By JANICE HYDE and ROBERT MANDER
The concept of the lawyer as "citizen"—the final program in the five-part Leon Jaworski Public Program Series, "Representing the Lawyer in American Culture"—was examined by a distinguished group of panelists during a commemoration of Law Day on May 1, which was co-hosted by the Law Library of Congress and the American Bar Association's (ABA) Division on Public Education. The ABA instituted Law Day, generally celebrated on May 1, in the late 1950s to draw attention to the principles and practices of law and justice.
Robert Grey, president-elect of the ABA, presided. Rubens Medina, Law Librarian of Congress, welcomed those attending and noted the relevance of the Library of Congress as a venue for the event, since the Library "holds representations of lawyers' intellectual creativity in their various roles" in its collections. He said that "those of us who have chosen law as our profession need to be aware of the kinds of examples we offer to those just entering the field" and said he was curious as to how the panelists would address one of the evening's guiding questions: "Who exemplifies the American lawyer as citizen?"
National Law Day Chair David Collins observed that Law Day is "the occasion each year when attorneys self-consciously step into their role as citizen." Remarking that the ABA chose the 50th anniversary of the historic Brown v. Board of Education decision as its national theme for Law Day 2004, Collins emphasized the fact that Brown has been put to use in all kinds of civic activities. He informed the audience that Charles Rhyne, founder of Law Day, died in 2003 and noted that Rhyne believed passionately in the "liberating role of law." In his lifetime, Collins said, Rhyne fought against segregation of the DC Bar Association and founded the World Peace Through Law Program, accomplishments that Collins attributed to Rhyne's acting as a "lawyer as public citizen."
The panel was moderated by Lincoln Caplan, Knight senior journalist at Yale Law School and editor and president of Legal Affairs magazine. Caplan suggested that for lawyers who are officers of the court, the lawyer as citizen is particularly important, and the concept is spelled out in rules of conduct. Recently, however, he said there seems to be a crisis of confidence, moving him to ask, "Has our profession sacrificed principle for profit?"
Caplan suggested that the golden age of lawyering was exemplified by Jefferson and Madison, lawyers acting as statesmen.
Caplan offered two responses to the question "What does the lawyer as citizen mean?" First, the lawyer is acting as citizen when he offers his services on a pro bono basis; and second, when his daily performance as an independent counselor in private practice reflects the principles of statesman, reformer and teacher. Daniel Boorstin, the former Librarian of Congress, served as a role model of the "unusually able lawyer and citizen," Caplan said.
Moderator Caplan next asked the panel, "Should lawyers worry about being citizens?"
Austin D. Sarat, William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College, responded that he has been studying "cause lawyers," those who, for example, regularly represent death row clients. He argued that "there is more to being a lawyer than representing a single client. It's good for society and good for the bar. The bar as a whole ought to take on the role of responsible citizen."
Wendy Kaminer added that lawyers as citizens need to look at whether they are acting in good faith and with integrity. Kaminer is a lawyer who has served as a contributing editor to the Atlantic Monthly since 1991, a columnist for Free Inquiry and senior correspondent for American Prospect. She observed that "the client is the public citizen standing up under difficult circumstances. Lawyers can't be good public citizens without clients who are brave."
Defending cultural relativism, Kaminer indicted moral dogmatism as a challenge to today's lawyer-citizen.
Representing a different perspective, panelist Philip K. Howard, vice-chairman of Covington & Burling, where he is a senior corporate adviser and founder of Common Good, a national bipartisan coalition to "overhaul America's lawsuit culture and restore the role of common sense in American institutions," defended tort lawyers against a growing public skepticism. "Our failings as a profession are not limited to tort lawyers, and not all tort lawyers are morally bankrupt," he said. "But there are problems with the system when no one questions decisions that bankrupt hospitals."
In an age of legal specialization, Howard hearkened back to a time when the lawyer was a "citizen leader," lawyers such as Abraham Lincoln who served as town "elders" in small communities across America. "A change in values in a relativistic culture has put these citizen leaders in the closet," he complained. "There is a crisis in the idea of leadership."
The panel also considered the roles that financial incentives, moral guidance, professional ethics, the public good, the adversarial system and the cost of education play in shaping the lawyer as citizen in today's culture.
The concluding discussion focused on the need for the legal profession to develop standards and procedures for turning itself into a public profession. The panelists agreed that civic education is necessary so that by the time individuals reach law school, they are already imbued with the values needed to serve as lawyer-citizens. As panelist Douglas Wilder (former governor of Virginia and now distinguished professor in the Center for Public Policy and the department of political science at Virginia Commonwealth University) noted, "If you have to learn it in law school, it's too late."
Janice Hyde is a program officer and Robert Mander a writer-editor in the Law Library of Congress.