Truth, Proof and Truthiness

/ David Cameron Carr / Leave a comment

Don’t think I’m taken in

By stories that I’ve heard

I just read the Daily News

And swear by every word.

“Barrytown“  Steely Dan

Clients* think in terms of truth.

Lawyers think in terms of proof.

This thread runs through the news this week with the verdict in the Casey Anthony trial and the developments in the DSK case.   While  the process worked very much as it should work, from the lawyer’s perspective, these stories are big news because the exploitation of these cases by the mass media.    Everyone knew the truth that about Casey Anthony and Strauss-Kahn; Nancy Grace and the “perp walk” told it to us.  But when the proof was examined, in one case by a jury and the other by lawyers,  it was found wanting and flawed.  So the public perception is that justice was not served.

You don’t have to wade into the deep waters of epistemology to understand the limits of the legal process when it comes to “the search for the truth.”   Some parts of of that process, like privilege and confidentiality, are seemingly designed to hinder it, although they serve the rationale of the adversary system that the “truth” is better served by a contest between equals then an inquisition by an all-powerful magistrate.  But the view of many will be that, once again,  pettifoggery has allowed the guilty to remain unpunished.

Lawyers often lament that they are unloved and misunderstood by society and wonder how they can change that.  One  President of the State Bar of California even attacked that staple of Americana, the lawyer joke.  A majority of the Board of Governors wonders how anyone question their dedication to the protection of the public.  They look at the woefully weak  bill of particulars outlined by the Legislative analysis underlying the creation of Governance in the Public Interest Task Force, an analysis that includes such nonsense such the idea  that Scott Drexel was not reappointed because he was too tough on lawyer discipline,  and react with understandable anger.

Welcome to the 21st century, lawyers.  “Truthiness” has overtaken society, government and the State Bar of California as well.  The Drexel story line was a classic post hoc ergo propter hoc  fallacy: Drexel was tough on discipline, Drexel was not reappointed, therefore Drexel was not reappointed because he was tough on discipline.  As no one in the know would disclose the real reason why he was not reappointed, the legal press invented this explanation to fill the vacuum.   The fact that the discipline system began to grind to halt under his administration, as revealed by the backlog numbers, did not register;  math is hard, as Barbie once told us.  The possibility that Drexel wasn’t reappointed for reasons that could not be revealed never entered the popular imagination.  It made a good story that drew nourishment from popular stereotypes.  It felt right; it had Truthiness.

We lawyers live in a bubble where proof matters.  Increasingly, proof seems not to matter much outside of it.   Its part of the gap between us and the larger society that is large and growing;  it means trouble both for us and for them, because however much they despise us, they need us.   And we need them.   Flattering ourselves with this notion won’t help; if there ever was a time to jettison professional hubris, this would be it .  What might is re-establishing the ideal that society as a whole is our *client.   We are are not going to make it as mere “service providers.”

But they will never love us.  The compromises that our part of the process (Der Process) are necessary but hardly joyful.   They can be subtle to point of  incomprehensibility, even to us.   Process itself can take over, erasing substance to the point of absurdity (e.g. Jarndyce and Jarndyce from “Bleakhouse“).   The truth that ultimate justice in the real world sometimes means that the guilty go free is unpalatable and unacceptable to many.

But we have chosen to be part of that process, perhaps without fully realizing what we were getting ourselves into.

Towery Resignation Shows State Bar Dysfunction

/ David Cameron Carr / Leave a comment

I can’t be neutral about the resignation of James Towery as the Chief Trial Counsel of the State Bar of California.    I consider him a professional friend and colleague.  I thought his hiring was a welcome sign of a  return to sanity in the discipline system after the madness of the Drexel years.  His background, including his service as State Bar President during the plebiscite crisis of 1996, gave every indication that he had the leadership skills, the political savvy and the substantive knowledge to  solve the deep problems facing the discipline system, the most obvious being the enormous backlog of discipline cases leftover from the Drexel administration.  He sacrificed a lot to take the job and he came into it with a lot of zeal.  Now,  just a year later, that promising start is over.

Whether Mr. Towery’s departure was for personal reasons (as asserted in the press release announcing it) or political reasons, or some combination of both, it shows that this organization is deeply dysfunctional.   At the very least, it will have a very difficult time recruiting anyone of Mr. Towery’s calibre to run the Office of Chief Trial Counsel.  It also leaves an organization in chronic need of leadership leader-less at at time it when it under enormous stress.  Stress from the huge backlog of discipline cases, stress from uncertainly over the future of the State Bar itself and stress from the peculiar labor-management issues intrinsic to the State Bar (but similar to the issues facing other government agencies.)

Through it all the professionals at the State Bar persevere.  This organization has been more or less in a perpetual state of crisis for 30 years and they have learned to function through adversity.  In some ways, Towery’s resignation is just the latest chapter in an ongoing State Bar soap opera.

But there are disturbing overtones that suggest that this time may be different.

For one, it occurs against the backdrop of the contentious fight over “governance” reform that split the State Bar Board of Govenors (soon to be the “Board of Trustees“) in a way that has never happened before.  The recently amended fee bill in the Legislature embraces governance reform a little less than the minority advocated but a whole lot more than the majority wanted.  And the majority had the chutzpah to oppose the compromise.  This process is going a certain direction and even if it goes no further (unlikely in my view) it has effectively ended any legitimate support for the myth of lawyer self-regulation.

