Lawyers: gunslingers or peacemakers, toward a new paradigm
LAWYERS: GUNSLINGERS OR PEACEMAKERS,
TOWARD A NEW PARADIGM
The recent terrorist attacks have caused many Americans to reexamine their lives: their relationships, values and purposes on this earth. This is true especially of the New York City lawyer who, like myself, could have been in the World Trade Center at that tragic time, but was not. Perhaps now is also the time to reexamine how we practice law, for law practice, especially in New York City, can often be corrosive to the soul and heart of practitioners. Over time, it can also become a pain of the mind and body. This may be one of the reasons attorneys, as a group, have some of the highest rates of divorce, heart attacks, strokes, drug and alcohol addiction and suicide. How did it get this way? Is a different paradigm possible for the practice of law?
Lawyers in many law schools were trained to be strictly objective, weigh both sides, be judicious, think like a judge. As in many professions and occupations that have been traditionally an all male preserve, the law encourages traits ofcompetitiveness and aggressiveness. Legal training is mind and head-centered. It is about winning arguments. To introduce humanism into the mix is, to some lawyers' way of thinking, soft and "wimpy." Many litigators adopt a "macho" courtroom presence and, in their conduct of a litigation, they proudly espouse a "go for the jugular", "take no prisoners" and "scorched earth" approach. Because they are seen as protectors and defenders of corporate power, often at the cost of the public interest, they are often feared and hated by the general public. It was thought as more women came into the law, the stereotype of the "high-powered corporate lawyer" or "trial attorney," would change. An historic moment occurred recently when the proportion of women enrolled in law schools exceeded 50 percent. However, even as women have advanced in the ranks of law, they have often done so by emulating these male stereotypes.
In opinion surveys rating the jobs held in high esteem by the public, lawyers rate among the lowest. Negative references to lawyers go way back, and must have some true basis in history and in fact. As early as sixteenth century England, Shakespeare's common folk in King Henry the Sixth say: "The first thing we do, let's kill all the lawyers." In the aptly-titled 1920 poem by Carl Sandburg, "The Lawyers Know Too Much," he wonders: "Why does a horse snicker, Hauling a lawyer away?" Why indeed? More recently, in media and common parlance, the public has a love-hate reaction to lawyers. Note the proliferation of anti-lawyer jokes comparing them to sharks. Also, remember Jurassic Park--the mercenary lawyer cowering in an outhouse, who is gobbled up by Tyrannosaurus Rex? For every novel, film and television drama of a self-sacrificing lawyer representing the little fellow against the establishment (Mr. Deeds Goes to Washington), there are a dozen disparaging and unfavorable media representations of ambulance chasers and shysters (The Verdict) and conspirators (The Firm).
The question arises: Is there an alternative or, more precisely, is there any way that any of this can be changed? Some lawyers are working hard to make a difference. They are attempting to point the way to a different paradigm for the practice of law. They are exploring the question, can a lawyer can be a healer; can a lawyer ever be a peacemaker -- and make a living?
A concept and a practice has arisen called Holistic Law. The concept and the practice is new enough so that the definition is still developing. Holistic law approaches disputes differently, looking for a resolution that will not inevitably involve litigation, but rather a solution that will take the interests of all parties into consideration. Holistic Law practice has its own professional association, the International Alliance of Holistic Lawyers which just celebrated its tenth anniversary.
Bill van Zyverden, a Vermont lawyer, is the founder of the Alliance. In the organization's recent newsletter he says, "Holistic Law…, is concerned with the 'whole' client: past, future, body, mind, spirit and unified field connection to each other and all that is. Our role becomes a sharing of our own humanity as equals, as Spiritual companions." When Bill opened his practice in 1992 at the "Holistic Justice Center" in Middlebury, Vermont, a New York Times reporter noted that a fellow lawyer asked if he was practicing "wimpy law." Many of the members of the Alliance practice in small towns across the country. Bill Van Zyverden still practices in a small town in Vermont, he wears blue jeans to work and bills out at an hour. The question that I have put to myself after becoming aware of this concept is: "Will it play in the Big Apple?"
Before September 11, 2001, I had significant doubts. Now, however, I am hopeful that New York lawyers might be open to some suggestions for alternative ways of looking at their law practice. It will be helpful to look at how the "big New York firm" corporate practice compares with what I know of a holistic law practice, to see if this is feasible.
