A profession is not a business. It is distinguished by the requirements of extensive
formal training and learning, admission to
practice by qualifying licensure, a code of
ethics imposing standards qualitatively and
extensively beyond those that prevail or are
tolerated in the marketplace, a system for
discipline of its members for violation of
the code of ethics, a duty to subordinate financial reward to social responsibility, and,
notably, an obligation on its own members,
even in nonprofessional matters, to conduct
themselves as members of a learned, disciplined, and honorable occupation.
Chief Judge Breitel’s assessment echoes
that of former Harvard Law School dean
Roscoe Pound, who had earlier defined
a profession as “a group . . . pursuing a
learned art as a common calling in the spirit
of public service—no less a public service
because it may incidentally be a means of
livelihood.”
More recently, as the New York Committee on the Profession and the Courts
(more frequently referred to as the “Craco
Report” after its chair, Louis Craco) observed, the rising number of lawyers and the
delocalization of practice have “heightened
the commercialization” of the practice of
law. Gone are the days where the ambit of
a lawyer’s practice extended only so far as
the county courthouse on the town square.
Today firms are expanding in size and number and now often boast national, even international, reach; likewise, clients and their
legal needs have become ever more numerous and complex, with the stakes continually
rising—not only in terms of the issues and
amounts in controversy, but in the fees that
attorneys earn.
The legal profession has seen a transformation wherein the naked competition and
singular economic focus of the marketplace
have begun to infiltrate the practice of the
law, subordinating high standards of service,
collegiality, and professionalism as a result.
As the committee further observed: “The
rise in the mobility of lawyers weakened the
ties to firms, institutions, and communities
in which professional standards traditionally
had been articulated and enforced . . . kept
in check by the cultural mores of the relatively small legal community.”
Thus, a dismaying erosion of civility in
practice has often accompanied the expansion of our legal profession. Such incivility,
the Craco Report points out, “commonly
manifests itself as rudeness, refusal to accommodate a colleague’s schedule, judge
baiting, or harassment during depositions.
. . . Also included under the umbrella are
sharp practice tactics such as misrepresenting facts to the court or an adversary and including false information in unsworn docu-
ments.” However, while the idealized notion
of the small-town lawyer is an anachronism,
the idea that civility among lawyers is incompatible with full and effective representation
should not be. Indeed, while rule 7-101 of
the Lawyer’s Code of Professional Responsibility obligates a lawyer to provide zealous
representation, it provides at the same time
that “[a] lawyer does not violate [this respon-sibility] by acceding to reasonable requests
of opposing counsel, which do not prejudice
the rights of the client, by being punctual
in fulfilling all professional commitments,
QUESTIONING AUTHORITY
It might seem counterintuitive when discussing a federal judge, but Harold Baer seems
to have a problem with authority. From the
bench, he’s famously ruled for both prisoners
and protesters, and he doesn’t seem terribly
fond of certain factions of the police force.
He fined New York City for forcing inmates to wear more than one pair of shackles during travel, and he ordered the state to
widen the space between prison beds to six
feet. He ruled that the mayor’s office could
not limit the number of protesters on the
steps of City Hall—though that was bounced
on appeal—and declared that members of
the Ku Klux Klan could demonstrate while
wearing masks to hide their identities. (The
First Amendment extended to the protection
afforded by anonymity, he ruled.)
But his biggest headlines came in 1996,
when he suppressed evidence— 80 pounds
of cocaine, five pounds of heroin, and a vid-eotaped confession—seized by cops in the
Washington Heights neighborhood of Manhattan. Baer also questioned the testimony
of one of the police officers involved and
credited the conflicting testimony of a defendant. The decision prompted national outrage and plenty of impeachment talk from
many quarters, including members of the
Clinton administration that had nominated
him. Baer eventually reversed himself.
Some observers trace Baer’s antiestab-lishment streak to a high-profile post he held
during the early 1990s, when, as a member
of the so-called Mollen Commission, he investigated New York City police corruption.
Where his lamentation about big-firm culture comes from is a little less clear, as he
headed up litigation for Guggenheimer &
Untermyer for many years. But it’s also true
that his wing-tipped days ended back in the
warm and fuzzy eighties, when white-collar
defense work was so much more rarefied
and elegant and civil than it is today.
—DIRK OLIN
Olin is editor in chief of JudicialReports.com.
by avoiding offensive tactics, or by treating
with courtesy and consideration all persons
involved in the legal process.”
So, while our system is by its very nature adversarial, it goes without saying that
such a system expects—indeed, requires—a
measure of civility. Nor will our system long
survive as it is if we tolerate the use of misleading or downright false statements by
lawyers—to opposing parties or to the court
itself—in an attempt to secure a favorable
outcome for their clients and themselves.
These and other examples of ethical
misconduct are quite simply unacceptable.
Such conduct is a drain on valuable judicial resources: When, for example, a litigant
misleads the court, it necessarily takes more
time for the court to try and sift through the
facts and separate truth from falsehood. As
important, incivility and contentiousness
tend to undermine public confidence in the
efficacy of the legal system. Finally, when
a lawyer deviates from ethical norms, he
or she acts to the serious detriment of the
very individuals that have sought his or her
counsel with the expectation of competent,
acceptable methods of representation.
WHILE I AM DISMAYED at the way in which
many law firms today approach the practice of law, I realize that for the most part
it is none of my business and indeed not the
business of the judiciary in general. The fact
that partners are at times made and retained
for their rainmaking skills and not for their
legal skills; that the number of billable hours
is not only the alpha and omega of bonuses
but that these hours—or at least the ones
that count—often exclude pro bono hours;
that who gets credit for originating a piece
of business can throw a firm into turmoil and
prompt major internecine struggles; or that
the bottom line has eclipsed most everything
else for which the practice of law stands or
stood, to the extent that the practice of law
is now frequently described as a business
rather than a profession. While decriable,
these are, as I said, really not my concern.
Rather, it is the fallout from such conduct,
some of which we witnessed here, that ineluctably drives some lawyers and some law
firms to the kind of conduct that played out
before me at this hearing and that then becomes the business of the courts.
On a final note, the reader should be clear
that I firmly believe the sentiment expressed
in the Craco Report that “the actual level of
professionalism brought to bear . . . by thousands of lawyers across the state, in court and
office, day in and day out, is extraordinarily
high.” I am hopeful that by casting a ray of
light on this anomalous and sanctionable behavior the public and the profession will be
better served.
