The citizen lawyer - a brief informal history of a myth with some basis in reality.

AuthorGordon, Robert W.

The term "citizen lawyer" seems to be shorthand for a complex assortment of social types, but the core meaning is plain enough. The citizen lawyer is a lawyer who acts in a significant part of his or her professional life with some plausible vision of the public good and the general welfare in mind. Of course, citizen lawyers, like most lawyers, may seek wealth, power, fame, and reputation for themselves. They may also represent and further the ends of clients with distinctly selfish or antisocial interests. What makes them citizen lawyers, then, is that they also devote time and effort to public ends and values: the service of the Republic, their communities, the ideal of the rule of law, and reforms to enhance the law's efficiency, fairness, and accessibility. (1)

So general and bland a definition would, I expect, command agreement from most lawyers. But it covers up deep divisions among the views that lawyers have traditionally held on the proper scope of their public or civic obligations.

American lawyers' starting point for conventional reasoning about these roles, more or less a constant throughout its history, is like that of professions of advocates elsewhere: that lawyers effectively produce the public goods of justice and the rule of law by just doing their regular day jobs, zealously serving their clients. (2) The paradigmatic public benefit of private practice is illustrated by criminal defense, the defense of individual clients' rights of liberty and property against the dangers of an overbearing state. (3) In civil litigation as well, by vigorously asserting some clients' claims and defending others against such claims, the lawyer plays a vital, differentiated part in a process, the adversary system, whose overall end is the vindication of rights and the defeat of unjust claims. (4) In the words of the official comments to the ABA's current ethics code, "[C]lients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld." (5) Like the invisible hand of the market, which aggregates selfish interests into a virtuous equilibrium, the procedures of the legal system bring clients' private interests into harmony with public goals and values. (6)

But only the most starry-eyed idealist could take seriously this account of a perfect convergence between private practice and public benefits. Legal systems are subject to systemic failure even more than markets. Legal resources--access to and ability to pay legal talent (lawyers)--are distributed very unequally, so that instead of delivering equal justice, they are put largely to the service of wealth and tend to magnify inequalities of power. (7) Law can be an instrument of extortion and oppression. (8) Lawyers can and do help plaintiffs to pursue frivolous and unjust claims to extort settlements, (9) and they help defendants resist valid and just claims through delay and discovery abuse. (10) Lawyers can and do lobby for bad laws and rulings that promote special interests over any plausible view of the general welfare, and by means of procedural tactics or strained interpretations effectively resist and even nullify good laws. (11)

Yet lawyers are also the principal instrumentalities for producing the public goods sought from the effective operation of the legal system--the protection of individual rights, equal justice between persons, security and public order, and the implementation of policies designed to promote the common welfare. (12) The law is the originating cause, the raison d'etre, of the lawyer's calling, the reason for licensing this special corps of social agents. If the activities of lawyers undermine the public benefits of law, should not lawyers themselves have special obligations--deriving from their situation and opportunities, their expert knowledge, and their monopoly of the privilege to practice--to help impove the law and its day-to-day administration? These are the obligations of the lawyer as citizen.

In our legal culture, the big arguments within the profession have been over whether performance of the citizen lawyer's role is distinct from, or an integral part of, the regular lawyer's job. To summarize the major arguments:

(1) One view is that public lawyering is strictly the task of separate and distinct corps of public lawyers--judges, government lawyers, and public interest lawyers--and that ordinary private lawyers can safely leave to such officials and NGOs the job of repairing and improving the framework of laws. (13)

(2) A second view is that all members of the profession, including private practitioners, have obligations to perform public functions. (14) Some lawyers think that (a) these public tasks or duties are to be performed in venues separate from regular practice, on leave from practice, or in after-hours pro bono practice or bar activity or reform politics. (15) Others maintain, however, that (b) at least some of the profession's public obligations should be incorporated into the regular functions of private practice. (16)

So basically, the first view says, "If the law as implemented through our advice and efforts happens to result in major injustices, that's someone else's problem to fix." The second view says, either (a) "It's a special responsibility of our profession, but one we should work to discharge in settings outside our day jobs"; or (b) "Some public obligations come along with the day job."

This second view in both its variants expresses the ideal of the citizen lawyer--sometimes also called the "civic-republican" or "public interest" conception of law practice. (17) For reasons I will try to explain, this ideal has lately fallen out of favor with the modern profession, or at least with its elite practitioners. Most support for the citizen lawyer ideal comes, if anywhere, from government lawyers, public interest lawyers, academic lawyers, judges, bar leaders, and retired lawyers, often accompanied by laments at its disappearance or marginality in the rhetoric and practice of the bar. Let me take a moment to spell out some of the implications of the citizen lawyer ideal for the day-to-day conduct of legal practice.

In advising clients contemplating litigation, the citizen lawyer takes into account the merits or justice of the claim. She seeks to dissuade plaintiffs from pursuing plainly meritless claims, and encourages defendants towards fair settlements and away from invalid defenses of just claims. The purely private-minded lawyer, by contrast, asks only whether--justly or not--a client is likely to obtain, or forestall, a settlement or outcome worth the costs of suit; his aim is simply to maximize his client's damages or minimize his client's liability.

When involved in litigation, the citizen lawyer regards herself as an "officer of the court," that is, a trustee for the integrity and fair operation of the basic procedures of the adversary system, the rules of the game, and their underlying purposes. (18) She fights aggressively for her client, but in ways respectful of the fair and effective operation of this framework. (19) In discovery, she frames requests intended to elicit useful information rather than to harass and inflict costs, and responds to reasonable requests rather than obstructing or delaying. She claims privilege or work product protection only when she thinks a fair-minded judge would be likely to independently support the claim. In deciding how ferociously to attack the credibility of a witness on cross-examination, she tries to assess and take into account the likely truthfulness of the witness and the underlying merits of the case. The intensely private-minded lawyer, by contrast, only seeks to win for his client, regardless of collateral damage to adversaries, third parties, and the effective operation of the judicial framework; he exploits every possible weakness of negligent, incompetent, or underfunded adversaries and inattentive judges or magistrates; he stretches the rules to the utmost allowable extent. (20)

In advising clients outside litigation, the citizen lawyer is the "wise counselor," who sees her job as guiding the client to comply with the underlying spirit or purpose as well as the letter of laws and regulations to desist from unlawful conduct, (21) and if needed, to do so with strong advice backed by the threat of withdrawal, and in extreme cases, of disclosure. (22) If the client needs her help to resist or change unfavorable law, she makes the challenge public and transparent, to facilitate its authoritative resolution. Her private-minded counterpart is of course the hired gun, whose sole concern is with minimizing adverse effects of law on his client's plans and profits. (23) The neutral version of the lawyer-agent simply identifies legal constraints and advises clients on risks of detection and costs of noncompliance. (24) The aggressive or hardball lawyer-agent enthusiastically undertakes to bend; stretch; punch loopholes in; and nullify by obstruction, concealment, and delay the legal and regulatory constraints in the path of a client's desires and interests. (25)

Citizen lawyers acknowledge that the system of adversary representation that creates and justifies their roles as zealous advocates cannot pretend to function fairly unless everyone who needs a lawyer (or an equivalent means of access to the legal system) can get one. (26) In this view, legal services are themselves public goods and the legal profession is a public utility charged with supplying these services to poor and unpopular clients--through mandatory pro bono services or support of legal services programs. (27) Private-minded lawyers reject this conception of the profession's obligations. (28) In their view, any client who can find a lawyer willing to represent him and can pay for that...

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