For another, there is the apparent interference by the Executive Director in the operations of the Office of the Chief  Trial Counsel.  The Recorder has reported that the Executive Director Joseph Dunn took the job of making the statutorily mandated State Bar Annual Discipline Report away from Mr. Towery and giving it to General Counsel Starr Babcock.   This is unprecedented, as far as I know.  A recent memo from Mr. Dunn to all State Bar employees states that Deputy Executive Director Robert Hawley was appointed to serve as the “interface” between the Chief Trial Counsel and the Board’s Regulation and Discipline Committee (RAD).  This appears to violate the spirit, if not the letter, of Business and Professions Code section 6079.5(a) which recites that the Chief Trial Counsel shall not serve under the direction of the Executive Director but will report directly to RAD.   The independence of the Chief Trial Counsel was one of the reforms enacted as part of the overhaul of the discipline system in the late 1980’s under the aegis of Prof. Robert Fellmeth, one of forces behind “governance” reform.

Clearly, the Executive Director has a concern with the information that was coming from the Office of Chief Trial Counsel.   Mr. Towery’s written reports have been exceptionally candid, for instance in acknowledging the paucity of discipline prosecutions of “loan mod” attorneys and it looks like that was a problem.  Was Jim Towery pressured to leave because he told some inconvenient truths?  We don’t know the answer, and will probably never know, but the question is squarely presented by Mr. Dunn’s actions.

The Legislature, for now, is content to move incrementally.  But it has put a mechanism in place to plan for a transition.   That transition should be to a new independent agency within the judicial branch to handle the government regulatory functions without the stigma of being run by those it regulates and a new voluntary California Bar Association that can function as a true trade organization and advocate for the profession without one hand tied behind its back.    Nothing short of this will cure the dysfunction of the State Bar of California.

Where We are Now: Crisis and Opportunity

/ David Cameron Carr / Leave a comment

One of the most interesting presentations at the 37th National Conference on Professional Responsibility in Memphis last month was from Professor William D. Henderson from Indiana University’s law school.   The substance of the presentation is contained in an article in the July issue of the ABA Journal and it is essential reading for lawyers and law students who want to ride out the tsunami that is hitting the legal profession.

Simply put, the future is going to look at lot different than the past.   The exceptional growth in the law business over the last few decades, the “golden age”, as Henderson puts it, has ended with the Great Recession and its not coming back.   One aspect of the Golden Age was the rapid growth in the number of lawyers, and, by extension law students and law schools.   No more.  It is been estimated that we are graduating twice as many law students as we have jobs for.   When I was an undergraduate, law school was the default path for those who did not know what else to do with their professional lives.  No more.

The crisis is real and so is the pain, much of it visited on recent law school graduates, burdened with debt, much of it in student loans that cannot be discharged in bankruptcy, and no job prospects.  No wonder many of them have reacted with anger, as expressed by the “scambloggers” who decry law school as a scam.  Here in San Diego a class action has been filed against one local law school, alleging that it engaged in ” fraudulent and deceptive business practices”  churning out “law school graduates, many of whom have little or no hope of working as attorneys at any point in their careers.”     This comes just as this law school begins operating out of its impressive new campus which ” is sure to be a landmark in San Diego’s vibrant, exciting East Village where it sits just a few blocks from Petco Park.”   It may well be a landmark for reasons its builders did not anticipate.

In the past, he growth of the legal profession has also meant the growth of the law business.   As Henderson shows, the law business is still growing;  the growth in employment in “legal services” is higher than ever and still growing.  The difference is that it has started leaving the lawyers behind.  All those expensive law degrees also mean that lawyers are beyond the financial reach of many potential clients.  And large corporate clients, the bread and butter of large law firms, are coming to the conclusion that they don’t want to pay for legal services that they can obtain more cheaply by outsourcing or technology.

If the game is just providing  “legal services” lawyers in private practice as we know them will disappear.  But the view that lawyers are just service providers is not the only view.  There is an older view that lawyers are quasi-public officials, officers of the court, charged with an important function within the judicial system:  agents of justice.  This view is the reason that the State Bar of California, the mandatory organization that all lawyers must belong to, is enshrined as part of the judicial branch in the California Constitution at Article VI, section 9.

A large part of the growth in our ranks has been because a growing and increasing complex society needed more “legal technicians”.   We won’t need as many technicians in the future.  But we will always need lawyers as agents of justice.  In fact, we will need more of them.  And by agents of justice, I am not suggesting lawyers that are disinterested or disconnected from the interests of their clients.   Rather lawyers who understand that wisdom, vision, understanding and those qualities expressed in ABA Model Rule 2.1 “independent professional judgment and…candid advice” are going to be in greater demand than ever before.   It is time to recognize that “legal technicians” don’t need a gold plated education but that the lawyer of tomorrow may well need more and broader education that the current law school curriculum provides.  Ethics must be at the center of that curriculum;  only ethics in both the narrow sense of professional responsibility and the more general sense of appropriate behavior in society furnishes the basis of judgment.  Along with ethics, the 21st century lawyer will need to know science, politics, economics, psychology, history and maybe even aesthetics.  The old-fashioned broadly based liberal education will turn out the best preparation of the lawyer of tomorrow.  But it will only be a start.

We will have many fewer lawyers in the future and many more legal technicians.   The opportunity is there for those lawyers who possess the qualities of judgment described in Model Rule 2.1, those who can deal in the currency of “considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”  We need them more than ever.