{"id":3917,"date":"2005-06-26T00:58:02","date_gmt":"2005-06-26T04:58:02","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/formerlyknownas\/2005\/06\/26\/seminal-cases-can-shape-a-law"},"modified":"2011-08-05T14:57:37","modified_gmt":"2011-08-05T18:57:37","slug":"seminal-cases-can-shape-a-lawyers-psyche","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/2005\/06\/26\/seminal-cases-can-shape-a-lawyers-psyche\/","title":{"rendered":"seminal cases can shape a lawyer’s psyche"},"content":{"rendered":"

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While others have been handing off reading sticks<\/FONT><\/A> and <\/FONT>music batons<\/FONT><\/A> throughout the <\/FONT><\/DIV>
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blawgi<\/EM>sphere, I’ve been wanting to ask fellow lawyers a different question:<\/FONT><\/DIV>
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\"scales  Was there a particular case —<\/EM> a Seminal Opinion — that strongly<\/EM><\/FONT><\/DIV>
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influenced your attitude toward the legal system or the <\/FONT>legal profession, <\/FONT><\/EM><\/DIV>
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or that helped you decide the role you wanted to play within the <\/EM><\/FONT><\/DIV>
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profession?  Did one majority or dissenting opinion plant seeds from<\/EM><\/FONT><\/DIV>
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which your lawyer psyche grew?  If so, what was it and what difference <\/EM><\/FONT><\/DIV>
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has it made in your professional goals or practice?  <\/EM><\/FONT><\/DIV><\/BLOCKQUOTE>
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That’s the Seminal Opinion Baton<\/EM>, and I bet a very large percentage of lawyers, <\/FONT><\/DIV>
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professors and judges have a SOB Story<\/EM> to tell.  Judging from its seismic readings <\/FONT><\/DIV>
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and aftershocks, Kelo<\/EM><\/A> v. City of New London<\/EM> seems very likely to be <\/FONT>a seminal <\/FONT><\/DIV>
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case for many JDs2B, law <\/FONT>students, or young lawyers in their <\/FONT>formative years — <\/FONT><\/DIV>
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creating an army of law school graduates mobilized to protect property rights and <\/FONT><\/DIV>
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more suspicious than ever of both majority encroachment on the rights of the <\/FONT><\/DIV>
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minority and the influence of the wealthy over elected officials.   <\/FONT><\/DIV>
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<\/FONT> <\/DIV>
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Until <\/FONT>a few weeks ago, I might very well said “no, there wasn’t,” if someone passed <\/FONT><\/DIV>
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the SOB<\/EM> to me.  But, while looking into the issue of lawyer advertising earlier this <\/FONT><\/FONT><\/DIV>
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month, I saw a short excerpt from <\/FONT>The Betrayed Profession<\/FONT><\/EM><\/A> (by <\/FONT>Sol Linowitz<\/FONT><\/A>, <\/FONT><\/FONT>with Martin <\/FONT><\/DIV>
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Mayer, 1994, at 146 – 148) that linked the failure of the legal profession to <\/FONT>serve middle-<\/FONT><\/DIV>
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class Americans with “two Supreme Court decisions that turned the <\/FONT>bar upside down.” <\/FONT><\/DIV>
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Immediately, I recognized the roots of my most basic attitudes <\/FONT>toward <\/FONT>the <\/FONT>legal <\/FONT>profession <\/FONT><\/DIV>
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and my chosen path within it.   <\/FONT><\/DIV>
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                                                                                                                \"no<\/FONT><\/DIV>
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<\/FONT> <\/DIV>
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The first case was Goldfarb v. Virginia State Bar<\/EM><\/A>, 421 U.S. 773, issued on June 16, <\/FONT><\/DIV>
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1975, right after my 2L year was completed.  The case applied the antitrust laws <\/FONT><\/DIV>
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for the very first time to the legal profession — finding that a minimum-fee schedule, <\/FONT><\/DIV>
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published by the Fairfax County Bar Association and enforced by the State Bar, <\/FONT><\/DIV>
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violated Section 1 of the Sherman Act.  Although Goldfarb<\/EM> alone would surely have <\/FONT><\/DIV>
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sufficed in shaping my lawyer’s psyche, the mold was set for good in June of 1977 —<\/FONT><\/DIV>
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a few months before I became a staff attorney in the FTC’s Bureau of Competition — <\/FONT><\/DIV>
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when the Court issued Bates v. State Bar of Arizona<\/EM><\/A>, 433 U.S. 350 (1977).  The <\/FONT><\/DIV>
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Bates<\/EM> decision held that First Amendment protection for <\/FONT><\/FONT>commercial speech that is <\/FONT><\/FONT><\/DIV>
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neither false nor deceptive extends to lawyer advertising — including the truthful claims <\/FONT><\/FONT><\/DIV>
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by respondents of announcing “legal services as very reasonable rates.”<\/FONT><\/DIV>
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\"tiny Of course, a seminal case must resonate with <\/FONT><\/DIV>
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the individual’s own basic character.  For many<\/FONT><\/DIV>
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people, membership in any group (family, church,<\/FONT><\/DIV>
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profession, etc.) means defending it against all <\/FONT><\/DIV>
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outside attack.  For me, membership has always <\/FONT><\/DIV>
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meant an insistence that the group live up to its <\/FONT><\/DIV>
