Hi there! Hope you all are doing well, especially those who are taking part in the HOLT challenge this year. I know you must be busy watching the videos and then completing the questions. As you work your way through the financial questions, you may find this insight into the legal profession as an interesting food for thought. This is an issue I encountered in my JD course and I have started to reflect on this as my exams are approaching fast.
During my courses I was taught the concept of a lawyer statesman. This term was coined in The Lost Lawyer by Anthony Kronman and describes the heroic lawyer of older times. Such a lawyer was a benevolent person that always sought to help his community and fellow workers; he was the one to stand for others’ rights; he was the righteous soul that was brought on this planet to help mankind. In short, this lawyer of older times, as Kronman puts it, was an individual that selflessly cared for the common good.
Then why the title The “Lost” Lawyer? Because according to Kronman, such heroes in our society do not exist anymore as today’s lawyers are all set on fulfilling their own goals. They use the laws, the law degree and the law firms’ prestige to get enough clients on their hand, bill them a huge amount, and then make lots of money. They drag controversial litigations in courts for years and years; partly to secure a steady fee and partly to earn “individual” publicity in the legal field.
Thus there is no lawyer statesman anymore that cares about the state; there is the lawyer one-man now, who cares all about himself.
How much do you agree with Kronman? Is this really true about today’s legal profession? Personally I agree with him that we have had living examples of the lawyer statesman in the past. Specific examples, as Walter Bernnet mentioned in his book, include Archibald Cox, Samuel Dash and Elliot Richardson. Yes, we do not have this comprehensive list of classic examples today; however we cannot attribute this to the reason that lawyers are becoming selfish. Rather, I believe its due to the complex accountability structure we have today in the legal field.
For example, in the past, lawyers did not really have a tall and complex subordinate organizational structure governing their duties of accountability, loyalty and confidentiality to multiple stakeholders. Non-state anti-crime organizations were rare (if even at all) and there was not much differentiation within a group of barristers and solicitors. Thus, all that lawyers had in mind when taking up cases or fighting them was the interest of their client and the reaction of the government. The code of conduct was more clear-cut, with few imposing behavioral rules.
But now things have become much more complicated. Loyalty to the client is just one of the many core virtues expected from a lawyer. The other fundamental principles include independence, competence, confidentiality, responsibility and honor. Lawyers are held accountable by many stakeholders such as courts, the clients and regulators of the legal profession simultaneously. Their actions are controlled, not only by the legislative ordinances, firm-wide instructions and client desires, but also by conduct rules made by the law society of each jurisdiction. Let us take Hong Kong as an example. Here, our solicitors are bound by not only the Solicitor’s Practice Rules in the ordinance but also by the Solicitor’s Professional Rules of Conduct while the barristers are bound a separate Code of Conduct designed by the Hong Kong Bar Association.
The imposeds numerous restrictions on what lawyers can do, disabling them from always being able to stand up for people’s rights (like the lawyer statesman) as much as they want to. Let us consider the case of Alton Logan as an example. Logan was convicted of murder in 1982 and sentenced to life imprisonment. However, in 2007 two attorneys revealed that the actual culprit was Andrew Wilson, while Logan was completely out of the situation. Wilson had already accepted his crime in front his lawyers in 1982 but the reason they could not speak about this in court stemmed from their duty of loyalty and confidentiality to their client. Even if they had breached this duty for the sake of justice in Logan’s trial they would a) be held violating the legal code of conduct and subject to penalties and b) not heard by court as “accurate evidence” to the trial. Hence, their efforts would have gone in vain anyways since their duty lay within their own client Wilson while Logan’s responsibility was that of his own defense lawyers. Such a structural complexity in the legal system is what led to the outcome of injustice, not the self-centered nature of the lawyers.
But I am not saying our legal system today is full of flaws. Indeed it has greatly evolved over the years and concepts such as the thick rule of law and doctrine of precedent have manifested themselves in common law jurisdictions like Hong Kong, enabling an independent and unbiased judiciary for all. This is surely not a bad change from previous times since these updated institutions is what guarantees judicial superiority in the lawmaking process and thus gives weight to fundamental rights. This structure of judicial system thus makes it difficult for a single lawyer to prosper as a lawyer statesman; rather the entire system is built to fulfill the duties of yesterday’s lawyer statesman by safeguarding the rights of the entire community. Hence, my own concern is that we should not confuse this nature of our new legal systems with that of an individual lawyer’s personality.
Therefore the lawyer statesman is not exactly “lost” but transformed into a “legal statesman”. What do you all think?
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