ARE ATTORNEYS FRIENDS OR FOES? by Judge Jim Gray

ARE ATTORNEYS FRIENDS OR FOES? by Judge Jim Gray

04/20/08

Okay, yes I am a member of the legal profession, and yes I agree that our profession has some problems. But by and large I am proud of my profession, and I think it is time for me to stand up for it more vocally. So please permit me to pass along to you some thoughts as you consider what to think about attorneys and the legal profession in general.


In the first place, virtually all attorneys deal in disputes and other problem areas in our society. Today we litigate many disputes that involve deeply important and emotional issues, like who will have custody of children, who will be awarded sometimes large amounts of money from someone else, whether a candidate will be able to appear on a ballot or not, where the body of a loved one will be buried when the family members do not agree, whether a real estate development project has complied with all applicable laws, or whether a potentially life-saving medicine should be pulled from the shelves of stores. The reputation of those of us in the legal profession is inescapably affected by our being involved in those difficult disputes.


For those who work as plaintiffs’ attorneys in litigation, frequently their clients are not happy with them because plaintiffs often lose their cases. Or they are not satisfied with the eventual award, or, if they are, with the time it took to procure it. With regard to representing defendants in litigation, it is a fact that no one likes to get sued. At the very least it is expensive, aggravating and takes lots of time, and attorneys frequently charge a lot of money for their time and expertise.


So one way or the other, litigation attorneys usually have unsatisfied clients on their hands, and “it is always their attorney’s fault” (or the judge’s). And that does not even begin to discuss what people think about the attorneys on the other side of their cases. So, as I often tell people, we are in the “dissatisfaction distribution business,” and that is almost literally true. And that situation adversely affects our reputation.


Even the large remainder of attorneys who do not get involved in litigation mostly deal with unhappiness in one form or another. Think of those who deal with regulatory agencies and governments at all levels, and tax attorneys. Usually they deal with bad news - it is simply a question of how bad. And when negotiating contracts, leases and other agreements, it is the other side’s attorney that is trying to procure “unfavorable” terms at your expense. So as a natural result, people often equate the attorneys representing the other side with disaffection and even bitterness.


Nevertheless, I believe people innately understand what we are up against, and that there remains an inherent appreciation of the services we render. As an example to support that belief, one evening I was attending yet another fundraising event, and I found myself sitting next to a lady at dinner who found out that I am in the legal profession. Throughout the dinner she harangued me about how the “shyster lawyers” are responsible for all kinds of things that are wrong with our society. It was amazing and quite one-sided. Finally in despair by the time of dessert I tried to change the subject by asking her if she had any children. “Oh yes,” she exclaimed proudly, “and my oldest son is in law school!”


But let me pass on to you some additional points that maybe my dinner friend and even you might not be aware of as you ponder what you think about attorneys in our community. The first point is in response to those who feel that attorneys file too many frivolous personal injury cases. You might not be aware of this, but most of these cases are taken by plaintiffs’ attorneys on a contingency basis, which is to say that the attorneys only take a negotiated percentage of what is eventually recovered. That means that unless the plaintiffs recover an award of some kind, the attorneys receive nothing on the case. As a result, since the attorneys run the risk of working for free, and even paying for costs of the lawsuit out of their own pockets, a sizeable screening process takes place in deciding what cases are filed at all by attorneys.


Another thing that people are almost completely unaware of is that attorneys as a profession routinely donate thousands of hours of “pro bono” work, which is to say that they donate their time to worthy people and causes that otherwise could not afford them. Personally I am not aware of any other profession that comes close to that type of a contribution.


Further, the legal profession polices itself diligently, to the degree that 80 percent of the state bar’s budget is spent on disciplinary inquiries. If any active judge came close to treating people like “Judge Judy” does, or any attorney were to act as is portrayed in many movies or television shows, they would soon lose their licenses to practice law. And rightfully so.


Attorneys at least in California are also required to specify in a written and signed retainer agreement what the relationships are between them and their clients before they can represent those clients in almost any litigation. And before they can bring an action for unpaid fees, the attorneys must offer neutral arbitration to their clients or former clients.


In addition, please consider the following. In my view, there are really only two ways that we can maximize the safety of products in the marketplace and justice and the realization of our expectations in our relationships with each other. One of them is through our civil justice system, with all of its imperfections. But the other is to have even greater governmental regulation of everything we do. And no one I know wants the government to be involved with even more regulation. So maybe we should appreciate what we have a little bit more, along with continuing to use our best efforts to improve the system further.


So are attorneys your friends, or your foes? In my view, the more people are aware of the facts, the more they will understand that the legal profession is a basic, valuable and necessary part of dispute avoidance, dispute resolution and securing safety and peace in the land. As such, it should be genuinely respected for the contributions it makes for us all.

James P. Gray is a Judge of the Superior Court in California, the author of Why Our Drug Laws Have Failed and What We Can Do About It - A Judicial Indictment of the War on Drugs (Temple University Press, 2001) and Wearing The Robe - The Art And Responsibilities of Judging In Today's Courts, has a blog at http://judgejamesgray.blogspot.com/. http://www.judgejimgray.com, and can be contacted at www.judgejimgray.com.