The public and the press love to harpoon lawyers, and many lawyers provide them with good reason for doing so. But sometimes the criticism makes this lawyer a little cynical.
I have in mind two issues that have gotten some attention recently:
The first concerns the traditional rule that lawyers cannot turn in their clients for confessing to a past crime. Historically the rule has been that what a client tells his lawyer he did, like what a penitent tells the clergy or a patient tells a doctor, must remain con- fidential. The idea is that citizens must feel free to tell all in some situations. This is inoffensive to me, and, I gather, to the public, too.
But the bar has agonized over nuances of the rule during the last several years, and conducted an overall study of the subject. The study was thorough, thoughtful and only occasionally covered by the same press that was to salivate over the headlines at the end of the debate.
In the end, the rule of silence was maintained. This means that lawyers must continue to withhold information about past crimes confessed to by their clients. But a change was made regarding what lawyers can do about reporting their clients' prospective crimes. Reformers had urged that the traditional rule permitting disclosure of all prospective crimes be changed from the prevailing may disclose rule to a must disclose rule. Instead, the ABA voted to continue to permit (not require) disclosure for crimes of violence but to forbid disclosure of prospective economic crimes.
The second issue was discussed in an April 10 Outlook article ("A Lawyers' Fee for All: $610 an Hour?") about plaintiff lawyers who bring class suits on the contingency that they get paid only if they win. This practice began because the public doesn't get representation in such cases if it has to pay for it up front. But when the case is over, and the lawyers win it--and the clients have had their services and their victory--here comes the press, accompanied by a segment of the bar, to deplore the lawyers' gamey practice of fighting for fees for work performed years ago. How grabby we lawyers look asking publicly for our pay for work performed. And at such high rates.
But while the public is understandably offended at the unconscionably high rates these lawyers charge, little is said about the higher charges businessmen and women levy for their services pushing inferior or unsafe products; less still about the high-class corporate lawyers who defend these cases for huge fees. The public pays for these people's salaries, which add to inflation.
In fact, the Outlook article quotes one candid, knowledgeable lawyer who noted that the establishment bar never takes these second-class, class action cases because it is too busy defending them, at its high, regular, hourly rates.
In other words, these fancy fellows can afford their pseudo- ethics because they make more money defending such lawsuits, often unsuccessfully, than their "money grubbing" colleagues under question. God help the deserving client who cannot pay the fees demanded by these classy, ethical mouthpieces; he won't get in the door.
And this same hypocrisy applies to the confidentiality question. For the establishment bar also deplores those chintzy lawyers who hide their clients' crimes behind the dark cloak of their profession. It embarrasses us all when they do so.
But--and here these folks show their real stripes--don't apply the rule to commercial cases, just to crimes involving those other people and their lawyers. In other words, lawyers are associated with, and judged with their clients, all the mumbo-jumbo about professional responsibility notwithstanding.
We judge harshly those lawyers who defend and bilk "criminal" criminals (murderers and robbers) and complaining consumers (those who sue companies and utilities, for example), but say not a word about the lawyers who represent businessmen and women (defrauders and polluters and bribers and the like). These lawyers can both charge what they like and use the rules of confidentiality to hide their clients' wrongdoings.
Why not tell how outrageous lawyer fees keep most of the public from having a chance for legal services and a fair shot at justice; about the clean-cut corruption at the top of the profession--corruption that goes on in the private clubs and board rooms and government offices.
Tell this side, and then I'll be glad to listen to condemnations of the courthouse touts. As one rambunctious friend of mine says, if the law has any standards at all, it has the double standard. Most press coverage of lawyers reinforces that standard.