Five by (Five Plus Two)

Over at the entertaining blawg The [Non]Billable Hour, Matthew Homann has posted an interesting set of opinions by five (now six) lawyers of five things each would change about the legal profession. Without solicitation, here's mine:

1. Simplify the ethics rules and then enforce them. The only ethics rules we really need are those that govern the behavior of military officers: "Thou shalt not lie, cheat, steal, or tolerate others who do" and "The appearance of a conflict of interest is a conflict of interest until proven otherwise." There can certainly be regulations that define administratively how to comply; but they need not include unenforced (and unenforceable) rules like MRPC 4.4. Really, now: when is the last time that you know of an attorney who was actually disciplined for harassing a potential witness? And, conversely, when is the last time that you know it happened? (Statistically, about thirty seconds ago.) In this state, disbarments are almost always for one of three classes of "offenses": comingling or converting client funds (even if there is no harm and it is corrected), a felony conviction, and offenses related to substance abuse (even if not so charged). Please don't tell me that everyone is following all of the other rules, unless you really want to see coffee all over the front of your clothes.

   As an obvious corollary, whatever rules we do have must be realistically enforced equally against everyone. Being a bee inside of a big law firm should not excuse anything, contrary to the assumption of MRPC 5.2(b). That's the "Nuremburg Defense" writ large. Similarly, it shouldn't matter whether one is representing a plaintiff, a defendant, a government agency, an administrative claimant, a buyer, a seller, a securities issuer, or whomever; one's duties are the same, and one should be held equally accountable. That's not to say that every transgression justifies disbarment, or even discipline of any kind; people do make honest mistakes, and sometimes circumstances leave an attorney no "acceptable" course of conduct. It is to say, however, that the nature of one's clientele should not diminish one's responsibilities.

2. Reinforce that clients are people, not causes. This is one place that I think the case method does active harm. When we read cases in textbooks—especially those that are followed by a string of hypotheticals, each linked to one or more other cases—we lose sight of what a lawyer really does, and for whom. Consider, for example, the story I told about Jenkins some time back. If one looks just at the opinion in some casebook, one might think that somebody other than lawyers won. I'm afraid not; winning in the Supreme Court just resulted in a remand, followed by another appeal (this time unsuccessful for the plaintiff).

   Instead, at some point—and I think it vital that it be earlier rather than later—law students need to learn that there are people behind every lawsuit. Even when there are corporations involved, those corporations don't act for themselves; instead, there are people who make decisions to act (or not). There are costs to litigating—and, sometimes, to not litigating—a dispute, or to contract and transaction negotiation, that go far beyond the attorney's fees in the case. Perhaps this is more an indictment of our courts' turn toward law and damages as the only appropriate means of decision, disfavoring equity and equitable remedies (which are hellaciously difficult to value in a contingency matter!). It is absolutely, however, an indictment of the "black-letter law" result of most casebooks.

   This is perhaps more obvious to me than to most attorneys, because my clientele is intensely emotionally involved with every dispute, whether actual or potential. Books (and articles, and songs, and symphonies, and paintings…) are children to their creators, being sent out into the world. Some parents are abusive or neglectful; but not most. Most care deeply—often too deeply from an "objective" point of view—about how their children are treated, even after they "leave home." The emotional cost of copyright litigation is often far, far greater to the actual creator of a work in dispute than is any possible financial reward; conversely, the emotional cost of doing nothing can be unbearable.

3. Adopt the Louisiana Rule for naming parties in interest. Ernie Svenson can correct the details if I get them wrong, but Louisiana requires that insurance companies that may have either exposure to damages or a duty to defend be named as parties in interest in civil suits. This is the tip of the iceberg; leaving aside "John Doe" lawsuits, I think that all parties in interest should actually be named in lawsuits. Not just "Melinda J.," but her "next friend"'s name too. The business about "the existence of insurance coverage inflaming the jury against the big corporate defendant" is both hogwash and counterintuitive. There are very, very few people who don't believe that almost all corporations have insurance coverage for anything for which they're sued. And it's not just corporations; it's drivers, and doctors, and law partnerships, and… So we're kidding ourselves if we try to pretend otherwise; and self-deception does not make for good resolution of disputes.
4. Eliminate state regulation of the law in favor of a national system. With teeth. Scheherazade (point 1) and Carolyn Elefant (point 5) argue persuasively concerning interstate restrictions to practice. I do not think they go far enough. If we are taught "black-letter law" in law school, and that is all that is required for the [unbelievably foul and offensive expletives concerning the parentage of the authors deleted] multistate "bar exam" and multistate "professional responsibility exam," then that should be good enough to have a license to practice. Instead, all of the resources that go into those worthless exams and state-by-state monopolies should be poured into a meaningful character and fitness examination, perhaps a mandatory six-month internship following graduation before granting the license to practice, and programs that will benefit clients. Sure, states are going to have procedural and substantive quirks in their laws; for that matter, so do federal courts. Just try filing a late amicus brief in the Seventh Circuit if you're used to doing so in the Ninth Circuit and see what happens! The point is that basic qualification does not, and should not, depend upon those quirks; that's what day-to-day research teaches. If a given state bar wants to require a ten-hour CLE-like course on state civil procedure and highlights of substantive law, that's fine, and probably a good idea. Division of territories that, but for the legal profession's avowed (and illusory) "self-regulation," would be per se antitrust violations is not.

   State-by-state regulation also creates some serious problems of its own, particularly in cross-border situations. It's not just a case of "reciprocal discipline" being at one extreme nonexistant and at the other draconian. It's that the differing standards create a bar with isolated but insulated pockets of both competence and incompetence, obscene expense and market rates so low that it's difficult to support a family.

5. Give the judiciary the support and respect it deserves. Judges at any level are among the most poorly paid members of the legal profession when compared to their responsibilities. "Doing more with less" really means "doing more for the big cases, because I don't have the time to give to little ones." Most judges work tremendously hard and tremendously long hours, and frequently agonize over decisions far more than do the lawyers in front of them. Consider this statement: "the Court itself spent easily over one hundred hours researching the law and analyzing the evidence in the instant case and reached its final decision after months of careful consideration." Admittedly, this was in a matter that everyone involved agrees was cutting-edge, and resulted in a summary judgment opinion noting in the first paragraph that it "presents a question of first impression in the Ninth Circuit." But even when the law is clear, the facts may not be; or the application of the law to the facts may not be; or the balance for admission of an expert's opinion between relevance and prejudicial effect may not be. If something reaches past the dismissal stage, there is almost by definition at least some potential merit to both sides' positions.

   Ernie (point 2) understates the case, if anything, for appointment of judges. It's not just the potential influence of campaigns, campaign contributions, and so on; it's the appearance of partiality aside from the money. I live in a largely rural area, which means rather conservative and law-and-orderish. At least two judges currently sitting on state courts in this area were elected based on platforms promising to be "tough on crime." What does that say to a defendant, particularly a poorly educated or non-English-speaking defendant, about his chances for a fair trial in front of those judges? It's the appearance of impropriety here that is enough to call the concept into question. Then there's the constitutional question—one largely punted to date—of whether an elected judiciary is a "Republican Form of Government" (Art. IV, § 4), when the only example of such at the time the Constitution was drafted was the Constitution itself, with its appointed and tenured judiciary.