Law and Software

I dislike the term “rebellious lawyer.” Which is why I am categorizing these posts under “rascuache.” Rebellious suggests a spoiled child. He’ll get over it. Its just a phase he’s going through. Only, Bill Hing never got over it.

Bill opened the first Salon Saucedo  conversation by telling of his early days in legal services. He was a traditional lawyer – he dealt with legal problems, he fought to win. The win was what mattered. The clients were the unfortunates who were lucky enough to benefit from his lawyering skills. And he confessed his deep embarrassment at who he was and how he worked in those days.

Bill contrasts the traditional “knight in shining armor” superhero-in-a-suit model of lawyering with the style he has developed at the ILRC and thoughout his life. I’m Bill and we’re a team. His message is that the client matters. The client is worth listening to. And, in a world where the law is often stacked against his clients, and winning is not always a likely outcome, that the client is an end goal too. Win or lose, the client has to move forward and should be able to deal effectively with the outcome.

A rebellious child is tolerated and nurtured. And a paternalistic legal profession tolerates and nurtures the rebellious lawyer. Big Law encourages a few hours a year of pro bono work to keep the rebellious tendencies under control. And law schools teach rebellious lawyering to the rebellious student, tolerating, nurturing and encouraging and knowing only too well that once out of school, the student has to grow up and be a real lawyer. The future’s so bright, ya gotta wear shades (to pay off your loans).

I read Paul Farmer during my 1L year. Actually I read Tracy Kidder’s “Mountains beyond Mountains” about Paul Farmer. He said “doctors are the lawyers for the poor” – and he is paraphrasing  Rudolph Virchow, one of the first advocates for pubic health. Virchow’s revolutionary insight was “”Medicine is a social science, and politics is nothing but medicine on a large scale. The physicians are the natural attorneys of the poor, and the social problems should largely be solved by them.” Bill Hing is framing the question I’ve wanted someone to answer for a long time. Why can’t lawyers be the natural attorneys of the poor?”

The answer may be that the physicians Farmer is talking about are general practitioners, not specialists. Attorneys are mostly like surgeons. They perform an operation and then move on to the next case. They are hired for a task, for their specialist expertise. They are hired for the win. But there’s nothing radical in  the lawyer’s role as family doctor, treating the same patient over and again –  treating the patient, not just solving the problem.  That’s what a corporate general counsel does– after all, corporations are people too. And we shouldn’t forget that poor corporations are poor people. The legal profession uses the term ‘transactional lawyering’ to describe the role of the  ‘lawyer as a general practitioner’ although it is a form of lawyering that isn’t often available to individuals, and rarely if ever open to the indigent. Doctors may still be the natural attorneys of the poor, but Bill Hing is their natural General Counsel.

Another reason I don’t like the term “rebellious lawyering” is that rebellious implies confrontation. And working the system in your client’s best interests is often more effective than confrontation. Maybe, if he were starting out today, Bill would call his style “empathic lawyering.” He starts out by telling the client that she is part of a team. She is engaged in the process. There are things she can do better than the lawyer. There are issues that she can resolve far more effectively than the lawyer. And the lawyer needs to be able to listen to her client. I suspect Bill’s clients still see him as a knight in shining armor. But he is a knight that has time to stop and listen and explain. And he leaves the clients stronger and more self-sufficient than before. Winning or losing one battle is less important than empowering the client, and giving her tools to deal with bad outcomes. Its the SNCC approach. Organize and empower. And it addresses Charlie Nesson’s famous soundbyte, that “process is for losers” – Bill’s process is not just legal due process, it is the idea of engaging the client in that process so that even if the cause is lost, the client is no longer a loser.

If the medical analogy is weak, it is because the two professions train their students differently. Medicine is engineering, not science. Medics have to learn how to fix things, and once they have learned in school they go through a residency program to put that learning into practice. Imagine a similar commitment by the law schools. Imagine a public-interest law school with 80+ “teaching partners” – like the consultants who teach in medical school. Imagine each teaching partner having her own clinical practice that is staffed by associate attorneys – licensed graduates of the school who choose to work as residents in the emergency rooms of legal services to learn their trade. Imagine this is recognized as a prestigious career path that compares with entering the “class” system of big law firms, or taking a judicial clerkship. Imagine those associate attorneys that don’t “make partner” in the school, moving into the workforce with three years experience of “rebellious” lawyering. Its easy if you try. Who knows. Maybe there is a law school out there that actually wants to survive, and is imagining already. Or maybe it a symptom of the problems facing the legal profession, that a recent post on this topic is now locked behind the Lexis paywall.