The Citizen-Lawyer - A Brief Informal History of a Myth with Some Basis in Reality

The term "citizen lawyer" seems to be shorthand for a complex assortment of social types, but the core meaning is plain enough. The citizen lawyer is a lawyer who acts in a significant part of his or her professional life with some plausible vision of the public good and the general welfare in mind. Of course, citizen lawyers, like most lawyers, may seek wealth, power, fame, and reputation for themselves. They may also represent and further the ends of clients with distinctly selfish or antisocial interests. What makes them citizen lawyers, then, is that they also devote time and effort to public ends and values: the service of the Republic, their communities, the ideal of the rule of law, and reforms to enhance the law's efficiency, fairness, and accessibility. (1) So general and bland a definition would, I expect, command agreement from most lawyers. But it covers up deep divisions among the views that lawyers have traditionally held on the proper scope of their public or civic obligations. American lawyers' starting point for conventional reasoning about these roles, more or less a constant throughout its history, is like that of professions of advocates elsewhere: that lawyers effectively produce the public goods of justice and the rule of law by just doing their regular day jobs, zealously serving their clients. (2) The paradigmatic public benefit of private practice is illustrated by criminal defense, the defense of individual clients' rights of liberty and property against the dangers of an overbearing state. (3) In civil litigation as well, by vigorously asserting some clients' claims and defending others against such claims, the lawyer plays a vital, differentiated part in a process, the adversary system, whose overall end is the vindication of rights and the defeat of unjust claims. (4) In the words of the official comments to the ABA's current ethics code, "[C]lients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld." (5) Like the invisible hand of the market, which aggregates selfish interests into a virtuous equilibrium, the procedures of the legal system bring clients' private interests into harmony with public goals and values. (6) But only the most starry-eyed idealist could take seriously this account of a perfect convergence between private practice and public benefits. Legal systems are subject to systemic failure even more than markets. Legal resources--access to and ability to pay legal talent (lawyers)--are distributed very unequally, so that instead of delivering equal justice, they are put largely to the service of wealth and tend to magnify inequalities of power. (7) Law can be an instrument of extortion and oppression. (8) Lawyers can and do help plaintiffs to pursue frivolous and unjust claims to extort settlements, (9) and they help defendants resist valid and just claims through delay and discovery abuse. (10) Lawyers can and do lobby for bad laws and rulings that promote special interests over any plausible view of the general welfare, and by means of procedural tactics or strained interpretations effectively resist and even nullify good laws. (11) Yet lawyers are also the principal instrumentalities for producing the public goods sought from the effective operation of the legal system--the protection of individual rights, equal justice between persons, security and public order, and the implementation of policies designed to promote the common welfare. (12) The law is the originating cause, the raison d'etre, of the lawyer's calling, the reason for licensing this special corps of social agents. If the activities of lawyers undermine the public benefits of law, should not lawyers themselves have special obligations--deriving from their situation and opportunities, their expert knowledge, and their monopoly of the privilege to practice--to help impove the law and its day-to-day administration? …