Thursday, January 05, 2006

Don't blame the lawyers

Austin American Statesman
Claude E. Ducloux, LOCAL CONTRIBUTOR: Don't blame the lawyers
Thursday, January 05, 2006

As a teacher and writer on legal ethics, I enjoyed my friend Tom Palaima's recent op-ed column in the American-Statesman ("Doing the right thing in a world full of spin," Dec. 28). But the denouement, which decries the collusion of lawyers in unethical conduct, does require a response — if for no other reason than to help squelch the eternal cultural myth that lawyers are responsible for society's ills.

The world's most dangerous lawyer can't accomplish anything without the complicity of judges and society generally. It ain't a problem of not having enough rules. We love rules. We have plenty of them — boxes of them, suitcases full of them. As the guardians of justice, lawyers and judges are always creating and refining the rules, penalties and sanctions.

Society just isn't always willing to use them. When push comes to shove, we often makes excuses and turn a blind eye to obvious wrongdoing. Giving our government "the benefit of the doubt" has become nearly a national pastime.

So how do we punish people in a society that, as Palaima points out, seems to celebrate "getting away with it?" When we've had enough, we do what has become actually our greatest social legacy: We turn to the third branch of government and say, "This isn't right." Yes, we sue. And we slowly change society.

Thus, the Bush administration's attorney general can use all the sophistry in the world to justify a breach of civil rights, but any good constitutional lawyer knows that won't stand up in court. So go to plan B: Hedge your bet and attempt to make lawyers the problem.

It's always fun to demonize lawyers, and the myth that lawyers are responsible for society's ills is a comfortable, uncomplicated yarn — like the myth that courthouses are brimming with "frivolous lawsuits" (despite a 50 percent reduction in non-family law cases over the past decade). And that prejudice gives the opposition a leg up when lawyers exercise their most important role in society: messengers of a society unhappy with itself.

When someone finally declared that it was time that African Americans stop being treated as second-class citizens, it was said with a lawsuit. But bringing these social messages in lawsuit form condemns lawyers for challenging the status quo and upsetting the apple cart. And it takes courage. Those Fifth Circuit judges who originally ruled that blacks deserve an equal education (in a ruling eventually affirmed in Brown v. Board of Education) were subject to vicious criticism, social ostracism and even physical attacks on their families and property.

The most important changes in society all too often make us squirm. Remember, we live in a country that, in 1959, produced a poll indicating that 90 percent of our fellow Americans favored legal bans on interracial marriage. Such an abhorrent proposition would be unthinkable today. But how could one expect a 1959 lawmaker to buck that social norm? So when our lawmakers fail to act, we are often forced to turn to our third branch of government.

Remember that our society changes largely without violence and anarchy because lawyers and judges serve as constitutional ombudsmen between social progress and the inattention, political deafness or outright refusal of the other two branches to secure that progress for us.

The most important right ever created by this society is your right, under our Constitution, to hire a lawyer and go to the courthouse. We must never forget that. Those who dislike your legal rights to an equal playing field and a jury trial haven't forgotten. Every Texas Legislature brings us more statutes and even constitutional amendments to curb that right. We're slowly but inexorably nailing the courthouse doors shut to people and entities with less resources — requiring instead slow, expensive, ineffective and unpredictable nonjudicial remedies.

When enough people finally get fed up, the pendulum will swing back, but at what cost? As both: a) access to unbiased reporting, and b) public interest in knowing the truth continues to diminish, the journey could be slow and miserable.

In this country, when I know I'm right, I don't want a gang of thugs or henchmen — or even a press secretary. Just give me a good lawyer and a good judge. And it should ever be so.

Ducloux is an attorney in Austin and chairman of the Texas Center for Legal Ethics and Professionalism.


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