SC Lawyer, Sept. 2004, #6. From lions to wolves.

• Author: By John Freeman

South Carolina Lawyer

2004.

SC Lawyer, Sept. 2004, #6.

From lions to wolves

South Carolina LawyerSeptember 2004From lions to wolvesBy John FreemanSouth Carolina Bar member Bob Bachman is one of the finest lawyers and most selfless individuals I've ever met. A professional in the truest sense of the word, Bob uses his impressive advocacy skills in his law practice at the McNair Firm, but does not put them on the shelf after hours. Rather, year after year, semester after semester, Bob tirelessly treks to the University of South Carolina School of Law to teach our appellate advocacy students and Moot Court team members how to brief and argue cases. This is what Bob does expertly and, by the time he finishes teaching them, so do his students. Bob's students adore him, and our faculty members familiar with his work look up to him as both a lawyer's lawyer and as a master teacher. Bob Bachman represents exactly the kind of attorney we want our students to become.

Because of my high esteem for Bob, I was delighted to receive from him for my review an article dealing with professionalism trends: Jed S. Rakoff, Is the Ethical Lawyer an Endangered Species, Litigation, Spring 2004, at 3. Bob sent it with the thought that I might find "something of interest" in the piece. I did, and want to discuss the article further here.

First, a word about the article's author, Jed Rakoff. He is an experienced lawyer and jurist. He formerly prosecuted white collar crimes in the U.S. Attorney's Office for the Southern District of New York and currently serves as a U.S. district court judge in the Southern District of New York. Besides being one of our leading trial judges, Judge Rakoff was familiar to me because reprints of his commentaries on criminal law are quoted in the texts I use in my teaching. Judge Rakoff's ethics article studies the evolution of law practice over the last few decades. I will summarize the key points for your consideration.

Judge Rakoff's central theme is that there has been a failure of leadership within the profession. He specifically laments the perceived disappearance at law firms of the senior partner who functioned as "the lawyer-statesman" (we might now say statesperson). This leader, in Rakoff's eyes, "was always careful to take some account of the public good" when advising clients. When the client sought to evade "the intended public purpose of a law, the lawyer-statesman was high minded enough not to lend his services [to that task] - though he still was sometimes skillful enough to suggest alternatives that might still achieve some of the benefits the client desired." Rakoff wonders whether these "lions of the bar" have not been "replaced by wolves," in the form of "rainmakers, known for their savvy and commercial success rather than their public spirit."

Financial pressure is seen by Judge Rakoff as a relentless, corrupting influence. He wonders, "what is the result when you turn the provision of legal services into purely a business, removing the institutional incentives for the lawyer to say no to a client, or to exercise independent judgment, or to counsel adherence not just to the letter but also to the spirit and purpose of a law? The result is a decline . . . in ethical constraints, with lawyers feeling pressures both to cheat on behalf of clients and to cheat the clients themselves."

The financial "pressures on lawyers toward doubtful behavior" have led to what Judge Rakoff views as the continuing "de-professionalization of lawyers." He finds many manifestations of this slide: overbilling clients; "elaborate attempts to hide the truth from an adversary and, ultimately, from the judge and jury;" a breakdown in civility manifested by "so-called hardball or Rambo discovery tactics, pitting overbearing intimidation against petulant obstruction and, in general, making the life of a litigator singularly unpleasant;" approving improper client schemes "if there appears any technical ground on which [the lawyer] might do so, however far-fetched;" blessing client misconduct with "'clever' (if shaky) opinions;" and publication of legal ads that hold out to clients the prospect (or mirage) of "instant success," instead of the simple commitment to supply conscientious, "independent judgment as to what the law permits or requires."

The decline in civility, in particular, is excoriated. Judge Rakoff sees it as a consequence of financial strain within the profession: "Where the pressures to win become enormous, civility is the first standard to go." Too often, in Judge Rakoff's view, "smoking gun" evidence for the other side is hidden by "outright fraud," or by "strained but ingenious interpretations of the other side's discovery demands, so as to conveniently exclude production of harmful evidence." Our law schools, too, come in for attack. Rather than teaching high standards of professionalism, Judge Rakoff suggests American law schools furnish "expensive training in nit-picking."

To counter "the transformation of law into a nasty business," Judge Rakoff calls particularly on "older lawyers," those who have "grown up in a different world of lawyering" to stand up and speak up in our professional organizations, sharing their "energy, wisdom, and zeal" and supplying "a significant counterweight to the economic pressures that too greatly influence other lawyers." Judge Rakoff considers a rejuvenation of lawyers' professional aspirations "vital to lawyers' own happiness, for that is why they became lawyers in the first place."

The need to strive for self-improvement is crucial. As Judge Rakoff warns in closing: "a society that does not yearn for justice is a society into which injustice will increasingly creep." In his practice and in the law school classroom, Bob Bachman exudes exactly the kind of professionalism Judge Rakoff lauded. More of us need to heed Judge Rakoff's call and step up like Bob to use our talent to improve the quality of law practice life in this state.

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