Utah Bar Journal

After almost thirty years in this profession, I am still not cynical. Call me naive if you wish, but I realize that I, my lawyer-daughter, and all of us who labor in our chosen professions matter, even if only to one client at a time, whether it be a small child of divorce, a single criminal defendant or a troubled business.

I would like to share with you three of the many reasons why I believe we do matter and why we should not take our privileged positions lightly, grudgingly, or for granted. Like most of you, I'm one of the Bar's "rank and file." I'm not running for judge or vying for a promotion, so I hope what I have to say resonates with at least some of you.

Permit me a definition first, which I hope you find neither excessively Orwellian or cheesy. When I say "good lawyers," as I frequently do in this article, I mean all of us in the Bar, who I assume strive for excellence as a matter of routine. No one tries to be a bad lawyer. I assume we all try our best, and at least try to do the right thing.

So here are three areas that matter:

A. PREVENTION
Good lawyers prevent problems. They counsel clients so that they won't end up in court, or if they already are in court, so that they will not compound their legal messes. Best of all, prevention-oriented lawyers help clear the way so that clients can build their businesses, estates, lives, and other interests more smoothly and effectively. The longer I'm in this profession, the more I value this proactive aspect of our representation.

My first exposure to the role of a good legal counselor was as a child in my own home, listening to my superintendent father as he discussed complicated problems of the multi-cultural, fast-growing Silicon Valley school district he headed. As he spoke with board members, administrators, concerned citizens and others, on the telephone or in our living room, invariably I would hear "County Counsel advises...." Or "let me check with County Counsel on that." To me, my father was the best example of knowledge, power, and decision-making that I knew. He had rocketed through Stanford University in eight quarters, earning an M.A. and an Ed.D. in record time. He then became assistant superintendent for five years and then superintendent of schools for twelve years in a high school district which ranged from the wealth of Los Altos Hills to the barrios of Mountain View. This was all during the fast-growth fifties and the turbulent sixties, thriving in a job where the average survival rate of school superintendents was just over two years. So who was this all-powerful "County Counsel" whose counsel and every blessing were constantly invoked, this disembodied voice who influenced the building of new schools, acquisition of land for future growth, teacher contracts and employment problems, bus fleets, cultural conflict, and student discipline? Of course, it was the staff lawyer for Santa Clara County, whose assignment was to provide wise legal guidance to busy school superintendents.

Now Dad could have taken the approach that we see so often - arrogance, disdain, disregard. But he did not do so; rather he sought out and listened to good counsel; prevented little problems from becoming big ones, and as a result led his district to national prominence. I learned much from my father - starting with respect for the law and legal counselors.

I have worked with "County Counsel" myself. Of course, they were not called that here in Utah, but their role and effect are the same. Sensible lawyers and decent persons like John Palmer, who represented the Washington County School District for years, come to mind. John and I quietly resolved many potentially inflammatory cases involving students" rights, employment, school prayer, property, and other issues. Good lawyers like John don't provoke unnecessary litigation or contention, but rather act to prevent problems. I learned a lot from John as I matured as a lawyer.

Of course, sometimes prevention, planning and all the best intentions cannot prevent litigation. Sometimes the corruption and crime of the Enrons and Watergates must be met head-on, multimillion dollar defenses notwithstanding. However, I believe that almost any case can be settled amicably if good and ethical advisors are retained and listened to.

B. LIFTING THE BOAT
Every time a courageous lawyer does the hard thing and battles government, corporate tyranny and others with power, money, and influence - we all benefit. Martin Luther King put it well in his classic "Letter from Birmingham Jail":

...Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.... Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.

For decades lynching black people in many of our states was acceptable and went unpunished. Voting and other civil rights denials were often the cultural and legal norm. Jim Crow legislation ruled. Only through the actions of dozens of courageous and effective lawyers, such as Thurgood Marshall, were these institutionally-sanctioned practices halted. As a result, all of us became freer and less intimidated by parochial bullying in opposition to our fundamental rights and liberties as citizens.

We have a long way to go to fully integrate all of our law-abiding citizens who are "different," but as lawyers and decent persons we can try. Every time courageous lawyers like our own Brian Barnard or Dani Eyer and the ACLU of Utah confront the Goliath of institutional injustice, our civilization becomes just a little more friendly - or at least less hostile - to the disenfranchised, the marginalized, the "least of us." They do their good works despite opposition, criticism, and often hostility that comfortable lawyers representing the more popular "status quo" never or seldom know. But by advocating for the "least of us," good lawyers protect and advocate for all of us, because injustice anywhere affects justice everywhere.

