Lawyer: A Life of Counsel and Controversy.

Author:Silver, Charles
Position:Review
 
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Lawyer: A Life of Counsel and Controversy. By Arthur L. Liman. New York: Public Affairs, 1998. Pp. 386. $30.00.

In the late twentieth century, everyone complained about the decline of the legal profession. Law professors told us that lawyers had lost their souls, their sense of craft, and their aspiration to be statesmen.(1) One academic traced the decline to law students who matriculated after the Vietnam War, claiming that, unlike members of earlier generations, they "were not especially keen to acquire specialized professional skills."(2) Others identified greed as the culprit.(3) Still others, joined by reflective judges and practitioners, blamed advertising,(4) contingent fees,(5) billing pressures,(6) critical legal studies,(7) the law-and-economics movement,(8) lateral mobility, competition,(9) "eat what you kill" compensation,(10) and the "sue first, ask questions later" mentality.(11) Even more troubling were complaints from economists who claimed that the exploding population of lawyers discouraged technological innovation and slowed economic growth.(12) By century's end, the conventional wisdom was that too many people were practicing law while too few were pursuing careers in science and engineering.

The popular media served up even worse complaints about attorneys. There, an assortment of paid political flacks,(13) ideological commentators,(14) candidates pandering for votes,(15) propagandists working out of think tanks,(16) and sundry extremists(17) churned out anti-lawyer diatribes in volume. They blamed lawyers for everything. The litigation explosion,(18) the frivolous lawsuit against McDonald's by the grandmother who spilled hot coffee in her lap,(19) rising insurance premiums,(20) reduced access to an array of products and services,(21) moral decay leading to the massacre at Columbine High School(22)--these and a vast array of other problems were said to be lawyers' fault.(23)

In this super-heated atmosphere, Arthur Liman's memoir,(24) which was polished and published after his death, arrived like a cooling breeze. Liman was fiercely proud to be an attorney, and he found the practice of law moral, worthwhile, and fulfilling. His enthusiasm spanned an incredibly broad range of experiences. Liman tried big civil cases, including New York City's lawsuit against Grumman over defective subway cars.(25) He settled big lawsuits, too, once devising a workout that helped keep American Express from going belly up.(26) He testified as a witness in Pennzoil v. Texaco, until recently the largest civil suit of all time.(27) Liman handled criminal matters too, on both sides of the "v." Early on, he spent three years pioneering securities-fraud cases under Robert Morgenthau.(28) Later, he defended Michael Milken against fraud charges and was heartbroken when Milken, whom Liman regarded as a man of integrity and a financial genius, went to jail.(29)

Liman had a corporate practice that any lawyer would envy. He helped leading executives and their companies--including Samuel Heyman of GAF Corp.,(30) Steve Ross of Time-Warner,(31) Charles Bluhdorn of Gulf & Western,(32) and William Paley of CBS(33)--make acquisitions, fight takeovers, deal with regulators, resolve crises, and handle delicate matters of corporate succession. He took pride in his business judgment, but he declined many opportunities to move in-house. Not cut out to be a manager, Liman was a "big trouble" lawyer(34) who needed and treasured the independence that came with being a partner in an elite law firm. Among lawyers, he also felt at home. His memoir often places him with the partners and associates at Paul, Weiss, Rifkind, Wharton & Garrison, whom he learned from, cared for, and admired.(35) The mind's eye sees him at the firm that was a fixture in his life, studying his seniors, tutoring his juniors, and arguing happily with everyone over lunch.

Senator Joseph McCarthy's ruthless campaign against communists cemented Liman's interest in law and, oddly enough, his faith in lawyers as well.(36) While a student at Harvard, Liman watched McCarthy and his lawyer sidekick, Roy Cohn, threaten and abuse the timid academics whom McCarthy derisively labeled "Fifth Amendment communists."(37) The demagoguery, lawlessness, and amorality of McCarthy and Cohn appalled Liman.(38) So did the timidity of the witnesses' attorneys. Liman thought they should have protected their clients much more aggressively.(39) He was greatly pleased when Joseph L. Welch, the Army's lawyer, turned the tide against McCarthy and helped end the witch hunt.(40)

