More than 20 years ago, a seasoned trial lawyer taught me the following principle: "The defendants in criminal cases are bad, but the witnesses are worse." After observing some of my brethren's conduct, I would add: And the lawyers are worse than the witnesses.
The past few years have not been kind to my profession. Rodney King's lawyers billed the city of Los Angeles for their commuting time to attend King's birthday party. A popular continuing legal education seminar is called "Strategies for Protecting Assets from Creditors."The idea is not to pay creditors? The product liability bonanza has produced the following legal specialties: "penile implant litigation group" and "automatic door litigation group." The lawyers' fees in the tobacco cases (in Texas, 150 lawyers will take $2.3 billion plus expenses of the $15.3 billion recovery; in Florida it's $2.82 billion of $11.3 billion) amount to $450,000 per hour. Each plaintiff in the Synthroid drug class action will receive $19.60, and the lawyers will get $28 million.
The Economist's obituary on Melvin Belli described one of his medical malpractice trials in which Belli described his feelings when his client removed her blouse and bra to show the jury her disfigurement, "I could hear the angels sing and the cash register ring."
Even with all these antics, I have defended my profession. But the past month has left me a traitor. It is difficult to discern from the conduct of William Ginsburg, of Monica Lewinsky fame, whether he is a lawyer or the new Ed McMahon for Publishers Clearing House. He has begged for money on national television. He makes no bones about his political interests in the case and will not harm President Clinton, because, "Who knows who will come after Clinton and what his attitude toward Israel will be?" One minute he tells us Monica will testify to a sexual relationship. The next minute he assures us Monica stands by her affidavit denying it. He told a reporter, "I'm the most famous person in the world," and he's had dinner at Wolf Blitzer's home to prove it.
He waxes rhapsodic about "Monica's need to go shopping." Kenneth Starr is surely shaking in his boots at this aggressive lawyering. Some search for the truth.
With our 106-page code of ethics, we lawyers have devised a set of rules to permit, encourage and often mandate dishonest and unfair behavior. Were I taking the ethics portion of the bar exam today, I would flunk. A sample question from the bar exam:
"L, P's attorney knows that the statute of limitations (SOL) on P's claim against D has run. However, the statute of limitations is an affirmative defense that D would waive if he failed to plead it. What should L do?
"A. File the suit if P is willing to incur the legal fees and court costs; B. File the suit but inform the court that the SOL has run; C. Not file the suit unless P consents to disclose the fact that the SOL has run; or D. Not file the suit as it is now a frivolous claim.
A is the correct answer. The time has lapsed for P's claim, but P's lawyer does nothing wrong by sneaking it in. If D catches it, well, P got billable hours and only clogged the courts for a bit.
Lawyers misunderstand their role, their code of ethics encourages them, and their trade paper, The National Law Journal, glorifies it. Each year it publishes a special supplement touting the size of verdicts. In 1995, Johnnie Cochran was named lawyer of the year with this headline, "He did his job and he got his client off." A lawyer has an allegiance as an officer of a court not to do what it takes to win but what it takes to preserve a client's rights. Often those rights have not been violated and they have a client who is really guilty. Not every product liability case is a class action. And facts support the notion that our president engaged in untoward behavior. Is a lawyer's role in these cases to win, regardless of truth?
Lawyers have chipped away at the professionalism, quiet self-restraint, and assumptions of morality that lie at the heart of our glorious judicial system. Last month in Arizona, Judge Silvia Arellano dismissed first-degree murder charges against a man who had confessed and led authorities to the body. If law enforcement officials violated his rights, then the defense lawyers rightfully won their client's release. However, these defense lawyers disgraced the profession of Lincoln when they exchanged a high five following their victory.
The open door of our judicial system works when there are honorable lawyers who are restrained by virtue and not by code. The William Ginsburgs, the Melvin Bellis and the product liability class action lawyers aside, the words of my former law school dean, the late Rex Lee, are a good admonition: "Don't let a few hundred thousand bad apples sully the reputation of the rest of us."