Lawyers as Practitioners of the “Dark Arts”

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There are fundamental conflicts and contradictions between the ideal and the real in terms of what is involved in a lawyer’s principled professionalism. Part of the problem is that there are striking differences between what we are, what we want to be, what we pretend we want to be, and what we are able to be within the culture of work—a phenomenon Jacques Ellul called “The Technological Society” in which what we value and how we behave is determined by the machinery of “technique” and the power of organizations.[1] The gap between the ideality and the reality of human nature and behavior is captured with poignant accuracy in Karel Capek’s, R.U.R.–a play dealing with the theme of dehumanization caused by technological “progress”. The robot Radius, speaking to the flesh-and-blood human Alquist who had asked whether the Roboti would rise to humanity’s level answered as follows. Alquist, of course, expected a response praising what we often proclaim to be the nearly divine character of humans. Given our behavior rather than our self-serving delusions and recitation of lofty principles, Radius’ conclusion that the robots had already achieved “humanity” was shocking and unfortunately accurate in many ways.

Radius: “Slaughter and domination are necessary if you want to be like men. Read history, read the human books. You must domineer and murder if you want to be like men. …. We have read books. We have studied science and the arts. The Robots have achieved human culture”.[2]

Strategy—the discipline about which I sometimes write–and the practice of law are Faustian “dark arts” in which its practitioners surrender a part of themselves as the price of gaining power and clarity.[3] The combination is a dark art because of the skills we lawyers use, the people we represent, the institutions where we work directly as managers or employees and those in which we operate in terms of courts, agencies, political and economic institutions. For lawyers this includes the cultures where we help our clients to gain benefits or avoid loss and accountability for their actions. Along with these considerations are such things as the types of problems we help solve and create, the opportunities we ourselves seek, and dealing with the effects that living lives of manipulation, ambiguity, deception and power have on us.

What we do is a dark art because, in helping one set of people we call clients, we often hurt and take advantage of others. In Goethe’s classic work, Faust entered a bargain with Mephistopheles in which he traded his eternal soul and condemned himself to damnation in exchange for transient earthly power. The terms of the bargain were deceptively simple:

I’ll pledge myself to be thy servant here,

Still at thy back alert and prompt to be;

But when together yonder we appear,

Then shalt thou do the same for me. [4]

Lawyers live according to the terms of a quasi-Faustian bargain—and while the cumulative effect of that contract in many ways creates significant good for a disputatious society founded on the Rule of Law that would otherwise be unable to resolve its fundamental disagreements—it generates significant bads for the specific individuals who lose out in the adversary process. Martin Mayer reminds us: “[U]nder an adversary system of law the lawyer is not supposed to see the resolution of these disputes as a question of what might be best for the society as a whole. He is an advocate; his function is to see the possible resolution of a controversy in terms of his client’s best interests.”[5]

Part of the message is that due to their inevitable use of the “dark arts” of law practice there are consequences for lawyers who serve the purposes of the adversary system. Few of us are capable of fully escaping the consequences of our actions. Lawyers tend to be tougher, stronger, more ruthless, precise and impatient than most others. This is less a shift in our morality than a behavioral modification in our personalities–one that may lie latent within us but which starts to emerge in law school and is fully manifested after several years of law practice.[6] Thomas Shaffer quotes David Dudley Field who “claimed a dispensation from having to answer for what his clients did. [Saying] “I shall, whenever I speak for them in the courts of the country, stand between them and popular clamor, just as I would stand between them and power, if they were menaced by power of any kind, monarchical or republican.””[7]

Political philosopher Hannah Arendt described the connection between our acting and speaking in the following way. “In acting and speaking, men show who they are, reveal actively their unique personal identities and thus make their appearance in the human world, while their physical identities appear without any activity of their own in the unique shape of the body and sound of the voice.   This disclosure of “who” in contradistinction to “what” somebody is—his qualities, gifts, talents, and shortcomings, which he may display or hide—is implicit in everything somebody says or does.” [8] Not only do we display who we are through our actions and words, we are simultaneously shaped by what we do, including the use of words and nuance to persuade and deceive others in order to achieve our goals. But in some contexts words and actions are intertwined in powerful ways. Linguist Rush Anshen once observed that humans do not only use language, they are language.[9]  The language we use is that of manipulation, qualification, persuasion and advocacy.  This is the “language” we become.

