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GAZETTE
JULY/AUGUS
T 1982
The Role of the Law
Office in the Administration
of Justice
by
Louis M. Brown
Reprinted with kind permission of the American Bar Association.
S
EVENTY-FIVE years ago Roscoe Pound, then
of Lincoln, Nebraska, later thejllustrious dean
of Harvard Law School, addressed the subject "The
Causes of Popular Dissatisfaction with the Admini-
stration of Justice" at the annual meeting of the
American Bar Association. The opening sentence:
"Dissatisfaction with the administration of justice is
as old as law." He proceeded by limiting his subject
to an "attempt only to discover and to point out the
causes of current popular dissatisfaction. The inquiry
will be limited to civil justice." His address concern-
ed the law and law courts. He gave only a glancing
reference to lawyers.
It is my position that we have yet to give full
recognition to the factors, elements, and institutions
involved in the administration of justice. We
practicing lawyers do not yet see ourselves as we
should. There have been minds, great minds, who
have drawn attention to the bar. Karl Llewellyn, the
renowned professor of law, wrote strikingly in 1937
of "The Bar's Troubles, and Poultices —and Cures"
(5
Law and Contemporary Problems
104 (1938)). His
incisive observations were put in the context of a
symposium on unauthorized practice of law rather
than in the posture of dissatisfactions with the
administration of justice.
Discussions of the administration of justice
consider the house of justice but neglect the entry
way. Almost every dispute that gets to the courts does
so through the entry way known as the law office.
Ninety per cent of cases filed in the courts are not
determined by court decision but rather by
settlements made by and with lawyers and clients.
There are, to be sure, tribunals from which lawyers
are excluded (for example, many small claims courts)
and others (arbitration and many administrative
tribunals) where lawyers do not have the monopoly
Karl Llewellyn described. Yet exceptions notwith-
standing, the law office is the stellar institution in
both the entry and exit of our dispute resolution
justice system.
The law office is the stopping point, too, for those
client claims that never get filed. The circumstances
may be that the claim is legally unwarranted, or
practically unsound, or financially unacceptable to
the law office, or settled without a court filing —
circumstances that bear heavily on the total
administration of justice.
A major weakness in the academic and popular
consideration of justice is that the concern is
exclusively dispute resolution. Law and justice are
not thusly limited. Many of the legal consequences in
nonadversarial matters have more to do with the lives
of people than do the judgments of a court. I am
utterly fond of the statement of Thomas Shaffer,
"My father's will may have more to do with what my
life will be like than anything the federal court of
appeals will ever do." (
Legal Interviewing and
Counseling
, page 3 (1976)). And what is the legal
tribunal that is the source of decisions regarding that
will? The straightforward answer is, of course, the
law office. It is the law office that is the supreme court
for the legal decisions in the practice of preventive
law. Signing on the dotted line legally commits the
signer. Choices, legal and practical, available prior to
that signature thereafter are barred or restricted.
Some people, including me, assert that law office
decisions are more numerous and often more
significant to the clients than are even the court
decisions in which a client might be a party.
Importance in our society is often measured in
dollars. I am hard put to find an authentic figure for
the total cost in this country of all our courts. I am
harder put to find an authentic figure for the total
dollar payment to our law offices — that is, the total
gross fees received by lawyers. Certainly the total cost
to society of law offices must far exceed the total cost
of all the operations of all the dispute resolution
tribunals. My ballpark estimate is that the law office
industry is somewhere in the range of $35 billion a
year. Our informational weakness about cost and the
items that account for costs lies deeper.
We know nothing about the number of persons,
either as clients or potential clients, who enter law
offices, or about the purposes for their doing so,
whether for litigation law practice (dispute
resolution) or preventive law practice (non-
adversarial matters). Our ignorance is appalling. We
do not know the number and classification of dispute
resolution matters that enter law offices. We are
ignorant of the number and kind of these matters
that go no further than the law office. If we looked at
court filings, we might find out the number and kind
of dispute matters that reach the clerk's cage, but this
gives us only a fragment of law office entries.
If there are public concerns about the law office in
its dispute resolution function, the concerns about it
as it functions in nonadversarial matters should be
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