It is not just in the controversial world of civil rights law that these efforts matter. Whenever a workplace act of bullying or harassment occurs; whenever a presumptuous government official abuses power, or lends a corrupt ear to special interests; whenever a child is shunned because her parents are "different" - or because she is "different" - and you do something positive about it - you then help to lift the common boat from the shoals of a smug and sometimes unjust world.

"Raising the boat" begins with honest questioning of what we see, hear, read, and presume. There is often a dark side to those cheerful exploitations we buy into and enlightenment may conceal itself in the humble shadows we bypass or ignore.

Mainstream America is now "on board" with racial equality. But are we "on board" with all forms of discrimination, including the often subtle discrimination based on gender preference or personal creed? I think not. Henry David Thoreau said it well when he was hosted by his government in the local jail for refusal to pay a poll tax to protest slavery and American aggression against Mexico. In "On the Duty of Civil Disobedience," Thoreau writes:

...Why does (government) not cherish its wise minority? ...Why does it not encourage its citizens to be on the alert to point out its faults...? Why does it always crucify Christ, and excommunicate Copernicus and Luther and pronounce Washington and Franklin rebels?

C. BUILDING
Closely related to our role as "counselors" and "prevention" guides is our role as legal architects, planners, and engineers. We ("good lawyers") help our clients build.

There are two equally important ways, in general, in which we do this. One is the "affirmative" act of helping a client structure something she has an interest in - a business, an estate, even a criminal defense or alcohol and drug treatment program. The second is the "negative" act of saying "no" - don't stalk your ex-wife; don't misrepresent your product or your resume; don't talk to the alleged victim; don't blow deadly toxins into the environment.

Often clients don't want to be told "no", even for their own economic or legal well-being. Their reasons and rationalizations are many and commonplace - we've all seen them: hubris, greed, control, insecurity, errant moral compass. They may resent you for being obstructionist or negative. They may even fire you and seek out counsel with more flexible ethics or less client control, someone who will say, "Yes! Yes! Yes!" I say, let them go. There's plenty of work for good lawyers, and you don't need to sell your soul to get it. If the Ken Lays and Jeff Skillings want "yes-lawyers" to approve their "creative accounting" schemes, I hope you are not among the "chosen." You can still help those who are teachable to reach their worthy goals - including an ethical criminal defense - and not enter Faustian bargains in the process.

In 1940, before I was born, and according to the abstract of deed and written narrative I still retain, my father built a comfortable home in Pocatello, Idaho where he taught school and was later dean of boys of Pocatello High School. His two sons were turning four and three. Dad did most of the heavy labor himself, as he did with our California home a decade later. But in both enterprises he relied on architects, contractors, electricians and plumbers. As self-reliant as he was, and taught his sons to be, Dad had the good sense to take counsel from the pros and to defer to their expertise.

Our favored clients are much like that. They do the labor, the "heavy lifting" in their lives, but they rely on us for the legal guidance and expertise needed for them to build. This is true in both a "micro" and "macro" sense. Good lawyers help build lives, reputations, estates, businesses, subdivisions, communities, complex physical and economic infrastructures, interstate commerce, and nations. We help our clients build "for the good," to "pursue happiness" in ethical and socially responsible ways. Good lawyers would no more help a client steal, cheat, maim, or kill than those my father relied on would have sanctioned building his house on a blue clay deposit, with no plan, no respect for boundaries or the rights of neighbors, or in violation of building codes.

So if you get a little client flack about being "negative" or "obstructionist," put it in context. Don't take it personally or feel you must assert your moral flexibility to accommodate such a client on his or her malignant terms. Without your good and responsible counsel, our clients may as well build on quicksand and it will be at least partly your fault if you fail them.

I hope to never retire from this profession. It can be stressful, but if it doesn't kill you it can make you stronger. I hope all of you can find, and preserve, the good in your respective law practices. Remember that our chosen profession provides us our independence, financial security, and above all the opportunity to counsel, build, and help "lift the boat." Each of us can do so in our different ways, and according to our respective interests, means, and abilities, because we do matter.