Case Against Lawyers, Mannerly and Morally

What has happened to the behavior of attorneys in court? I would like to think that the recent antics of Brendan V. Sullivan Jr. and Richard W. Beckler, shouting and interrupting in behalf of Lt. Col. Oliver L. North and Rear Adm. John M. Poindexter at the Iran- contra hearings, looked as distasteful to many Americans as they seemed to me after having practiced at the more dignified--but no less dedicated--English bar for 35 years.

Then I remembered the recent “Twilight Zone” trial here in Los Angeles: One defense attorney called the prosecuting deputy district attorney “a sick woman” and “scum.” She responded, saying that he “would call his own mother a liar if it would help his case.”

This goes deeper than bad manners; justice is not a monopoly of the calm in manner or the modulated in voice and I have long since stopped being offended when no one stands up as an American judge enters or leaves a courtroom. But I do have this worried feeling that when an American hires an attorney--in England, you “engage services”--the American expects to buy the lawyer body and soul, to buy a total identification with the client’s cause. And the lawyer seems to supply it. There should be some restraint on that total commitment: Are not U.S. attorneys also officers of the court?

In my career, I have twice had clients who admitted guilt but wanted to escape conviction. I have twice made the same reply: I would only represent the client on the basis of a guilty plea. Each accused could go elsewhere, of course; anything told to me was confidential. One did go elsewhere and got eight years in prison; the other stayed with me and was placed on probation. I have the feeling that many U.S. attorneys, “doing the best for the client” in the time-honored phrase, would have said: “Let’s figure out a way to have you acquitted.”

Indeed, in the 1959 best-seller “Anatomy of a Murder” written by ex-district attorney Robert Traver, when the accused confides his guilt, his defense attorney replies: “If the facts are as you have stated them so far, you have no defense and you will be most likely electrocuted. On the other hand, if you acted in a blind rage, there is a possibility of saving your life. Think it over, and we will talk about it tomorrow.”

The word advocate comes from the Latin advocatus of Ancient Rome and was the name given to wealthy, public-spirited men who came forward--with no payment--to represent those arraigned in the courts. In England, the principle lives on and barristers--trial attorneys--cannot sue for their fees; in law, they work only for honoraria --honorary fees unenforceable in the courts.

Perhaps the problem is that there are simply too many lawyers in the United States--over 90,000 in California alone, a staggering 60,000 of them here in the greater Los Angeles area. According to a 1980s survey, the nation has nearly 500,000 lawyers--one for every 500 citizens, a ratio three times greater than in Britain, four times more than in West Germany and 21 times more than in Japan.

There may be too many “hungry” attorneys--especially in Southern California and not just in show business. An established Century City attorney has told me: “I have the feeling that a lot of the massive increase in litigation has come about because the lawyers around are anxious to file a lawsuit on some form of contingency basis, in which they hope they will recover something--earn something--to help keep roofs over their heads.”

Bar associations do exist, in each state and in many large cities, to maintain professional standards. And there is a national American Bar Assn. But New York state lawyer George C. Coughlin has written: “Surveys throughout the country indicate that in most areas disciplinary action against lawyers is more or less futile, for only the most brazen violations are prosecuted and grievance committees are often too lenient with offenders.”

In California, a June report by the state bar discipline monitor, Robert Fellmeth, charged that, despite improvements, California’s discipline system is still riddled with structural defects, plagued with inadequate resources and does not approach “a minimum level of acceptability.”

If the ethos of the bar is to be total identification with a client, transcending a duty to the court or perhaps even to justice itself, a distorted ethic emerges. If the fundamental basis of the lawyer-client association is only a commercial one, financial considerations take over completely. Paradoxically, an attorney “doing his best for his client” can end up cheating him. Once integrity is compromised in one way, it may be compromised in others. Neither the law nor medicine should be primarily “a business”; too often, they seem to be in the United States.

How to remedy the problem? For one, attorneys should stop rehearsing their witnesses. I do not understand how a jury can hear a straight and true version of the facts when they only get testimony that has been tailored by prior instruction. It was pleasant to see Att. Gen. Edwin Meese III giving evidence at the Iran- contra hearings without an attorney sitting beside him. Then delight was tempered by the news that Meese had spent 30 hours being rehearsed by Justice Department officials. Such tactics lower witnesses to the level of performers whose effect depends on the quality of their drama coaches.

In England, a barrister is not even allowed to interview his own witnesses--apart from his client and, in a complex matter, an expert witness--before going into court. Witnesses are examined from a written statement compiled by a solicitor, the lawyer whose task it is to prepare the case for the barrister.

Then, do away with the whole structure of contingency fees. You cannot expect real justice when the lawyer is commercially involved in the outcome of the case--even sometimes subsidizing the case on its way through tangled procedures before finally arriving in court. How would people who cannot afford an attorney’s fees ever get justice? Through a legal aid system. In Britain, 99% of the British lawyers do legal aid work, along with their regular fee-paying practices. They sacrifice not one iota of professional standing or respect and the government pays much the same fees as would a private individual. The British have had a state legal aid scheme since 1949, and with Prime Minister Margaret Thatcher recently returned for a precedent-setting third consecutive term, Britain is hardly a nation full of socialists.

Of course, there are many attorneys who are noble, dedicated and not unduly concerned with financial reward--men and women daily pursuing the highest standards of their profession. It is no part of this case to argue the contrary; it would be offensive and ridiculous to do so. But what is most disturbing is the general perception by the American public--and by some lawyers--that an attorney should be prepared to do literally anything for his client. That is dangerous, can do a disservice to justice and may pollute the source of what should be a pure-running fountain. “You want a good court case, go get yourself a good lawyer.” There ought to be more to it than that.