what the hell is being a lawyer for?

May 30, 2012 4:48 PM

Lawrence Lessig, erstwhile Free Culture advocate now given to fighting corruption on a larger scale, delivers a commencement address. "There is no one in the criminal justice system who believes that system works well. There is no one in housing law who believes this is what law was meant to be. In contracts, you read about disputes involving tens, maybe a hundred dollars. The disputes of ordinary people. These disputes are not for the courts any more. Or if they are, they are for courts that are an embarrassment to the ideals of justice from our tradition. The law of real people doesn’t work, even if the law of corporations does."
posted by the mad poster! (22 comments total)

It's a noble set of sentiment, but I'm not sure I agree with the empiricals.

Prosecutors and PDs are overworked but I am not sure there was a time when criminal defendants had meaningfully better counsel, or that any systemic problems with the criminal justice system are attributable to lack of counsel. The war on drugs, and the overwhelming incentive to plea bargain built into drug sentence ranges, is a matter of politicians, not lawyers.

In civil matters, the vast (over)supply of lawyers makes there never a better time than the present to buy legal representation. The issue is in the clients, who simply don't see the value. People who won't hesitate to pay $3,000 a year for their cable and cell phone bills and $7,500 a yesr on car payments, insurance and gas won't pay $150 an hour for a lawyer when it matters. I suspect an historical analysis of billing rates for consumer lawyers vs incomes would find that consumer lawyers were not meaningfully cheaper in the past.
posted by MattD at 5:21 PM on May 30, 2012 [6 favorites]

The first two comments are spot on.
posted by Ironmouth at 5:46 PM on May 30, 2012

Lessig has a lot of good points in general. But his entire experience with the practice of law was clerking for Judge Posner and Justice Scalia.

Those mountaintops don't provide the view from the bottom that he claims to have. He's a law professor. If he's like my professors, he has very little knowledge of the practice of law. Criminal defendants are better off today than at any time in our history. The criminal law itself is flawed when it comes to drugs and that causes a lot of the problems. But the representation is far better than in the past--imagine no Miranda rights, no right to counsel etc. Not too long ago, that was America.

People need to understand the law--it is as human as those who practice it. Getting to know it is a good first step to understand these issues.
posted by Ironmouth at 5:51 PM on May 30, 2012

It's a noble set of sentiment, but I'm not sure I agree with the empiricals.

Me either. But not necessarily for the reasons you list. The way he's using the term, "corruption" seems to be roughly equivalent to "conflict of interest" when used in a general, non-technical sense. Which is fine, and a good and important thing to study.

But he doesn't really explain why the failure of retail law* is caused by this "corruption," and I'm honestly not sure that it is.

"Retail law," as I'm using the term, means the kinds of law that normal people need for non-business purposes. Tort law is certainly part of that, but that actually seems to work pretty well, funded as it is by insurance. But for things like family law, trusts and estates, tax, private contracts, and the like, there's an overwhelming need that's simply not being met.

But here's the thing: while there's plenty of conflict of interest where the regulation of business is concerned, and an excellent argument to be made that every time some monied interest scores in the legislature the rest of us are a little bit worse off... why is that responsible for the fact that there's far more people that need retail law than can afford it? Prices are about as low as they can realistically get. The lawyers that practice retail law--other than in torts--make respectable but far from lavish, middle- to upper-middle class livings. Think in the $80,000-150,000 range, i.e., well off, to be sure, but far from rich, and definitely part of the 99%, as it were.

What's the conflict? I really just can't see it. It's not like there's someone on the take here. Believe me, if there were a way to be on the take in family law, someone would be doing it. But it's a relatively high-volume, low-margin business with soul-deadening subject matter and a huge problem getting paid. So yeah, maybe that flat-rate $500 divorce seems a bit steep, but not only does the lawyer have bills to pay, he's also pricing in the risk of you not paying him.

Really, Lessig, who's on the take? The judges? Not that I can see. The lawyers? Again, they'd love to be, but most of them are basically just getting on by. And then you go to places like CPS where the caseworkers burn out after six months because having four generations of the same family as clients at the same time is just bloody depressing.

