CAN THE LEGAL PROFESSION IMPROVE ITS IMAGE?:
|By MICHAEL C. DORF|
|Wednesday, Apr. 17, 2002|
A new nationwide survey commissioned by Columbia Law School (and being released in connection with this column) contains some disheartening news for lawyers. Americans think lawyers are dishonest and overpaid. Moreover, although roughly half of the people asked thought that lawyers perform a useful function, almost as many said that lawyers do more harm than good.
In light of these findings, can the legal profession improve its image with the public? Or is the problem more than just a matter of appearances, one going to the heart of what lawyers do?
What the Columbia Law Survey Says About Perceptions of Attorney Honesty
In the Columbia Law survey, a representative sample of a thousand Americans was asked a series of questions about the legal profession. (A final question, which I shall discuss in my next column, asked people about the role of the Supreme Court.)
The first question concerned honesty. Respondents were asked whether they thought that lawyers were "especially honest, somewhat honest, about average, somewhat dishonest, or especially dishonest."
The good news is that lawyers fared better than politicians. Sixty-one percent of respondents thought politicians especially dishonest or somewhat dishonest; thirty-nine percent thought the same of lawyers. Only sixteen percent thought politicians especially honest or somewhat honest; yet thirty-one percent thought the same of lawyers.
But this is good news only if one is grading on a curve--and a generous one at that. Comparing public perceptions of lawyers to those of police leads to a much less flattering picture of lawyers.
Fifty-eight percent of respondents rated police above average for honesty - a figure sharply higher, of course, than the thirty-one percent who thought the same of lawyers. And while, as noted above, thirty-nine percent believed lawyers dishonest, only twelve percent thought the same of police.
Interestingly, despite the widespread perception that public opinion about the criminal justice system is racially polarized, African Americans rated police only slightly less honest than white Americans did. Moreover, both groups thought police substantially more honest than lawyers.
Americans Also Think Lawyers are Overpaid
The news relating to perceptions of attorney compensation is also grim. The Columbia Law survey asked: "Given the level of compensation of other professions in society, such as doctors or corporate executives, overall, do you believe most lawyers are overpaid, fairly compensated, or underpaid for the work they do?" A full sixty percent of respondents said lawyers are overpaid, compared with a mere two percent who thought lawyers underpaid.
Overpaid compared with doctors or corporate executives? Clearly, when Americans envision attorneys, few of them think of public defenders, legal aid lawyers, or district attorneys earning annual salaries insufficient to pay off their college and law school loans.
Instead, they must have in mind the lawyers who represent large corporations for handsome hourly rates, or the handful of plaintiffs' attorneys who earn enormous contingency fees from judgments against those same corporations.
Do Lawyers Play a Beneficial Role? By a Slim Margin, the Public Says Yes.
Plaintiffs' lawyers will be relieved to learn that despite the sustained efforts by proponents of "tort reform" and other measures aimed at curtailing legal remedies, Americans continue to think our justice system worth keeping--albeit just barely.
The Columbia Law survey asked: "Do you believe that lawyers do more harm than good by filing lawsuits that may raise the cost of doing business, or do they perform a beneficial role by holding big companies accountable to the law?" By a fifty percent to forty-one percent margin, the respondents thought lawyers perform a beneficial role.
That view was more or less consistent across the country, although the margin was largest among African Americans, who more frequently expressed the opinion that lawyers perform a beneficial role.
Only the wealthiest Americans thought lawyers do more harm than good, and then only by a very slight margin of forty-eight percent to forty-six percent.
A Deep-Rooted Prejudice Against Lawyers, Or An Accurate Assessment?
What do the results of the Columbia Law survey tell us? They do not necessarily reflect negative experiences with attorneys. Most of the respondents were not basing their answers on recent experience. Fewer than a third of them reported having used the services of a lawyer within the last year.
Perhaps then the survey results simply reflect deep-seated stereotypes. After all, the fact that Americans think lawyers dishonest and overpaid is hardly surprising. Negative portrayals of lawyers have been a staple of Western culture at least as far back as ancient Athens. For example, in his play The Clouds, Aristophanes mercilessly ridiculed the proto-lawyers of his day - who specialized, he claimed, in making arguments for injustice triumph over arguments for justice.
But it would be too simple to dismiss public dissatisfaction with the legal profession as the product of uninformed prejudice. Certainly, contemporary popular culture offers alternative, positive images of lawyers. Real-life plaintiffs' representatives Jan Schlictmann and Erin Brockovich were portrayed sympathetically by, respectively, John Travolta and Julia Roberts. (True, Brockovich lacked a law degree but the lawyerliness of her actions was exactly what made them heroic.)
