A golden age of civic involvement: the client centered disadvantage for lawyers acting as public officials.

• Author: Moliterno, James E.

TABLE OF CONTENTS INTRODUCTION I. WHY WE SAY THAT LAWYERS ARE AT A COMPARATIVE ADVANTAGE FOR BEING PUBLIC OFFICIALS II. THE LAWYER'S ROLE AND THE PUBLIC OFFICIAL'S ROLE A. The Lawyer's Role B. The Public Official's Role C. The Poor Fit III. EXAMPLES OF ROLE CONFLICT IN ACTION A. The Good Character Requirement B. The Educational Requirements C. Restrictions on Advertisement D. The Contingent Fee IV. WHAT IS TO BE DONE? CONCLUSION INTRODUCTION

We have been told for centuries that lawyers are better than others at being public officials, lawmakers in particular. And without doubt, lawyers possess some attributes that suit them to this work. But I will suggest in this Article that lawyers have one significant flaw for doing public official work: they are accustomed to representing clients' interests against the interests of all others, including the public interest. This Article addresses only one aspect of the lawyer's tradition of doing public service and proposes a recalibration of the value of lawyers serving as public officials.

This Article is exclusively about one popular form of the citizen lawyer: the lawyer in public life, government office, or leadership in a profession's organizations. (1) I am not discussing here other forms of the citizen lawyer: the lawyer who does pro bono work; (2) the lawyer who works for organizations that challenge injustice; (3) the lawyer generally, simply working in the dispute resolution or economic system who is doing a public good by that ordinary lawyer work is not my subject. Nor is my subject the lawyer who represents the government as a lawyer--such as a prosecutor, a Department of Justice lawyer, or a White House counsel. These lawyers are meant to be lawyers, representing a particular kind of client, the government. (4) My subject is the lawyer who is a lawmaker, administrator or improver: a legislator; an administrative agency official enforcing law; (5) a lawyer working on changes in the law through work with the ALI, the ABA, or a state bar committee.

Part I of this Article recounts, and does not substantially disagree with, the rationales traditionally given for lawyers having a comparative advantage in the skills and temperaments that make a good public official or lawmaker.

Part II compares the role of the lawyer with the role of public official, and points out one crucial comparative disadvantage for lawyers as public officials: lawyers are accustomed to representing client interests to the virtual exclusion of the interests of others or the public interest.

Part III uses the example of the turn of the twentieth century organized bar's pursuit of advertising sanctions against plaintiffs lawyers, its effort to raise educational standards for admission to keep immigrants out of the profession, and other acts of civic involvement, all of which were aimed in part at increasing the wealth and protecting the interests of the clients and former clients of the citizen lawyers. Much of this activity was undertaken by members of the bar who were also public officials in one sense or another. At a minimum, the makers of these rules were making the law governing lawyers and the attendant public policy choices. Some aspects of this civic involvement by lawyers may be nothing more than one might expect: lawyers doing lawyers' work in the interests of their clients, but unfortunately doing that work in part while engaged as a public servant or lawmaker. I will suggest that lawyers serving as public officials, especially making laws, may too often continue to act as lawyers act; they serve the interests of their clients while they are acting as public servants. (6)

I am not suggesting any evil motive or flaw of the heart. I simply mean that by training and experience, lawyers tend to favor client interests, with less than normal regard for the interests of others and the public. In this respect, the person we usually regard as a good and able lawyer is not a particularly good citizen. A citizen would put the interest of the public first, and personal interests second. (7) As a lawyer, client interests properly come first and are only overcome by the gravest of threats to the public interests or the interests of others. (8) This is as it is and should be. A client-favoring posture is in large measure the definition of the lawyer's role. Certainly we do not expect lawyers to do a simple balance between the interests of their clients and the interests of others, and serve whichever interest is the weightier or more meritorious or more worthy. But it is not the role of the public official to serve an interest over that of the general public. Public officials are meant to be specifically empowered, good citizens. When lawyer-public officials act like lawyers, they are not properly performing the public official role. This 'lawyer behavior" by public officials may make them less valuable than others when filling the roles of public life. Lawyers lead a client-centered life.