The concept of the dark arts—which are in fact the skills involved in manipulation and strategic thought and action of the kind done by nearly all lawyers—makes lawyers into what can be called “princes of darkness”. [10] But while law practice has obvious effects on those who spend their lives within its powerful aura, at its best the dark side of the practice of law is nonetheless principled within a defensible interpretation of that concept. Many recoil from the demands law practice imposes, but I argue that the dark side of the lawyer’s life is neither atypical nor exceptional. It reflects an inevitable and even necessary component of being a good, i.e., effective lawyer. I say that what good lawyers do in the best sense is principled because lawyers take a special oath in which they promise to represent their clients zealously in addition to competently. I have long scorned the supposed principle of “competence” because what else is the alternative in the sense of a lowest common denominator of professional quality? Obviously lawyers are not going to say their duty is “incompetence”. Nor are they going to say the duty is one of “excellence”, although at least we could respect that as an aspirational ideal. But to proclaim basic competence as an aspiration is insulting to true professionals. Clients have a right to something better.

The acceptance of responsibility for others’ fates is a “sacred trust” not to be taken lightly. This trust imposes a duty on those who accept it. That duty not only limits an individual’s freedom to pursue personal aims at the expense of the client but creates an oath and duty-based responsibility that legitimates a different kind of moral code—that of the true legal professional. The legal profession’s oath requires the lawyer to be the client’s agent and even apologist. This creates a frequent moral dilemma. To avoid this dilemma the ideal situation would in theory seem to be one where the lawyer represents only those clients with whom he or she is in shared moral synchronization. Although this has its own issues such as the potential for the loss of objectivity that lies at the center of much of the lawyer’s work, it is not even close to how the process actually works for most lawyers who work within large organizations or are “captured” due to economic dependency. Law firms, government agencies, corporations and other bureaucracies—all select their clients and then assign the legal tasks to the lawyer. The individual lawyer’s freedom of choice in such situations is constrained to the point of non-existence. Even in those situations where lawyers operate on a smaller scale and have more control in theory over the choice of clients it is difficult to be able to turn cases away in a competitively harsh environment.

As harsh as my description must seem, lawyers do not experience law practice from a safe distance but are submerged in its maelstroms. They must continually make critical and immediate moral decisions while being subjected to the powerful forces of client interests and competitive advocacy as well as the increasingly difficult economics of law practice. Practicing lawyers must live in the world and work on its front lines while engaging in its conflicts of morality and the exercise of power. Some lawyers thrive on the interplay and take energy and meaning from the conflict.   Many others adapt and go through a moral transformation. Others are seriously wounded emotionally and morally, resorting to aberrant behavior in an effort to endure. Few lawyers possess a viable flight option even if they want it. Many lawyers love the life of law practice.

But one result of a life spent confronting or ignoring difficult moral dilemmas—many of which involve choices between two or more bads of various intensities rather than between obviously good and evil alternatives–is that the cumulative pressure of the experiences alters the nature of who we are. The effects take many forms. Some are manifested in lawyers’ emotional states, their values, and in how they deal with the world. Although the effects are in many ways empowering, the tension undermines the spiritual strength of many who practice law. They become trapped in a confused environment in which actions and principles are in conflict in ways that can never be made harmonious.

A fascinating aspect of this observation about the effects of law practice is that the reasons given for the depressed emotional state of numerous lawyers, such as functioning in a climate of moral ambiguity, and representing people or positions with which the lawyer might not be in agreement–merely restate the intrinsic, morally ambiguous essence of a major part of law practice. Ambiguity is everywhere for the lawyer. It is present in the very fabric of the law. It exists in the advocate’s rhetorical need to persuade judge, jury, and opponent. Edward Levi remarks: “The categories used in the legal process must be left ambiguous in order to permit the infusion of new ideas…. Furthermore, agreement on any other basis would be impossible. In this manner the laws come to express the ideas of the community and even when written in general terms, in statute or constitution, are molded for the specific case.” [11]

Ambiguity is contained within the fundamental concepts of the American legal system–including due process, reasonableness, mens rea and intent, as well as the terms used in many other basic doctrinal categories.[12] Our most important legal terms are open-textured and malleable. The elasticity and plasticity of our legal language is both a strength and weakness. Since our very language is plastic, it should not be surprising that the best lawyers are those most adept at manipulation of the inherent ambiguities–on the one hand muttering incantations that produce a sense of solidity when it is in our clients’ interests, and on the other expanding the uncertainty and situational ambiguity of the same matters when it is not.

Sometimes it is better to know our limits–just as Justice Blackmun observed in Roe v. Wade when he deliberately avoided the question of judicially determining when human life begins, stating: “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary … is not in a position to speculate as to the answer.” [13] The expectation that the entire American society will be able to agree on specific outcomes and directions as a matter of shared rational principles derived from a common set of values ignores that we hold very different beliefs based on our individual points of departure premised on our distinct systems of valuation.

