November 2000

Ethics and the Law
Starving at the Banquet of Justice 

by Barrie Althoff, WSBA Chief Disciplinary Counsel 

Through our federal and state constitutions and the efforts of hundreds of thousands of dedicated lawyers, we have created in the United States one of the most carefully wrought justice systems in the world. We have checks and balances on competing governmental interests, and we have a bill of rights that seeks to restrain unwarranted government intrusions in our lives, to assure due process, and to guarantee fundamental rights to individual citizens. We have multiple levels of courts and appeals, and we have over a million lawyers, each of whom has sworn to uphold constitutions and to help people know justice.

With all of our riches, with all of our treasured constitutional rights and liberties, with all our wealth of resources, we have a veritable banquet of justice. Why is it, then, that so many of our citizens struggle to find justice and cannot afford to access or participate in that system? Why is it that so very many are starving at the banquet of justice? What went wrong? What can we do about it?

The American Bar Association's Canons of Professional Ethics were adopted by the ABA in Seattle in 1908, and by Washington in 1917. Canon 12 states that in fixing the amount of a lawyer's fees, the client's "poverty may require a less charge, or even none at all" and that "[i]n fixing fees it should never be forgotten that the profession is a branch of the administration of justice and not a mere money-getting trade."

The Canons were replaced by the ABA in 1969, and by Washington in 1972, by the ABA's Code of Professional Responsibility. The Code's very first Ethical Consideration, EC1-1, stated that "[a] basic tenet of the professional responsibility of lawyers is that every person in our society should have ready access to the independent professional services of a lawyer of integrity and competence" (emphasis added).

The Code was in turn replaced by the ABA in 1983, and by Washington in 1985, by the ABA's Rules of Professional Conduct. Washington's RPC 6.1 provides that "a lawyer should render public interest legal service. A lawyer may discharge this responsibility by professional services at no fee or a reduced fee to persons of limited means or to public service or charitable groups or organizations, by service in activities for improving the law, the legal system or the legal profession, and by financial support for organizations that provide legal services to persons of limited means."

Every lawyer admitted to the bar in Washington takes an oath of admission first required by the Washington Legislature in 1909. Thereafter, the ABA recommended that other jurisdictions adopt Washington's form of oath, and many did so. The 1909 form, subsequently adopted with minor changes by the Washington Supreme Court, is now set out as Admission to Practice Rule 5(d). The 1909 oath stated: "I will never reject from any consideration of personal matters the cause of the defenseless or oppressed. …" The current oath provides: "I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed. …"

In 1909, Washington had about 525 lawyers. Today, Washington has over 26,000 lawyers, and there are more than a million lawyers in the United States. Yet, despite these vast numbers, despite the fact that substantially every lawyer in the United States has sworn never to reject the cause of the defenseless or the oppressed, we still have thousands and thousands of defenseless and oppressed, as well as even greater numbers of ordinary citizens, who are starving at the banquet of justice. Why?

Nearly 2,800 years ago, the Greek poet Hesiod observed that justice is the best thing human beings have. All of us say we believe in justice and no one admits to believing we should instead promote injustice. But if we truly believe that justice is the best thing we have as a society, why do we have so much injustice? Why do so many of our citizens not have access to our justice system? And most of all, why are we lawyers, who proclaim to be committed to justice, not doing more to make justice real?

This is not a new or modern quandary. Over 2,400 years ago, the Greek historian Thuycydides quoted the Athenian statesman and soldier Pericles as saying: "in settling private disputes, everyone is equal before the law" and "we obey the laws … especially those which are for the protection of the oppressed." History of the Peloponnesian War, Bk. 2, Ch. 4, p, 117, trans. Rex Warner (Penguin Books, 1954). But Thuycydides also quotes Pericles as complaining that society is apathetic toward the public good, and that everyone thinks the responsibility for the future belongs to someone else, and so, "while everyone has the same idea privately, no one notices that from a general point of view things are going downhill." Ibid, Bk.1, Ch. 11, p. 93. How is it that justice is going downhill at the same time that we obey all the laws, especially those for the protection of the oppressed? Are the laws to protect the oppressed inadequate, or is it rather that our commitment to justice is too shallow? Are we willing to commit to justice only as long as it does not cost us too much or is not too inconvenient?

Historically, we are told, lawyers appear to have been most committed to serving the public and to providing access to justice at those times when the "bench and bar were dominated by members of the upper classes with independent means; in other words, periods during which lawyers could afford to cheerfully provide free service." Hugh Spitzer, "Why Lawyers Have Often Worn Strange Clothes, Claimed to Work for Free – and Been Hated," Washington State Bar News, September 2000, p. 20 at 26. That author observes that our society, like others before it, has had "the same swings between an elite, service-oriented profession and a broader, upwardly mobile bar dependent on fees for its livelihood" (p. 28).