When I first started practicing on Wall Street I read a book by Erwin O. Smigel called, The Wall Street Lawyer, Professional Organization Man? that characterized a good lawyer as one who is "methodical, prudent and disciplined." This description still is useful today. A lawyer who represents clients in significant transactions, engages in thorough and exhaustive research and finds all the cases and all the precedents in favor of his client's position. This is certainly the right thing for any lawyer to do. There are, of course, ethical obligations to represent one's client with the utmost vigor. Canon 7 requires "zealous" representation of a client. See DR 7-101. However, it is also important to note that the Canons of Ethics also state that, "The duty of a lawyer to represent his client with zeal does not militate against his concurrent obligation to treat with consideration all persons involved in the legal process and to avoid the infliction of needless harm." See EC 7-10. In addition, Canon 8 encourages improvement of the legal system.
Another common characteristic of the big city practice is aggressive lawyering. This encompasses a broad range, from attempting to overwhelm an adversary with motions and discovery requests in a litigation to loading the first draft of a contract with exceptionally favorable terms for your client in the expectation that you will sacrifice a number of points and ultimately arrive at something satisfactory to your client. This is traditional conduct in a battle of behemoths such as Microsoft and the United States government. Unfortunately, it often happens with big corporations versus much smaller corporations or individuals.
Another problem and practicality of the big firm is the pressure on those who do the work to bill a lot of hours. The "rainmaker" is also pressured to bring in enough business to feed the large overhead. To a lesser extent, these same pressures exist in many smaller firms but, of course, a high overhead is a characteristic of big city practice. Some of this is driven by the perceived need of attorneys to impress clients. A large, luxurious office that presents the appearance of success is thought to attract and please clients. The accepted wisdom is, clients want to bring their business to firms that are successful because those firms will be successful for the clients, too.
Holistic practitioners, who are not burdened with concerns of feeding a large overhead, may take more time with a client to understand the client's life and lifestyle and the client's business, including and going beyond the immediate facts of the proposed deal or the perceived conflict. In structuring a particular business deal or transaction in the context of the broader picture, the holistic lawyer is able to fulfill his obligation to his client and also, hopefully, to help with some healing advice that could address the client's immediate problem and also prevent that problem from reoccurring.
Holistic practitioners and alternative practitioners are often concentrated in particular areas of law, such as family law, where, instead of just aggressively representing a client in a divorce, they urge the client to look at the broader view and the longer view; the effect on the children and how the children will view the client in years to come, for example. However, even a lawyer representing commercial or corporate clients versus neighborhood and community interests can also serve his client well by looking beyond the normal parameters of the matter or controversy.
Tom Lynch, a lawyer practicing as environmental counsel and litigator at a traditional corporate law firm in Maryland, and who is a member of the International Alliance of Holistic Lawyers, commented about the evolution of his representation of a company which became aware of pollution problems at one of its facilities. The company prudently took immediate damage control measures to address the contamination problem quietly and efficiently and for a number of years, on Tom's advice, avoided communication with the media and its neighbors in the perception that it may thereby evade litigation. When a company representative was required to appear at a public meeting as a part of the process to upgrade its treatment system, Tom found himself in the position of having to address the community. Tom, who had just completed reading the book entitled "Seeing Law Differently, Views From a Spiritual Path", written by Alan Reid, a Canadian lawyer, had an inspiration. He appeared at the meeting, apologized to the entire community for the advice he had given to his own client; i.e., maintaining a low profile. Instead, he and his environmental consultant disclosed to the community precisely what had been done to remediate the problem and invited the community to participate in a series of plant tours during which state of the art environmental clean-up equipment could be examined. The community's concern and anger were dissipated by this catharsis event and the community has worked with the company since that time. Expensive litigation was thereby avoided and the relationship between the company and the community was significantly improved. This approach was completely consistent with the basic premise and major tenets of holistic and compassionate lawyering. In this case, compassion, information sharing, cooperation and understanding between both sides, encouraged community and commonality of purpose. There was no call for blame and no need for the waste of resources in litigation.
Many traditional lawyers could see disaster in this direction because less litigation could mean less legal fees. However, in the long run, a practice that encourages resolution of disputes without the expense of litigation, flourishes. Abraham Lincoln said "Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser - in fees, expenses and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man."
