Lawyers must safeguard their independence

first_imgLawyers must safeguard their independence Lawyers must safeguard their independence Mark D. Killian Managing Editor Lawyers are the keepers of the flame that glows in the torch of Lady Liberty, and the profession’s devotion to truth and the rule of law is paramount if lawyers are going to continue to “guard the thin and occasional indistinct line that separates civilization from the jungle,” according to Harvard law professor Arthur MillerAnd lawyers cannot fulfill their role in society unless they remain independent from public opinion, their clients, and the government, Miller told those assembled at the Trial Lawyer Section’s recent Chester Bedell Luncheon at the Bar’s Annual Meeting, which celebrates the independence of American lawyers.Miller said our system of government is sensitive to rights of individuals and ensuring a fair process, and for lawyers to do their work, they must be independent in thought and action.“Without 360 degrees of independence we would not only degrade ourselves professionally and impair our ability to discharge our duties to clients, but we also would not be able to engage in various types of socially desirable work — whether it is aiding the disadvantaged or participating in the policy issues of the day,” Miller saidMiller said there are four major types of independence lawyers must adhere to: independence in the practice of law; independence from public opinion; independence from clients; and independence from government.Independence in the practice of law, Miller said, is less common and feasible today than it once was because most lawyers do not fit the old pattern of the free professional. That is, the independent attorney working in a rural or small community.“In that environment. . . the lawyer was self-employed without long-term ties to particular clients and rather free to pick and choose among the cases offered to him,” Miller said. “Today many lawyers are in large, sometimes extremely large, firms and many others are essentially employed by business, large public and private institutions, and have much less freedom to work and make decisions.”They are subjected to pressure such as a preoccupation with billable hours and the bottom line.“The practice of law, particularly in the major cities, is becoming a business, obscuring what it means to be a professional,” Miller said, adding that there is an understandable desire to reduce costs and delays, which often leads to a preference for avoiding trials at all costs.“Too often the trial lawyer is dominated by the pretrial lawyer who is dominated by the settling lawyer or dominated by the risk adverse lawyer, and all of them are in turn dominated by judicial pressure or client pressure,” he said. “Although compromise is desirable, sometimes going to trial to achieve a result on the merits is best for the client and, depending on the issues involved, may be best for the community.”Miller said lawyers also must remain independent from public opinion, which might seem strange in a society in which people rule.“But we are also a society that respects the rights of unpopular individuals and groups and ideas, and it is the lawyer who must strive to protect them,” Miller said.When the media get into a “frenzy mode,” prejudice and prejudgement are the frequent results, he said.“We should not succumb to that and we should not contribute to that,” Miller said. “The lure of media exposure and self-aggrandizement simply compromises our processes.”He said participating in the frenzy does not benefit clients and contributes to lack of confidence in our system. The phenomena is nothing new.During colonial times, Miller noted, the press helped whip the public into a frenzy over what was termed the Boston Massacre, where British troops fired into ruckus a mob killing five colonists. Lawyer John Adams, who went on to help write the Declaration of Independence and serve as the nation’s second president, defended the soldiers, an unpopular choice for him.“But Adams believed that no person in a free society should be denied the right to counsel or denied a fair trial,” said Miller, adding that it is said that Adams lost half his practice after taking the case. “But in time his representation of the British increased his public standing, making him in the long-run more respected than ever.”Of the six soldiers charged, four were acquitted and two were convicted only of manslaughter.Miller said Adams later wrote, “It was one of the most gallant, generous, manly, and disinterested actions of my whole life and one of the best pieces of service I ever rendered my country.”Miller said short-term bowing to popular opinion may not necessarily produce the greatest payoff in the long-run.“We must remember we have an adversarial system in which fairness depends on spirited advocacy on both sides,” Miller said. “We must never permit the desire to be liked. . . to compromise our independence, our willingness to stand up for our clients.”Miller also said explaining the law and how it functions to the public is generally a good thing and cannot be done by media people.“I don’t think we can depend on them for accuracy, insight, or balance,” Miller said. “How many times has a jury verdict been called a finding of innocence? And how many times has a denial of certiorari been described as a decision on the merits?”Whether it is print or broadcast, the media has no sense of proportion, he said, citing that is evidenced by the present “maniacal, repetitive, and overblown coverage” of the Scott Peterson case, which will soon be replaced by the trial of Kobe Bryant, which in turn will be followed by that of Michael Jackson.“Much of what we do has become a commodity for the media and a free commodity at that,” Miller said. “We cannot participate in the type of pandering that makes a good TV broadcast. We all must exercise independence from the media.”Miller said lawyers also must remain independent from clients, as well.“Once hired, the lawyer wants for good reason to follow his or her own professional judgment instead of the client’s agenda and dictates when the two conflict,” Miller said. “We did not go to law school to become running dogs or ventriloquist’s dummies for our clients. We cannot become beholden to our clients the way I think, sadly, too many doctors have become beholden to their HMOs.”He said the statement “my client made me do it” is not a viable excuse, but an abdication of responsibility.Miller said his TV mentor, Fred Friendly, told him: “It is not enough to tell a client that he or she or it has a legal right to do something. The independent lawyer goes further and counsels the client as to what is the right thing to do.”Miller also holds that independence from government is essential for the American lawyer.“We forget that lawyers in many countries do not have the benefits of any such assumption of independence from government,” Miller said. “A defense lawyer in the former Soviet Union or China today has no independence worthy of its name. To the extent we have it, we should cherish it.”Another colonial times case illustrates the importance of this independence from government pressure, Miller said.In 1735, printer John Peter Zenger was charged with seditious libels for a pamphlet he published about the royal governor of New York. The governor handpicked two judges to hear the case and one of their first acts was to disbar Zenger’s first two lawyers. So Zenger’s friends got Philadelphia’s Andrew Hamilton, considered by many the best trial lawyer in America at the time, to represent him. However, Miller said, the judges would not allow Hamilton to prove the criticisms of the governor were true because English law at that time did not provide that the truth was a defense from libel.Miller said Hamilton argued with “more eloquence and patriotism than with citation of legal authority” that truth should be a defense and, even with the judge’s instruction that the jury must follow the law, they returned a not guilty verdict.“O.J. Simpson was not the first case of jury nullification,” Miller said. “I think the Zenger case illustrates that if the government, or some part of it, tramples on the rights of the people, it is the lawyers who have the independence and courage and resourcefulness to resist.”In the wake of 9/11, Miller asked: “Are we as lawyers properly discharging and honoring the heritage of John Adams and Andrew Hamilton? Are we demonstrating appropriate independence from the government in defense of civil liberties?”Miller said a lawyer’s devotion to truth and the rule of law are more important than simply doing what they are told to do by higher authorities.Wendell Phillips, 150 years ago, said eternal vigilance is the price of liberty, “and that is true in good times and in bad times,” Miller said. August 1, 2004 Managing Editor Regular Newslast_img

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