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responsibilities and its stated goals (and claims)<\/FONT><\/DIV>
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— that it be “the best that it could be.”<\/FONT><\/DIV><\/DIV><\/BLOCKQUOTE>
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Looking now at the unanimous (8 – 0) Goldfarb<\/EM> decision and both the majority and <\/FONT><\/DIV>
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dissenting opinions in Bates<\/EM>, I see themes that have been at the heart of my legal <\/FONT><\/DIV>
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career:<\/FONT><\/DIV>
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– the legal profession claiming that it was not a “trade” or “commerce” <\/FONT><\/DIV>
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and that competition would destroy its image and integrity, while the<\/FONT><\/DIV>
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Court pointed out that lawyers have a major impact on commerce <\/FONT><\/DIV>
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and are clearly engaged in making a living. <\/FONT><\/DIV>
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<\/FONT> <\/DIV>
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— the profession insisting that “dignity” and “self-image” were essential  <\/FONT><\/DIV>
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for professionalism, while the Court insisted that public service is the <\/FONT><\/DIV>
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core of the legal profession and competition seems more likely to help <\/FONT><\/DIV>
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than to hinder meeting our <\/FONT>obligation to serve and reducing the public’s <\/FONT><\/DIV>
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skepticism <\/FONT>about the profession<\/FONT><\/DIV>
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<\/FONT> <\/DIV>
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— the profession claiming it was protecting consumers through efforts    “shark tiny gray”<\/FONT><\/DIV>
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that keep fees high, and through self-<\/FONT>serving bans on <\/FONT>activity that would <\/FONT><\/DIV>
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spur innovation and price competition (e.g.,<\/EM> UPL<\/FONT><\/A> as “consumer protection”)<\/FONT><\/DIV>
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<\/FONT> <\/DIV>
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– a blunderbuss approach by the Bar that insisted that no advertising<\/FONT><\/DIV>
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could be permitted (accepted by Justice Rehnquist, who would give <\/FONT><\/DIV>
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no Commercial Speech protection to lawyers and other learned <\/FONT><\/DIV>
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professions)<\/FONT><\/DIV><\/BLOCKQUOTE>
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Looking at the amici<\/EM> in Bates<\/EM> and Goldfarb<\/EM>, Young Giacalone could see that the <\/FONT><\/DIV>
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legal establishment strongly opposed an end to fee schedules, any imposition <\/FONT><\/DIV>
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of the antitrust laws, and the acceptance of advertising — and they were joined by <\/FONT><\/DIV>
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other “learned” <\/FONT>professions.  Even after minimum fee <\/FONT>schedules were forbidden, <\/FONT><\/DIV>
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they fought <\/FONT>against advertising that let consumers know lower-priced options <\/FONT><\/DIV>
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existed.  [My decision to write the total-grade paper in my class on Professional <\/FONT><\/DIV>
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Responsibility on the topic of lawyer advertising suggests how important the issue<\/FONT><\/DIV>
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was for me as a law student.  My decision to boldly support lawyer advertising, <\/FONT><\/DIV>
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despite my professor’s contrary position, further shows a willingness to accept the <\/FONT><\/DIV>
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consequences of rubbing the legal profession the wrong way.  As I’ve mentioned<\/FONT><\/DIV>
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here before, the result was my worse law school grade.  You’d think I would have <\/FONT><\/DIV>
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learned better by now.]<\/FONT><\/DIV>
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<\/FONT> <\/DIV>
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\"scales  How can the influence of Bates<\/EM> and Goldfarb<\/EM> be seen over the past <\/FONT><\/DIV>
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30 <\/FONT>years of <\/FONT>my professional life?<\/FONT><\/DIV>
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– I spent 12 years working on competition and regulatory issues, <\/FONT><\/DIV>
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at the FTC, mostly focused on the learned professions — especially <\/FONT><\/DIV>
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on the <\/FONT>use of ethics rules to stymie competition.  “Demystifying”<\/FONT><\/DIV>
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the legal and medical professions, and replacing legalese with Plain <\/FONT><\/DIV>
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English were other related, ongoing interests.<\/FONT><\/DIV>
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<\/FONT> <\/DIV>
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– “Competition Policy” has also been at the center of my work — the <\/FONT><\/DIV>
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structuring of regulatory schemes so as to preserve the forces of <\/FONT>competition, <\/FONT><\/DIV>
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while overcoming market failures and preventing deceptive and <\/FONT>unfair practices <\/FONT><\/DIV>
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that hurt consumers<\/FONT>.<\/FONT><\/DIV>
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<\/FONT> <\/DIV>
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– I have been very suspicious of (1) any claim that having less <\/FONT>information, <\/FONT><\/DIV>
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choice or price competition somehow benefits<\/EM> consumers; (2) any <\/FONT><\/DIV>
