One L (36 page)

As the example suggests, what gets called ethics is not merely a set of guidelines; it is really a series of definitions of what a lawyer is and is not. The profession's own vision of itself is embodied in these rules. Moreover, a more rigorous scrutiny will disclose what is seldom admitted in law school: that these rules are no different from many others, sometimes ill-advised, usually subtle and indefinite at the margins, and occasionally in conflict with one another. Without some reference to a lawyer's real-world function, the difficulty of drawing these lines and adhering to them is not likely to be appreciated. The fact is that a constant working-through of ethical questions—delving in the shadows, weighing duties, searching for balances—should be and is a commonplace of practice for most attorneys, as much a part of lawyering as going to court. If students come to recognize that and to internalize that sense of attention and discrimination, it is inevitable that the chances of things going awry later will lessen. There are many individuals to blame for the circumstances that lead a lawyer to bribe a judge, but we begin and end with that lawyer—and that judge. And yet, knowing this to be the last act in the drama, would we rather that the players had spent three years practicing their quick draw with their law professors, or more time immersed in lessons about the complex responsibilities of practice?

I offer this partial inventory of reforms to emphasize that, by calling for greater pedagogical interest in the profession, I am not advocating that legal education become a kind of advanced school of shoe repair. Even so, I recognize that there are reasonable objections to what I propose. (I take as unreasonable any denial that it is law school's job to prepare students to practice, since this would be so far from what is claimed by the law schools or desired by their students as to be silly.) Some law faculty members who have heard me rattle on claim that law schools have already advanced far in the directions I urge. At many schools, some upper-year courses are taught by the problem method, in which case studies replace cases and students are asked to imagine a practitioner's response. In other places, clinical education has expanded beyond the teaching of trial skills and now includes hands-on courses in topics such as negotiation, or estate or income tax planning. All of this is true. But these innovations, while commendable, are really jerry-built additions to the basic curriculum; they add a little space but they do not alter the central construction or the environment in which most law students spend their time.

Other critics would say that, by emphasizing the lawyering process, I ignore the extent to which process sometimes masks the substantive injustice of many laws, or even insulates such laws from attack. We appoint counsel for indigent criminal defendants, and tell ourselves we have been fair, but we do not inquire about the justness of a legal scheme with such persistent and disproportionate impact upon the poor. Clearly, to the extent that I want the law schools to embrace the underlying good faith of the legal system, I assume, as we say in court, a fact not in evidence, and one which is entitled to debate. On the other hand, no one is more likely to point out the unfairness of the present regime of rules, or to attempt to expand the permissible horizons for attack, than someone who understands his or her obligation to be a spirited advocate for persons disadvantaged by those rules.

Finally, I am sure that there are those who will say that, in attempting to inspire adherence to the larger values of the legal profession, I risk becoming an apologist for the evil that lawyers do. The kind of legal education I endorse would teach students to be ethical but zealous advocates for leaky waste dumps, for rapists, for discriminatory hiring policies, representatives of the inexcusable whom I would forgive for just doing their jobs, a horde of happy hired guns, blessed by their professors to pile the bucks high in the name of the lawyering process.

There is no doubt that I believe more than I did as a law student in the notion that all clients, even the louts, deserve vigorous representation. On the other hand, the purest pleasure of the profession is reserved to those who bring justice to those who've long deserved it. On either side, the baseline assumption is the same: the justice system, that lumbering rhinoceros, is not so weak-sighted that gross injustices, whatever the occasional mishaps, are routinely made invisible by ardent advocacy. He who represents the Huns had best be prepared to lose—and to lose fairly—while just triumphs warrant celebration, for in them the law accomplishes its clearest purpose.

The real rub of the hired-gun mentality is that it erases any sense that the advocate's loyalty in the end is to the legal system, ahead even of the client. Lawyers are obliged sometimes to be the ambassadors of the legal system who tell their wrongheaded clients that limits exist to what can be done in their zeal to win, guides who point the wayward to a straighter path. It is this part of the professional obligation that legal education can be expected to emphasize.

Institutions, particularly ones as hoary as legal education and the law, have their own persistent character. I do not believe much in panaceas, and certainly the proposals ventured here, individually or taken as a whole, do not amount to one. If every curricular reform I suggest were implemented tomorrow, I know that lawyers would not skip to work down LaSalle and Wall Streets whistling “Zip-A-Dee-Doo-Dah,” or turn their faces to heaven to shun every temptation. The law is a tough business, full of striving souls, and our hungers and ambitions will ever drive us. But law school remains the great common ground of the profession; before we begin a life of sparring with one another, this much is shared. What can and should be commonly instilled is a sense of mutual enterprise, a vision of the worthy, if complicated, ambitions of the profession, and the freedom to take pride in this difficult and venerable calling. If perhaps lawyers will never quite learn to do good and to do well, the law schools, at least, can do better.

 

Last, since this book was a work of autobiography, I take it that I have the right to end on a personal note. Wherever I have gone for the last decade, whenever I meet readers of
One L
, they inevitably ask the same question, often with some measure of disbelief: Is it possible, they ask, that that woman is still putting up with you? The answer, remarkably, is yes—and with three children as well. Twelve years ago, when this book was completed, there was one conceivable dedication: to Annette, in recognition of her enduring wisdom, strength, and inspiration. Whatever the rest of it was worth, that has remained a sterling idea.

S.T.
Chicago
1988