The Redemption of the Legal Profession
Address by L. P. Hornthal, Jr.
As Incoming President of the N.C. Bar Association
Saturday Evening, June 22, 1996
I want to talk to you about the redemption of our profession.
What I have
to say has been forming in my mind over the past year, as I have
traveled about
this state and country; as I have read books and articles by some
of our most
profound thinkers and leaders, as I have read and heard speeches by
many lawyers
and judges, including great speeches by Chief Justice Mitchell and
former Chief
Justice Exum. But mostly, I have been listening to lawyers from
all over the
State, many of whom with choked emotion and sometimes tears in
their eyes have
shared with me their thoughts about the plight of our great
profession in these
latter days of the 20th Century.
It is as if all that I have read and all that I have heard
comes together in one
voice: on one hand, anguish at where we find ourselves: vilified
by a public
which mocks us with cruel jokes that sometimes sting all the more
because they
are too close to the mark; a public which accuses us of putting
greed and self
interest ahead of the interests of our clients; brothers and
sisters who are leaving
our profession in droves because they find their work unrewarding
and even
demeaning; in 1990, nearly 12% of N.C. lawyers responding to a
survey said
they thought about suicide once or twice a month. The anguish, I
think, comes
from the appreciation that this sad state of affairs developed on
our watch.
On the other hand, it is a unified voice of commitment,
insisting that we join
together in recognizing and restoring the moral imperatives which
are central to
the high privileges and responsibilities of our profession. And
so, my brothers
and my sisters, let me sing to you refrains which did not originate
with me, but
with you, and others like you among the very best and committed
members of our
profession. These refrains, I am convinced, are the fundamental
imperatives of
our redemption and salvation.
First, we are engaged in a profession, not a business.
Last year, at a seminar on professionalism, I heard one of our
most
respected lawyers say that "like it or not, most law firms have
become
businesses." In those words, I fear are the seeds of our
destruction. Anyone
inclined to agree with them should consider these remarks in a
recent opinion by
Justice Sandra Day O'Connor:
"Both the special privileges incident to
membership in
the profession and the advantages those privileges give in the
necessary task of earning a living are a means to a goal that
transcends the accumulation of wealth. That goal is public
service
. . . "
What we do, my brothers and sisters, is a calling, not a
business. There is
no higher calling, for we are stewards of justice.
Indeed, I submit to you the very survival of our profession,
as we know it,
depends upon our daily putting our professional obligations ahead
of business and
economics. If we continue to hold ourselves out as businesses, we
can expect that
the public will come to treat us as such, to judge us by the
standards of the
business world and to remove from us the privileges which surround
the practice
of law.
Wherever in our daily practices business and economics have
over-ridden
professional responsibilities, we must stop and we must change.
If we are serious in claiming that we are a profession and not
a business, I
suggest that we put our mouth and our actions where our money is:
hourly
billing. In 1991 this Association's Task Force on The Quality and
Value of Legal
Services, chaired by Parks Helms, suggested that we must leave
hourly billing as
the primary basis for charging our clients.
This report and many other studies have detailed the
detrimental effects of
hourly billing on our profession. When time equals money, we
become slaves of
the clock; a firm's income grows according to the hours devoted to
the client's
concerns. Where productivity is measured by time, it is easy to
justify one more
deposition, one more draft of the contract. This arrangement, of
necessity, makes
lawyers and clients adversaries and the trust and confidence
fundamental to the
attorney-client relationship often goes out the window. Even worse
is what it does
to the quality of life of young lawyers and associates asked to get
on a treadmill
in which their worth to the firm is measured by the adage: "first
light on, last
light out". Sol Linowitz, in his book The Betrayed
Profession, paints
a sad picture:
"The associates in the large firms cannot play the
piano or paint a picture or act in a church play because they
simply
don't have the time. The tragedy is that in the end the
single-minded
drive toward winning the competitions at the firm will make
these
lawyers not only less useful citizens, less interesting human
beings
and less successful parents, but also less good as lawyers,
less
sympathetic to other people's troubles and less valuable to
their
clients."