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pricing mechanism — such as contingency fees or the Goldfarb <\/EM><\/FONT><\/DIV>
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fee (which was based on a percentage of the transaction involved) — <\/FONT><\/DIV>
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that does not take into account the actual amount of work done by <\/FONT><\/DIV>
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the lawyer; (3) maximum fee rules or guidelines that become the de<\/EM><\/FONT><\/DIV>
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facto<\/EM> floor (see Maricopa<\/FONT><\/EM><\/A>), such as the one-third standard contingency <\/FONT><\/A><\/FONT><\/DIV>
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fee<\/FONT><\/A>; and <\/FONT>(4) any <\/FONT>attempt to arrogate to lawyers rather than <\/FONT>clients the <\/FONT><\/DIV>
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profits <\/FONT>derived <\/FONT>from improved technology and efficiency.<\/FONT><\/DIV>
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<\/FONT> <\/DIV>
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“shark tiny”  A basic tenet for me: Bar Association = Guild<\/EM> (“we” come first, not <\/FONT><\/DIV>
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the client) [see, e.g<\/EM>., Bar & Guild<\/FONT><\/A>]<\/FONT><\/DIV>
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<\/FONT> <\/DIV>
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– In my retirement, I have used this website to keep a wary eye on bar <\/FONT><\/DIV>
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activity that appears to raise price in the name of consumer protection, <\/FONT><\/DIV>
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and have insisted that professionalism is not about image and dignity,<\/FONT><\/DIV>
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but must instead be focused on service and integrity.<\/FONT><\/DIV>
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update<\/FONT><\/STRONG><\/EM> (July 28, 2005): For two years, I’ve been trying to convince<\/FONT><\/DIV>
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Massachusetts “bar advocates” (assigned counsel for the indigent in <\/FONT><\/DIV>
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criminal cases) that they have no right to violate the antitrust laws and <\/FONT><\/DIV>
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their ethical duties to the judicial system by engaging in coordinated, <\/FONT><\/DIV>
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coercive boycotts aimed at increasing their fee levels. <\/FONT><\/DIV>
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See does Bar Advocate = Greedy Lawyer?<\/FONT><\/A>.  <\/FONT><\/DIV><\/BLOCKQUOTE>
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– My doubts about the willingness of the legal profession to serve the 70%<\/FONT><\/DIV>
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of Americans who are neither rich nor poor, despite technological advances <\/FONT><\/DIV>
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that should make it much easier <\/FONT>to achieve access for all at affordable prices, <\/FONT><\/DIV>
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has <\/FONT>led me to fight for <\/FONT>improved Self Help resources for all American consumers <\/FONT><\/DIV>
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of legal <\/FONT>services. (see our Self-Help\/Pro Se<\/FONT><\/EM><\/A> page)<\/FONT><\/DIV><\/BLOCKQUOTE>
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So, what about you?  Was there a Seminal Opinion that touched off or <\/FONT>inspired your<\/FONT><\/DIV>
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legal career?   After complaining recently about being a stickee, I’m going to make taking <\/FONT><\/DIV>
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up this Baton voluntary.   Nevertheless, I hope they’ll be a lot of uncoerced, but insightful, <\/FONT><\/DIV>
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answers.<\/FONT><\/DIV>
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<\/FONT> <\/DIV>
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<\/FONT> <\/DIV><\/BLOCKQUOTE><\/BLOCKQUOTE><\/BLOCKQUOTE><\/BLOCKQUOTE><\/BLOCKQUOTE><\/BLOCKQUOTE><\/BLOCKQUOTE><\/BLOCKQUOTE>
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in the owl’s opinion
every day
is long

<\/FONT><\/DIV>
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<\/FONT> <\/DIV>
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useless me
useless weeds…
the cuckoo’s opinion<\/FONT><\/DIV>
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 <\/DIV><\/BLOCKQUOTE><\/BLOCKQUOTE><\/BLOCKQUOTE><\/BLOCKQUOTE>
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ISSA<\/STRONG><\/FONT><\/A>                                                                                                   \"law<\/FONT><\/FONT><\/DIV>
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translated by <\/FONT>David G. Lanoue<\/STRONG><\/FONT><\/A>                                                              <\/FONT>
<\/DIV><\/DIV><\/BLOCKQUOTE><\/BLOCKQUOTE><\/BLOCKQUOTE><\/BLOCKQUOTE><\/BLOCKQUOTE><\/p>\n","protected":false},"excerpt":{"rendered":"

While others have been handing off reading sticks and music batons throughout the blawgisphere, I’ve been wanting to ask fellow lawyers a different question:   Was there a particular case — a Seminal Opinion — that strongly influenced your attitude toward the legal system or the legal profession, or that helped you decide the role you […]<\/p>\n","protected":false},"author":94,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[2926],"tags":[],"class_list":["post-3917","post","type-post","status-publish","format-standard","hentry","category-pre-06-2006"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p6kP1R-11b","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/3917","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/users\/94"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/comments?post=3917"}],"version-history":[{"count":1,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/3917\/revisions"}],"predecessor-version":[{"id":13155,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/3917\/revisions\/13155"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/media?parent=3917"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/categories?post=3917"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/tags?post=3917"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}