And this isn't really a great time to buy legal services, because there really isn't any room to cut prices. Even if we were to take the issue of student debt out of it, which is entirely unrealistic, running a law firm is running a business, and by my math, you need to charge about $75 an hour just to make your overhead. Malpractice insurance, rent, phone, internet, advertising, a secretary, office supplies and paper costs, legal research tools, all of that stuff costs money when you're in private practice. I'm sure Harvard pays all of that for you, and good on you for landing that kind of job, but as a junior associate, I'm responsible for paying overhead costs almost as big as my actual salary.

So seriously: fuck you. We're doing our best down here. It's not our fault that running a business costs money or that most of the things that normal people need legal advice about don't involve money. The fact that it's irrational to pay $100 to resolve a dispute over $50 isn't anybody's fault, and the fact that it's impossible to offer legal services for $50 a case isn't an example of "corruption," however defined.
posted by valkyryn at 6:00 PM on May 30, 2012 [5 favorites]

I'll be honest--I'm not sure I really understand Lessig's big point here. I guess he wants new lawyers to go out and represent individual clients with unmet legal needs, instead of signing up with large firms to represent big businesses. But he really makes a poor case of it.

For one, it's not clear to me that there are that many lawyers actually going to work at the big firms--those jobs were only available to a small percentage of law students to begin with, and hiring by the big firms has declined significantly following the financial collapse of a few years ago.

As a corollary, there are lots of lawyers that ARE going to smaller firms or solo practices, representing individuals in civil and criminal litigation; providing advice in divorce, probate, and other family matters; helping small businesses incorporate and get basic contracting advice. I know, because I'm a member of a local bar association in a large city with tons of these folks. What sometimes seems to be lacking are the educational resources to help people understand how and when to choose a lawyer, but I don't see that as a result of systemic corruption

I come at this from the perspective of a lawyer with 10 years of representing businesses in litigation; mostly big businesses, but some small businesses, too. Lessig's view of the world just doesn't seem correct to me:

There are plenty of lawyers in “Inc. Law” who go home at the end of the day and feel that that system works. Their clients got the process they were due. Their arguments were heard. Their interests were fairly considered. If through litigation, litigation in a federal court: With great judges. Beautiful carpet. Clean bathrooms. If through a transaction, a deal cut in conference rooms at the Four Seasons. No doubt these lawyers work hard. Insanely hard. And the system rewards them with the sense that the system works.

Not so with the law of real people. There is no one in the criminal justice system who believes that system works well. There is no one in housing law who believes this is what law was meant to be. In contracts, you read about disputes involving tens, maybe a hundred dollars. The disputes of ordinary people. These disputes are not for the courts any more. Or if they are, they are for courts that are an embarrassment to the ideals of justice from our tradition.

As far as civil litigation, Lessig is just wrong that big corporations can cause cases to be filed in federal court at will. My primary client right now is a financial institution, and the part of the business I work with gets sued between 500 and 800 times a year by consumers, depending on how you count it. Most of those cases are brought in state court, and while they might involve more than "tens, maybe a hundred dollars," it's often not more than a few thousand. The state courts that handle those cases are mostly quite competent, and I have no doubt that the judges in those courts would be profoundly insulted to hear their work described as "an embarrassment to the ideals of justice from our tradition." That is, frankly, bullshit.
posted by monju_bosatsu at 6:16 PM on May 30, 2012

valkyryn, I think you misread him a bit; Lessig's focus on corruption is about Congress mostly, and he points out that the corrupt system ensconces corporate law. He then moves on to emphasize the need for retail law to be attractive to its practitioners and clients
posted by the mad poster! at 6:18 PM on May 30, 2012

Valkryn,

As a junior associate you're required to pay overhead? Or are talking about billable hours? My firm pays all that plus my bar dues and CLEs. They just sent me to Amelia Island earlier this month.

Of course, my first job out of law school required 2375 hours a year. Since I didn't know what I was doing as ur clients didn't want to pay for my incompetance. What would take an experienced atty maybe 2 hours would take me 4 or 5, at ffirst., I was working 80 hour weeks.
posted by JKevinKing at 6:21 PM on May 30, 2012

So seriously: fuck you. We're doing our best down here.

