Legal Ethics and Reform
Insightful Comments from Thoughtful People
Note: Comments are added as they are received and verified. Check back
often to have your preconceptions about our legal system challenged by
the observations of the many thoughtful, insightful people who visit this
WebSite. If you would like to submit
a comment e-mail the author, Hugh Murray.
I am a law review graduate of the Univ. of Pa Law
School. Retired as partner at Jones, Day, Cockley & Reavis in 1972
so that I could be trial lawyer who dealt in the truth and not spin and
delay and obstruction of the truth. Fortunately, as a young associate
I had the opportunity on vacation to sit through two trials in British
courtrooms. The level playing field in which the Barristers did not
brook any nonsence from each other other or judge, and vice versa, all
with the greatest civility changed my view of what trial lawyer should
be. This was only confirmed by a small book on the art of advocacy,
which had as its central core, how to use the truth, and nothing but the
truth, in a trial. When I retruned to the US, I threw away all my
, how to win treatises, realizing that they really should be entitled how
to win regardless of the facts and the law.
I take CLE courses and have waited pateintly for
years to have a lecturer, lean over the podium and offer to tell , How
to get the truth out of your clients and witnesses. At one seminar
a Judge turned to audience of young lawyers and warned, "You can be one
hundred percent right on the facts and onehunderd percent right on the
law, if the judge does not think the result is fair." He was a garolous
man who talked into through the question period, so I was unable to ask
him to explicate to these young lawyers the techniques by which a judge
avoids the factual truth and the law.
We all know, expecially, if you are a sole practitioner
arrayed against a prominent hired gun hired gun.- misrepresentation, fabrication
and evasion of the record. If you cannot get around a conrolling contention
of the losing party eitheir ignore it or amend it so that you can knock
down your deviously constructed strawman, etc.
It is a fiction that appellat judges are inhibited
from engaging in this chicanery because their opinions are subject to review
by a Supreme Courtr and analysis by other lawyers. I know it and
judges know it, in only about a miniscule number of civil case will the
Supreme Court grant review. Other lawyers couldn't care less about
what was done, and how it was done, to your client's rights, they been
there and they have been conditioned to preserve their "judge freindly"
reputations by keeping their mouths shut.
What is the solution? I have always taken the
logical position that mistakes when brought to the attention of the person
making it are corrected, If not corrected or explained the inference
is compelled that what was done was not a mistake, but deliberate.
I always, file an application for reconsideration, if I am convinced the
the court made a "mistake" on a controlling issue of fact or law.
If the response is a one-liner denying the application without explanation,
I know that my client was a victim of judicial misconduct and, at my own
expense petiton the Ohio Supreme Court to accept the case for review, even
though I know that these eminent judges are not going to establish any
precedent tying their and other judges hands when they seek to make a case
come out to suit their fancy, regardless of the law and the facts.
I have two recent case in which, when I can find the time I am going
to file a complaint with the Disciplinary Authorities. I filed on
several years ago, only to have the Disciplinary Counsel refuse to make
the judges explain the fraudulent decision. We have a new Disciplinary
Counsel, maybe my complaints will be fully investigated.
I like my fellow practitioners as people. As
professionals, I find them only to willing to enagage efforts to strangle
and obstruct the truth in the name of zeallously representing their clients.
When appellate judges use chicanery to to devastae their clients rights,
the they dumb out, shrug their shoulders, and tell their clients that this
is the way the system works.
On current example, our local appellate court
[Cuayahoga County, Ohio] consists of 12 judges, sitting in panels of three.
How they are assigned to specific question is governed by oral procedure,
described to me by the Court Administrator as "Internal Confidential Operating
Procedures." You find out the make-up of the panel assigned to your case
when you walk into the court for oral argument. Their is no written
docket tracking what has happened since they were assigned, recussals,
trading, etc. I have for several years as a member of the Appellate
Courts Committee of the Cleveland Bar Association, continued to bug my
prestigous members to do something about this. Like judges playing
games, my requests and comment are not recorded in the minutes, and they
think they are being courageous in deciding to request the court to advise
them of the panel assignment two weeks before oral argument. I was
appalled when several years ago, the chief judge at a litigation section
meeting announced that it was a dischargeable offense for and employee
[not a judge???] of the court to disclose the assignemment. I could
not believe the answer when I turned to a staff attorney at my table
and asked, "What possible reason reason is there for this?' The answer,
" The judges don't want to be bothered with lawyers calling them up to
argue their cases." Not ever letting myself get dumbed out on the
subject of judges, it immediately dawned on me that there many lawyers
who had a cozy enough relation with these judges that they could make such
a call and not be reported to the Disciiplinary Authorities.. I have, have
subsequently learned that their are some lawyers who can find out, obviously
from a member of the Court, the make-up of the panel assigned to a case.
