Lawyers as citizens.

• Author: Rhode, Deborah L.

If we judge by wealth and power, our times are the best of times; if the times have made us willing to judge by wealth and power, they are the worst of times.

Randall Jarrell (1)

The Preamble to the American Bar Association's Model Rules of Professional Conduct declares: "A lawyer as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibilities for the quality of justice." (2) In the absence of empirical evidence, it is at least a useful thought experiment to ask whether attorneys view themselves in those terms. What exactly are the "special responsibilities" of lawyers as "public citizens"? Does that question ever occur to a practicing attorney? Or even to the drafters of the bar's Multistate Professional Responsibility Exam? Are these phrases simply ceremonial folklore, embellishments reserved for celebratory speeches and academic symposia? If those questions seem rhetorical, perhaps they are the wrong questions, and far too dispiriting for occasions like this. The more useful inquiry might be: What responsibilities should lawyers assume for the quality of justice? And what would it take to get lawyers to take those responsibilities seriously?

This is not uncharted ground. The centrality of law and lawyers in American culture has inspired a vast literature on the civic obligations of the profession. Although this nation may not have the world's most developed sense of attorneys' public responsibilities, it undoubtedly has the most extensive commentary on the subject. If little of the discussion has had the intended effect, that is no reason to abandon the enterprise. It is, instead, an invitation to more searching and sustained inquiry. In his celebrated 1934 address on "The Public Influence of the Bar," U.S. Supreme Court Justice Harlan Stone noted that legal academics were the segment of the profession most "detached ... from those pressures of the new economic order which have so profoundly affected their practicing brethren." (3) With that position came opportunities for disinterested analysis of the "Bar as an institution, seeking to gain an informed understanding of its problems, to appraise the performance of its public functions and to find ways of stimulating a more adequate performance of them." (4) In that capacity, law professors could discharge their own responsibilities for public service.

In that spirit, this Essay assesses three fundamental obligations of the lawyer's civic role. The first involves developing and sustaining legal frameworks, including those that govern the profession's own behavior. The second grows out of lawyers' relationships with clients and entails some responsibility for the quality of justice that results from legal assistance. The third obligation involves access to justice, and the bar's responsibilities not only to engage in pro bono work, but also to support a system that makes legal services widely available to those who need them most.

I.

The foundations for the American bar's civic role are generally traced to the lawyer statesmen who helped shape American governance structures in the late eighteenth century and legal reforms during the early twentieth century. Alexander Hamilton, in The Federalist Papers, offered one of the earliest expressions of this idealized portrait: 'Will not the man of the learned profession, who will feel a neutrality to the rivalships between different branches of industry, be likely to provide an impartial arbiter between them ... conducive to the general interests of society?" (5)

Alexis de Tocqueville and Louis D. Brandeis similarly stressed lawyers' capacity to serve as "arbiters between the citizens," (6) and independent intermediaries "between the wealthy and the people, prepared to curb the excesses of either...." (7) According to Woodrow Wilson, "[p]ublic life was a lawyer's forum," with both opportunities and obligations to shape "matters of common concern." (8)

A related responsibility involves the bar as an intermediary between client and societal interests. As Brandeis famously argued, the issues that arise for lawyers guiding private affairs are often "questions of statesmanship." (9) To nineteenth-century legal ethics experts like George Sharswood, as well as twentieth-century sociologists like Talcott Parsons, the attorney served a crucial role in compliance counseling, and in providing a "kind of buffer between the illegitimate desires of his client and the social interest." (10)

A third aspect of the lawyer's civic role involves making legal services available to clients and causes pro bono publico. The tradition of offering unpaid representation, either voluntarily or by court order, has extended historical roots. (11) The American Bar Association's 1908 Canons of Professional Ethics exhorted lawyers not to decline representation for indigent criminal defendants for "trivial reason[s]," (12) and to give "special and kindly consideration" to requests for assistance from "brother lawyers." (13) Many bar leaders throughout the twentieth century gave generously of their time and talents to social causes and indigent clients. Before he assumed a seat on the Supreme Court, Louis Brandeis was celebrated for combining his profitable law practice with pro bono service. "Some men buy diamonds and rare works of art," Brandeis observed, but "[m]y luxury is to invest my surplus effort ... to the pleasure of taking up a problem and solving or helping to solve it for the people without receiving any compensation." (14)

II.

The extent to which lawyers' actual practices reflected these public responsibilities has been a matter of extended debate that need not be recounted at length here. There is, however, little doubt that on most dimensions, the profession's performance has fallen considerably short. For well over a century, the American bar has perceived itself in decline and its sense of professionalism in need of "rekindling." (15) Most of the early articulations of the lawyer's civic role occurred in critiques of its erosion. Brandeis in 1932 charged that...