blawgisphere, I’ve been wanting to ask fellow lawyers a different question:
Was there a particular case — a Seminal Opinion — that strongly
influenced your attitude toward the legal system or the legal profession,
or that helped you decide the role you wanted to play within the
profession? Did one majority or dissenting opinion plant seeds from
which your lawyer psyche grew? If so, what was it and what difference
has it made in your professional goals or practice?
That’s the Seminal Opinion Baton, and I bet a very large percentage of lawyers,
professors and judges have a SOB Story to tell. Judging from its seismic readings
and aftershocks, Kelo v. City of New London seems very likely to be a seminal
case for many JDs2B, law students, or young lawyers in their formative years —
creating an army of law school graduates mobilized to protect property rights and
more suspicious than ever of both majority encroachment on the rights of the
minority and the influence of the wealthy over elected officials.
Until a few weeks ago, I might very well said “no, there wasn’t,” if someone passed
the SOB to me. But, while looking into the issue of lawyer advertising earlier this
Mayer, 1994, at 146 – 148) that linked the failure of the legal profession to serve middle-
class Americans with “two Supreme Court decisions that turned the bar upside down.”
Immediately, I recognized the roots of my most basic attitudes toward the legal profession
and my chosen path within it.
1975, right after my 2L year was completed. The case applied the antitrust laws
for the very first time to the legal profession — finding that a minimum-fee schedule,
published by the Fairfax County Bar Association and enforced by the State Bar,
violated Section 1 of the Sherman Act. Although Goldfarb alone would surely have
sufficed in shaping my lawyer’s psyche, the mold was set for good in June of 1977 —
a few months before I became a staff attorney in the FTC’s Bureau of Competition —
Bates decision held that First Amendment protection for commercial speech that is
neither false nor deceptive extends to lawyer advertising — including the truthful claims
by respondents of announcing “legal services as very reasonable rates.”
Of course, a seminal case must resonate with the individual’s own basic character. For many
people, membership in any group (family, church,
profession, etc.) means defending it against all
outside attack. For me, membership has always
meant an insistence that the group live up to its
responsibilities and its stated goals (and claims)
— that it be “the best that it could be.”
Looking now at the unanimous (8 – 0) Goldfarb decision and both the majority and
dissenting opinions in Bates, I see themes that have been at the heart of my legal
career:
– the legal profession claiming that it was not a “trade” or “commerce”
and that competition would destroy its image and integrity, while the
Court pointed out that lawyers have a major impact on commerce
and are clearly engaged in making a living.
— the profession insisting that “dignity” and “self-image” were essential
for professionalism, while the Court insisted that public service is the
core of the legal profession and competition seems more likely to help
than to hinder meeting our obligation to serve and reducing the public’s
skepticism about the profession
— the profession claiming it was protecting consumers through efforts “shark tiny gray”
that keep fees high, and through self-serving bans on activity that would
spur innovation and price competition (e.g., UPL as “consumer protection”)
– a blunderbuss approach by the Bar that insisted that no advertising
could be permitted (accepted by Justice Rehnquist, who would give
no Commercial Speech protection to lawyers and other learned
professions)
Looking at the amici in Bates and Goldfarb, Young Giacalone could see that the
legal establishment strongly opposed an end to fee schedules, any imposition
of the antitrust laws, and the acceptance of advertising — and they were joined by
other “learned” professions. Even after minimum fee schedules were forbidden,
they fought against advertising that let consumers know lower-priced options
existed. [My decision to write the total-grade paper in my class on Professional
Responsibility on the topic of lawyer advertising suggests how important the issue
was for me as a law student. My decision to boldly support lawyer advertising,
despite my professor’s contrary position, further shows a willingness to accept the
consequences of rubbing the legal profession the wrong way. As I’ve mentioned
here before, the result was my worse law school grade. You’d think I would have
learned better by now.]
How can the influence of Bates and Goldfarb be seen over the past
30 years of my professional life?
– I spent 12 years working on competition and regulatory issues,
at the FTC, mostly focused on the learned professions — especially
on the use of ethics rules to stymie competition. “Demystifying”
the legal and medical professions, and replacing legalese with Plain
English were other related, ongoing interests.
– “Competition Policy” has also been at the center of my work — the
structuring of regulatory schemes so as to preserve the forces of competition,
while overcoming market failures and preventing deceptive and unfair practices
that hurt consumers.
– I have been very suspicious of (1) any claim that having less information,
choice or price competition somehow benefits consumers; (2) any
pricing mechanism — such as contingency fees or the Goldfarb
fee (which was based on a percentage of the transaction involved) —
that does not take into account the actual amount of work done by
the lawyer; (3) maximum fee rules or guidelines that become the de
fee; and (4) any attempt to arrogate to lawyers rather than clients the
profits derived from improved technology and efficiency.
“shark tiny” A basic tenet for me: Bar Association = Guild (“we” come first, not
– In my retirement, I have used this website to keep a wary eye on bar
activity that appears to raise price in the name of consumer protection,
and have insisted that professionalism is not about image and dignity,
but must instead be focused on service and integrity.
update (July 28, 2005): For two years, I’ve been trying to convince
Massachusetts “bar advocates” (assigned counsel for the indigent in
criminal cases) that they have no right to violate the antitrust laws and
their ethical duties to the judicial system by engaging in coordinated,
coercive boycotts aimed at increasing their fee levels.
– My doubts about the willingness of the legal profession to serve the 70%
of Americans who are neither rich nor poor, despite technological advances
that should make it much easier to achieve access for all at affordable prices,
has led me to fight for improved Self Help resources for all American consumers
So, what about you? Was there a Seminal Opinion that touched off or inspired your
legal career? After complaining recently about being a stickee, I’m going to make taking
up this Baton voluntary. Nevertheless, I hope they’ll be a lot of uncoerced, but insightful,
answers.
in the owl’s opinion
every day
is long
useless me
useless weeds…
the cuckoo’s opinion
Swing over to Kevin Heller’s place for Blawg Review #12.