The McCarthy hearings taught Liman that lawyers representing individuals must stand with them through thick and thin, and also that government lawyers must temper their zeal with a strong dose of liberal morality. These lessons served Liman well throughout his professional life, but they failed him when he was chief counsel for the Senate investigation into the Iran-Contra affair.(41) Wanting to distinguish himself from the amoral Cohn, Liman bent over backwards to be fair to witnesses and wound up being outfoxed.(42) His strong belief in the rule of law prevented him from seeing that law and politics converge at the top. Nor did he realize that unless he played the politics correctly, other messages would overwhelm his. When Liman had to be Machiavellian, his conscience got the better of him. In the public's mind, the hero of the day was Lt. Col. Oliver North, not Liman, and the message was patriotism, not the importance of the rule of law. Liman owns up to the failure quite honestly, stating that he "share[d] responsibility for making [North] into a national hero."(43)

Liman candidly expresses the disappointment and frustration that he experienced during the Iran-Contra investigation. He also reflects on his successes and his conduct more generally. These reflections are worth considering. Liman the lawyer handled an amazing variety of engagements, and he found everything interesting and worthwhile, except filling out time sheets. He claims to have regarded public service as his highest calling,(44) but his enthusiasm for making deals, interacting with regulators, defending accused criminals, and litigating civil claims was equally strong. Liman also had tremendous admiration for lawyers. He had harsh words for Cohn and others who lacked a moral compass, but in his memoir the good lawyers--the Simon Rifkinds and the Robert Morgenthaus--greatly outnumber the bad.

Liman's pride in his own accomplishments and his admiration for other attorneys are noteworthy. At the end of the twentieth century, when lawyers were said to be less popular than ever and the profession was thought to be in crisis, an intelligent and morally sensitive man delivered the message that his career was fulfilling and that other lawyers' efforts were worthy of praise. We share these views. We are proud to be lawyers, and we believe that lawyers do an extraordinary amount of good.

Law professors have a special obligation to be clear on these points. Our professional lives consist largely and importantly of preparing young people to practice law. Are we sending them into the world to do harm? Do only a fraction of our students--for example, those who litigate on behalf of poor people or undocumented immigrants or minorities or inmates on death row--lead moral and fulfilling lives? Few lawyers do these things. Most work in the private sector structuring transactions, crafting estate plans, taking companies public, helping businesses comply with regulations, arranging financing, collecting debts, working out bankruptcies, settling civil claims, perfecting security interests, handling divorces, lobbying public officials, reviewing insurance agreements, defending condemnation actions, and doing thousands of other things.(45) Do these lawyers also make important contributions? If not, why do we prepare students to perform these jobs?

Liman's memoir provides an ideal opportunity to reflect upon the morality of lawyering. Liman was proud of his career. He believed that, across a diverse range of public, private, and pro bono engagements, he consistently served clients well. He also felt that he made the world better by doing so. Was he right or merely deluded?

In this Review Essay, we explain why we believe that lawyers make exceptionally valuable contributions to economy and society. In Part I, we examine the morality of lawyering in the private sector, where most lawyers work. Our thesis is that lawyers who help paying clients with private matters make valuable microeconomic contributions by helping create and maintain the world of commerce and valuable micropolitical contributions by maintaining a culture in which people actively create and use legal rights. In Part II, we tackle certain anti-lawyer assertions made by the political Right, including the claim that the United States has too many lawyers. These assertions have no basis in theory or fact. We then defend the profession from the less vicious attack mounted by the political Left, whose members criticize lawyers for doing too little pro bono work for the poor and for performing too little public service. Part III examines the morality of pro bono legal work. Part IV focuses on public-sector work. The argument of both Parts is that all forms of legal work are good for the same reasons. Two consequences of this view are that there is no reason to elevate pro bono legal work above other forms of charity and that public-sector legal work done for free or at submarket rates poses an unappreciated threat to democracy. We expect these conclusions to be controversial.

  1. THE MORALITY OF PRIVATE-SECTOR LEGAL WORK

    Lawyers and law professors often denigrate the contributions that lawyers make by representing paying clients in the private sector.(46) Some describe private engagements as amoral. The following passage by Dean Anthony Kronman is typical:

    [U]nless the practice of law is tempered by...

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