Wow, “Former High-Profile Lawyer Is Charged With Embezzling More than $18 Million”! Who would have predicted a high-profile lawyer would behave so unethically? Turns out pretty much anyone, according to opinion polls that consistently rank lawyers near the ethical bottom among professionals. A recent Gallup poll was celebrated in an article the title of which is classic damning with faint praise: “Good News! People Think Lawyers Have an Average Amount of Integrity Now.” In fact, only half the people polled thought that, but half is actually a significant improvement over earlier polls.
The headline about Tom Girardi, one of the attorneys who represented Erin Brockovich, being indicted on charges that he stole from clients reminded me of a joke about lawyers from the first season of the television series “Frasier.”
“God I hate lawyers,” remarks Frasier.
“Me too,” responds his psychiatrist brother Niles. “But they make wonderful patients. They have excellent health insurance, and they never get better!”
Everyone knows, of course, why lawyers “never get better.” It isn’t simply that they tend to work too much. Lots of professions are demanding in terms of time. Doctors, nurses, scientists, engineers, teachers, etc., etc. The thing about those professions, however, is that they make a positive contribution to society. The problem with lawyers is that what many of them do doesn’t make a positive contribution to society. Many lawyers spend nearly all their waking lives doing things that actually worsen the human condition. This isn’t true of all lawyers, of course. Lawyers doing public-interest work, public defenders, the proverbial plaintiffs’ lawyers (a.k.a “ambulance chasers”), and lawyers who work at very small firms often do good work. I’m not talking about those lawyers. I’m talking about the massive numbers of lawyers who work in what’s known in the profession as “big law.” These are the lawyers that work for large law firms, the kinds of firms whose clients are primarily large corporations, and occasionally very rich and powerful individuals.
Most lawyers in big law spend their days serving the interests of the powerful against those of the powerless. I’m not just talking about attorneys who defend corporate criminals, who research has shown are responsible for exponentially more deaths than is street crime (see, for example, “Violent White-Collar Crimes,” The Criminal Elite, pp. 73-89). I’m talking about attorneys who, for example, represent employers at unemployment compensation hearings against employees who cannot afford legal representation. I’m talking about attorneys who represent employers in discrimination cases, who know the employers discriminate, but who labor mightily to get as much of the damning evidence as possible excluded from these cases on technical grounds. I’m talking about attorneys who represent institutions against individuals knowing that their client is in the wrong but that they can effectively win the case despite this by simply drawing it out until the plaintiff is bankrupted.
Most people won’t sue, no matter how egregiously they’ve been treated. They won’t sue because they fear the cost would be prohibitive. They won’t sue because they fear that even if they could afford to, the case would likely take years to resolve, years of their lives during which most of their waking hours would be taken up with what would likely be the constant reliving of events they would much rather forget. Most people won’t sue unless they’ve been so seriously wronged that they find they can’t simply move on with their lives.
People have an innate sense of justice. We know this from research on mammals in general and human beings in particular. Mammals are inherently social creatures. They’re hard-wired to be sympathetic and empathetic and they have an innate sense of reciprocity. We didn’t actually need scientific research, though, to understand that human beings have an innate sense of justice. It’s been understood since the time of Plato, who observes in the Republic that if a person believes someone has been unjust to him “the spirit within him [becomes] boiling and angry, fighting for what he believes to be just … [and will] endure hunger, cold, and the like and keep on till it is victorious” (440c-d).
What’s important to understand is that lawyers are no exception to this fact about human psychology. They can’t help but sympathize with the genuinely wronged party in a legal dispute. This means defending the perpetrator of the wrong is going to create cognitive dissonance in the person doing it. Such dissonance amounts to a kind of psychological violence attorneys inflict on themselves. This violence gives rise to rationalizations that serve as an attempt at palliative care, which is to say care aimed at relieving the feelings of guilt without addressing the cause of these feelings. Probably the most typical rationalization is that defending the perpetrator of a wrong is an evil that’s occasionally necessary in a system that more generally serves justice. Even if this were true, however, it would do nothing to assuage the guilty consciences of attorneys. Such higher-order thinking is not instinctive the way that sympathy and empathy are so it can’t have any effect on immediate sympathetic and empathetic responses. The best it can do is to try to bury those responses beneath disingenuous excuses.
The ethical morass in which many attorneys spend nearly all of their waking hours isn’t so simple as their serving the interests of the powerful against the powerless. That would be bad enough. Once you throw ethics overboard, well, you’ve thrown them overboard. Attorneys also increasingly screw over their own clients. Enter Tom Girardi.
