A Letter To Hon. Earl Warren, Chief Justice Of The United States (retired And Deceased)


Dear Chief: It is coming up on twenty-five years since, fresh out of law school, I reported for duty as your clerk on the Supreme Court. It would seem timely that, with a quarter-century of law practice under my belt, I report in—that I give you an accounting of the record since I finished my postgraduate education under your stewardship, that I reflect what, if anything, I’ve learned in the interim about the practice of law and its place as an astonishingly powerful institution in our society.

First, a word about expectations. As I left law school, I had no clear idea what it would be like to practice law, to be a lawyer and an “officer of the court” (that often encountered, and almost never defined, phrase). I anticipated that the variety of the work would interest me, and it has, although not always to the extent I had hoped. Some of it can get pretty dull, particularly after you’ve started your legal career at the top—in the chambers of the Chief Justice of the United States. As a fourth-generation lawyer, I was familiar with the way at least two lawyers—my father and grandfather—thought and acted and, with certain prominent exceptions, lawyers generally have proven to be a lot like the models I grew up with. Most lawyers are dispassionate admirers of reasoned discourse: they like to discuss various conceptions of fairness, a ruling principle in almost all legal matters. I enjoy talking to other lawyers because, despite our reputation as advocates, we usually have discussions, not debates, on even the most controversial matters. I liked that characteristic in my ancestors, and I like it in the lawyers I meet today.

Also, I anticipated that lawyers.would enjoy great prestige in the community. On this point, I was largely wrong. Individual lawyers may still be highly regarded, but as a class they are more typically reviled. Shakespeare’s dictum “Let’s kill all the lawyers” is echoed widely today, even on occasion by lawyers themselves.

Some of the angst of the law business is old hat to you, but some perhaps will be new. There are dishonest lawyers, a lot of them, and a lot more who are incompetent—nothing new about that. There are prosecutors who suppress evidence and defense lawyers who suborn perjury, again recognizable types to you. Those are the simple cases, however; unfortunately it’s not always easy these days for anyone to be an ethical lawyer, not easy to know exactly where the ethics of some matters point. We have a lot of new, hard-to-resolve issues, as, for example, when today’s financial Vikings fight each other for control of paper assets. These transactions have engendered a lot of new legal activity. Together with the new business has come, however, some real confusion about the responsibilities of managers and their advisers—that is, the lawyers—to public shareholders and the public interest. You wouldn’t believe the size of some of the take-overs: Gulf Oil, for example, was picked off recently. The elite members of the corporate bar make huge fees on these deals, but a lot of us are more than a little nervous about the entire process. We don’t quite know where we’re heading, and we share the queasy feeling that the law has not been able to pull together an adequate institutional response to the hostile tender offer or, indeed, to a lot of other changes in our society.

Not many of us in the law business are involved with these giant changes in corporate control, but I think lawyers of every kind are questioning their roles in society. Many of us are becoming a little like the old farmer who’d seen a thousand changes in his lifetime and been against every one of them. For example, I now have close to one hundred partners, about ten times as many as when I first joined what was then a family firm. 1 like my particular area of practice—venture capital—because the entrepreneurs are generally fun to do business with. However, I am a specialist—I have to be in order to survive. The days of the general practitioner, in urban areas anyway, are numbered.

Specialization is, of course, a necessity in a time when law is proliferating beyond any one individual’s capacity to retain the learning. And costs are going out of sight. You started me off at $7,200 a year; today we’re not too far away from paying that every month to graduates fresh out of law school. Incidentally, when lawyers swap stories about the high price of help these days, the older ones (myself included) like to brag about the starvation wages we worked for at the beginning of our careers. I usually have the last word in those discussions by bringing up the story one of my late partners used to tell: Shortly after the turn of the century he went from Harvard Law School to work for the dean of the Boston trial bar, Sherman Whipple. The salary arrangement was that my partner paid Whipple.

Well, enough reminiscing. Let’s, if you’ll pardon the pun, get down to cases. What is the business like today? Why are we uneasy? Why do we feel the lash of public contempt? What has changed?