Samuel Stretton ()
The legal profession has undergone many changes in the recent past.
What are the major changes you have observed in the practice of law during your 40-plus years representing clients?
Four decades of practicing law in a regular and vigorous fashion with many trials can be a very wearying experience. But the changes in the last 40 years have been significant. The phenomenal increase in the number of lawyers over the last 40 years has greatly changed the practice of law and the economics of practicing law. Despite that, there are still many people who cannot afford lawyers.
Over the last 40 years, the law has quickly evolved from truly being a profession to being a business that still has some indicia of a profession. This is tragic because practicing law should never be a purely money-making proposition. The law should be a profession first based on service to clients and respect for the courts and desire to ensure fairness.
Another major change is the technology and informational revolution. But technology has really not decreased the cost of practicing law. At least for small firms, technology has enhanced the cost. Further, modern technology has resulted in an unintended consequence of gross overcommunication. As a result, lawyers spend most of their time responding to emails or other forms of electronic communication, as opposed to doing substantive work.
Also, as a byproduct of technology, the traditional office staff, such as secretaries and assistants, has changed. Now lawyers type most of their work and format their documents, which, at least in my mind, is a colossal waste of time, and which should not be passed to the client as the lawyer’s billing rates. Lawyers having their own secretaries is a good thing and allows them more time to do the lawyering.
Over the last 40 years, the legal profession has changed from a white male club. Women and minorities are now full participants in the practice of law. The judiciary is beginning to reflect this diversity. These changes in many ways have invigorated the bench and the bar.
Another major change has been the professionalization of attorney discipline. Up until the late 1960s, discipline was pretty much a bar association function on a county-to-county basis. Triggered by the 1968 constitutional changes in Pennsylvania, creating a unified judicial system, the Office of Disciplinary Counsel was created, as was the Disciplinary Board. Similarly, the Judicial Inquiry Review Board was created. Subsequently, in the 1993 amendments, the JIRB was changed to the Judicial Conduct Board and the Court of Judicial Discipline. As a result, there are professional and career-oriented disciplinary counsel.
This modern system helps to create much more uniformity and fairness in the nature of discipline. Lawyers are now held to a higher standard. Similarly, the judiciary has been held to a higher standard than in years past due to the important changes in judicial discipline. Recently, the Pennsylvania Supreme Court has revised its Code of Judicial Conduct. These strong, self-regulation acts are critical to the independence of the judiciary. There has to be important self-regulation with modern, professional codes of conduct that reflect modern problems, or else both the bench and the bar will lose their valued independence.
An unfortunate change has been the increasing lack of civility among lawyers. Lawyers today are less general practitioners and more likely to be emphasizing one or two areas of law. Forty years ago, there were very few professional prosecutors. Lawyers practiced regularly in multiple areas of the law. A lawyer could be representing plaintiffs one day, defendants another day, and then doing real estate transactions or solicitors work in the evening. Although that still occurs in some counties, it does not among the bulk of lawyers who specialize and even subspecialize. As a result, there is now an “us versus them” attitude. It is particularly seen between the plaintiffs and defense bars and to a lesser extent between criminal defense lawyers and prosecutors. Each thinks the worst of the other and there is very little interaction between the groups. The increased size of the profession also precludes the kind of camaraderie that once existed among various members of the bar. It is very rare that there is a sitdown dinner or regular meetings where lawyers get together and can talk. All of this leads to unfortunate personal attacks and bad feelings among members of the bar. In the last 30 years, it has become almost a sport for lawyers to criticize or suggest unethical or incompetent activity about their opponents as an established litigation technique.
Another major change has been the nature of the judiciary. Not only have there been good changes, such as diversity, but there have been bad changes, such as younger attorneys being placed on the bench at a much earlier age. This creates a problem because, with all due respect to lawyers, practicing 15 or 17 years does not really make one fit to be a judge, particularly if the lawyer hasn’t gone into court regularly and tried many trials during that time period. As a result, there are many judges who came from areas of limited practice but now must decide matters in multiple areas of law.
Further, these same judges sometimes have very little trial experience. Forty years ago, many judges came up through the political system and had served on committees, resulting in good people skills. Further, the lawyers had been in court regularly. They were made judges as a reward for their political activities. With rare exceptions, most political leaders appointed competent candidates. These lawyers became judges in their mid-to-late 50s and then retired after 10 years. Now, the average age of judges is probably closer to 45 and judges serve 20 or 30 years. The problem with serving 20 or 30 years as a judge is that one can lose perspective. A judge gets used to the deference and smiles that all lawyers give to them. Often, a person serving in the judiciary for 20 or 30 years begins to think that he or she is the judiciary, as opposed to just a placeholder.