The “elastic shadow” of ambiguity penetrates and infiltrates most of what lawyers do, and is an inescapable aspect of law practice. When we become immersed in a culture of manipulative ambiguity in which our task is to make language and fact mean whatever works in our favor, it becomes easy to lose the ability to draw clear moral lines of right and wrong.Aristotle captured this idea more than two millennia ago in describing the role of the advocate: “[Y]ou must render the audience well-disposed to yourself, and ill-disposed to your opponent; (2) you must magnify and depreciate [make whatever forms your case seem more important and whatever forms his case seem less].” [14] I argue that the conflicted state in which manipulative ambiguity thrives is an inevitable, appropriate, and morally dissonant state that nonetheless captures the essence of being a lawyer. Our lives are filled with fundamental conflicts based on obligations to different power centers. This necessarily results in our developing compartments of valuation within ourselves in order to tolerate the inconsistencies categories of behavior and evaluation.

One critic argued that the hypocrisy inherent in advocacy was a cause of the legal profession’s morally ambiguous professional culture. He suggested that the source of lawyers’ dissatisfaction with their job was that, “seeing shades of gray may signify intellectual maturity, but it’s also somehow impoverishing.” [15] This creates an emotional dissonance that results in various degrees of stress because some part of us intuitively understands the inconsistencies and hypocrisies of our behavior even while we subconsciously seek to keep them compartmentalized. Rollo May explains the consequences. “This compartmentalization of values and goals leads very quickly to an undermining of the unity of the personality, and the person, in ‘pieces’ within as well as without, does not know which way to go.” [16]

I am uncertain as to whether impoverishing is the correct word because in some ways the experience is empowering. But there is no question that a life lived in that fashion is sufficiently powerful to alter who we are. Too much direct experience in the darkness of the human soul–and helping others avoid responsibility for the consequences of their actions or to gain advantages from others–may produce a kind of tired wisdom, but also destroys much of our innocence and idealism. Kevin Lyskowski concludes: “Few lawyers are so candid; most deny any paradox exists. Almost every law firm liberal claims there’s no conflict between his conscience and career because of the “role of the lawyer”: At work, a lawyer must simply represent his client (bad actor or not) and not his conscience. Only at home can a lawyer put his conscience first: At home, he’s acting on his own behalf, not his client’s. Law firm liberals must stop drawing this non-existent line between their personal and professional selves and confusing schizophrenia with well-being.” [17] But Lyskowski is wrong to an extent even though his observations are poignant. The line does exist. It is not schizophrenic. But it does and should produce a degree of emotional discontent. My point is that a lawyer is not promised a “rose garden” and some problems of stress are completely proper in a healthy and moral person.

We prefer to think of virtue or goodness in terms of actions that create what might be called unilateral positive benefits in which everyone is pleased and lives “happily ever after”. But when a lawyer functions as an advocate, someone or some aspect of the social system is harmed or significantly distressed through the outcome. Others are helped. As advocates we engage in corrective and distributive actions between people and human institutions in which we win or lose our clients’ rights, freedom, money, piece of “the pie”, power, etc.   It is very much a kind of “invisible hand” situation that to a significant degree must be taken on faith even while the worst abuses are identified and mitigated through the system’s regulatory mechanisms, legal doctrines of accountability, and legislative fiats. One problem, however, is that most of these mechanisms are inadequate in holding the legal profession up to any responsible level of accountability when lawyers become too fully consumed by the amorality of what we do and are no longer able to regulate their own actions according to essential principles.

The reality of being a lawyer, particularly an effective one, is that the better we are the more we will be feared and resented. Martin Mayer tells us that “[m]uch of the unpopularity of the lawyer simply reflects his proprietorship of a mystery–all professions, as Bernard Shaw once put it, are conspiracies against the layman, and are perceived as such.” [18] When that mysterious knowledge is one of power, such as is possessed and wielded by lawyers, the resentment is heightened. Just as the tax collector is feared and ridiculed because of the power wielded over our fates, the lawyer has become the equivalent of the bogeyman in a system that has shifted from a society based on the rule of law—at least for some–to one dominated by technical and intrusive laws governing virtually every sphere of our activity. The contempt for lawyers and the barbed humor that has grown exponentially are the equivalent of people whistling in the dark to keep their spirits up and fend off the lawyers.

I am arguing for the intellectual illumination of a system of real morality, one based honestly on human nature and the legitimate culture of law practice. The approach is difficult to accept both emotionally and intellectually because it requires that we step away from several of the most powerful metaphors that shape, distort and define how we perceive the world. Martin Mayer, in The Lawyers, offers this insight into the lawyer’s mind, a reconstruction that begins early in the educational process: “The lawyer’s approach to a problem … is argumentative. [The University of Chicago’s] Soia Mentschikoff … [long ago told the wives of first-year law students] “Your husbands are going to change: their personalities are going to change in law school. They’ll get more aggressive, more hostile, more precise, more impatient.” ” [19]

But law school is only the beginning of the transformation from ordinary person to skeptical, ruthless and manipulative practitioner of dark mysteries.   The nature of their clients’ acts, exercise of power and frequent infliction of social harms can increase the likelihood of an irresolvable moral tension that creates heightened impacts on the lawyers who engage in such representation. Although the experiences differ somewhat with the types of clients dealt with, there is a commonality to the lawyer’s responsibility that tends to affect the profession across the board.

