The Majesty of the Law Needs Magisterial Lawyers

Below are remarks by Ralph Nader to the Connecticut Bar Association in 2013, republished by the Record this week:

Today, we gather as both attorneys and lawyers to contemplate our privileged profession. The many specialized workshops today are largely designed to better our role as “attorneys” – as attorning for our clients. Permit some words on our role as “lawyers” urged by our ethical canons and codes to strive for justice, to enlarge the peoples’ access to justice and to improve the administration of justice. Of the nearly one million licensed members of the bar nationwide, the bulk of our time obviously is devoted to being “attorneys” as compared with our time spent exercising wider duties as “lawyers.”

Yet, if we profess to be a profession, invested with monopolistic authority, instead of a trade, we should address the three distinctions between a profession and a trade. They are:

(1) A learned tradition;
(2) An institutional independence; and
(3) A spirit of public service.

Indeed, a careful reading of our canons perceives these characteristics both explicitly and implicitly. They are not simply idealistic principles good for placement on our office walls. For they represent important public interests that we are uniquely empowered, free and expected to render operational.Should we not give meaning to the words “officers of the court” – a quasi-official status that could properly mean both being sentinels and guardians for the just rule of law?

The world is becoming exponentially more complex, so is the law. Yet the enduring purpose of the law remains as critical as ever – to restrain, redirect, discipline, at times, displace abusive power completely, and to facilitate the civic and political energies of the people. Serious failings in these roles allow the supremacy of raw power over the law, either to enact legislation that serves the few rather than the many, or to take existing legal systems and distort them into instruments of unfair advantage or injustice against their presumed beneficiaries. That is what happens when the few (plutocrats and oligarchs) control the many to benefit the few. It is what Justice Louis Brandeis meant when he said: “We may have democracy, or we may have wealth concentrated in the hands of a few, but we can’t have both.” This is what Judge Learned Hand meant when he wrote: “If we are to keep our democracy, there must be one commandment: thou shalt not ration justice.”

Today those insights bear application. We have a serious continuing problem of tens of millions of Americans unable to afford legal representation. Existing legal services and public defender resources are grossly inadequate and relatively on the decline – a deplorable condition criticized repeatedly by former Supreme Court Justice, Sandra Day O’Connor. Court budgets are being cut back harmfully, as prison budgets loom so much larger.

The national security government has given us secret law, secret courts, secret evidence, surveillance of attorney-client communications, unauditable secret expenditures for quagmires abroad, even redacted published judicial decisions, and secret prisons. It has shunted aside probable cause, habeas corpus and upended the other bulwarks of due process, such as through indefinite imprisonment without charges, and dragnet snooping. An unaccountable executive, breaking constitutional, statutory and treaty restraints, and condoned by abdicatory legislative and judicial branches, is a recipe for tyranny that was foreseen by the framers of our Constitution.

The two pillars of our legal system – the laws of contract and tort – are incrementally ravaged by powerful corporations advised by power-attorneys. Corporate privileges and immunities deepen as fine print contracts and tort deforms both stripmine the rights of defrauded and wrongfully-injured people and destroy deterrence. Corporatism – the blending of big business and big government – produces massive corporate welfare bailouts, subsidies, handouts, outsized tax escapes, and other giveaways – and lock in the purpose of commercial campaign contributions.
Where are the lawyers? Where are the sentinels and the guardians?

They are here and there. We know them, don’t we? Shall we call them the brave one percent? The ones who have knowledge in their brain and fire in their belly. There are nowhere near enough of these brothers and sisters-in law. Far greater numbers of their peers know what they know or could know. They need to join with them and also arouse the over-vocationalized law schools and the under-challenged bar associations, who need more active members.

They need, in a variety of institutional ways, to organize our profession. We are under-organized as “lawyers,” as compared with how intricately organized we are as “attorneys.”

With a higher estimate of our significance, we must respond to the silent cries of the people for justice – what Senator Daniel Webster called – nearly two centuries ago – “the great interest of man on Earth. It is the ligament which holds civilized beings and civilized nations together.”

 

Ralph Nader was the Green Party candidate for president in 2000 and a former editor-in-chief of the Record.

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