The fact is, most lawyers do not go to court and are rarely involved in litigation. Many lawyers practice "transactional law." They do business deals: buying and selling businesses, setting up businesses, counseling their business clients on contractual relationships with other businesses, and dealing with regulatory requirements of many city, state and federal regulatory agencies that hold their clients in regulatory thrall. Business lawyers could not be expected overnight to dramatically change their practice, but they can make a difference in a number of small ways. Indeed, many such lawyers have been trying in some ways to "do the right thing." Like Moliere's Monsieur Jourdain in Le Bourgeois Gentilhomme, who is amazed to discover he had been speaking prose for 40 years without knowing it, many lawyers may be surprised to know they have been practicing some holistic law without knowing it.
Almost all lawyers are fine, decent and honest people. From the young, idealistic lawyer who has recently graduated, to the older, seasoned lawyer, who has seen it all, many lawyers have been practicing in accordance with some of the holistic principles described above. This includes the customary courtesies extended to opposing counsel, as well as the cautionary observation to a client that a course of action could have long-term, unintended and unpleasant consequences. In these and many other ways, many lawyers have helped to make the practice of law a little less abrasive, and life more bearable for some clients and their opponents. They would probably, however, be embarrassed or indignant to find themselves grouped with "holistic lawyers." They would probably think it is bad for business.
The good news is that it could be very good for business. The longer and broader view of a client's interest is always good for lawyers. Furthermore, it can be entirely consistent with the Canon of Ethics. When a client comes to a lawyer, flushed with the heat of incipient battle, seething from a wrong, or excited about a possible deal or sale of a new business, he certainly expects the lawyer to point out pitfalls and even hopes to learn about unexpected advantages and possibilities. But he would also appreciate the lawyer pointing out an approach from which both sides of the deal could benefit. The other party to the deal or controversy is not going to disappear. Within a particular industry, paths may cross again and that person may be in a position to help or harm the client in the future; how the lawyer constructs the deal and conducts the transaction could determine which he does.
Will the "high-powered, corporate lawyer" in a big firm in a big city practice think of applying any of these principles in the way he practices and makes his living? He may contribute to charity and serve on boards of community organizations, but that humanism may not carry over to the practice of his profession where, he thinks, "Business is Business." He may believe it would be taking a big chance to change the way the business of law is conducted. He may feel that a successful practice is his contribution to the world. He should know, however, about the story Abraham Lincoln used to tell. It concerns a brilliant and eloquent frontier lawyer who spent his life in anxious, unending and exclusive pursuit of big fees, unconcerned with the issues of the day: slavery, states' rights, free soil, or other community concerns that swirled around him. In a career of forensic brilliance, the lawyer won everything but the respect of the people he lived among. Before the lawyer died, he ordered his own tombstone and directed that under his name be placed the inscription: "A Successful Lawyer and a Good Man." But the local town council refused to approve the inscription. They said it was against the law to bury "two men in one grave."
Most lawyers believe that it would be taking a big chance to change the way the business of law is conducted. However, conventional ways of thinking and acting in business and the professions in this country can and must change. Lawyers can change; for themselves, to make themselves healthier and happier, and also for the betterment of our country. It starts with each individual lawyer. It then spreads to the lawyer's firm and his colleagues and perhaps to the courts and to the agencies where he practices and then to the broader legal community and his locality. Then it can spread across the country and, in this modern Web-based, international community, it can spread to the rest of the world. Where it must start, however, is in the consciousness of each individual lawyer.
A Suggested Reading List:
Keeva, Steven: Transforming Practices: Finding Joy and Satisfaction in the Legal Life (Lincoln Wood, Illinois, Contemporary Books, 1999)
Perlmutter, Mark: Why Lawyer's (and the Rest of Us Lie) and Engage in Other Repugnant Behavior, (Bright Books, 1998)
Stolle, Wexler and Winick: Practicing Therapeutic Jurisprudence, the Law as a Helping Profession, 1 Carolina Academic Press, Durham, N.C., 2001.
Helpful Organizations and Programs:
Wainwright House
260 Stuyvesant Avenue
Rye, NY 10580
(914) 967-6080
Omega Institute
150 Lake Drive
Rhinesbeck, NY 12572
The New York Open Center
83 Spring Street
New York, NY 10012
(212) 219-2527
Web site: www.opencenter.org
International Association of Holistic Lawyers
P.O. Box 753
Middlebury, Vermont 05753
(802) 388-7478
Web site: www.ihala.org
Renaissance Lawyers Society
P.O. Box 949
Stone Ridge, NY 12484
Web-site: www.renaissancelaw.com
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