Hourly billing is a recent phenomena, brought to us by insurance
company and
corporate clients in the mid '60's. Before then, lawyers who
maintained time
records at all used them, as required by the Canon, as a guideline
providing only
one element to be considered in making up a fair bill. In the past
thirty years,
hourly billing has fueled an economic boom for lawyers. At what
price? Perhaps
at the price of our professional souls.
I believe this room and this Association is filled by lawyers
and law firms
who would leave hourly billing tomorrow if reasonable alternatives
could be made
available to them and their clients. Those alternatives, I submit,
are there, as
some lawyers and firms have discovered. Unfortunately, most of us
neither have
the time nor the expertise to develop them.
To provide those alternatives, I am appointing a commission,
chaired by
Nick Fountain, which will pick up where Parks Helms' task force
left off.
Through their efforts, I am confident viable alternatives to hourly
billing will be
developed. Then, based upon their report, CLE can be made
available to assist
us in implementing those alternatives.
The end result, I hope, will enable us to begin the process of
convincing the
public and our clients that we deserve the privileges they have
bestowed upon us
and the respect we used to enjoy.
Second, aspiring lawyers must be educated and the rest of
us
recommitted to the notion that lawyers are counsellors first and
advocates
second.
As a lawyer who has spent over thirty years specializing in
trial work, I
have a confession to make: I'm afraid that notions of the adversary
system not
only have come to dominate the daily work of too many lawyers, but
they have
infected much of daily American life.
The adversary system, as wonderful as it is, was meant to have
a limited
application in what we do: the resolution of controversies in a
trial setting. We,
unfortunately, have come to apply it in virtually every aspect of
our endeavors.
In civil cases, every phase of discovery is often a pitched battle
and motion
practice has come to dominate many lawsuits. Even in transactional
matters,
lawyers on all sides are too often obsessed with winning, squeezing
the last dollar,
the last concession, or the last condition available for their
clients. Sadly, we see
the adversary system superimposed upon all phases of our modern day
democratic
society. "Advocates" are now allegedly necessary to protect the
interests of
students, disabled persons, workers, consumers and you name it.
Controversy has
become the norm of our society. In fact, in many quarters,
controversy is
promoted as the crucible of democracy.
A number of recent studies have suggested that one of the root
cores of
these developments is the education and training of lawyers. This
is one of the
themes inherent in the report of the Task Force on the Training and
Education of
Lawyers, chaired by Charles Burgin and Jim Fuller. This report
echoes the earlier
results of the ABA's McCrate Commission and other similar studies.
The McCrate report found that the "socratic method of teaching
(law
students) emphasizes qualities that have little to do with justice,
fairness and
morality in daily practice." Sol Linowitz says that, "(b)ecause
litigation produces
the cases that students study, the model is one of conflict." Even
more telling is
Linowitz's lament that "legal academics in large numbers have taken
to equating
professionalism in law with subservience to the client." No wonder
so many
lawyers delight in being called "hired guns" and cultivate clients
by deserving the
title "the meanest son of a bitch in town."
This, my brothers and sisters, is not what we were meant to be
about. Ours
is a helping profession. Good lawyers assist their clients by
avoiding, not
fomenting controversy and by helping them obey the law, not evade
it. Elihu Root
said that "about half the practice of a decent lawyer consists in
telling would-be
clients that they are damn fools and should stop." To paraphrase
Abe Lincoln, "as
a peacemaker, a lawyer has a superior opportunity of being a good
person."
Returning to this moral high ground will not be easy. A
bottom line
mentality makes it very difficult not to do the bidding of a
client who we know
will simply go up the street to someone else if we don't do it.
Justice O'Connor,
in a dissenting opinion in the Shapero case, recognized that
maintaining ethical standards, "is a task that involves a constant
struggle with the
relentless natural forces of economic self interest." My brothers
and sisters, I
believe we are up to that struggle.
The report of the Task Force on Education and Training of
Lawyers is a
wonderful starting place. It is must reading for any lawyer who
cares about our
profession. It recommends significant changes in the way law
students are
educated and new lawyers are trained. The deans of all five of our
law schools
have endorsed the significant changes applicable to the education
of new lawyers.
