Dean's Address

I am appalled by the minimum billable hours imperative and the impersonality which seems to characterize more and more the relationships between lawyer and client. I strongly believe we should work diligently together to make quality legal services accessible to the public. The contingent fee concept, properly applied, can address that need but I am intolerant of instances where that kind of fee arrangement is abused and overused. To the extent that the contingent fee is excessive in terms Of benefits to the client and in cases where it serves as a device to encourage litigation of a minuscule or frivilous nature, it disserves the system and the profession. I am also impatient with corporate, commercial and entrepreneural clients who know the price of everything and the value of nothing. I deeply regret that there appears to be a significant erosion in the historic lawyer‑client and lawyer‑to‑lawyer relationships of mutual respect and confidence with an accompanying decrease in public appreciation of the extremely important role that a trial lawyer can and should play in the fives and affairs of this great nation. I am distraught and dismayed that the classic ambience and professional self‑esteem that used to characterize the profession seem today to be less elegant than once was the case. In this context, and perhaps because of these value mutations, I repeat: shared loyalties between attorney and client have been significantly diminuted.

I deplore the diminished interest by the Bar in commitment to public service. I am reminded of the truly great and talented lawyers who gave of their gifts and time with splendid ability and great character and profound wisdom during the founding of this nation some 200 years ago. Yet, who among us can name as many as five truly fine lawyers who presently occupy the marbled halls of The Congress of the United States? How many of us are contributing to public service to the extent that we should contribute to public service? Certainly I am not, and I strongly suspect that many of us are not, fulfilling that professional opportunity and that obligation.

Apropos this comment, just on Monday of this week USA TODAY covered the ABA‑Mid‑Year Meeting in Denver. After talking with lawyers attending that meeting, that newspaper reported that approximately one-third of the interviewees were thinking about leaving the practice of law and 80% said "a negative public view" of lawyers is the major cause of dissatisfaction. One young West Coast lawyer observed that "Higher salaries have forced many lawyers to work more and do less public service work" and another opined that in California, "The most popular sport is lawyer bashing." Yet another senior lawyer observed that "Most lawyers are intelligent enough to understand that to just turn themselves into machines for the pursuit of money is not what they became lawyers to do." This story in this national publication suggests that practitioners "out there" are not terribly happy with the present state of the profession in this country.

Have things really changed and changed to the extent that I imply? You'd better believe they have changed! The mega law firm has emerged as a new and important institution within our profession. But quaere: How can such a law firm ‑ or any such financially driven organization possibly afford to represent a continuum of little old ladies in tennis shoes in landlord‑tenant controversies when the newest associate in that firm is earning $65,000 or $75,000 a year and is expected to generate a substantial minimum number of billable hours? How can small firms and the solo practitioner afford economically to undertake a very sophisticated, involved and extended legal controversy on behalf of the average person or small business enterprise when the costs of litigation have so enormously increased and when the cost of utilizing current technology and simply keeping the firm door open is so immensely expensive?

The changing dynamics of the Bar were dramatically illustrated in the fall of 1988 when, to everyone's surprise, applications for law school admissions greatly increased, particularly at the great national law schools. This phenomenon substantially increases the responsibility - and the opportunity ‑ of the Bar to provide guidance and direction to the neophytes who will shape the direction and dreams and destiny of the profession into the 21st Century. In short, I argue that this Academy should constitute a resonant model of professional responsibility for the nascent lawyers and for the bar as a whole.

My reflections upon the state of the legal profession "then" and now" reveal two trends which I find particularly troubling: The diminution of Honor and Integrity as non ‑negotiable values for the profession and the significant erosion of collegiality and congeniality and cordiality and comradery and civility (and yes, Friendship!) amongst the various elements of the practicing Bar, the federal and state Benches, the teaching Bar and that new full employment entity which we call house counsel or the corporate Bar.

The second trend to which I refer concerns the marked erosion in the civility and collegiality and courtesy which should characterize our dealings, one with the other. At the risk of overemphasizing the point, it is my feeling that the spirit of friendship that pervades and characterizes the Academy, the College, the Barristers, and ABOTA has especially set apart those organizations from other less discrete and discriminating increments of the Bar; it is especially that quality which makes these four great honorary institutions so special for me. To the extent that our other colleagues ‑ and particularly our younger brethren ‑ do not understand how important collegiality and comradery are to the enrichment and enhancement of the profession, to that extent they are the poorer and the legal profession's opportunity for societal contributions is wounded and diminished.

In my view, and surely there can be no dispute about this, it is the lawyer's inherent and unqualified duty to represent vigorously and zealously his clients, but there is no room whatever for the indulgence of psychopathic or sociopathic philosophies and personalities within the profession; there is no place whatever in our noble profession for rudeness, discourtesy, and "cheap shots." In my judgment, there is simply no place in the trial lawyer's lexicon for "sharking" and "take no prisoners" and "hard ball"... in the worst definitional sense of that last pejorative phrase. Those words and phrases involve demon devices and are inconsistent with how our system is intended to work and how our learned craft is intended to function.

One can be an extraordinarily effective advocate (and perhaps a far better advocate as the beloved, late "Mr. Francis" Hare reminded us) if his or her professional and personal manner and demeanor conform with the traditional grace and style of the profession. It is inconsistent with the noble character of our profession to suffer rascals gladly. With respect to their reptilian spoilation of good professional manners, I think that we ought to drain the swamp of those overly aggressive people. To the extent that we do not, as a profession, address such matters, to that extent we are aborting and abandoning our dreams. In part, the 1980 amendment to 28 U.S.C. § 1927 and the more recent amendments to Rule 11 of the Federal Rules of Civil Procedure were an attempted judicial response to abuses within the adversarial system. Now, many of us consider those judicial and legislative reactions to be medicines worse than the maladies they are intended to cure.

As to the first of my major concerns, Honor: As one of our greatest and most beloved colleagues - our brother Spangenberg - recently reminded us, it is absolutely necessary and essential that a lawyer's representation or word be "good as gold." Early on in my practice, I had the great privilege and opportunity to practice with and against some of the giants of the Trial Bar. The influence of those great lawyers shaped, structured and contributed enormously to my professional growth. Through the years I have been blessed with the advantage of practicing with and against a significant number of other great lawyers. Although those extraordinary lawyers varied significantly in their strengths and weaknesses, they all shared one value in common, HONOR‑ I quickly teamed which lawyers I could deal with on that basis and which lawyers might put me and my client at peril. The point is that Goliaths of the Bar were without exception honorable people. At the risk of being semi-facitious, if those elegant practitioners told me that water flows uphill and that the sun rises in the west, I would accept that because I would know that they simply wouldn't tell me that if they didn't know it to be true. Similarly, I have practiced before some very great jurists (and my share of depraved and unworthy ones). Then, as now, those finer jurists as paragons of integrity ‑would accept without qualification reputable counsels' representations; of fact and law. This phenomenon is of inestimable value to clients but counsel should constantly be mindful of that fragile virtue: it takes years to earn a reputation for credibility with our practicing and juristic colleagues and that reputation can be destroyed in a moment.

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