The Consciousness of the Litigator.
Ann Arbor, Michigan: University of Michigan Press, 2005 (142 pages)
In The Consciousness of the Litigator, Duffy Graham concludes that litigators rationalize their morals to advance their fee-paying clients' positions. In the eyes of society, litigators become hired guns--immoral professionals who act in response to payment and think solely to advance and see "right and wrong as a function of," their clients' interests (7-8).
In the first part of his book, Graham tries to place the litigator's role in context. A democratic society necessarily results in immorality: greed and selfishness. Graham discusses how Alexis de Tocqueville and his contemporaries grappled with how to organize society in a way that minimizes this immorality (18). Graham admires how Tocqueville "embraced notions of public service and public morality" but doubts that today's lawyers would permit similar concerns to guide their conduct rather than selfinterest (16).
Graham explains that this sense of nobility began evaporating from the legal profession around 1870 as society began recognizing a distinct legal profession with practice standards and when the profession became specialized and fragmented (25-27). With these changes, the legal profession began developing what Graham describes as a "crisis of conscience." Lawyers narrowed their public role and began serving corporate interests without respecting contrary public interests (28). This crisis continues today (29-30).
In part 2, The Moral Consciousness of the Litigator, Graham intermixes his analysis with interviews he conducted with practicing litigators. He asserts that the back-office witticism known as the two-rules of practice reveal the truth about the lawyer-client relationship and the litigator's moral consciousness. The two rules are: "The client is the enemy," and "Don't forget the first rule" (55).
Graham states that notwithstanding this professional antipathy toward clients, lawyers want to believe--and generally do believe--that the positions they advance on behalf of their clients are moral (83). In this way, Graham says, litigators justify professional practice as being moral regardless of how society would regard it:
The litigator ... needs ... only the narrowest opportunity to find some moral basis for proceeding with the representation. Each case, however, usually presents the litigator with ample space and opportunity for moral justification. Almost every case presents some combination of potential unfairness, debatable legal issues, ridiculous demands for money, and questionable conduct by the other side (107).
Graham's explanation makes sense, and it is not surprising that lawyers behave this way. Leading jurists such as Justice Oliver Wendell Holmes and Judge Richard Posner have long advocated it, and the casebook method that law schools use to teach future lawyers emphasizes form over substance and eliminates their moral compass. We teach that "thinking like a lawyer" means acting as an amoral technician. Indeed, the surprise is not that lawyers practice without morals but that the profession has actively pursued that outcome. This outcome shatters a simple moral standard such as the Ten Commandments.
Consider Graham's the-client-is-the-enemy ethic. He illustrates it with the interview of a litigator who describes the true purpose of the law firm's client-first seminar as learning how to generate millions of dollars in fees (56). The economic component of practicing law cannot be denied, but this litigator's tunnel vision does not reflect the complexity of law practice. This vision is sin. It immorally disregards the value of the justice the client seeks and the sanctity of the attorney's oath to serve honorably. It shows an ethic based not on the value of the attorney-client relationship but on the fees the relationship would generate. In moral terms, the litigator makes a god of money and coveting, thus breaking the first and last Commandments.
Graham then discusses how clients commonly make the lawyer's life miserable by making unreasonable demands, misunderstanding instructions, making mistakes, and micromanaging a case (59-73). Certainly, clients make unreasonable demands, and there are occasional headaches, but a client has a legitimate interest in participating in its own lawsuit. These problems are anomalies, like getting a flat tire on the way to the courthouse. To allow rare or even frequent challenges to define one's conscience toward a client is simple laziness. In moral terms, Graham's interviewee harbors false enmity, thus breaking the sixth commandment.
Indeed, Graham contrasts the story of a client whose refusal to follow advice lost the case with another client whose refusal had a salutary effect (75-81). Tension arises when one party unduly emphasizes that party's own expertise and interest. In conventional terms, the interviewee is right that such an attitude is arrogance. In moral terms, Graham makes an idol of the lawyer's expertise, thus breaking the second commandment.
Finally, Graham explains that "distaste for opposing counsel is common," and that enough litigators take advantage of the system solely for personal riches to support the most cynical stereotypes of the profession (102-3). Graham discusses how many litigators try to obfuscate issues, oppose legitimate requests, make misrepresentations to the court, and are driven to make life and work difficult for opposing counsel. He illustrates with an interviewee's account of meritless suits brought by a firm for little or no purpose other than to generate substantial fees, in response to which jaded defense counsel simply rationalize away concerns over the process (105-6).
These illustrations, however, are not of moral complexity or enforced realism. They illustrate immorality. Lying to the court breaks not only the rules of professional conduct but the ninth commandment, and stealing through sham suits breaks the eighth commandment.
Graham acknowledges that other litigators "take to heart their professional identity and take pride in helping clients" (57). Indeed, some reject the two rules and resolve the tension that they suggest through good communication (68). He cautions: "The two rules do not circulate simply for their shock value. They refer, if obscurely and humorously, to the truth about the relationship between the lawyer and the client. The truth is that, inherent in the relationship, there is a tension" (59).
This tension, though, is created by the litigator's view that client service is just generating fees. There is no tension in earning reasonable fees for competent service until the litigator shifts from the truth that law is a public profession to the fallacy that it is all about fee generating.
Like Graham, we have seen lawyers exhibit straightforward immorality. These are lawyers who accept the world's typical ethics that "no one will find out" and "everyone does it" and substitute them for the Ten Commandments' ethics to rest, respect, and eschew other gods, idols, profanity, murder, adultery, stealing, lying, and coveting.
Indeed, Graham's interviews show us that
--lawyers are as likely as anyone to make a god of mammon and an idol of their expertise--breaking the first and second commandments;
--some lawyers profane the justice system with sham suits and give no honor to those who bequeathed that system to them--breaking the third, fourth, and fifth commandments;
--lawyers too often hate one another, misuse their clients, and steal and lie their way to riches while still coveting the riches of others--breaking the sixth, seventh, eighth, ninth, and tenth commandments.
Graham publishes our sins to the public, calling them the consciousness of the litigator when, really, he documents the absence of conscience.
Perhaps what Graham shows us best is that one cannot substitute processes, no matter how precise, for values. Though thinking like a lawyer necessarily includes the economics of the profession, it should also include thinking about ethics. Indeed, just as the Ten Commandments give us a traditional ethical measure, there are traditional ways in which lawyers can develop suitably sensitive and directed consciousness. Those who gave us this justice system understood and accepted that offer of a moral consciousness. We should not reject or misinterpret it. Our complex work is built and depends on an ethic as real as the printed words of Graham's The Consciousness of the Litigator, though far more meaningful and infinitely more satisfying.
Nelson Miller and Don Petersen
Thomas M. Cooley Law School, Grand Rapids, Michigan
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|Author:||Miller, Nelson; Petersen, Don|
|Publication:||Journal of Markets & Morality|
|Article Type:||Book review|
|Date:||Sep 22, 2006|
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