Elusive advocate: reconsidering Brandeis as people's lawyer.

• Author: Spillenger, Clyde
• Position: Louis D. Brandeis

In this Article, Professor Spillenger reexamines the lawyering career of Louis D. Brandeis, "the People's Attorney " and an archetype for the modem public interest lawyer Brandeis, he finds, greatly valued personal autonomy and political self-definition, both as a political reformer and as a public interest lawyer While Brandeis's biographers and numerous scholars of lawyering have celebrated these traits, Professor Spillenger sees in them a troubling disinclination to engage in genuine dialogue with clients. Several of the most acclaimed features of Brandeis's law practice, including his feeless work, his attempt to be "counsel for the situation," and his instinctive representation of the public, involved more than altruism; they were an effort by Brandeis to express and realize his views on public policy through the medium of the lawyer-client relationship, a relationship that often gave Brandeis "standing" to appear in public fora. While Brandeis's desire to have a free hand in articulating his views on policy is natural, the act of client representation necessarily places limits on such self-direction, limits that Brandeis consistently sought to evade. After exploring specific episodes in Brandeis's lawyering career, Professor Spillenger discusses more generally the competing ideals of autonomy and engagement in the lawyer-client relationship. He concludes that the concept of "dialogue " is a more apt model for that relationship than the lawyerly autonomy for which scholars have universally praised Brandeis.

If I know your sect I anticipate your argument. I hear a preacher

announce for his text and topic the expediency of one of the

institutions of his church. Do I not know beforehand that not possibly

can he say a new and spontaneous word? Do I not know that with all

this ostentation of examining the grounds of the institution he will do

no such thing? Do I not know that he is pledged to himself not to

look but at one side, the permitted side, not as a man, but as a parish

minister? He is a retained attorney, and these airs of the bench are the

emptiest affectation.

--Emerson, Self-Reliance(1)

I would rather have clients than be somebody's lawyer.

--Louis D. Brandeis(2)

INTRODUCTION: BRANDEIS AND THE LAWYERING IDEAL

No one holds a surer place in American legal iconography than Louis D. Brandeis. And, unlike most celebrated jurists, Brandeis is almost as revered for his exploits as a lawyer as for his judicial works. Brandeis's biographers regularly call attention to the public spirit and daring he displayed as "the people's attorney."(3) Scholarly critics of mainstream legal professionalism likewise point approvingly to Brandeis's approach to the practice of law, sometimes citing it as an alternative to the crabbed and uninspiring ethic that is said to dominate American legal practice.(4) Since academic writing on lawyering has a characteristic concern with praxis, emphasizing norms of lawyer behavior (unlike, say, scholarship on constitutional law, whose content is mostly propositional), these paeans to Brandeis have the instructional tone of "edifying" literature.(5) They invariably leave the reader with the message that, if she is a lawyer, she would do well to emulate Brandeis.

The reasons for Brandeis's heroic stature, the building blocks of his reputation as "the people's lawyer," are familiar. As an attorney who was both fabulously successful and deeply committed to the public interest, he is a consoling reminder that one can "do good while doing well."(6) He made a policy of refusing compensation for legal work that he thought raised "public" issues, a practice that speaks to our own sanctification of pro bono services. He is supposed to have scrutinized potential clients with a careful eye, refusing to handle cases in whose justness he did not believe and sternly commanding clients to refrain from taking manifestly antisocial positions in their legal disputes. During the Senate hearings on his nomination to the U.S. Supreme Court in 1916,(7) he faced fierce accusations that he had violated legal-ethical norms in his law practice, which is generally taken to mean that his ethical standards were superior, or at least visionary. He was the original "counsel for the situation," an appealing phrase whose provenance I will explore in some detail. His 1905 address "The Opportunity in the Law"--urging lawyers to stand "between the wealthy and the people, prepared to curb the excesses of either"(8)--is cited or excerpted in virtually every introductory casebook on professional responsibility.(9) And, most significantly, a good deal of detail adorns the account of Brandeis's heroics. In general, we have little information about the dilemmas lawyers face in their day-to-day encounters with clients and others, and the way in which they navigate those dilemmas.(10) But, largely because the 1916 hearings aired many episodes in Brandeis's lawyering career, we may learn about his lawyering methods from fact rather than myth.