Another major change has also been the perception of how law is practiced. Law, particularly trial law, is really a solitary sport. But in this modern era, collaboration and team activities seem to be the norm. This starts early in law school with supposed study groups. Lawyers who went to law school 40 or 50 years ago rarely had study groups. Lawyers studied on their own and passed the test on their own. Now it’s all group collaboration and that continues with law firms.
The trouble with this type of collaborative activity is that it becomes too expensive for most clients. If there is collaboration, that means everyone is billing, sometimes for the same work. Also, the bottom line is that in a courtroom, despite how much collaboration there may have been, there is one lawyer and one person who has to carry the burden. That lawyer has to have the information and, no matter how good the team is, if it is not in the lawyer’s head, it is not going to be effective. But this concept of collaboration has resulted in overlitigation, overdiscovery and often massive motions filed that are sometimes not measured by scholarship but by poundage. Lawyers of the not-too-distant past would be amazed and shocked at the use of teamwork in a profession that is really, at its essence, an individual activity.
The last 40 or 50 years have increased the role of specialization. Also, the last 40 or 50 years have greatly reduced the opportunities for trial experience, particularly broad trial experience in different areas of the law. That has been a great loss to the legal profession. Anyone who goes into courtrooms regularly and sees the butchery that masquerades as trial work can appreciate the loss of elegance and true trial ability. Lawyers now advertise themselves as pit bulls or like an army in battle. But such concepts are far from how a trial is conducted.
Although there are many other changes, perhaps the most difficult change to watch is the lack of financial security for lawyers. So many older lawyers have no pension or are struggling. So many firms can barely make their overhead, let alone provide the attorneys with a decent way of life. The problems are further compounded by the cutting of the budget of the judiciary with the result that judges place more and more burdens on the lawyers, who are least in a position economically to fulfill those burdens. The practice of law for most is not as economically rewarding as it once was, and, if anything, that may be the ultimate problem and reason why the legal profession may decline in the 21st century unless this trend can be reversed.
In noting the changes, with many of them not necessarily positive, it does not mean the legal profession is not strong and vibrant. With modern, computerized research, the law library is available, even to the smallest law firm. Lawyers are often much better prepared and more knowledgeable than in the past. The law school training has clearly enhanced the scholarship of lawyers and also the ethical understanding of lawyers. Forty or 50 years ago, ethics was rarely taught in law school. Now it is a required course.
Also, the average person who goes into law school is usually still that public-spirited person. One only has to look around to realize that most lawyers are the best of all people. They serve on boards and nonprofits, coach little league, serve on civic organizations, and participate fully in the political and democratic process. Lawyers do a fair amount of pro bono work. Most lawyers, out of the context of litigation or adversarial roles, are some of the most delightful and interesting people one could hope to meet.
There is hope for the future of the legal profession, but any changes have to be made with knowledge of the history of the profession. The law has changed greatly, but few of the modern members have a true sense of history or even know who the great judges and lawyers were in the past and what the great issues were. Bar associations have to step into that void, as do law schools. Practicing law without a sense of its history and traditions will deprive the profession of road maps for the future.
Lawyers are the oil of democracy. They are the ombudsmen for society. One has to have a clear understanding of where the profession came from and where the profession is going to effectively practice law and meet the needs of the 21st century. The bench and the bar in this age of transition must develop a vision and provide leadership as to the role of the legal professional in the 21st century.
Delaying matters is not a valid legal tactic.
Is delay a valid legal tactic consistent with the rules of evidence?
The answer is a resounding no, although lawyers probably delay matters far more than they should just because they are overworked. But delay as a conscious, strategic goal is unacceptable. This is made very clear in Rule of Professional Conduct 3.2, titled “Expediting Litigation.” That rule reads as follows: “A lawyer shall make reasonable efforts to expedite litigation consistent with the interest of the client.”
Although delay might be consistent with the interest of the client, it is not ethically permissible as a long-term strategy. The comment to Rule 3.2 makes it very clear. Comment 1, in pertinent parts, reads as follows:
“Although there will be occasions when a lawyer may properly seek a postponement for personal reasons, it is not proper for a lawyer to routinely fail to expedite litigation solely for the convenience of the advocates. Nor will failure to expedite be reasonable if done for the purpose of frustrating an opposing party’s attempt to obtain rightful redress or repose. It is not a justification that similar conduct is often tolerated by the bench and the bar. The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.”
Delay is unacceptable, even if the client believes the delay has a benefit. Lawyers cannot utilize that tactic as part of their arsenals.
Sometimes it is difficult being a lawyer, because clients’ interests and the ethical rules will run up against each other. But a lawyer has to have a clear sense of the ethical rules to properly guide a client.
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa., 19381.