Tuesday, February 19, 2008

I am not a crook.

In response to an article on Slate characterizing the crooked law firm in the movie "Michael Clayton" as a "devastating critique of the legal profession." It's not. It's just a play on popular misconceptions about the lawyers.

There is a reason that law firms exist as entities external to the clients. We are not them, and our identity, our credibility and our ability to stand for them before the court comes from the fact that we are not them and we are not responsible for their sins.

We have a professional distance from our clients which allows us to be viewed as a trustworthy party by courts or agencies who have every reason to expect the client to lie. We reach agreements between parties who won't sit in the same room with each other.

Once that separation is compromised, we can no longer credibly represent our clients. We don't hire hit men or blow up cars or dispatch "fixers." We don't want to do those things and our clients would never want us to do such things, because we have to be able to represent them before a court, and if we are untrustworthy, we are ineffective.

Bad people doing bad things create legal problems, and people who provide legal services therefore have to work on behalf of people who have done bad things sometimes. As long as an attorney adheres to his ethical duties, he is operating in the service of justice by advocating zealously to the extent of his abilities on behalf of his client. An attorney who defends a guilty or liable client before a court is no more responsible for the client's wrongdoing than a clergy member who absolves a sinner before God.

We can't make the client's problems go away. Once there's a litigation, there is a judge actively involved who is backed by the government and generally capable of doing his job. If the case washes out in a way that's clearly wrong, it's because he was derelict in his responsibility, not because of us.

The problem that drives the lawyer in Michael Clayton crazy is a common one, and simply resolved. If a lawyer discovers an unfavorable document in a client's files, he claims a privilege if he can, which is his responsibility as the client's advocate, and otherwise he discloses the document, which is his duty, and then he tries to muster other evidence to support a narrative that portrays the client in the most favorable light the facts allow.

It's not the easy cases like the one in "Michael Clayton" that drive you crazy. When the client is caught and there's smoking-gun evidence, the system usually functions well enough to prevent capable counsel of extricating the wrongdoer through some sort of legal sleight of hand. The job of the defense counsel is to put the other side's claim through procedural tests to see if he can expose it as bogus, and if it turns out to be legitimate, the lawyer will ordinarily counsel the client to settle.

If the system can't routinely resolve cases like this justly, than the lawyer's guilt in "Michael Clayton" is like the guilt of a thief who swiped some silverware from the dining room on the Titanic.

If lawyers are unhappy or mentally ill, it's not because of our guilt over what our clients. I think part of what makes us unhappy is that we have a doomy professional outlook. When newly engaged lovers are dreaming about living happily ever after, lawyers are tasked with preparing prenup agreements and wills to deal with the disposition of the assets in the event of death or divorce. While businessmen toast the commencement of a new venture, their lawyers negotiate how to divide blame if the enterprise fails, and which creditors will feast first on the carcass in the event of insolvency.

Another source of unhappiness is that our analytical approach to thinking forces us to identify flaws in ideas we'd sometimes prefer to embrace uncritically. You can't stop being a lawyer when you go to church or listen to a political speech. Most of us start out as idealists, and legal training is about systematically puncturing those ideals.

We become incapable of being spontaneous or carefree. We look for rainclouds on a clear day. We are the nagging voice reminding you to get a flu shot. We're the guy at the party trying to get someone to be a designated driver.

The bankers and hedge fund managers are happier because they're optimists and we're pessimists. They look forward to success and we anticipate failure. Whether that's part of what we become by being lawyers or why we become lawyers in the first place is an open question.

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