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A Letter To Hon. Earl Warren, Chief Justice Of The United States (retired And Deceased)
June/july 1985 | Volume 36, Issue 4
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?
For better or worse, lawyers are no longer as magisterial as they once were. We advertise openly for business, we hustle clients. We don’t use as many Latin phrases as we did. We have been debunked. We negotiate our fees, even quote them in advance. We actually compete on the basis of price every now and then, fearful that inside lawyers in corporate legal departments will take more and more business away from us as our costs escalate. Some of these changes are, of course, long overdue. The clubby atmosphere of the law business in the past masked significant waste. We deliver our services more efficiently today.
But something important has been lost. Driven by the imperative of raking in giant amounts of fee income each year just to offset increasing costs, we have less time for many of the things that made law an honorable profession. The amateur in the law business, like the amateur Olympic athlete, is a member of a dying breed. By amateur, of course, I mean “lover,” as the Latin derivation of the word requires: the man (and it was always a man in the old days) who loved the law as an institution, who loved it to the point that, like any good lover, he gave back as much as he took out. I think of role models—of whom you are my paradigm—who spent a staggering amount of time in one form of public service or another, not because of a desire for fame or even through a sense of duty, but just because they wanted to. Being president of a state or city Bar Association gave the honorée a chance to get intimately involved in the legal issues of the day—merit selection of judges, representation of indigents, law reform in the best sense. We don’t have as much time for those pursuits these days.
Like so much else in modern life, the law is becoming less personal, more mechanized; and as the pace of the process speeds up, the time for reflection is truncated. It has been some time since I’ve been able to savor a legal issue, to walk around it intellectually and to research the ambiguous points.
On the other hand, the profession is more open. You would be proud of the way the law has adapted to currents in the civil rights movement. My 1960 law school class at Stanford was lily white and 98 percent male. When I returned for a semester at the law school to teach some eighteen years later, minorities were represented significantly and women were out in force—over 30 percent of the class. Those breakthroughs happened very quietly and relatively quickly. The curriculum open to law students has enlarged: a lot of hands-on instruction, learning by doing, is now available. The old standbys of contracts, torts, and constitutional law are still required, but the mandatory curriculum has shrunk and the options have widened. A good idea? I hope so, although 1 sometimes suspect the curriculum changes are more cosmetic than real.
There is intense pressure to get into the good schools now. My test scores wouldn’t qualify me for Stanford today, but there are a lot of new law schools, some quite good. With them comes a notable overproliferation of lawyers, a tribe that never was in short supply. What happens, the Cassandras ask, when all the farmers and engineers are in law school?
The principal concern, however, the one that dwarfs all others, is whether, given all the new lawyers, all the new courses in law school, our society has become more just. This is perhaps a political, not a legal, question, but the two have been inextricably intertwined in the life of this Republic since its foundation. Justice is a lawyer’s business, and the issue is therefore not an abstraction to the legal community. If we don’t ask the question, who will?
One of the late jurist’s clerks asks what has happened to lawyers in the past quarter-century.
Certainly the courts are trying to distribute justice as never before. This activism, which you got rolling in your years on the Court, has picked up steam, and judges, particularly federal-district judges, are busy trying to curb brutish instincts and horrid neglect in our society. Prisoners’ rights, tenants’ rights, mental patients’ rights, children’s rights—judges are out in the public arena trying to lift up the less fortunate, with somewhat less than enthusiastic support from the Supreme Court. But I’m not sure that the times are friendly today to the conceptions of justice and fairness—indeed, of charity—that you drilled into me twenty-five years ago.
We seem to live in a meaner society today than we did when Jack Kennedy was President. The so-called “me generation” appears genuinely uninterested in the casualties of the modern, postindustrial age. These are generalizations, to be sure, but I doubt I’m far off the mark. We seem to be less tolerant, more eager to find a scapegoat for our frustrations. The death penalty is back, and executions are proceeding at a rate I find truly appalling—not a lot of people, other than a concordat of Catholic bishops, seem to care any more.
This atmosphere of relentless selfishness is depressing for me as a citizen, to be sure, but it is particularly saddening to me as a lawyer. Justice is the heart of the law, law as the mediating force amongst social animals in a condition of scarce resources. If society is becoming less just, it must be in part the fault of the lawyers in their various epiphanies—judges, legislators, rule makers, teachers. This is the stuff of which professional malaise is made.
Well, now for the summation, the argument to the jury: Where are we, on balance? You used to remark that, no matter how thin the pancake, it still had two sides. In my view, it still does. On the one hand, there is a lot for our profession to be proud of—our openness, our willingness (we were among the first to admit women to the Inner Temple)—our participation in attempts to improve society, the continued concern of at least some lawyers and courts for the underdog. The changes in our levels of compassion, which you more than any other twentieth-century American stimulated, have not been entirely reversed.
There is, however, an “on the other hand” (you’ll recall the client who searched vainly for a one-armed lawyer who couldn’t end his sentences with that ubiquitous phrase). Some of our compassion is fading. We are convincing ourselves that selfishness is somehow moral —that the rich man can pass through the eye of the needle. We need a rejuvenation, a force to turn our heads away from the giant amounts of money some of us are making toward the responsibilities that a ticket to practice law used to impose. We are parts of big organizations now, but most of us, deep down, are still sole practitioners. Maybe that spirit can be revived—the independent attorney-at-law, to whom you turn if you are in trouble. I hope so.