Irwin Foster, a short man with a balding Afro and heavy-framed glasses, can be found almost every day in the D.C. Superior Courthouse. He's a 34-year-old lawyer who makes a living representing poor people through the Criminal Justice Act, which requires court-appointed lawyers for indigents accused of crimes. In fact, he is a leading spokesman for the Superior Court Trial Lawyers Association.
Add all that to the fact that his legal speciality is handling cases involving people with impared hearing, and Foster has all the makings of a man who would be expected to go the mat on behalf of public servive projects.
But Foster didn't bother to attend a hearing last week at which members of the legal establishment urged the D.C. Court of Appeals to overturn a recent D.C. bar membership referendum that would prohibit the bar from using mandatory dues money or a broad range of public service law projects.
Upstairs, Covington & Burling partner John W. Douglas was arguing that the law is a "privileged profession, not a trade," and that lawyers have an obligation to carry on activities such as a lawyer referral service for the poor, continuing legal education projects and bar publications.
While Douglas was making his case, Foster was five floors below in the lobby of the court building feeling little guilt.
"it's alright for the updown set, with their $150,000-a-year incomes to talk about helping the poor," Foster said. "But when the mud starts flying, they all duck. I'm serving the poor all the time."
Foster, whose practice -- and income, for that matter -- could not be more different than that of Douglas, was on the side of the majority of lawyers who voted 6,700 to 5,200 for the referendum Douglas was asking the court to overturn.
Foster says he believes lawyers should contribute to the common good, but objects to mandatory dues -- taxes really, he says -- to enforce that obligation. He resents the idea of establishment lawyers on the bar's board of governors telling him he must contribute.
Foster says he's the one down in the trenches, the one who actually has to deal with the criminals and the poor. For him, it's a living, not a luxury or an afterthought.For Foster, the lawyering for the poor is a trade, a "business just like any other," like dentists, plumbers, carpenters or accountants.
Everyone should contribute to the common good as a general rule, and lawyers are just like everyone else in that regard. "But I'll define my own obligation," he says.
The fight over the referendum has bitterly divided the Unified Bar, the organization created by the court to which all lawyers who practice in Washington must belong.
Virtually everyone agrees that the bar leadership has not paid enough attention to the apparent wishes of the rank-and-file. Even the present leadership concedes that much. But, as Douglas pointed out in his testimony, the referendum is a "meat axe" approach that threatens the existence of the mandatory bar, as opposed to a "scalpel" to correct specific internal problems.
Supporters of the referendum, including incoming bar president James Bierbower, deny that, contending that the bar can still maintain publi-service projects through voluntary contributions.
Opponents of the referendum, such as John R. Risher Jr., a partner in the uptown firm Arent, Fox, Kintner, Plotkin & Kahn, argue that, if the referendum isn't overturned, "you just won't get the same level of services."
The referendum, they argue, is a retreat to the old days when bar membership was voluntary and public service projects far less extensive. Voluntary contributions obviously mean less money for public services for the simple reason that many lawyers won't contribute.
Both sides in the dispute, several more detached lawyers say, have been guilty of bad faith, turf protection, self-aggrandizement, hypocrisy, sophistry and a number of other sins.
Many lawyers say they supported the referndum as a way to put what they felt was an elitist, establishment-dominated board in its place. But that is not the issue that is before the Court of appeals.
The central question in this dispute, an important question sometimes lost in the internal political wrangling, is one that affects not only the profession but also the pubic at large.
That question is the bar's responsibility to the public and to the court that created it and ordered it to work "to the end that the public responsibility of the legal profession may be more effectively discharged."
When all is said and done, the Court of Appeals will first have to address the board philosophical question posed by John Douglas and Irwin Foster. It will have to decide whether lawyering is a privileged profession or a trade.
It will do that, implicitly, when it decides whether it can compel lawyers, as a condition of their ability to practice, to put up hard cash for all those lofty goals in the various codes of ethics and professional responsiblities.