Granted, the explosion of law-related television shows in the decade and a half since the premier of L.A. Law has not always portrayed lawyers in the most sympathetic light. Yet these shows have tended to depict lawyers, especially criminal defense attorneys, as complex human beings struggling to do the right thing within a framework of rules that sometimes sacrifices justice in particular cases in favor of systemic objectives.
The Real Cause of Anti-Lawyer Sentiment: Distrust of the Law?
Why then does the negative view of lawyers persist? One possibility, of course, is that lawyers in fact are overpaid and less honest than members of other professions. If so--and even if not--law schools, the organized bar, and all concerned members of the profession should redouble their efforts to set and live by the highest ethical standards.
Yet such efforts are, I suspect, destined to be of limited utility. The root cause of distrust of lawyers may be a distrust of the law itself.
Law, in the sense of rules and principles that govern human conduct, is a blunt instrument. Sometimes, for the law to work properly, it must impede rather than further the aims of justice.
An Example: Exclusionary Rule Perceptions and Realities
Consider a standard target of popular critiques of the legal system: the so-called "exclusionary rule," under which courts refuse to admit evidence obtained in violation of the Fourth Amendment right of a suspect to be free of unlawful searches and seizures.
The point of the rule is to deter the police from violating suspects' rights. If police know that illegally obtained evidence will not be admitted, they will follow the correct procedures - thereby protecting the freedom and privacy of everyone, innocent and guilty alike. But these long-term consequences are not often visible, and the fact that the rule often lets the guilty go free is plain to every observer.
The limited empirical evidence we have suggests that the exclusionary rule is reasonably effective. Since the Court applied it to the states in the 1961 case of Mapp v. Ohio, police procedures have become more professional with no documented decline in the effectiveness of police work. But, again, these facts are not highly visible.
The same is true of the parallel exclusionary rule of Miranda v. Arizona. Aiming to prevent coercive interrogation of suspects in violation of the Fifth Amendment, Miranda renders the confessions of suspects who have not been properly read their rights inadmissible in court.
Again, the long-term consequences of Miranda are beneficial - suspects are now apprised of their rights - but not appreciated by the public, since they seem to benefit "criminals." And the costs of Miranda, in letting the guilty go free, are both more visible and deeply felt.
Film and television dramas, in particular, routinely portray the exclusionary rules of the Fourth and Fifth Amendments as posing serious costs to law enforcement. Fictional defense attorneys are constantly invoking these "technicalities" to free their dangerous clients.
Although these dramas take aim at defense attorneys and, in some instances, judges, their real target is the law itself. The dramas fault the law because, as a body of rules and principles, it sometimes aims to achieve a long-term goal--such as deterring illegal police activity--over justice in the immediate case.
The failure of justice in a particular episode is all too visible, and easy fodder for dramatic treatment; the long-term institutional benefit, in contrast, is invisible and undramatic.
Why the Nature of the Law Itself May Encourage Negative Perceptions of Lawyers
No wonder Americans think lawyers untruthful. In a real sense, whenever the law subordinates truth to some long-term institutional interest, it requires lawyers to dissemble.
Consider, for instance, the lawyer who tells a jury that his client should be acquitted because the government has failed to prove its case beyond a reasonable doubt--when he knows that excluded but reliable evidence would provide just such proof. That lawyer may not technically be lying, but only in the same sense that Bill Clinton may not technically have been lying when he denied having sex with Monica Lewinsky.
More generally, if one imagines the job of the lawyer as using the law's technicalities and ambiguities--its loopholes--to benefit a client, it is difficult to see how any compensation for lawyers would not be too much.
Why the Columbia Law Survey's News May Be Better Than It Appears
Perhaps, then, hostility to lawyers follows logically from hostility to the law's tendency to pursue social goals indirectly. Modern representative governments do not establish councils of elders to choose, on an ad hoc basis, what they consider to be a just resolution to whatever social conflicts may arise. Instead, we prescribe general rules and principles in advance of their application, knowing that this will sometimes mean that faithful adherence to such rules and principles leads to undesirable results.
We consider such occasional undesirable results an acceptable price to pay to avoid a system of government in which all-important decisions are committed to the unguided discretion of a few designated wise elders. But when the undesirable results are visible, and the long-term benefits obscure, public resentment and distrust can predictably result.
I suspect that most people, if pressed on the subject, would accept that it sometimes makes sense to choose law over justice. But that doesn't mean that people have to like it.
In sum, lawyers may serve as a lightning rod for the public's understandable hostility to law-as-the-occasional-enemy-of-justice. If so, then the real news in the Columbia Law survey may not be so bad for the legal profession.
If lawyers indeed are faulted for the flaws in the law itself, then it is hardly surprising that more people thought lawyers dishonest than honest, or that many more people thought them overpaid than fairly compensated. The surprising news - and it is good news - is that so many Americans think, on balance, that lawyers play a beneficial role.