Samuel Stretton ()
Attorney discipline must adapt
to the changing profession.
I am looking at Disciplinary Board opinions and it appears that lawyers are now being suspended for several cases of neglect. This type of discipline seems very severe and sometimes uncalled for. Even if a lawyer does neglect one or two cases, it seems grossly unfair to take away the license to practice, particularly if the lawyer has been practicing for many years with otherwise good results.
In terms of the legal profession, the above is just an example of the larger conflict between professionalism and business that the legal profession is facing.
In the 21st Century, the legal profession is really in a difficult state of transition. What will be left of the profession?
The legal profession is one of the most critical aspects of a functioning democracy. The legal profession provides the vehicle for citizens to enforce the rules and regulations of the government and of the democratic society. Lawyers are given that very important privilege and have been treated as professionals. The essence of being a professional is the independence of the legal profession. This independence allows lawyers to act appropriately and zealously protect clients’ rights and society’s interests.
But this noble view of the legal profession has been altered in many aspects over the last 10 to 20 years. Far from being a profession, legal employment has now really become a business. Like any other business, the bottom line becomes not the noble purposes, but making a profit. The bottom line of profitability of a law firm has been greatly endangered by the extremely rapid increase in the size of the legal profession during the last 20 years. The legal profession is nearly four times the size it was 40 years ago.
Finally, the cost of overhead of running a law office has dramatically increased. The pressures of meeting one’s overhead have resulted in lawyers being very overextended. Lawyers are working night and day to maintain their practices, with little time for social interaction, friendships or even family. The opportunity for a lawyer to be well read and continue with a reasonable family life is often limited due to the pressures of the practice, and the need to constantly be working to take the next case and meet the next deadline.
Yet, while the legal profession has been changing rapidly from its professional roots to an extremely competitive, difficult and at times consuming business, the Rules of Professional Conduct and the Rules of Disciplinary Enforcement appear to have ignored the changing nature of the legal profession. The rules are clearly based on the model of a profession and not on the reality of a difficult and demanding business.
A classic example of this change is how neglect is handled. Heaven help a lawyer if he or she neglects two or three cases during a difficult economic time. There are ample decisions where two or three cases of neglect over a two- or three-year period would get someone treated as a serial offender with potentially harsh discipline, including the loss of a law license. Such a high standard is very admirable in the professional model, but devastating in the reality of a difficult business model. Quite frankly, it makes no sense from a business standpoint that a lawyer should lose his or her license for a substantial period of time for neglecting five or 10 cases if he or she has handled perhaps hundreds of cases without incident.
It is certainly understood why the Pennsylvania Supreme Court and other supreme courts are insisting on harsher discipline and higher standards. For the legal profession and the courts to maintain their cherished independence and important roles in a democratic society, the public has to have confidence in the legal profession and the standards of ethics have to be very high. But despite that high standard in the fictional world of legal theory, the reality is that many small firms and sole practitioners are crushed by modern professional discipline.
This article is obviously not about reducing the high standards required by the legal profession, but about the need for direction over the next 20 or 30 years.
One byproduct of this is the decreasing role of small firms in the legal and trial system. Fewer lawyers have the opportunity for business experience. Major litigation has become too expensive. Now it is often major corporations, nonprofits or legal organizations to which the burdens of the past fall. The American Civil Liberties Union and major nonprofit environmental organizations fill the void that was once filled by the sole practitioner. But there is a loss to the profession when size rules the roost as opposed to the sole practitioner stepping up to the plate when he or she perceives an injustice and proceeding to fight the major issues.
What law firms will look like and what will be the role of small firms in the rapidly changing legal profession over the coming years remains to be seen. Clearly, electronics and e-discovery have removed many small firms from being able to be involved in major litigation.
For the legal profession to survive and continue to play its traditional role, this whole concept of being a profession versus being a business has to be better addressed, not only by the courts, but also by the disciplinary authorities. The bottom line is both the public and perhaps the courts and disciplinary authorities are expecting too much from many lawyers.
Finally, there is probably no ultimate answer to this conflict between professionalism and running a business. For the legal profession to survive, professionalism still has to be strongly considered. But there has to be more recognition and perhaps a revamped concept of professional discipline. Otherwise, the legal profession will only be driven into a situation where only the wealthy can function and control the direction of the profession. That would be a great tragedy.
One of the most unfortunate aspects of the modern practice of law is that the greatly enhanced size of the legal profession has done very little to provide equal justice to all. These are challenges that the legal profession has to meet, but the ultimate way to meet them is for the conflict between professionalism and business to be dealt with head-on.
Lawyers cannot seek pretrial publicity.
I filed a suit against public officials that raises serious questions about the governmental process and activity of these individuals. Very little has appeared in the press about this suit. What steps can I take to publicize this and make the public aware of the conduct of their officials?
Despite the Internet and modern over-communication, sometimes it is disappointing what becomes known to the public in terms of how government works and how government officials act.
But lawyers have to be very careful about publicizing their lawsuits. A lawsuit is not like a political campaign where one can get a position known and attempt to persuade the public to that viewpoint. One is not supposed to, under the Rules of Professional Conduct, potentially taint or prejudice the jury panel with pretrial publicity.
A lawsuit should be decided based on the evidence presented at trial and the degree of advocacy. Rule 3.6 is very clear that a lawyer shall not make extrajudicial statements that the lawyer knows or reasonably should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding.
Any plaintiffs lawyer who has been practicing for many years knows how devastating the ads of the insurance companies in the late 1980s and 1990s were in terms of influencing jurors to be far less sympathetic to plaintiffs and to lawsuit recovery. These ads vigorously and unfairly criticized high jury verdicts and prevented many people from getting a fair recovery.
A lawyer, in terms of publicity, is limited under Rule 3.6(b) to stating information that is contained in the pleadings. The procedural history of a case can certainly be discussed. In criminal cases, there is little that can be said other than the nature of the charges. A lawyer should not attempt to stir up publicity for a lawsuit. Doing so could be considered to be materially prejudicing the fact-finder.
Obviously, if the facts of the suit themselves catch the public’s attention, that is one thing. But a lawyer cannot take extraordinary steps to materially prejudice a jury pool. A lawyer’s role is limited, as set forth in Rule 3.6, for good reasons. As noted, with this modern age of technology, it is even more critical that the lawyer comply with the limitations of what can be said pretrial.
In conclusion, whatever the lawyer’s good or bad intentions are when a suit is filed, the lawyer has to have patience and allow the suit to take its normal progress. The fact that the public and media do not highlight the case should not be of concern to the lawyer. The lawyer’s role is to be prepared and present the case appropriately at hearings and trial. The lawyer’s role is not to generate the level of publicity that could affect the outcome of the case. Instead, the lawyer’s role is to present a well tried case. If that is done, the verdict will resolve the lawyer’s concerns.
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.