Raise the Bar for Lawyers

A cop in West Palm Beach was caught on video beating the daylight out of a youth, who had already been shackled and was not resisting arrest. The cop's lawyer told CNN that the beating was completely lawful. Many a person without legal training may assume that there must be some law that justifies this claim. It seems just short of unbelievable that a lawyer will simply make up such a statement, without any foundation in law. Checking with a law professor, I was informed that while such a verbal tactic "may not be proper, but it can and is done." He added that he believes that O. J. Simpson walked, whether or not he was guilty, because his lawyers concocted a conspiracy theory that the Los Angeles Police Department was framing him because it is racially prejudiced.

Floyd Abrams, an eminent lawyer, wrote in The New York Times that in our current climate, we should not be surprised when lawyers state things that "have nothing to do with the truth" because we should know that they will say anything that might help their client. It's like sitting down to play poker; one should expect the other side to bluff.

But courts are not a game. Lives, liberty, and fortunes are at stake. Justice is not served by both sides playing the court for all they can. Can we find ways to maintain our adversarial system, but also expect lawyers to live up to their responsibilities as officers of the court?

In the quest to make lawyers a bit more ethical, I posed a hypothetical case (based on an actual one) to several legal authorities. Eight women charge that a physician sexually molested them while he had them connected to a wire that he claimed would endanger them if they moved. The defense argues that the women fabricated the whole thing, conspiring to extort money from the physician. No evidence of any kind was presented to support this claim. Assume, I suggested, that the lawyer made up the whole defense. Should this be allowed?

All those approached responded that lawyers' only obligations are to their clients. George Bushnell Jr., former president of the American Bar Association, put it starkly: "While your report of the sexual molestation defense on its face is irresponsible, I cannot agree that the rights of the defendant should in any way be changed or modified. Rather it is my judgment -- and conviction -- that only through full protection of defendants' rights is the total community best served." Alan Dershowitz, in his novel, The Advocate's Devil, put the following line into the mouth of his legal maven: "In this game, there's only one bottom line -- winning -- whether the client is black or white, innocent or guilty."

These responses are astonishing both because justice is too often denied in the existing system and because there are already several rules on the books -- in the law itself, and in the ethics of the profession -- that curb lawyers in the public interest. For example, if a lawyer knows that their client is about to commit perjury, the lawyer is supposed to stop the client or alert the court. (Many lawyers circumvent this role by warning their client not to tell them more than they need to know.)

As I see it, we need a law that would ban lawyers from engaging in such antics. Abrams believes we should ask lawyers to show less willingness to make certain arguments (for example, those that could not be true) and greater willingness to "view themselves as part of a system of law" rather than as alter egos of their clients. This is surely a sentiment that we should encourage, even as one recognizes that it needs additional specification before one can use it to hold people accountable.

Finally, judges may need to become a bit more active. During my recent service as a juror, the defense was in the hands of a legal aid attorney, who must have been on her first case. (I would not be surprised if she had barely scraped by on the bar exam.) On the other hand, the prosecutor was quite accomplished. The judge was in obvious pain, trying to find leeway for the defense, but was boxed in by the rules. Encouraging judges to ask questions would move us forward.

Best of all, every time the press reports what a lawyer says about his client, it should add "lawyers feel free to make things up, indeed to lie, if they believe it helps their clients."

Nobody questions the need to protect the rights of the defendant. But these rights do not include allowing those who are guilty to walk because they have as lawyers the best fiction writers money can buy. True, public interest in justice should not take precedence over the defendant's rights. But it should not be wantonly ignored either.

Amitai Etzioni is the author of The Spirit of Community and The New Golden Rule. He serves a University Professor at George Washington University, and is the founder and chairman of the Communitarian Network. Contact him at [e-mail]. www.securityfirst.com

Comments

[Dap]

Dear Professor Etzioni,

Just had to drop in to say, eloquently expressed indeed and clearly profound. Agape.

[MrWinky]

Our legal system is flawed, no doubt, but every "problem" you pick at would bring more problems if changed. What would become of our legal system if defense lawyers, rather than zealously defending their clients as they have sworn to do, begin to act as their own private judges and juries determining if their client is guilty or not? Suppose then they give a very sparse defense of their client b/c they determine he is guilty, and then it turns out they are wrong? With one person making the decision, the defendant would be subject to his own attorney's biases and prejudices.

Remember also that many times attorneys will put up a big front in a case not because they believe their client is completely innoccent, or that they will get them off, but rather to influence the plea offer that they will get from the DA. In your assessment of the police officer, there would be political pressure on the DA to make an example of the officer. The cop's attorney may have been working only to get a fair deal that any other person committing this crime would have gotten.

Finally, there is nothing worse than anecdotal evidence in determining the law. As the saying goes, bad cases make bad law. Most of the system operates fairly well, and in trying to address special cases, you could easily disrupt all that is right with the system.

[standard]

"I would not be surprised if she had barely scraped by on the bar exam."

That lays bare a profound, if widely held, misunderstanding of how lawyers are educated. Law schools teach legal theory. Full stop. Clinical internships and on-the-job training, plus advice from experienced lawyers and research, round out a lawyer's preparation for trial work or desk work.

Bar exams, a lucrative resource for those who run the related cram courses, are largely tests of vocabulary and short-term memory. They'd be completely unnecessary if marginal law schools refused to graduate their least-competent students. Otherwise, bar exams are pointless window dressing. (Wisconsin has an unusually well-run legal system, yet doesn't require graduates of its two respected law schools to sit for a bar exam if they complete certain courses. Many in the ABA hate that.)

What you likely observed was a lawyer with limited experience and highly limited resources. She passed a bar exam--or graduated from a Wisconsin law school--or wouldn't have been there. Her understanding of how our legal system works was informed by three years of notoriously intense and demanding study that non-lawyers sorely lack. As an academic, you may owe her a tad more respect.

[timm0]

You propose no practical solutions here.

Our system is based on the premise of innocent until proven guilty. Further, most people feel that it is a bigger tragedy to strip an innocent person of their rights than it is to expose the public to a person who has committed crimes that haven't been proved in court. I know there are people who disagree with that - at least so long as they nor their family members are one of the non-guilty parties jailed or executed.

Until someone can come up with a better construct, we'll all just sit around and complain about the current one.... because complaining solves all problems.

[alamacTHC]

As a former lawyer (and present legal assistant), I agree with this comment. The problem is easy to state--overzealous lawyers who distort the system by extra-judicial comments--but practically impossible to solve without infringing upon the rights of the accused and thereby increasing the likelihood of convicting the innocent. Better the present system continue than make worse a system that is already heavily tilted toward the prosecution.

One personal point: I lost my license after being convicted of growing medical cannabis. I find it ironic in the extreme that the law licenses of Mukasey, Gonzales et al. are under no threat at all, despite their having committed treason; but I am forced to work 60 hours/week for a small fraction of what my knowledge and experience would otherwise justify.

Much change is needed in law, but this article doesn't shed any real light.