Speech to Cincinnati Bar Association Trial Advocacy Seminar

By Thomas J. Moyer

Ethics

In the Federalist Papers, Alexander Hamilton called the administration of civil and criminal justice by the several states the "great cement of society."

But that cement only holds when there is respect for the law.

I want to talk to you today about the respect which I think underlies our rules of ethics and our intercourse with one another.

Let us not pretend that lawyers were at one time loved -- or that lawyer jokes are new. Over 2000 years ago, Plato spoke of the lawyer "being keen and shrewd ... but his soul is small and unrighteous ... he has practiced deception and retaliation, he has become stunted and warped."

And just a few decades ago, Carl Sandberg asked, "Tell me why a hearse horse snickers hauling a lawyer's bones."

But we have also been described in more positive terms. Consider that when deTocqueville came to this country in the 1830s to study and write about the new experiment in democracy, he observed that attorneys were the "only enlightened class not distrusted by the people."

And consider also that the often misquoted line from Shakespeare is actually a recognition of the important role of lawyers in a civilized society. In the second part of King Henry VI, Cade was attempting to become king by demagoguery and Dick, the butcher, cries out, "The first thing we do, let's kill all the lawyers."

Attitudes toward lawyers in general are something we have to live with as our predecessors have lived with them.

But despite this attitude -- the public respects the courts as arbiters, the public respects the legal system as the way to resolve problems, and it even respects lawyers when, as Daniel Webster, Clarence Darrow or the fictional Atticus Finch, they have been seen in the service of higher causes.

What concerns me lately is the evidence I see of the lack of respect among lawyers themselves for the courts, for the system and for their fellow lawyers.

Former ABA president John J. Curtin Jr. wrote recently deploring first - the use of military terminology to describe legal maneuvers; second - the manipulation and misstatement of facts and law; third - the abuse of motions and discovery for harassment; and finally - the rising incidence of incivility.

Let me address Curtin's points.

The military terminology -- we have heard of the Rambo litigator, the scorched earth tactics, the "take no prisoners" approach to litigation.

A century and a half ago Lincoln said: "Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser - in fees, expenses and waste of time. As a peacemaker the lawyer has the superior opportunity of being a good man. There will be business enough."

Contemporary lawyers are likely to see negotiation or compromise as the way of the wimp. Victory in litigation means intimidating, outspending and otherwise grinding down the opponent. Juxtaposed with this phenomenon is the growing acceptance of dispute resolution:

We have moved from lawyer as peacemaker to lawyer as warrior.

Curtin's second point - the manipulation and misstatement of facts and law.

The Ohio Supreme Court has considered a number of disciplinary cases recently involving lawyers who have deliberately lied to the court or to a client. In one case just a few months ago, I wrote about the respect that I speak of today.

In that case, we said that the vigorous and effective representation of a client does not exist in isolation from the other obligations imposed upon an attorney through the disciplinary rules.

In addition to the commitment to a client, a lawyer's responsibilities include a devotion to the public good and to the maintenance and improvement of the administration of justice.

And in that case we said that an attorney's duty as an officer of the court is to uphold the legal process and to demonstrate respect for the legal system by at all times being truthful with the court. Respect for the law and our legal system should be more than a platitude.

We added a syllabus to that and another case to state that where a lawyer engages in conduct that is dishonest -- the lawyer will be suspended from the practice of law for an appropriate period of time.

I believe that -- and I am sure you believe it too.

And what can we say about Curtin's third point -- the current use of the tools of discovery?

A former leading partner at Cravath, Swaine & Moore once boasted to an audience of Stanford law students "I could take the simplest antitrust case and protract for the defense almost to infinity ... [one case] lasted 14 years ... Despite 50,000 pages of testimony, there really wasn't any dispute about the facts ... We won that case, and as you know my firm's meter was running all the time -- every month for 14 years."

One only has to look at the record of the tactics of the prevailing firm in Westmoreland vs. CBS or Ariel Sharon v. Time/Life for outrageous examples of abuse of opposing counsel during deposition and discovery.

Our case - medical malpractice - reinstated trial court judgment; serious disciplinary violations.

And it happens in nontrial situations. Recently, an Illinois firm sent closing papers for a multi-million dollar financing to an Atlanta firm. One of the 13 of the hundred-page documents did not have a raised notary seal, a requirement in Georgia and only a few other states. Although the Atlanta firm received the papers on Tuesday, they did not inform the out-of-state firm until Friday of the lack of the raised seal. So the deal which was to close on Friday could not close until Monday. The out-of-state firm lost several thousand dollars because of the weekend delay.