It's entirely possible, perhaps even likely, that the vast majority of participants in the system are hardworking decent people doing their best every day to make thing better and that the system they serve as a whole is often "an embarrassment to the ideals of justice from our tradition." The total impact of the system can be poor despite every component in the system acting with good intentions. That's what make systems so powerful.
posted by zachlipton at 6:34 PM on May 30, 2012 [4 favorites]

Having just read Lessig's most recent book, I believe he is referring to what he calls "dependency corruption". Dependency corruption appears in many manifestations, in politics it is when politicians are unduly influenced by money, in science it is when research is unduly influenced by corporations, etc. In essence, he postulates that most human participants in our system are not evil, but that we have allowed a system to flourish that tolerates and encourages dependency on inappropriate sources of money. People being people they will often make what is a sound economic choice at the cost of long term societal benefit and ethics, acting out the "economic man" aspect of consciousness. Society functions better when law, politics, and science are influenced LESS by corporations & money.

I believe he is suggesting if you let a system thrive where there is too much "dependent corruption" you put it's very existence at stake. Current examples of dependent corruption might include some of the global warming denial "science", recognition of corporations as citizens, etc...

Sorry Mr Lessig if I have this wrong. I liked your book and I am going to read it again. I would recommend it to anyone who is concerned about the direction our country (and the planet) is going.
posted by jcworth at 7:42 PM on May 30, 2012 [1 favorite]

It seems like legal aid systems are yet another part of the welfare state we intend to drown in the bathtub.
posted by mek at 7:49 PM on May 30, 2012 [1 favorite]

I'd agree that many aspects of the legal process improved substantially during the 20th century, Ironmouth, MattD, etc., largely thanks to activist lawyers like the ACLU. Lessig isn't speaking about criminal legal process though.

There are clearly vast avenues where legislation has gotten worse, including the drug war. I'd consider the drug war an excellent example of dependency corruption because so many personnel and corporations involved in law enforcement benefit.
posted by jeffburdges at 2:14 AM on May 31, 2012

As a junior associate you're required to pay overhead?

Not as such. The way my firm does compensation is to take your total revenue--they don't care about billables, just revenue--subtract your salary and overhead, and then at the end of the year give you a raise which is some fraction of your profitability. So it's not like I owe the firm money, but if I don't meet my overhead, I not only won't get a raise, but there's a possibility that I'll get a pay cut. It's not really likely though. Even at the pittance that we bill, I should be profitable for the firm by July or so.

But the point still stands. That overhead wouldn't be much smaller if I were solo. If anything, it would either be larger, because I wouldn't have any economies of scale. Which means there are things I'd probably just do without. But looking at the numbers, I'm having a hard time seeing how one could possibly run a legal practice for less than $50k in annual expenses. If you're getting paid in increments of a few hundred bucks, and not always even getting paid, that's a lot of money.
posted by valkyryn at 3:15 AM on May 31, 2012

In essence, he postulates that most human participants in our system are not evil, but that we have allowed a system to flourish that tolerates and encourages dependency on inappropriate sources of money. People being people they will often make what is a sound economic choice at the cost of long term societal benefit and ethics, acting out the "economic man" aspect of consciousness. Society functions better when law, politics, and science are influenced LESS by corporations & money.

That's essentially what I figured, but I still don't get it. Who exactly is depending on "inappropriate sources of money" here? Certainly not the clients. Not really the lawyers either. I'm just not seeing it.

I mean, if he wanted to argue that we, as a society, have the funds to start something like welfare for legal services, he could have said that. But he didn't. He instead suggested that because corporate law is profitable and retail law isn't, that there's some corruption going on. And I just can't see that there is.
posted by valkyryn at 3:18 AM on May 31, 2012

The total impact of the system can be poor despite every component in the system acting with good intentions.

Here's the thing: the good intentions of the actors are not required for my point to stand. Indeed, I don't have a particularly high regard for a lot of the retail lawyers I see, particularly on the plaintiff's side. Heck, there was a plaintiff's attorney in Indiana who was recently indicted in federal court for embezzling about $2.5 million from his clients. That is, of course, the exception, and it certainly made the news.