Why should I worry about this? Do lawyers who are in public service tend to favor the interests of their clients, former clients, and so on? Surely not always. But if there is some tendency toward that defect, then it is an aspect of the lawyer that is ill-suited to public service. And being aware of that tendency and its pernicious effects may aid in identifying and eliminating the phenomenon when it occurs. On balance we may in the end conclude that the advantages of lawyers in public life outweigh this disadvantage and that lawyers are well-suited to be public officials. But knowing of this disadvantage is worth something in any event. It should be guarded against with regulation of lawyers who are public officials.

In the end, I am simply saying that it may be harder for lawyers than nonlawyers to be good citizens. And a public official is first a citizen, one with special power. To be a good citizen, and a good public official, lawyers have a special burden: they must shed their training, experience, and inclination to represent the interests of a client despite the contrary interests of the public.

1. WHY WE SAY THAT LAWYERS ARE AT A COMPARATIVE ADVANTAGE FOR BEING PUBLIC OFFICIALS

   Some attributes of lawyers make them especially well-suited to serve as public officials. The lawyer is trained to see and analyze a problem from every angle and to consider every aspect, argument, and view. Lawyers know how the law works and how government works, and as such may be especially able in government office and lawmaking roles. (9) Many lawyers possess special forensic skills and can present positions clearly and effectively. Lawyers tend to appreciate the need and value of process. For all these reasons, one quite reasonably might suggest that lawyers have a special capacity for public life and leadership.

   The government and democracy is favourable to the political power of lawyers; for when the wealthy, the noble and the prince are excluded from the government, the lawyers take possession of it in their own right, as it were, since they are the only men of information and sagacity, beyond the sphere of the people who can be the object of popular choice. (10) Lawyers often and with good reason have been thought to be particularly suited for public life, and, in fact, lawyers make up a substantial portion of those in government offices and other public positions. Commentators and scholars have long and richly celebrated the citizen or statesman lawyer ideal and noted how legal training and practice can prepare individuals for public life. (11)

   An important argument for why lawyers are considered better at public life than the ordinary individual is that there exist many transferable skills between law and politics. (12) Whereas some scholars have noted that in certain circumstances, legal education fails political and public life, nonetheless, "many of the qualities and skills which lawyers acquire during their professional training and polish in their daily practice are the same qualities and skills which are essential for success in community and political activities." (13) Lawyers, unlike most other individuals, are trained to understand the government and how the law works. As a North Carolina judge explained in a speech given to a North Carolina bar association in 1925, "The lawyer who has studied government and the laws and constitutional principles ... to the practical operations of government has gained an equipment which fits him, beyond most of his fellow citizens, for public service." (14) Or as Elihu Root more famously explained, "The study and exposition of existing laws, of course, tends to qualify men to be makers of law, and to a less degree to administer the law." (15) Lawyers' specialized training in understanding how laws are applied gives them a knowledge base that can be put to great use in public life.

   Root, in his turn of the twentieth-century generation, was the quintessential citizen lawyer. He had created a successful law practice representing banks, railroads, and financiers. (16) He undertook government appointments to be Secretary of War, Secretary of State, and became a U.S. Senator. (17) He won the Nobel Prize in 1912, and moved back and forth between returning to his practice, government, and leadership roles in the ABA. (18) He spoke with great eloquence about the lawyer's duty and talent for engaging in public life. (19)

   Another set of skills that legal education and practice provides is the ability to speak, write, and debate well. In order to be a successful lawyer, students must learn to speak and write persuasively. In the nineteenth century for example, scholars noted that one of the most valuable attainments for a lawyer was eloquence, (20) a skill that easily benefits public life. (21) These skills "are of vital importance to the politician--in speaking, in writing and arguing, in organising. By virtue of his training and daily activities the lawyer becomes...