The Bar Associations are not help. For example,
recently the court proposed a rule forbidding the writer of an opinion
to identify the trial judge and the trial lawyers involved. The President
of our Bar Asscociation, the managing partner of one of our large firms,
refused to endorse the reccomendation of the Appellate Courts Committee
to oppose the rule. The reason. The judge who proposed the rule is
"a good judge."
I've got to run. Believe me when I tell you that
the above barely scratches the surface of my forty-five years as a trial
and appellate lawyer. Sadly, I was never well enough organized to
keep a daily diary, If I had I probably could have done more to reform
our system and even to have proof read the above.
I would appreciate any comments, suggestions and,
most of all arational rebuttal of the above.
submitted by: Crede Calhoun; 2511 Euclid Heights Blvd.; Cleveland
Heights, OH 44106; 216-397-0555; Crede@Ameritech.net.
..."When I saw the words LEGAL ETHICS, I thought now that's an oxymoron
if I've ever saw one ... When I saw the next two words, AND REFORM, I thought
whoever put this together is a real Don Quixote."
Submitted by: Steve Lang of St. Louis County after reading the words LEGAL
ETHICS AND REFORM.
"It's to bad the popular preception of lawyers is so poor. I have known
many lawyers over the course of my life, and I will graduate from law school
next May -- I have found and know many good and decent law students and
lawyers, I do not see lawyers as having a much greater percentage of 'bad
apples' than a similiar slice or segment in other parts of society."
"As far as how involved lawyers tend to get into the political process,
seems like many lawyers come to law school because they think they can
use the law to make a difference in people's lives in a positive way --
the same thing that eventually leads many into politics. To characterize
lawyers as interested in politics because they have an inherent need for
control is terriblly stereotypical and in my opinion inaccuracte, when
its just as easy (and more accurate in my opinion) to say that lawyers,
who want to change peoples lives for the better, to enter politics with
the same goal.
I find your analysis of the typical lawyer profile to be somewhat lacking
and one sided -- perhaps as much as mine seems one sided in an oppisite
way. Your religion- oriented view of lawyers tries to say much about how
morally bankrupty lawyers are when you are quick to critize Lincoln, but
you also fail to credit lawyers for many acchomplishments, strides, goals
which many have pushed or helped accomplish (as have many Anericas) since
the country was founded.
I certainly have no hope of changing your mind on any of these issue
which you seem set on believing, nevertheless I felt obligated to state
my disapproval of your views.
. Submitted by Jim McHie, a law student from Indiana
Dear Mr. Murray:
I've been reading this web site of yours, and I've got one word to describe
it--excellent. It's obvious you've done your homework about the disgraceful
American legal system, and about possibilities for reform.
Truth be told, lawyers are nothing but legalized criminals. Look at
the perpetual scandals and conflict-of-interest problems in Washington.
Who's involved in them? Yeah, that's right-- shysters. Hillary (The First
Shyster) Clinton is a lawyer, as is her husband, the Lincoln-like (chuckle,
chuckle, giggle, giggle) President Bill Clinton. (I don't see any bar associations
doing a damned thing about the Clintons' ethical failings, either!)
One of the books you cite--The Trouble With Lawyers by Murray
Teigh Bloom--put it best: "The law--which is made by lawyers, administered
by lawyers, and adjudged by lawyers--is inevitably protective of the stupid,
lazy and inept practitioner."
That guy said a mouthful!
Orville H. Larson
Thanks for the (reference to the) Manhattan (Institute) site - looks interesting - ultimately this problem
is so, so complicated, but ultimately, and at the risk of
oversimplification, I think the answer lies in dismantling the the
adversarial system, and while I haven't spent that much time on it, I have
seen some good papers contemplating each major area of law, and proposing a
non-adversarial solution that, in my view, is unquestioningly better, and
reduces unnecessary complexity etc. and "make work" projects, and increases
access to justice by removing the monopoly lawyers currently hold over the
legal system. Slowly phasing out the adversarial system, in favour of one
based on co-operation, or inquisition, together with slowly reducing the
number of lawyers in society (by closing law schools) I think provides the
answer. And if all these people who would have otherwise have been lawyers
can't find a job because there isn't enough work to do, we should reduce the
work week so everyone can enjoy more time off. Or maybe these bright people
can spend their time innovating new products or technologies.
I think the internet may also help drive this revolution.
. a Canadian lawyer
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