Are we part of the "elite, service-oriented profession," or of "the broader, upwardly mobile bar dependent on fees for its livelihood"? The difference is not merely a matter of the source or amount of our income, but rather of our image of ourselves and of our profession. All of us would say we are service oriented in our legal practices in that we want to render the best service we can to our clients. But in the context of helping our society know justice, "service oriented" must mean something more. It means a profound personal commitment by lawyers to our role as not just service providers, but as servants, as people who consistently put our personal interests aside to serve those of another person. Servants serve all the time, not just when it is convenient for them, not just when they think they can afford to serve, not just when someone asks them to do so, and certainly not dependent on the compensation they receive. Our market-based society, however, idealizes individualism and personal achievement, and does not value servants. At heart, few of us want to be servants. Instead, we want to succeed financially, professionally and economically. We want to progress to successively higher-paying, higher-ranked and higher-perceived positions. We want our spouses, children, neighbors and otherwise long-forgotten high-school classmates to look at us with admiration and, even better, with envy, and say that "we have made it." By "making it" we and they do not mean we have become servants, but rather that we have become masters.

If we are to serve justice, however, we cannot be masters. We must be servants. A servant has a radically different perspective on the world than does the master. Are we willing to make the radical changes in our lives and lifestyles that this entails? Until we are, we will remain self-oriented rather than service-oriented to justice. Until then, we will remain masters expecting the justice system to serve us with a large income, with intellectual stimulation, with social prestige, with power, and with all the trappings of commercial success. Are we as lawyers trying to serve both ourselves and justice? When we discover we cannot serve both, to which do we give our allegiance?

Who among us today belongs to that "elite, service-oriented profession" which has historically shown a personal commitment to justice and been the pride of the bar? Is it not those who at great personal sacrifice live their oaths to never reject the cause of the oppressed and the defenseless by directly serving them or by supporting those who can serve them? Unlike in the past, these elite lawyers are rarely independently wealthy. Rather, they have consciously chosen to live on less. They are not dependent on fees for their livelihood, not because they do not need the money to support themselves and their families, but rather because they have committed to accepting the lesser compensation of public practice, or because they remain in private practice but willingly reduce their income by rendering their services to their clients regardless of their clients' ability to pay. These are the elite members of our profession.

Who among us, then, are members of that "broader, upwardly mobile bar dependent on fees for its livelihood," which historically has failed to show commitment for justice? Does it include law partners, shareholders and principals whom the public considers successful because they represent well-known banks, businesses or individuals? Do these lawyers not only talk about justice, but commit their firms' resources to it? When they receive a large contingency fee award, do they immediately donate a large portion of it to secure access to justice for those whom they cannot directly serve? Does it include law firm associates who, with no experience in practicing law, immediately after their law school graduation make more than our Supreme Court Justices and more than four times what public-service lawyers make? Does it include in-house corporate counsel who devote all their legal energies to their corporate clients?

Are these lawyers, each of whom has also sworn never to reject the cause of the oppressed and the defenseless, turning away paying clients or work assignments to serve the oppressed and the defenseless? Are these lawyers too tired at the end of their long work days to represent the poor? Are these lawyers asking that their income be reduced in exchange for reduced work hours to be spent serving the poor? Are these lawyers making generous donations to fund legal services for the poor? If they are not, is it any wonder that many people are starving at the banquet of justice while we lawyers are feasting?

How committed to serving justice are we really? Two thousand years ago a rich man's commitment was probed by a teacher who told him that he first needed to keep all of the rules, and he responded that he was already doing so. The teacher then told him to sell all that he had, give the money to the poor, and follow the teacher. "When the man heard this, gloom spread over his face, and he went away sad, because he was very rich." (Mark 10:22).

We lawyers have a lot in common with the rich man. We too are idealistic and see ourselves as committed to doing what is right. We too are usually law-abiding and live by the rules. We too are, by and large, very rich compared to many others in society. And when we learn the price of making justice a reality in our society, gloom likewise spreads over our faces, and we back away from our commitment to justice, for we too, like the rich man, are unwilling to give up our riches for justice. Do we believe in justice only so long as it does not cost us too much or inconvenience us too greatly? Are we servants of justice or of ourselves? Is our core value justice for others or the good life for ourselves?

