“What do you call a thousand lawyers at the bottom of the ocean? A good start!”
Lawyers are perhaps the next most-hated professionals after politicians. It’s no wonder that the public sees lawyers this way. If you need someone to take a seemingly simple problem and stretch it out over several months followed by a bill for several thousand dollars, ask a lawyer. As beloved “Simpsons” character Lionel Hutz puts it, “If there’s one thing America needs, it’s more lawyers. Can you imagine a world without lawyers?” In his thought bubble, people of all races and faiths dance while holding hands beneath a rainbow and a smiling sun. Hutz shudders, horrified by the lawyer-less utopia he imagines.
But as right as “The Simpsons” has been with respect to its predictions of the future, it gets the role of lawyers backwards. First came disputes, then came lawyers. Throughout human history, arguments over ownership, use of shared resources, annoying behavior, criminal prohibitions and punishments, and political power have existed. Wherever there were people, those people argued. Where there was arguing, there were, eventually, people who decided that getting paid to argue seemed like a better career choice than other options like butchering animals or toiling in a field. And so, the profession of lawyering was born.
Almost as soon as lawyering became a profession, it developed a need for professional norms. Lawyers are supposed to be civil, professional, and ethical. What do these concepts mean? Why are they more important for lawyers than for others? And what are the consequences of violating these expectations? The full topic is far too broad to consider here, so this essay reaches only one conclusion: A lawyer’s civility, professionalism, and ethical choices are essential for public trust in the legal system and, in turn, for the legal system to function within the United States’ broader conception of limited government.
One anecdote may prove helpful in introducing this argument. When I was a very small child—so small that this incident is one of my earliest memories—I was riding in a car with my grandparents and my great-aunt. I asked what my great-aunt did for work, and she said that she was an attorney. When I asked what an attorney was, my grandmother interjected, “An attorney is someone who can run red lights.”
I didn’t understand her joke until a couple of years later, when I learned what a lawyer’s job actually entails. But my grandmother’s words still hang in my ears whenever lawyers are accused of “bending” the rules. To some members of the public, lawyers seem to be those for whom the law is not a binding obligation but instead a plaything to be argued over and cleverly massaged until the lawyer (and maybe the client) faces no consequences for anything. To be sure, cleverness is an excellent asset for a lawyer, and using procedural or arcane rules—which non-lawyers may sometimes deride as “technicalities”—to a client’s advantage is part of the job. In that sense, then, the public’s image of the lawyer as a sly fox is somewhat justified.
But a lawyer is not a person who can run red lights. In fact, a lawyer is a person who not only must stop at red lights but also must stop at green lights to let little old ladies finish crossing the street, stop at yellow lights if it looks like the light might turn red before the car enters the intersection, stop at stop signs even if no one else is around, and pull over to help the family that needs assistance with their car. Lawyers do not uniquely surrender their freedom upon joining the profession: Non-lawyers should also avoid injuring pedestrians, driving recklessly, and breaking traffic laws. But it is more egregious for a lawyer to violate these rules—and norms like civility—than for a non-lawyer to do so.
And why is that? Put simply, lawyers are, to the non-lawyering public, the physical manifestation of the law. Sure, the law technically exists as a written statute or constitution or judicial opinion. But the ink on the page is a visual representation of the law and an obscure one at that. When I was a child, my non-lawyer father told me that ignorance of the law is not a defense in court. In response, I read the California Penal Code in its entirety so I would know what conduct was legal or illegal. Only when I grew up did I come to understand that most of my fellow Californians have not done the same. (This claim is entirely anecdotal, but the few people I have met who have claimed to have read the entirety of the California Penal Code have nearly all been attorneys.)
Because the public does not typically go rooting through the statute books and reporters of decisions, the most visually accessible manifestation of the law is not the written expression of the law. Instead, it is the physical expression of the law through the personage of a lawyer.
Thus, when a lawyer breaks the law, the non-lawyer is faced with a conundrum: Is the lawyer a hypocrite? Is the law not real? Is the law real but applicable only to non-lawyers? In none of these possible conclusions does the legal profession emerge with a positive image intact. Negative public image harms the profession as a whole. Why would a client whose divorce attorney is now in prison trust a transactional attorney to handle the client’s business merger? Lawyers know the answer: The specialties are different, and an individual lawyer’s behavior ought not to reflect on the whole profession. But whether it ought to or not, it does. And our hypothetical client is now left without legal representation because a member of the profession has given all lawyers a bad name.
But the more insidious harm caused by the negative public image of lawyers is the breakdown of the rule of law. The law matters because it creates a set of expectations upon which we can each predicate our behavior. If we want to change the law, we have democratic processes for doing so. We also have judicial review for recognizing conflicts between laws and deciding what the governing law is.
We do not, however, have a system in which the rule of law is a dispensable inconvenience. The United States was founded on the idea that the government itself is not above the law and that the law’s limitations on government are essential for freedom. Fundamentally, though, the Constitution and laws made in furtherance of it are mere words on a page. The thing that makes them work is public belief in their effectiveness. That belief—and, by extension, our entire democratic republican system of government—only exists if the public has faith that the law is something more than a mere plaything of the bar.
How do I propose to remedy the present situation, in which distrust of the legal process pervades social consciousness? My recommendation to attorneys is to be civil, to abide by the law and the ethical rules, and to carry oneself as a representative not only of the client, but also of the profession as a whole. This advice sounds simple enough. Indeed, it is essentially what attorneys swear to do when being inducted as new members of the bar. In truth, however, this goal is a classic example of easier said than done.
