Speaking for the Muddlers

Speaking for the Muddlers

I worried about what a lifetime of work in a firm like this would turn me into. I looked around at the senior partners and I did not see anyone I wanted to be like. They lived with the insecurity of having to prove themselves continually in this highly competitive environment, both by turning out a great deal of highly polished work and by attracting corporate clients.

These are the words of Charles Halpern about his life at Arnold & Porter in the 1960s. Acting on these impulses, Halpern left – to co-found the Center for Law and Social Policy (largely responsible for what environmental safeguards exist on the Alyeska pipeline) and to become the first dean of the then-radical City University of New York School of Law, before wandering even further afield to become the executive director of a philanthropic foundation and a proponent of meditation and spirituality.

Most of us are not granted the luxury of pursuing a career path as fulfilling as Halpern’s. Yet many of us share some of his anxieties and aspirations. Halpern writes in his book Making Waves and Riding Currents (2008) about working at his elite Washington firm, being lavishly compensated for attending to the affairs of great corporations, while finding professional satisfaction only from the pro bono work that the firm permitted him to do.

The biggest financial rewards are usually found at places like Arnold & Porter, firms which exist first and foremost to serve the needs of the corporations. For lawyers with outlooks like Halpern’s, the rewards directly trigger a kind of professional schizophrenia. As Michael J. Kelly, former Dean at Maryland Law, has pointed out, there are many definitions of professionalism among which we slip easily, almost unconsciously. They include the commitment to practicing one’s craft well and the commitment to serving the community.

There is a lot of law out there to learn and master, and that mastery is essential to practicing one’s craft well. Mastery takes time and practice, things best achieved when we are well paid. There are lots of exceptions, but in general the big pay comes from the big corporate clients, most often serviced by the big corporate firms.

On the other hand, many of us believe that there are severe imbalances in wealth and power in our society. Many see that our environment is on the sick list. And many view the corporate establishment and big government as deeply implicated in the creation and perpetuation of both problems. An aspiration to serve the community – the second kind of professionalism – is going to tend to dispose us – at least at first blush – to struggle against the very pool of clients many of us depend upon to achieve the first kind.

There are lots of different ways to live as lawyers with this dilemma. Few are entirely satisfactory.

One can wander off the legal reservation entirely, as Halpern effectively did. But that is not really being a lawyer any more. One can seek to rise above it and become a judge, but with all due (and expedient) respect I would maintain that this is not exactly being a lawyer either. Ditto becoming a law professor.

Or one can go to work for the government, the one client that theoretically represents the populace, the very community that second form of professionalism predisposes us to serve. But government lawyers I encounter will, if honest, admit they find themselves increasingly working in shops that are more nakedly political than law firms, where they are frequently starved of resources, and often they are forced to focus more on institutional mission than on individualized justice. And that holds true whether one serves as a prosecutor, public defender, or consigliere to bureaucrats.

One can become a freelance tribune of the people, a/k/a a “trial lawyer.” There are moral hazards there too; a plaintiff’s lawyer can quickly get become cynical, and distracted by the pursuit of big verdicts and the lifestyle they finance. All too soon, one can find oneself as scornful of the plaintiff clientele, and in truth as dependent on resources of the corporate world, as the most ardent defense attorney.

Or one can muddle along.

I can only speak personally for the muddlers. We have at least one big truth on our side. We have learned, if we did not already know it, that we do not live in a Manichean universe. The Manicheans taught that everything not absolutely good was absolutely bad. The time for Manicheanism was when I was young, in the Sixties. Young idealists then knew exactly what they were for and exactly what they were against. But that was a long time ago. And even then, most young people really knew better. In Wavy Gravy’s phrase from the mike at the Woodstock Festival: “Capitalism isn’t all that weird.” And Mary Kay Place, in The Big Chill (1983), spoke tellingly for a generation of maturing lawyers when her character, an erstwhile public defender, said that she hadn’t expected her clients to be so … guilty.

Setting our rhetoric aside, few of us will get to represent unalloyed truth, justice and the American way, and few of us will end up advocating for pure evil.

True, little that is bad happens on this planet without the participation of the governments and the big corporations. True also, though, that little good happens without them either. This is not surprising. Companies and governments are the levers through which humans gather and focus the power to do almost everything of importance that is done, bad and good.

Likewise, individual humans have an intrinsic value that needs defending, no matter what, but individual humans can also be so … guilty. And the environment must be far better defended – and yet we cannot turn on a dime. We cannot stop our despoilment of the planet instantaneously. In fights defending either people or planet, there will be more than one side with something to say.

To practice law, then, means to compromise and to be compromised. It is why, in our system, all sides normally are allowed lawyers, and each lawyer is honor bound to put the best face he or she can on the client’s position, leaving some other trusted neutral, a judge or hearing examiner or jury, to sort out the best resolution. There are too many close cases to say of any party in advance that he, she, or it personally deserves to be lawyerless – or that our society is not best served with advocacy on all sides. Our self-righteousness would be better satisfied with speaking only for the good, the true, and the beautiful, uncontaminated by our commercial self-seeking. But we seldom get that chance, and that’s life.

Halpern tells the tale of the response of his law firm during the riots that scarred D.C. in the wake of King’s assassination. The police engaged in mass arrests, and the Arnold & Porter lawyers jumped into assisting pro bono with the mass criminal defenses that naturally ensued. With the city still literally in flames, partner Paul Porter, a Kentuckian who made a handsome living as a Washington insider, lent his Cadillac limo and his African American chauffeur to transport his lawyers down to the Court of General Sessions. Yes, there was much wrong with that picture. Too much for Halpern, as it proved. But for those of us who muddle through, it is striking how much was right, too.

It exemplifies how we live. The contradictions mean we don’t get to be perfect. But in an imperfect world, there’s a certain justice there. If I may use the phrase.

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