Legal Ethics and Reform

Should lawyers be legislators, too?

By John Stoeffler

Question: What's the difference between a lawyer and a vulture?

Answer: The lawyer gets frequent flyer miles.

This joke reflects the low esteem in which the general public holds the legal profession, a view exacerbated by the skyrocketing cost of goods and services associated with the increasing number of lawsuits.

Writing in the Harvard Journal of Law and Public Policy, Robert R. Gasaway asserted that it is the "entrepreneurial lawyer" who is fueling the litigation crisis caused in part by lawyers who are "free to charge what they choose," resulting in "exorbitant legal fees." Gasaway wrote this in 2002 - since then nothing of substance has changed.

An example of just how bad this out-of-control litigious society has become was reflected in comments made by Randall Tobler, an OBGYN physician who hosts a talk show on Saturday mornings in St. Louis on 97.1 FM.

During one of his shows Dr. Tobler pointed to the threat of lawsuits he and his colleagues in the medical profession face. How does he deal with this?

"Except in case of an emergency, I don't treat trial lawyers or members of their family," said Tobler, "(because) they expect what I cannot deliver - perfection."

Litigation is nothing new, but the increasing cost to business brought about by seemingly endless waves of litigation has hit the consumer in the pocketbook like a giant tsunami.

According to James Copeland with the Manhattan Institute, medical malpractice liability alone constitutes over 10 percent of the entire U.S. "tort tax," which by 2003 represented over $3,300 for a family of four. The "tort tax" represents the costs to doctors and hospitals from litigation. Those costs constitute the majority of health expenses.

Yes, there have been calls for tort reform, but then only lawyers are convinced they have a constructive role to play in improving the climate in which every business operates. And therein lies the rub.

Let's face it; to expect trial lawyers who make their living suing others to curb their tort-driven rapacious appetites is akin to asking a gluttonous addict to go on a diet.

Adding to the quandary of how to achieve real tort reform is the fact that many engaged in the practice of law also serve as elected members of the Missouri General Assembly.

What can be done?

Lawsuits in which the loser pays would dramatically curb the number of lawsuits, but that is an anathema to trial lawyers and will never see the light of day in Missouri's General Assembly.

That said here is another option for consideration. The Constitution of the State of Missouri as with virtually every state proclaims: "(N)o person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others, except, the instances…expressly…permitted."

In 1776, the framers of the Virginia Constitution declared that the three branches "shall be separate and distinct…except that the justices of the county courts shall be eligible to either House of Assembly."

I bring this up to show that, unlike Missouri, Virginia specified an exception to the "separate and distinct" rule. Lawyers are by their own admission "officers of the court." Lawyers also serve as legislators. As I see it, this presents both a conflict of interest in that every law written affects the legal profession, but more importantly is also a clear violation of the separation of powers the Missouri Constitution commands.

Perhaps the medical profession and the business community that come under attack by these "officers of the court," might consider supporting an initiative petition calling for an amendment to the Missouri Constitution barring those actively engaged in the practice of law from serving in the capacity of representative or senator.

But John, aren't lawyers, trained in the law, better qualified to write laws? Good question, and let me answer that question with another. If lawyers-as-legislators are better trained in the law, why is it that in all too many lawsuits it is the courts who have the final say as to what the law means? One can only hope that laws crafted by lawyers-as-legislators are not purposefully written so as to provide fodder for future litigation which inevitably enhances personal net worth.

But wouldn't it be unfair to exclude lawyers from serving as elected officials? It might be unfair, but certainly not unconstitutional. A constitutional amendment excluding lawyers from serving in the legislature would not prohibit them from serving as advisors to representatives and senators or bar them from seeking other positions in government.

Would the people of Missouri support such an amendment? I posed that question to a judge, his reply, "I'm sure they would."

A sage once advised, "Physician heal thyself." In the case of the out-of-control litigious lawyer types this advice should not be viewed as applicable to the medical profession alone. Absent a "loser pays" provision for curbing lawsuits getting lawyers out of the legislative process might well be a step toward inoculating all business against outrageous, unreasonable claims as a result of the ubiquitous American virus tortious maximus horribilus.

John R. Stoeffler, a Ballwin resident, is the president and co-founder of the Madison Forum, a constitutional think tank, dedicated to upholding the principles of the Declaration of Independence and the U.S. Constitution.

Take Me To:

The Home Page