Faulting the lawyers for our ills?

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THE RULE OF LAWYERS: HOW THE NEW LITIGATION ELITE THREATENS AMERICA

By Walter K. Olson

St. Martin's, tk, tk

REVIEWED BY BRUCE FEIN

From time immemorial, lawyers in Anglo-American literature and life have been more accursed than acclaimed. Emblematic is William Shakespeare's "King Henry VI, Part 2," in which Jack Cade's fellow rebel Dick exults, "The first thing we do, let's kill all the lawyers." The chronic damnations of lawyers have been richly deserved. Their vices should not be overstated, however, nor their responsibility for the malfunctioning of the law.

Walter K. Olson in "The Rule of Lawyers" deftly indicts the profession for a host of litigation ills. But they seem less the result of the wretchedness of lawyers than the wretchedness of our culture. That is unsurprising because law is the moral deposit of the times. None of the multiple abuses perpetrated by lawyers would flourish if the culprits suffered public stigmatization. The final word on the law is with courts, executive officials, and legislators. Not a single lawyer ever unilaterally fashioned a new or exotic theory of tort liability, nor returned a multi-billion dollar damages verdict, nor certified a class action, nor enacted strict liability legislation.

Lawyers exploit the prevailing culture, but they are not its primary authors. Their ambitions and cupidity are indistinguishable from any other free enterprise participant. The United States Supreme Court has acknowledged the same in refusing to create an antitrust exception for the profession. The ethical pieties lawyers preach to brighten their bleak image are as hypocritical as Elmer Gantry sermonizing for abstinence. Bar associations labor day and night to erect barriers to entry and to inflate the cost of legal services. And lawyers sleeplessly celebrate judicial activism because their value to clients climbs commensurately with the law-making importance of the courtroom.

These debased motives, however, are not unique to attorneys. They are inherent in human nature; they infect all men at all times and in all places. Legal squalidness can be constructively addressed in two ways: parents, schools, and public figures through practice and preaching can teach the reprehensibility of manipulating the law for pecuniary gain; and, the rules of the legal world can be altered to increase the convergence of the private interests of lawyers with the public interest, like Adam Smith's "invisible hand" in "Wealth of Nations."

Mr. Olson excoriates the outlandish legal fees in the tobacco litigation bonanza and the cynical political ambitions of state attorneys general that gave birth to avante garde tort theories. Contingency fees, even after scaling back through negotiation or arbitration, amounted to Mike Tyson-like compensation per fighting hour without any of the sweating labor. The major tobacco companies agreed to pay the states a staggering $248 billion to escape the risk of adverse verdicts based on the dubious legal theory that smokers are not responsible for knowingly and voluntarily incurring the health risks of their habits.

Even more alarming are the anti-free speech and assembly provisions of the Master Settlement Agreement. State attorneys general extracted from the defendant companies waivers of their constitutional rights to disseminate truthful advertising, to petition the government for redress of grievances, and to associate to promote industry views by hanging a sword of bankruptcy over their heads. None of these troublesome restrictions could have been imposed by legislation or court injunctions.

Author Olson bemoans the fact that private attorneys and state attorneys general are driven by self-enrichment and self-promotion; neither altruism nor charity nor some lofty calling make even cameo appearances in their calculations. The Founding Fathers expected the same. They knew that ambition was the dominating motive in all walks of life. The key to an enlightened polity is to make ambition counteract ambition; and, to employ the Ten Commandments and the Sermon on the Mount as relief pitchers. Thus, although Olson's soundtrack against the moral deficiencies of lawyers elicits anger and repugnance, its practical utility in fashioning legal reforms is slim.

Lawyers were but supporting actors in the tobacco litigation spectacle.Their armies of lawsuits would have shipwrecked if judges and jurors uniformly nixed the novel theories of tobacco company liability. But they did not. For half a century, opinion leaders and academics mounted a war against guilt and shame for personal shortcomings or vices. They created an effete culture of blamelessness and self-indulgence through signature sophomoric mottos. Criminals were not responsible for crimes; society was the culprit. The poor and addicted are blameless for their poverty and addictions; society causes their plights.

Illiterate and indolent students fail not because they renounce serious academic toils, but because society defaults on attentiveness to their educational needs. The sexually promiscuous and irresponsible are non-censurable for their debaucheries; society is the guilty party for sexual repressiveness.

Emblematic of our scapegoating culture is a pending federal court lawsuit exonerating gluttony and blaming a McDonald's Big Mac, fries, and Coke for obesity. In sum, "The Rule of Lawyers" is a symptom, not the disease of our warped litigation system. The cure will come when lawyers are ostracized like parasites for seeking to hijack the rule of law to further their own egocentric ambitions.

Bruce Fein is a founding partner of Fein & Fein (www.feinandfein.com)