31 / 264
GAZETTE
MARCH 1978
Go Public, Your Privacy is Dead
It is timefor Lawyers to recognize that theirprivacy is dead and that the profession must go public. Inevitably this will
mean greater accountability for what the Bar does.
By RICHARD B. MORRIS
It is not only in the field of Jurisprudence that the
ir\fluence of the English and American Legal
systems on us is considerable. Recent developments
in advertising and monopoly restriction in these two
Countries have been reflected here in the proposed
investigation by the Examiner of Restrictive
Practices. The place of the Lawyer in Society is
being called into question in all three jurisdictions
and the response of the organised Profession in
other Countries may well be a useful guide to us.
Accordingly with the permission of the American
Bar Association Journal we are publishing these
lengthy extracts from an Article in the November,
1977, issue of their Journal written by the
Executive Director of the Communications Division
of the American Bar Association.
Lawyers are often surprised to learn that there are many
keen witnesses to their actions and inactions. Secure in
the privacy of the "private Bar", they are oblivious of the
public's interest in them. It takes a jolt such as the Lou
Harris survey showing law firms near the bottom of the
public confidence ladder — only advertising agencies
were lower — to make them look about and wonder why.
Is it because we have misunderstood "private Bar"
that we have seemed unresponsive to increasingly
informed public scrutiny of the profession? Is it because
"public interest" has come to signify a special kind of law
practice that we have lost sight of a constant public
interest in law and justice and the lawyer's relationship to
each? Or have we concluded that the image problem will
soon pass? Whatever the reasons, lawyers do not seem
to appreciate the intensity of public concern. Judging by
the news clippings that flow across my desk, I conclude
that our profession stands before the court of public
opinion under an order to show cause as to its worth to
American society.
Some of our critics are asking, "Who needs lawyers?"
and simultaneously posing harsh threats to take the
practice of law away from lawyers. But most critics,
probably because they are lawyers (the antitrust staff of
the Justice Department), are content merely to document
the profession's shortcomings. The road from
GolJfab
v.
Virginia State Bar
(minimum fees outlawed) to
Bates v.
State Bar of Arizona
(individual lawyer advertising
protected) is the result of that process.
It is becoming increasingly clear that the profession's
response hinges as much on public relations or
communications skills and values as it does on the merits
of its programs and services. This by no means is to
suggest that our problems can be patched up with better
make-up for prime time television. Communications with
the public, after all, can only mirror the facts about the
profession's programs and priorities, their strengths and
weaknesses. No public relations campaign can
compensate for any deficiencies.
But it remains a paradox that lawyers, whose forte is
advocacy, often fmd themselves mute in the public forum;
that lawyers, whose ethics indelibly mark them as public
servants and whose professional careers are governed by
high standards, often seem blind to the public they serve;
that lawyers, whose ambition is to harness power for the
use of others and not be destroyed by it, often shrink from
facing openly the power of public opinion regarding their
own profession.
It is time for lawyers to recognize that they must go
public and open their eyes, ears and mouths. Alternative
courses of action aside, it is evident that for lawyers,
privacy is dead.
There is a special urgency about my counsel. It does
not stem from Madison Avenue's pitch that a bad image
is bad for business. Our profession must surface precisely
because it is counsel to the public on questions about law
and the legal system. The public loses if the legal
profession fails to lead. Because leadership demands
credibility, the profession must clear its name, as it were,
in order to make itself heard on the pressing questions of
law, legal services, and the administration of justice that
face society.
In more reflective moments, lawyers are not surprised
at the high level of public interest in them. They know that
the Bar's privacy is myth, not reality. There is so much
fresh and relevant evidence. Perhaps of most significance
is the rapid growth of the profession and the law school
population. That growth has created mqor problems —
training, placement, continuing competence, and
professional discipline. Both the growth and the problems
have been news.
Second, there has been uncontrollable growth of
government, laws, and regulations. The public feels
vaguely certain that lawyers are contributing to this.
Indeed, members of the Bar themselves have tended to
guide public opinion to this conclusion by publicly
labelling the phenomenon "legal pollution". This again
has been news.
Next have come the "Consumer" advocates and
critics. Ironically maybe, but nonetheless true, these
newsmakers are mostly lawyers. They have been joined
on occasions by such legal high priests as the Chief Justice
of the United States, who last May charged that lawyers
and judges themselves have contributed to the problems
of cost and delay in judicial and administrative processes.
The
bete noire
of Watergate has stalked lawyers
relentlessly, but why we ended up holding the bag on
Watergate has never been too clear. If anything, the
profession could be faulted for a false pride in thinking
that the work of a couple dozen lawyers — only a few of
whom were acting as lawyers — produced the collapse of
executive authority that Watergate ultimately became.
Furthermore,
lawyers
and
judges,
exercising
independence worthy of professionals, collaborated with
similarly independent journalists to arrest the consequent
governmental trauma and to construct a political climate
that led to renewal of executive leadership. Still, the fact
remains that in the post-Watergate period the profession
can never be the same. If ever there was an invasion of
privacy, Watergate was it for lawyers.
The Supreme Court's advertising decision,
Bates v.
State Bar of Arizona,
inevitably will expand news
coverage of lawyers and professional activity. Its true risk
for the profession is not unseemly billboards or TV
31