One of the most influential areas of law practice where clients have perhaps the greatest power over the souls of their lawyers is in the large-scale corporate law firms often referred to as “BigLaw”. This heightened impact is produced in large part because—unlike every other client group in which the lawyer tends to control the client rather than the reverse dynamic that characterizes most relationships between client and lawyer–the financial incentives and enormous power and knowledge of larger and wealthier corporate clients increases those clients’ ability to corrupt the lawyers and law firms who represent them. New lawyers become cogs in the machines of the private employers. I don’t know what we in the legal profession can do to change these conditions, but without a change in the use of institutional power and behavior the rhetoric of independent professionalism based on the strength of character and values of the individual lawyer rings hollow.

Although a strong shaping cultural effect exists in relation to any institutional structure in which we function and that we accept as our primary reference, virtually no other client group is capable of exercising the degree of control represented in the BigLaw firms that results in shaping the souls of the lawyers who represent their clients and depend on their continuing largesse and good will.   Part of the problem the lawyers face is a combination of the desire for security and status, our need to become part of a community, and fear of rejection by the primary professional community within which we work. An important way of ensuring our successful place within that community is adopting the values, allegiances and behaviors that are part of that community. Those are powerful motivations to become co-opted by our employers. [20]

[1] Ellul’s books, The Technological Society (1964) and Propaganda: The Formation of Men’s Attitudes (1965) are two of the most insightful and profound works I have ever encountered.

[2] Karel Capek, R.U.R. at 105 (P. Selver, trans.1969. Originally published in English in 1923).

[3] See, e.g., David Barnhizer, The Warrior Lawyer II: Using The Art of War and A Book of Five Rings to Gain Victory Through Disciplined Strategy (Amazon 2015).

[4] Johann Wolfgang von Goethe, Faust, in 19 The Harvard Classics 1, 64 Charles W. Eliot, ed. (P.F. Collier, N.Y. 1909).

[5] Martin Mayer, The Lawyers.

[6] “The lawyer’s approach to a problem … is argumentative.” Mayer, The Lawyers.

[7] Shaffer, at 75.

[8] Hannah Arendt, The Human Condition 159 (1959).

[9] Ruth N. Anshen, Language: An Enquiry into Its Meaning and Functions.

[10] See, David Barnhizer, “Princes of Darkness and Angels of Light: The Soul of the American Lawyer”, 14 Notre Dame J. of Law, Ethics & Policy 371 (2000).

[11] Edward H. Levi, An Introduction to Legal Reasoning 4 (Univ. Chicago 1949). Levi continues, “The law forum is the most explicit demonstration of the mechanism required for a moving classification system. The folklore of law may choose to ignore the imperfections in legal reasoning, but the law forum itself has taken care of them.”

[12] David Barnhizer, “Prophets, Priests, and Power Blockers: Three Fundamental Roles of Judges and Legal Scholars in America”, 50 Pitts. L. Rev. 127 (1988).

[13] Roe v. Wade, 410 U.S. 113, 159 (1973).

[14] Aristotle, “The Epilogue”, reprinted in The Rhetoric of Aristotle 3.19 (L. Cooper ed. & trans. 1932). Lawrence M. Friedman, in American Law, (W. W. Norton, New York and London, 1984) at 257 reminds us:   “The legal system is a structure. It has shape and form. It lasts. It is visible. It sets up fields of force. It affects ways of thinking.”

[15] Kevin Lyskowski, “Conflicted Liberals and the Lure of Money”, National Law Journal A19, 5/2/94, quotes a young lawyer: “I wish I could still commit to an idea or cause with abandon; often I feel I’ve lost what made my life meaningful.”

[16] Rollo May, Man’s Search for Himself at 46 (W.W. Norton 1953).

[17] Lyskowski, supra, n. 13.

[18] Mayer, The Lawyers 9 (1966).

[19] Mayer, The Lawyers, id. at 76, 77. Although the remarks were at a time when few women enrolled in law school they hold true 75 years later. Law school changes us and the practice of law further alters who we are.

[20] Paul M. Barrett, “Putsch and Shove: A Once‑Stodgy Firm Makes a Flashy Return, But at What Cost? Cadwalader Ousted Partners And Ushered in Profits; A View of Law’s New Face–The Maitre d’ Gets the Ax”, Wall Street Journal A1, Monday, August 17, 1998; 1998 WL‑WSJ 3505634.

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