, no one will be.8

   As Dean Sexton implies, nobility in the legal profession is not limited to a high-profile public practice. The simple, quiet, competent service rendered to individuals is noble, too. Indeed, the reflective practitioner is the true hero of our profession today-a lawyer who understands that our professional responsibilities are threefold. First, of course, the lawyer is a representative of clients. This is the role of the lawyer as...