Already in my short time as a law student, having had a summer job and clinical assignments, I’ve encountered opposing counsel who can only be described as remarkable. One attorney insisted in a pleading that my employer was part of a plot by the Chinese Communist Party—despite the fact that this employer is insistently non-partisan and, in several matters, represents clients with clear anti-communist views. Another opposing attorney asked my clinical client repeated and intrusive questions about her African American ancestry and her status as a single mother—when we were representing her for a completely unrelated claim. And in yet another case, opposing counsel completely failed to research her client’s best defense against our claim—a defense most law students learn in their first-year torts class.
I could have spent my time expressing my surprise that these individuals managed to pass the bar examination and become licensed attorneys. But I have come to learn that a significant part of this profession is an insistence on treating opposing counsel, parties, witnesses, judges, court staff, and office support staff with the respect that each individual deserves—and, sometimes, more respect than they deserve. People make mistakes and need to be held accountable for them. But angrily issuing verbal or written attacks on a person does nothing to fix the situation or improve the profession’s image. It instead furthers the image of the lawyer as the purple-faced bloviator rather than the calm voice of reason.
Our modern, technology-fueled world is part of what makes this goal more difficult than it first appears. Being a “keyboard warrior” is easy. From the safety of anywhere in the world, an individual whose in-person presentation is meek and unassuming can become a veritable virtuoso of vituperation. Anonymity—and being outside of punching distance—embolden people of all professions to say things online that they would not say to a person’s face. But saying such things online is effectively saying them to millions of people’s faces all at once. If a lawyer’s social media post is defamatory, violates confidentiality, or otherwise breaks the ethical rules or the norm of civility, the harm is greatly magnified by the global reach of online platforms. What might have previously been solvable with an apology may now require a concerted effort from the lawyer to properly retract an unethical public statement.
Technology can also lull attorneys into a false sense of complacency and a willingness to cut corners. To be sure, technology does ease the burden of lawyering. I’m very thankful to be attending law school in the era of Westlaw and PACER rather than needing to manually “Shepardize” my cases or hand-deliver documents to court. But unreliable technology can seriously jeopardize an attorney’s fulfillment of the duties of diligence and competence. Just since the release of ChatGPT, at least five attorneys have been caught filing pleadings with fictitious cases “hallucinated” by large language models. Attorneys owe it to their clients, the taxpayer-funded courts, and themselves to avoid costly and embarrassing mistakes such as citing non-existent cases because of reliance on generative artificial intelligence. The negative press coverage surrounding these kinds of incidents only worsens the public image of the legal profession and its role in preserving the rule of law.
To overcome these challenges, I have a few recommendations. In my view, three things are key to remember:
First, follow the law, including the ethical rules, even when it’s hard. Attorneys can and should pursue every reasonable substantive and procedural avenue to advance their clients’ interests. But they cannot break the law or aid their client in doing so. Setting aside the potentially tremendous consequences for the lawyer, the client may well end up in more trouble due to the lawyer’s activities, and the profession as a whole suffers reputational damage. When attorneys are known for breaking the rules, they model a disrespect for the rule of law to all of society. That behavior undermines our system of government, our system of social organization, and our settled expectations of how others will act. When you’re tempted to break the ethical rules with a spicy social media post, or because your firm needs to pay rent and could just for a minute “borrow” the funds from a client’s trust account, remember: The ethical rules are the law, and you have to obey the law to make it work.
Second, treat everyone with kindness. Granting extensions to opposing counsel to file their responsive pleading might help you later on when you need to ask for your own extension or when you want some fuller discovery without needing a Motion to Compel. You owe it to your client to have sufficiently robust, civil communication with opposing counsel that can facilitate the process rather than dragging it out at the client’s, opposing party’s, and taxpayers’ expense. And court staff and judges are much more likely to help you out if you’ve been treating them well at each step of the way. Even when a matter has become truly loathsome, treat everyone involved with kindness. At the very least, that should help it be over more quickly!
Third, carefully consider possible outcomes from each step of your behavior. Even if you’re following the principles of kindness and obedience to the law, it’s possible to make mistakes—sometimes serious ones. It’s essential to think ahead to ensure a manageable workload, fully research to have competence in a matter, and prepare for multiple possible reactions from opposing counsel to communications and pleadings. The work of being a lawyer is exhausting and time-consuming, but that’s no excuse for getting sloppy or careless. Foresight is the lawyer’s biggest asset in combatting accidental violations of the law and in making sure that the heat of litigation doesn’t spill over into a breach of civility.
Lawyers have a special role to play in American society. Over these past two and a half centuries, the profession has acquired something of a bad name in this country. But with the rule of law being so essential to our system of government, it is critical to rebuild public trust in the legal system. That rebuilding process starts with lawyers following the strategies I’ve laid out here and being mindful of the potential pitfalls waiting for them over the course of their careers. As I embark on the beginning of my professional journey, I feel cautiously optimistic about the profession’s ability to rise to these ideals. I’m counting on you, readers, to take these words to heart and do your part to make the legal profession the best it can be.
Desmond Mantle is a third-year law student at Stanford University focusing on the intersection of constitutional and criminal law as well as the field of law and technology. He will be clerking for Judge Daniel Collins of the Ninth Circuit Court of Appeals following his graduation. In his free time, Desmond corrects grammar and style errors on Wikipedia.