Are these actions legal -- yes -- do they demonstrate respect and courtesy to fellow counsel -- hardly.

What is the reason for all this? I suspect that in the eyes of many law has become a business as much as a profession.

For many, money is the reward of law. Money is prestige and power. Such lawyers, I take it, reflect the standards of our civilization. They have perceived that this is a money economy and that money is the measure of man.

We live in the times of the American Lawyer and The National Law Journal that annually rank law firms by income. And ranking by income has somehow come to be perceived -- perhaps in our society it is inevitable -- as ranking by excellence.

And lawyers judge those firms and judge themselves accordingly.

"I make more money --or I am from a big firm -- or I am from a big city -- or I have bigger clients -- so I must be a better lawyer."

We live in times where there are millions of dollars at stake. Clients want to win. If you, Mr. Attorney, do not agree that they should win or suggest that they compromise -- then they take their business to another firm.

A lawyer has a hard time being a counselor these days. Increased dependency on clients -- and their money -- has taken away the lawyer's autonomy.

Former Solicitor General Archibald Cox said that few lawyers these days are willing to say to their clients, "Yes, the law lets you do that, but don't do it. It is a rotten thing to do."

"Half the practice of a decent lawyer, Elihue Root said, "consists in telling would-be clients that they are damned fools and should stop."

How many lawyers today would say that to a two-million-dollar-a-year client?

There are other problems -- specialization, the billable hour, and -- according to Walter Olson -- the fact that America has deregulated the business of litigation.

Well, what are we to say to these lawyers who do not violate the law and do not fall afoul of the disciplinary rules?

Don't make money? We have no rules about not making money. Surely, one must make a living. But I would hope that the bar can alter the impression -- which we all know is a false impression -- that the practice of law is the way to get rich.

I am asking this. That as you live your life as a lawyer, remember that you are more than a business person. When you became a lawyer you undertook a commitment beyond your material wants.

Roscoe Pound said that "a profession refers to a group of persons pursuing a learned art as a common calling in the spirit of public service -- no less a public service because it may incidentally be a means of livelihood."

"Incidentally a means of livelihood," said Pound.

We have, as you know, a committee on professionalism. Its proposed lawyer's creed and aspirational ideals considered by the Bench-Bar Conference will soon be considered by the Court. The aim is to clearly state both to our colleagues and to the public that ours is a profession that is to be conducted with dignity, integrity and honor.

It is important that we on the Court sponsor this. It is important you endorse, publicize and live by it.

For these are difficult times -- not just for the bar.

When Kenneth Clark concluded his Public Television Series on Civilization two decades ago, he said that having reviewed the architecture, painting, music and literature of western civilization, he had come to the conclusion that the great mark of civilization was the law.

But today we see all the institutions around us in disarray. Corporations, unions, political parties, religious institutions, the family.

And we also see the law becoming more and more a mere business. A way to make money for the lawyer. A mere tool to express the power of the client.

It need not be that way. In fact, if our society and traditions are to survive, it must not be that way.

We -- the institution we are part of -- is the mark of civilization. It is my belief that the law will remain the cement that holds society together. But we ourselves must be convinced of that.

And we lawyers -- though we suffer the slings and arrows of an historically unappreciative public -- we -- each of us -- has a quality crucial to society which we should respect in each other.

That is: we in our profession are trained to be problem solvers in a way that the public -- though it decries us -- will never be.

And we have more.

We in our profession have, or ought to have, a concern for order, and justice and honesty and decency that overrides a concern for material gain.

When someone refers to lawyers as "sharks," remind them of the attorneys who worked in the civil rights movement and all the others who have represented unpopular causes. Remind them of the lawyers who work in legal aid and take on cases pro bono.

Finally, our profession is one of the few where experience counts. Today, particularly in the sciences, mathematics and computers, the young appear to have all the answers. But what makes the experienced lawyer valuable to his or her client and to society is not that he knows the answers, but that he knows the questions.

We are the ones, and the only ones, who can be sure that the law remains the cement that holds our society together -- but to do so we ourselves must:

Shakespeare has been misquoted so often against lawyers, let me suggest two of his lines to you, which reflect what I have said and which may be a motto for your organization of trial lawyers.

In the Taming of the Shrew, Shakespeare had one of two rivals say:

"[Let us] do as adversaries do in law -- Strive mightily, but eat and drink as friends."