Some thoughts about citizen lawyers.

• Author: Friedman, Lawrence M.

In his letter inviting people to this conference on the "citizen lawyer," Professor James E. Moliterno stated frankly that this term, "citizen lawyer," had no fixed meaning. The phrase could refer, he said, to the lawyer in public service. (1) It could refer to private lawyers who work in the public interest (not an easy term to define). (2) Or, in the "broadest view," one might say that "all lawyers are citizen lawyers" since they have a "critical role in the justice system or the economic life of the country."

It seems clear that, under the first two views, most lawyers, past and present, have not been citizen lawyers at all. Whether there are fewer "citizen lawyers" now than before is hard to say, because of difficult or impossible problems of measurement. Personally, I doubt that there has been any serious falling off. Clearly, lawyers who work for the government have always been a small minority. There are more of them today than ever before, for an obvious reason: government is bigger than it ever was. (3) Whether all lawyers who work for the government are "citizen lawyers" is another question. It is hard to say why a lawyer who handles tort claims against the government is in any way performing a nobler task than the lawyer who handles tort claims against a pharmaceutical company.

"Public interest lawyers" in the sense that the term is used today hardly existed before the twentieth century. Of course, there were lawyers who volunteered to help out the poor and the downtrodden. How many of this sort ever flourished is not something we have the figures to document. In any event, the vast majority of lawyers, now and then, have always been, frankly, out to make a buck. In a free enterprise system, this is nothing shameful.

In the third, or broadest sense, I think the situation is more complex, and the questions about citizen lawyers harder to answer. It is pretty clear that the legal profession does have a critical role in the justice system and in the economic life of the country. There are a number of ways in which this is true. Some of them are very obvious. Only lawyers have the right to represent clients in court. Without lawyers, the "justice system" as we know it would not exist. People accused of a crime, or who find themselves on either end of a personal injury claim, could hardly get a fair shake without the help of a lawyer. And the masses of business lawyers must make some impact on "economic life." Indeed, for many businesses, lawyers are quite indispensable; the company could hardly run without them. But other lawyer roles in society are somewhat less obvious. (4) In this brief Article, I want to say a few words about these less obvious roles.

Throughout this Article, I deliberately use the term "legal profession" rather than "all lawyers." What is important is the role of the legal profession as a whole, (5) especially considering that there are always exceptions to any general statement. Some individual lawyers have played a negative role--in the economy, in the system of justice, in society in general. It would be pointless to deny this. Some lawyers have been out-and-out scoundrels, cheats, or thieves; others have even been the occasional murderer-lawyer. A fairly large number, in the past and in the present, have been simply incompetent. And plenty of lawyers have been so grasping and greedy, so intent on where the next dollar is coming from, that it would be absurd to classify them as "citizen lawyers," no matter how one stretched the term.

The really bad lawyers are (I hope) exceptions. Not that lawyers as a class have any special virtues as human beings--almost all occupations are useful to society in one way or another, including accountants, maintenance people, saxophone players, and hairdressers. The people who do these things have no special gift of goodness; they are just people, like everybody else. Their virtue, such as it is, derives from the fact that they do quite useful things.

Lawyers, like people in other occupations, dearly love to pat themselves on the back. I remember a speech a prominent lawyer gave to an entering law class many years ago. He told the group of eager young people that justice and the public good, not money, were the main goals of law practice. I doubt whether anybody believed him. Or whether he believed it himself.

The general public certainly has no illusions about the profession. Indeed, quite the contrary: according to survey data, people have a very low opinion of lawyers. A December 2006 Gallup poll asked people to rate the "honesty and ethical standards" of different occupations. (6) Eighty-four percent of the respondents rated nurses "high or very high," and dentists received 62 percent. Lawyers, by contrast, received a dismal 18 percent. (7) In a Harris poll that asked whether various types of people could be trusted to "tell the truth," lawyers did even worse; at 27 percent, they were at the very bottom of the list, outranking only actors at 26 percent. (8)

I might cite here, too, Marc Galanter's wonderful and careful study of lawyer jokes. (9) Hundreds and hundreds of jokes about lawyers have circulated both now and in the past. They are overwhelmingly negative; the best that can be said is that some jokes show lawyers as charming and clever schemers. (10) In most jokes, lawyers are depicted as rapacious, dishonest, and even as creatures of the devil. (11) In the 1997 Al Pacino film The Devil's Advocate, the devil was a lawyer. In addition, there is currently a powerful, and rather successful, "tort reform" movement that treats lawyers as arch-villains; their foul work is wrecking the economy, bankrupting whole cities, and driving gynecologists out of business. Many people are convinced that trial lawyers foster a culture that permits greedy people to bring crazy lawsuits while the rest of us lose out. The political point of this campaign is quite obvious: to blunt the force of twentieth century tort law and shield businesses from the impact of lawsuits. (12) But its success suggests that it taps into widespread norms and ideas.

Moreover, Galanter studied jokes about American lawyers. Are there jokes about Russian lawyers, or about Bolivian lawyers? Apparently not, or at least not many. Daumier's caricatures of French lawyers and judges are well-known, and quite scathing. But in general, the sheer volume of jokes about lawyers in the United States seems to be unusual, even unique.

Why lawyers have such low esteem is not an easy question to answer. In an oblique way, of course, the jokes testify to the importance of lawyers. In public life, lawyers seem to be everywhere at once. And their work is incredibly salient. Not a day goes by without news, on TV and in the press, about lawyers, judges, lawsuits, trials, and related matters. One would have to be completely tone-deaf not to hear the constant voices of law and lawyers all over the airwaves, and completely blind not to see lawyers everywhere on television and in the movies. Cop shows and crime shows seem to dominate prime-time television. On daytime television, a positive epidemic of programs presents imitation judges deciding cases in front of a studio audience and a home audience of millions. (13)

This is also a country that has an enormous number of lawyers: over a million at the moment and rising rapidly, like floodwaters after a vicious storm. We are to lawyers what Saudi Arabia is to oil. The American legal profession, however, has been big and getting bigger for quite some time. During the colonial period, to be sure, there were rather small numbers of lawyers. (14) But after independence, the profession began to grow very rapidly. In Massachusetts, for example, there were only about fifteen lawyers in the middle of the...