In this Article, I take a different view of Brandeis as lawyer. Most writers treating the subject have celebrated Brandeis's fierce independence from the constraining hand of powerful clients and his humanity in encouraging clients to understand their own interests as well as those of their adversaries and of society at large. But I see the same phenomena in a more ambiguous light. There was a downside to Brandeis's independent and directive approach to lawyering--an unwillingness to submit to the discipline of engagement with others (in particular, clients) that the act of representation necessarily imposes. This unwillingness was especially salient where matters of "public" import were concerned, for Brandeis's overriding priority seems to have been the integrity of his self-presentation in the public sphere. As Robert A. Burt has suggested, autonomy was not simply a lawyering ethic but was native to Brandeis's character; in his related pursuits of public interest law and political reform, Brandeis adopted a rhetorical and behavioral strategy distinguished by resistance to close identification with any group, political party, cause, or client.(11) His approach brings to mind words like "freedom," "independence," "autonomy"; it suggests his profound antipathy to acting as a mere "representative" of an anterior "interest." As a lawyer, Brandeis had numerous virtues, and he did not literally abandon or coerce clients. But his independence at times diminished client voice in a way that I would hesitate to erect uncritically into a lawyering ideal.

The aspiration to autonomy can be highly principled, and in Brandeis it accompanied an unfailing wisdom and commitment that make criticism seem almost uncivil. At first blush it may appear that Brandeisian independence is precisely what we need in a political and legal world with a diminished sense of ethical agency and autonomy. But the question of how, indeed if, one is to act in concert with others in such a world complicates the choice of Brandeis as a model for lawyering. In any relational context--and the realms of politics and lawyer-client interaction obviously qualify as such--one person's "freedom" or "autonomy" can come at a sacrifice of the power that others are able to assert. Of course, there is no easy answer to the choice between aloneness and solidarity, a choice that lies at the heart of all questions of social relations. The demands of personal and political loyalty, on the one hand, and the aspiration to self-construction, on the other, can make it difficult to know where to draw the line between autonomy and engagement. But Brandeis drew it consistently and severely at the point where engagement threatened political self-definition, and this is a crucial part of his legacy as lawyer and reformer. In the end, I am more critical than previous scholars have been of the autonomy exemplified by the most celebrated episodes in Brandeis's lawyering career; I find its impulse to be too escapist, too hostile to the spirit of engagement that ought to inform one's actions within the lawyer-client relationship and in the public sphere more generally.

In isolating and exploring this trait of Brandeis as revealed in some well-known, but incompletely understood, episodes from his career in law and reform, I hope to add texture to the Brandeis image, which, notwithstanding some recent efforts to assess his life and career more critically,(12) remains heroic and two-dimensional. It is as if Brandeis's mode of autonomy in dealing with the world around him--that is, his political life--did not, like all meaningful choices, entail sacrifices and negations.(13) Brandeis's resolution of the claims made by autonomy and engagement is ultimately more edifying than the mesmerizing wisdom of his occasional speeches and comments, for we are interested in how to act, not simply in what to say or even what to believe.

Besides the light it sheds on Brandeis himself, my discussion of Brandeis's approach to lawyering in the public interest takes up more generally the ideals of lawyering and its paradigmatic function, representation. Valorization by other scholars of Brandeis's lawyerly "independence" or, in some cases, his "situational" approach to client representation has tended to assume that those ideals are themselves unproblematic. But Brandeis's manner of lawyering in the public interest suggests that neither engagement nor autonomy can serve as a comfortable resting place in our conception of the lawyer-client relationship, indeed of any relationship. What is most attractive about Brandeis is precisely what is most unsettling. I therefore hope that this Article will be of interest to students of lawyering and legal professionalism, particularly those who have been tempted to celebrate the Brandeisian traits I criticize here, as well as to those for whom Brandeis's life holds a special fascination.

Brandeis's profound sense of autonomy...