My point is that he's talking about a practice area in which, for the most part, there just isn't any money. Again, it isn't anyone's fault, or even the fault of the system, that paying $5,000 to settle a $1,000 problem is problematic. I guarantee you, if there were some way to be "corrupt" in this system, people would find a way to do it.

That's why tort law isn't really part of "retail law" in the way I'm using the term. The clients don't actually pay. Plaintiffs' attorneys get paid by the insurance companies by taking a third of any winnings. So yes, the plaintiff does eventually "pay," but it isn't anything out of pocket. Tort defense attorneys get paid, not by their clients, but by the clients' insurance companies. Clients don't pay a dime. So here, there is actually some corruption, particularly on the plaintiff's side. Plaintiffs' attorneys have a huge incentive to take a quick settlement for a minimum of legal work, because every hour they work on a case functionally reduces their hourly rate. Which is why you see a lot of simply godawful work product coming out of those firms. The only reason plaintiffs do as well as they do is because state-court judges are somewhat "corrupt," in that they almost universally give every advantage to plaintiffs. Judges are political creatures and are sensitive to their next re-election bid. And don't even get me started about the whores who testify for the plaintiff's bar.

But really? That isn't what he's talking about. If anything, the "corruption" here actively favors individual plaintiffs over corporate defendants, the latter of whom, either directly or via insurance, wind up paying an unbelievable amount of money to undeserving plaintiffs simply because it's cheaper to settle than to fight. Which is why the business lobby constantly complains about tort reform, but also why it's slow in coming. Regardless, the system works pretty damn well if you're a plaintiff. Anyone with an even colorably meritorious claim shouldn't have too much trouble getting paid more than they deserve.

No, "retail law" is things like criminal defense, family law, trusts and estates, bankruptcy, your basic nickel and dime contract work. There's where the real need is. But I can't for the life of me figure out what Lessig's point is as applied to those practice areas. Again: why is it a major problem with the system if there are jobs that are simply too small to bother with?
posted by valkyryn at 3:34 AM on May 31, 2012

Why is it a major problem with the system if there are jobs that are simply too small to bother with?

Because Society is a game, and every time the rules (not the letter of the law, but the underlying spirit) are just obviously not respected, the game becomes less about the "rules" and more about something else. Real people have debts in the hundreds of dollars and really should have some means of resolving those debts. A system which can only provide justice above a certain bar becomes corrupt (or at least dysfunctional) below that bar.

It's really quite consistent of Lessig, who left his primary field out of revulsion for corruption, to see that there are arguably class boundaries to basic justice. The poor deserve police, the poor deserve medical care, and yes, the poor deserve their debt to be paid. That's part of a cohesive and coherent society.
posted by effugas at 4:10 AM on May 31, 2012

The poor deserve police, the poor deserve medical care, and yes, the poor deserve their debt to be paid. That's part of a cohesive and coherent society.

Wait, wait, wait. Hang on. By that reasoning, everyone deserves all of their problems solved, no matter how trifling, no matter how costly. There are all sorts of things that everyone just sort of deals with because the transaction costs of fixing it are greater than the actual cost of the problem.

there are arguably class boundaries to basic justice.

But see, the issue of criminal law aside--there the problem is with politics, not the structure of the legal profession per se--these are the sorts of things that everyone deals with. Bringing in the legal system every time an i is not dotted or a t not crossed is a terrible way of doing things. People shouldn't need to resort to lawyers every time they have a dispute with someone, and the courts shouldn't get involved every time neighbors have a spat. People can and should be able to deal with the frictions of daily life on their own.

The issue here, insofar as there even is one, is that the poor are more dramatically affected by the frictions of daily life than people with more resources. That's a true thing, but it doesn't necessarily require any kind of radical rethinking of the way we do law.

