Lawyers must retain their link to the people

first_imgLawyers must retain their link to the people August 15, 2005 Senior Editor Regular News Lawyers must retain their link to the people Failing to do so will jeopardize attorneys’ historic independence Gary Blankenship Senior Editor Alexis de Toqueville in the 1830s wrote that American lawyers were the link between the people and aristocrats, but today the lawyers who function as that connection are under increasing political attack.Former ABA and Florida State University President Sandy D’Alemberte brought that message to the annual Trial Lawyers Section/Chester Bedell Memorial Luncheon at the Bar’s Annual Meeting.He also conveyed a sentiment that he said might surprise some of the audience, since the annual topic of the gathering is the Independence of the American Lawyer. And his notion, D’Alemberte said, is that he thinks some lawyers — namely prosecutors — may have too much independence and too little checks and balances.De Toqueville wrote that “lawyers belong to the people by birth. . . and the aristocracy by taste and habit, and he looked upon that as the connecting link between the two halves of society,” D’Alemberte said, adding that is one of his favorite quotes.But less than a century after the French author wrote those words in the 1830s, Louis Brandeis and Woodrow Wilson would observe that lawyers were too often allied with powerful corporate interests rather than attending to the general needs of the population, he said.And today, it may be only a relatively few lawyers, such as general practitioners, some trial lawyers, legal aid attorneys, public interest lawyers, and criminal defense lawyers who provide that vital link, D’Alemberte said, which prevents excesses on both sides of the social divide.And yet, those are often the fields of law most often criticized in political rhetoric, he said.The rhetoric was stepped up, ironically, during the first Bush administration at a time lawyers and judges were traveling to Eastern Europe to help set up democracies and legal systems in countries that had been under Soviet Union domination. Then President George H.W. Bush and then Vice President Dan Quayle began claiming, D’Alemberte said, that “lawyers file frivolous suits and hamper American productivity.“Never deterred by the lack of evidence, they used the core technique of modern propaganda — repetition.”The result is many lawyers are afraid to take on large corporations or special interests, even though history suggests they have little to fear. D’Alemberte noted that Brandeis, Chester Bedell, and Clarence Darrow — all acknowledged progressive lawyers — regularly represented corporations as well as sued them. Corporations regularly seek out the best lawyers, he said, without regard to whether they are perceived as plaintiff or defense lawyers.It’s particularly important for lawyers to continue that independent role, D’Alemberte said, adding that in “the campaign to reduce regulation for corporate interests, the only mechanism for accountability is the independent lawyer, particularly the plaintiff’s lawyer.”Some might be surprised that he didn’t include prosecutors among those who provide de Toqueville’s link, D’Alemberte said. But many prosecutors, he noted, are less concerned with justice than they are with conviction rates and length of sentences imposed, and avoiding a perception they are soft on crime.Noting his ties to the Innocence Project, which seeks DNA evidence testing for inmates who claim they were wrongly convicted, D’Alemberte said prosecutors haven’t been helpful.“I’ve been amazed that prosecutors have not been in the leading forces stepping forward and advocating DNA testing,” he said. “Why not? If you’re a prosecutor, wouldn’t you want to know whether someone who is innocent is in prison? Wouldn’t you want to go after the person who really did the crime?”He cited a book written by a Canadian lawyer, an assistant attorney general, examining wrongful convictions in New Zealand, the United States, Australia, Canada, and Great Britain — adding it’s hard to imagine a similar work being written by a U.S. Department of Justice attorney.“Today we have a Department of Justice. . . that is not only silent in the face of overwhelming evidence of human rights abuses, but very active as apologists for those abuses,” D’Alemberte said. “They are advancing policies that disconnect the United States from the rest of western civilization.”D’Alemberte said he didn’t have complete solutions to the problem of prosecutor abuse, but he did make some suggestions:• Have state attorneys, who as elected constitutional officers are beyond the Bar’s discipline system, be subject to investigation and discipline by the Judicial Qualifications Commission.• Relax the absolute immunity enjoyed by prosecutors for the most egregious misconduct, such as knowingly using false testimony to obtain a conviction.• Require a fiscal note be attached to prison sentences, showing the cost of the public, family members, and others of an incarceration.D’Alemberte noted that U.S. Supreme Court Justice Anthony Kennedy in an address a couple years ago cited statistics that the U.S. locks up one out of every 143 of its citizens. That compares with an incarceration rate of about one in a thousand for Great Britain and other countries. Forty percent of those U.S. inmates are African American, and 10 percent of African American men in their mid-20s are in prison or under supervision of the corrections system.In some cities, he said, the rate is nearly half of young African American men. “The way we run our prisons, we are destroying entire communities in the United States,” D’Alemberte said.The legal profession must retain its independence and ability to challenge such problems, he said.“Where lawyers are not allowed to challenge government actions, when prosecutors are given too much power, and where you are not allowed to sue the government and allowed to zealously defend those who are charged, government power becomes too great and tyranny quickly follows,” D’Alemberte said. “I can’t conceive but that the independence of American lawyers is one of the most important principles of our society.”last_img