f/k/a . . . the archives

June 26, 2005

seminal cases can shape a lawyer’s psyche

Filed under: pre-06-2006 — David Giacalone @ 12:58 am

While others have been handing off reading sticks and music batons throughout the

blawgisphere, I’ve been wanting to ask fellow lawyers a different question:


scales rich poor  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 

month, I saw a short excerpt from The Betrayed Profession (by Sol Linowitz, with Martin

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.   

                                                                                                                no solit neg

 

The first case was Goldfarb v. Virginia State Bar, 421 U.S. 773, issued on June 16,

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 —

when the Court issued Bates v. State Bar of Arizona, 433 U.S. 350 (1977).  The

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.”



tiny check 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.]

 

scales rich poor neg  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

facto floor (see Maricopa), such as the one-third standard contingency

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

the client) [see, e.g., Bar & Guild]

 

- 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

of legal services. (see our Self-Help/Pro Se page)

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

 


ISSA                                                                                                   law books

translated by David G. Lanoue                                                              

4 Comments

  1. The cases that impressed me most when I studied them in college were the cases in which the Supreme Court changed its mind – the Brown case, the New Deal cases, and even (going from the sublime to the ridiculous) Garcia v. SAMTA, which reversed National League of Cities, which reversed Maryland v. Wirtz (or something like that). The law is alive and changes! Somehow this trivial insight struck me as remarkable.

    Comment by Steve — June 26, 2005 @ 4:10 pm

  2. The cases that impressed me most when I studied them in college were the cases in which the Supreme Court changed its mind – the Brown case, the New Deal cases, and even (going from the sublime to the ridiculous) Garcia v. SAMTA, which reversed National League of Cities, which reversed Maryland v. Wirtz (or something like that). The law is alive and changes! Somehow this trivial insight struck me as remarkable.

    Comment by Steve — June 26, 2005 @ 4:10 pm

  3. Mr. Minor, You sound like one of those judicial activists!  Is that allowed in SW Va?  Your secret is safe with me. (thanks for daring to share)

    Comment by David Giacalone — June 26, 2005 @ 6:58 pm

  4. Mr. Minor, You sound like one of those judicial activists!  Is that allowed in SW Va?  Your secret is safe with me. (thanks for daring to share)

    Comment by David Giacalone — June 26, 2005 @ 6:58 pm

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