To assure the implementation of the full breadth of the report, I
am appointing an
ad hoc committee, which Edgar Love has agreed to chair.
The real solutions, though, lie with each of us. As Sol
Linowitz has said,
"We lawyers can, if we care, restore those values we used to preach
and even
tried to live by, in the belief that lawyers should lead the way to
a more ethical
America."
The final imperative may be the most vital to the redemption
and salvation
of our profession: we must see to it that justice is not
rationed by
price.
That imperative was defined by Learned Hand when he wrote, "If
we are
to keep our democracy, there must be one commandment: Thou shall
not ration
justice." That commandment was upheld by this Association in 1976
when our
Board of Governors established Legal Services of North Carolina
with the
recognition "that a legal system to which a significant portion of
the population
does not have access is one without justice." I join an unbroken
line of 26
presidents of this Association who since 1972 have endorsed and
pledged their
utmost to promote those principles.
Never have those principles been more in jeopardy. We are all
aware of the
mounting crisis in the delivery of legal services for poor people
resulting from
sharp federal funding cuts: the threat that all funding will be
cut off by Congress
in the next two years; severe Federal restrictions on the
performance of legal
service by poverty lawyers; and a growing attack on continued State
funding in our
own House of Representatives.
Last December, President Jack Stevens stepped into the breach
of that crisis
by appointing a Task Force chaired by past-president Jim Talley.
Its mission was
to receive and analyze the Altman Weil Pensa study funded by IOLTA,
and to
make its own recommendations for implementation of that study to
the Board of
Governors.
The Talley commission's report has just been unanimously
endorsed by the
Board of Governors on Thursday Session. Focal solutions of the
report are that
elected representatives must be encouraged to continue government
funding; that
private funding must be increased; that alternative funding must be
explored; and
critically that pro bono legal services to the poor by the private
bar must be greatly
expanded. None of these solutions can succeed without the active
involvement of
a substantial majority of lawyers in this state.
The preamble to the Talley Task Force report issues this
ringing challenge
to each of us:
We must do more than just speak of the principles of equal
access to the
justice system for all Americans and the moral obligation of a
privileged
profession to serve the society which grants us this status. It is
time to step
forward and prove, with action, with time and with money, that the
people's
trust in us is not misplaced."
We cannot fail to accept that challenge. I propose that the
solutions
recommended by the task force should include a state wide campaign
in which
every lawyer would be personally contacted and encouraged as
a
matter of conscience to pledge money and pro bono services to the
cause of justice
for poor people. As a profession and as individual lawyers, there
is no better
place to convince the public that we mean to practice what we
preach than pro
bono services to the poor and disenfranchised.
The provision for equal access to justice is not just a
responsibility of
lawyers, but all members of society. Therefore, as individual
lawyers, we need
to be the conscience of our Legislature, the Congress and the
public on this issue.
There is no political expediency justifying our country turning its
back on equal
access to justice for poor people.
If there is any place for our profession to make a stand, it
is here. My
brothers and sisters, if our profession does not stand for equal
justice under law,
what does it stand for?
- - - - - - - - - - - - - - - - - - -
Over 150 years ago, the French nobleman Tocqueville, without
hesitation
described the legal profession as the American aristocracy. He
appreciated that
the rule of law - constitutional democracy - was the
quintessential American
contribution to the world and that without lawyers democracy would
not long
endure.
It has been suggested that the 20th Century American lawyer is
not worse
than any other segment of society. Greed, self indulgence and
immorality have
infected public officials, every profession, every business, even
the church.
Why then, one might ask, has the public focused so much anger
on lawyers?
It is because, I think, that they have depended on us for one of
the highest
aspirations of humankind - access to justice. They trusted us with
justice and they
feel we have betrayed them.
We must regain that trust. Not simply by public relations
campaigns, but
by living lives that proclaim we are a profession and not a
business; that we are
counsellors first and advocates second; and that justice will not
be rationed by
price.
In regaining that trust, we will redeem our profession and
then, perhaps, we
can start the process of redeeming our nation as well.