Most of us are not anchorites. Likely few of us can give a total commitment to making justice a reality. In the reality of our everyday lives, we necessarily make compromises because we have obligations not only to justice for others, but also to feed, house, clothe and care for our families; to reach out to our friends and neighbors; and to care for ourselves so that we retain the strength and will to do all that we need to do. The spouse may be rare, and the child rarer, who can understand, let alone support and encourage, a lawyer with a burning passion for justice and who would joyfully sacrifice the comforts of material wealth for the cause of the oppressed and defenseless of our society. But until we talk to our spouses and children about what justice really means to us, we will never know whether they share that passion, and as a result, we will serve justice less. Do we have the courage to ask? Tonight? Or do we at heart fear more the realization that it is not them, but ourselves, that are half-hearted in our commitment to justice? Will we, like the rich man, walk away from a commitment to justice because at heart we want riches for ourselves more than we want justice for others?

How do we allocate our resources among our various commitments? How do we do justice not only to our families and other commitments, but also to the oppressed and defenseless of our society? If we regularly directly reject the cause of the defenseless or oppressed, we have made the wrong allocation of our resources and are fooling ourselves if we believe we are committed to justice. But most of us are not daily confronted with the direct choice of rejecting the defenseless or oppressed. Instead, what may be worse, we either ignore them or are totally oblivious to them.

If our days are consumed worrying about whether a client's multimillion-dollar transaction complies with federal securities or tax laws, whether a client's proposed development of a warehouse or shopping center site will comply with environmental regulations, whether we will turn over in discovery documents which our hearts and the spirit of Fisons tells us we must, but which the client does not want us to, or whether our families never hear us express anguish over the cause of the defenseless and the oppressed and their lack of access to justice in our society, then we are very unlikely to be thinking, let alone doing anything, about the cause of the defenseless or the oppressed.

If, at the end of that day, however, we regularly serve at a legal clinic, or we regularly write a generous personal check to help pay for the time of other lawyers skilled in handling the problems of the poor and defenseless, then we are living our oath to never reject the cause of the oppressed. Or if we have consciously chosen a path of public service such as working with a public defender, the Northwest Justice Project, or Columbia Legal Services, a few of many possible examples, we are living our oaths at great financial sacrifice to ourselves and to our families. If we are in private practice, and we regularly give freely of our time and talents without regard to our clients' ability to pay for our services, then we, too, are living our oaths. But if we are not so giving, and if we never turn away paying clients in favor of working for free for the defenseless and the oppressed, then we are in fact rejecting our oaths and committing ourselves not to justice, but to ourselves.

As our practices become more and more specialized, fewer and fewer of us feel competent to render services directly to the poor. We become experts in areas of the law that are irrelevant to them. If we try to render services directly to them without special training, we risk malpractice, discipline, and more importantly, the recognition that incompetent service is not service. Further, some of us, particularly government and nonprofit lawyers and judges, may not be permitted to engage in any outside legal practice. But if we cannot devote the time needed to become competent in areas relevant to the poor, or we cannot practice outside our employment or positions, we can still fully live our oaths by financially supporting — not grudgingly, not stingily, but generously — those who can directly serve the poor, and working to secure public funding for legal services for the poor.

Even with all of the volunteer work done by tens of thousands of lawyers across the nation, and even with the financial assistance of Legal Services Corporation, the only federal agency directly involved in nationwide funding of the legal needs of the poor, it is estimated that less than 20 percent of those legal needs are now being met. To put the nation's commitment to funding those needs in perspective, Legal Services Corporation's entire $305 million funding for fiscal year 2000 is equal to less than a one-half of one percent annual return on Bill Gates' reputed $63 billion net worth; or viewed alternatively, if that net worth were liquidated, without regard to investment income or taxes, the proceeds would fund Legal Services Corporation at its current rate for more than 205 years. Do we as a society have a commitment to justice, or to ourselves?

What can we lawyers do beyond proclaiming a belief in justice to show that our commitment to justice is real? We can, of course, literally never reject the cause of the oppressed or defenseless. Or more practically, we can pay to solve the problem. If each of us contributed merely one dollar every day of the year (obviously many of us could and do contribute far more) to meet the legal needs of the poor, in one year we would have contributed more than the entire annual funding of Legal Services Corporation. How committed to justice are we? Do we have the courage to do this, or will we say it is unfair that we lawyers should be expected to solve the problem? Do we have the courage to ask our spouses to support this? Do we have the courage to ask our clients to match our contributions? Do we really care about justice?

We lawyers have long publicly proclaimed a commitment to justice and to serving the oppressed and the defenseless. Yet far too many of them remain starving at the banquet of justice. What will we lawyers do? Will we leave to someone else the task of serving the poor and pretend not to notice that as a result justice is going downhill? Will we lawyers feast, while the oppressed and the defenseless starve, or at best, eat crumbs at the banquet of justice? Or, will we make room for them at that table and invite them to feast with us? Do we have the courage to let justice begin with us?

Back to table of contents >>