September 17, 2006 (Original publish date) • By Dennis Beaver
Mr. Beaver, I have a real complaint about lawyers and am sure that you have heard this before. Why is it that most-not all, but I think most-are completely unconcerned with the morality of what they do? I know of a family law attorney in our town who thinks that it is perfectly acceptable to help fathers avoid paying child support. We have others who clearly mis-representation the facts to the press when a client is arrested, and later, when convicted or a guilty plea is entered, they say nothing. It is as if right and wrong do not matter to them. What is your response, thanks, Holly, a San Diego reader?
As one of the professions, law historically had been thought of as a noble calling. Medicine cured. Architecture built. Law righted wrongs and helped society resolve problems. But with over one million lawyers in the country – more than 200,000 in California alone – far too many of us have more important things to do than urging people to resolve their problems economically, and out of court. We have hours to bill, fees to earn, car payments to make-and our clients make it all possible.
Instead of being viewed as a source of ethical guidance, seasoned with a strong dose of morality and fair dealing, we are generally considered as useful tools, as a way to avoid responsibility, hired guns – expensive hired guns. This was illustrated by a Bakersfield attorney’s license plate which read HI-FEE. His partner’s at the time was PAY2ARGU.
Lawyers tend to laugh when the public asks, “How do you justify trying to help a person avoid paying past due child support, or a bill they owe and just refuse to pay?” But there is nothing funny about that question, for so often members of this profession knowingly do everything in their power to stand, not for, but in the way of justice and fairness.
This attitude is justified with two of the sweetest words in our vocabulary: Zealous Representation. We are required to zealously represent our client, which is supposed to mean competent, diligent representation, not an excuse for doing anything in order to win.
There is a difference in Zealous Representation and Representation by a Zealot. But that is today’s reality, as in general, even with the shakiest of grounds, lawyers can file or oppose meritorious lawsuits, lose, and rarely if ever have to pay the other side’s legal expenses. This is referred to as “The American Rule.” In other countries, the loser pays the winner’s expenses resulting in much less litigation.
This bizarre “American Rule” (created by, you guessed it, lawyers) offers a Free Lunch to members of the legal profession. If anything comes close to legalized extortion, this is it, as many defendants – individuals, companies and cities – just cave in to save defense costs.
So, a mom and dad allow their kids to play in a lake at a city park, fail to watch their daughter and she drowns. “There should have been a warning sign!” screams their attorney, looking for a deep pocket (and nice fat fee for his law firm) ignoring the simple fact that for years similar signs have been posted with few positive results. He is preparing to file suit against the city, and odds are that when he loses the case, the city will be out all the money it spends in defense costs.
(I understand the family’s lawyer wanted warning signs to be posted on every bathtub and shower in the City of Bakersfield, in at least 15 different languages, but when his partners heard of the plan, he was taken away to Sunny Acres in a Straight Jacket.)
Merely Following Orders
Some time ago, I represented a timid, geeky and brilliant computer consultant. He was retained by an oil company to solve their remote monitoring problems – and was so successful at it, that the local manager asked him to tackle other problems. But this giant corporation refused to pay him for the extra work, even though the manager testified in his favor. It was clear that no real defense existed; the poor guy was owed his wages.
I asked the corporate attorney one question: “You can see that there is no defense, how can you morally sit here and help your client refuse to pay the guy for the work he did at their request?”
His answer: “I do what my client tells me to do.” But since that lawyer was Jewish, and over 6 million Jews died in gas chambers by people just following orders in the Holocaust, I then stated: “Merely following orders? What does that make you?” “Are you calling me a Nazi?” He yelled. “Yup, I sure am, and a hypocrite.”
He stormed out of my office. A few days later the case settled.
Indeed, when a lawyer agrees to accept the defense of an accused, there is a duty to competently carry out that task. But this should not mean using the media as a propaganda tool. Not long ago a twice-convicted DUI driver-with a blood alcohol level of .08-caused a fatal auto accident near Taft, California. At an .08 you are presumed to be under the influence. His well-known, local attorney announced to the media, “Well, .08 isn’t that high.”
“.08 isn’t that high?” It’s against the law, Counselor! Your client killed a completely innocent family man, and yet you have the unmitigated nerve to tell the public – hopefully someone who winds up on the jury – that it’s no big deal driving with the equivalent of more than a six pack of beer in your system. Those statements are more than an embarrassment. They send a message, a dangerous message; it’s no big deal to drive under the influence.
Good for the Lawyer Often = Bad for the Client
Some years ago, when I was virtually living in court, handling litigated divorce cases every day, right before going into trial I noticed a couple talking nicely. “You seem to be getting along pretty well,” I volunteered. “Have you ever thought of seeing a good marriage counselor?” “No, we haven’t,” they replied, “can we stop this today and see someone?” they asked. “Of course you can!” I said, and gave them two names.
Suddenly, the opposing attorney – a caricature of a lawyer, twisted faced, hair half grey, half black, realizing that today there just might not be a huge fee generated from their unhappiness, reached over and grabbed me by the tie, pulled me a few feet away. “Beaver, are you trying to take bread off of my table?” he yelled.
So much for really caring about your client. (By the way, that couple got into counseling, saving their marriage.)
Don’t Tell me To be Fair!
Not long ago I had a case where Dad hadn’t paid child support in over 14 years even though he visited his son every weekend. Dad, by the way, owned a large gym which grossed more than $500,000 yearly.
When his attorney was asked about the morality of offering $125 per month in support, her answer was: “Don’t ask me to be fair. I am not here to be fair or to judge my client, but to zealously represent him.” “Even if you directly help him harm his child?” I asked. “I don’t care,” she said, walking away.
Just what are we doing to our country with this kind of amoral behavior? What are the lessons that society receives?
How much more responsible might it be to tell a father who can obviously pay decent child support that he should do so?
But to act socially responsible and do good interferes with our ability to drag out a case. It costs us money. And we can justify it all through those two magic words.
Where was it written that we are forbidden from making moral judgments of our clients? Where is it written that we should help them do bad things? Isn’t theft bad? Isn’t it bad to run away from debts that you can pay and in fact owe? But far too many lawyers are cloaked in this strange shield. They don’t have to really care about the consequences of what they do because of what I believe to be, a twisted sense of duty.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.