I do intake at a legal aid clinic. There are two main reasons we do intakes rather than simply signing up clients directly. First, there are certain types of case that we just aren't set up to do. So we need to be able to send those people somewhere else before we accept them as clients. But second, a significant part of the people that walk in the door don't actually need a lawyer. Their problem isn't that they're suffering from some kind of injustice. Their problem is that they're broke. Being broke sucks, but it isn't anything that a lawyer can do anything about. Not as such anyway. So yes, we do a lot of bankruptcies. But then a potential client comes in the door and says "I'm being evicted from my apartment! Help!" So I ask "When's the last time you paid rent?" And they say "Sometime in 2011. Maybe. It's been a while." I mean... what am I supposed to do with that? The only injustice here is the fact that the landlord hasn't been paid in six months. Or there was the time that a guy came in desperate to make rent and angry because, if I recall correctly, the phone company owed him a refund. Of course, he only realized this that very morning, and when he called the phone company, they were very nice and said they'd put a check in the mail. So he's getting the money he's owed, just not right now. No injustice here, but he was still pretty screwed. Nothing I could do about it.

And you know what? There's nothing wrong with that. Businesses and people with money float these things all the time. But a check being a day late or taking a day to clear can seriously screw with someone with no resources. This isn't a legal problem. It's a being-broke-sucks problem. But Lessig seems to be implying that it is a legal problem, because for the life of me, that's all I can make out of his speech.
posted by valkyryn at 5:55 AM on May 31, 2012

Valkryn,

That's a really interesting system! Another advantage over being solo would be the benefit of the partners' experience & being able to bounce ideas off other associates. Do you have any say over overhead? Can you request your own secretary? Are you responsible for the work any paralegals do for you? What if you collaborate w/ other attorneys on a case? How about law library expenses or Westlaw? Please forgive me for prying. I've never encountered that compensation system. It seems that this requires a good working environment and trust of your partners.

Another thing about "retail law," as defined above, is that for simple matters there's a lot of sel-help available, like LegalZoom, for simple contracts, wills, etc. I have no idea how reliable it is, but I can see if I wasn't a lawyer drafting my own documents using that site and running it by a lawyer for maybe an hour of her time. That could save money.

I think the key thing for anyone is to have a personal relationship with a general practitioner. I would treat it almost like a doctor. Oftentimes, such an attorney will work with you on fees, payments, etc., as long as there is a relationship & trust.

Another thing the legal profession has done fairly recently is to allow legal "HMOs". Some emplyers have this as a benefit. You pay a flat fee per month & get access to an attorney for a deductible, or even no point of access fee.
posted by JKevinKing at 6:00 AM on May 31, 2012

Think in the $80,000-150,000 range, i.e., well off, to be sure, but far from rich, and definitely part of the 99%, as it were.


Sadly, that's nowhere near 99% territory. Should be, but isn't. Was in my childhood.
posted by Ironmouth at 6:24 AM on May 31, 2012

There are clearly vast avenues where legislation has gotten worse, including the drug war. I'd consider the drug war an excellent example of dependency corruption because so many personnel and corporations involved in law enforcement benefit.

You know, I hear that all the time and it is so far divorced from my experience. I don't like private jails, but this incessant focus on 'fat cats' 'profiting' from the criminal justice system is wrong-headed. Cops and criminal lawyers on both sides are in high-stress low pay jobs. The problem is too small a tax base to properly fund the system
posted by Ironmouth at 6:29 AM on May 31, 2012

Sadly, that's nowhere near 99% territory.

What do you mean? $250,000 is the 98.5th percentile. The $80,000-$150,000 range is from about the 75th to 85th percentile.
posted by valkyryn at 6:33 AM on May 31, 2012

Do you have any say over overhead? Can you request your own secretary?

Nope. I'm an associate, not a partner. One assumes that the partners have some say over these things. I just use what they give me and know what my budgeted overhead is.

However it works and whatever the cause, my firm is an amazingly collegial place to work.
posted by valkyryn at 6:35 AM on May 31, 2012

What do you mean? $250,000 is the 98.5th percentile. The $80,000-$150,000 range is from about the 75th to 85th percentile.

I have no opinion on the veracity of the original claim, but the chart you linked to is almost a decade old.
posted by Flunkie at 10:21 AM on May 31, 2012