“One of the fastest-growing sectors of the legal profession,” writes David Callahan in The Cheating Culture, “is legal auditing: lawyers reviewing the bills of other lawyers” (p. 40). “The varied forms of overbilling,” continues Callahan, “complicate the cheating problem. Beyond the simple padding of hours, law firms engage in other abuses: overstaffing, by putting four or five lawyers on a project when two or three would suffice; overloading, by doing unnecessary work for a client; and overqualifying, by assigning partners at a premium rate to jobs that associates can handle. Catching each of these tricks requires an expert eye” (p. 40).
“It is hard to practice law ethically,” writes Patrick J. Schiltz, in his 1999 Vanderbilt Law Review article, “On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession,” “The system does not want you to apply the same values in the workplace that you do outside of work (unless you’re rapaciously greedy outside of work); it wants you to replace those values with the system’s values. The system is obsessed with money, and it wants you to be, too” (p. 912).
It isn’t so easy, though, to live with two separate and conflicting sets of values. The idea that a person can have one set of values, or ethics, for their private/social life, and another set for their professional life is a tired trope in the oxymoronic field of professional ethics. This view is often referred to as “the separatist thesis.” Legal scholars have erroneously attributed it to the sixteenth-century philosopher-lawyer Michel de Montaigne. It supposedly comes from an essay entitled “Of husbanding your will” (or “Of Managing the Will” in the version available through Guttenberg).
What Montaigne actually says in that essay, though, is not that it’s okay to abandon one’s ethical values in professional contexts. What he says is that one should be careful to protect one’s ethical values in such contexts, and we do this, according to Montaigne, by not identifying too strongly with our profession.
Montaigne was drafted to serve as mayor of Bordeaux. He never identified himself with that position, though. “The mayor and Montaigne,” he writes “have always been two, with a very clear separation. For all of being a lawyer or a financier, we must not ignore the knavery there is in such callings. An honest man is not accountable for the vice or stupidity of his trade” (Complete Essays of Montaigne, p. 774, emphasis added).
Now I suppose you could interpret that passage, taken out of the context of the rest of the essay, as indicating that it’s okay for an honest man, or woman, to adopt the vicious and stupid values of a particular trade, so long as they disassociate themselves from their professional persona. That clearly isn’t what Montaigne means, though. The “husbanding of the will” with which the essay is concerned is aimed at avoiding the corrupting influences of corrupt professions. If you forget that you are also a private, and not merely a professional, self you may abandon the values you know, privately, to be right and replace them with those of your profession, which in the case of law, is money.
Montaigne warns us not to ignore the “knavery” there is in professions such as law precisely to prevent our succumbing to it. It’s one of the biggest ironies in the history of scholarship that legal scholars, got that bass-ackwards. They get it bass-ackwards, of course, because they have a pronounced interest in finding a respectable source to justify their unethical practices. They read into Montaigne’s essay what their guilty consciences want him to be saying, not what he is actually saying.
But again, it isn’t so easy to live with two incompatible sets of values. They will tend to bleed into each other. Values are determinative of our selves, or of what philosophers often refer to as our personal identity. You can’t be a liar and a cheat in your professional life and still believe yourself to be a good person. And you can’t really be happy if you don’t believe yourself to be a good person. Human beings, again, are social creatures. That means they need to be liked. People don’t like liars and cheats. That is, they don’t like those they feel are not good people. That’s why people don’t like lawyers and lawyers know that’s why people don’t like them. Not only do they know it, but on some level they have to agree with that negative assessment of themselves.
Oh boo hoo, you say. So lawyers are filled with self loathing. Good. They should feel bad about themselves! We’re not very good people either, though, if we don’t care about the corrosive effect that a particular profession can have on the ethics of its practitioners. And we’re not very smart people, if we fail to realize that that effect can radiate outward toward the larger society.
In fact, there is one very obvious respect in which the contempt for truth, justice, and dare I say it, the American way, that has become characteristic of the culture of “big law” is having a detrimental effect the values that we, as a society, purport to hold dear. Big law is the primary producer of judges and once an attorney has become a judge, they are virtually immune to any kind of censure. That means we are quietly allowing the protection of our civil rights to be transferred to people who are contemptuous of those rights.
So those crocodile tears you were shedding for the misery that has become the lot of those attorneys selling their souls to big law, may soon become genuine tears, and not for them, but for the rest of us.
(An earlier version of this article appeared in the March 20, 2023 issue of CounterPunch.)