A Golden Age of Civic Involvement: The Client Centered Disadvantage for Lawyers Acting as Public Officials

TABLE OF CONTENTS INTRODUCTION I. WHY WE SAY THAT LAWYERS ARE AT A COMPARATIVE ADVANTAGE FOR BEING PUBLIC OFFICIALS II. THE LAWYER'S ROLE AND THE PUBLIC OFFICIAL'S ROLE A. The Lawyer's Role B. The Public Official's Role C. The Poor Fit III. EXAMPLES OF ROLE CONFLICT IN ACTION A. The Good Character Requirement B. The Educational Requirements C. Restrictions on Advertisement D. The Contingent Fee IV. WHAT IS TO BE DONE? CONCLUSION INTRODUCTION We have been told for centuries that lawyers are better than others at being public officials, lawmakers in particular. And without doubt, lawyers possess some attributes that suit them to this work. But I will suggest in this Article that lawyers have one significant flaw for doing public official work: they are accustomed to representing clients' interests against the interests of all others, including the public interest. This Article addresses only one aspect of the lawyer's tradition of doing public service and proposes a recalibration of the value of lawyers serving as public officials. This Article is exclusively about one popular form of the citizen lawyer: the lawyer in public life, government office, or leadership in a profession's organizations. (1) I am not discussing here other forms of the citizen lawyer: the lawyer who does pro bono work; (2) the lawyer who works for organizations that challenge injustice; (3) the lawyer generally, simply working in the dispute resolution or economic system who is doing a public good by that ordinary lawyer work is not my subject. Nor is my subject the lawyer who represents the government as a lawyer--such as a prosecutor, a Department of Justice lawyer, or a White House counsel. These lawyers are meant to be lawyers, representing a particular kind of client, the government. (4) My subject is the lawyer who is a lawmaker, administrator or improver: a legislator; an administrative agency official enforcing law; (5) a lawyer working on changes in the law through work with the ALI, the ABA, or a state bar committee. Part I of this Article recounts, and does not substantially disagree with, the rationales traditionally given for lawyers having a comparative advantage in the skills and temperaments that make a good public official or lawmaker. Part II compares the role of the lawyer with the role of public official, and points out one crucial comparative disadvantage for lawyers as public officials: lawyers are accustomed to representing client interests to the virtual exclusion of the interests of others or the public interest. Part III uses the example of the turn of the twentieth century organized bar's pursuit of advertising sanctions against plaintiffs lawyers, its effort to raise educational standards for admission to keep immigrants out of the profession, and other acts of civic involvement, all of which were aimed in part at increasing the wealth and protecting the interests of the clients and former clients of the citizen lawyers. Much of this activity was undertaken by members of the bar who were also public officials in one sense or another. At a minimum, the makers of these rules were making the law governing lawyers and the attendant public policy choices. Some aspects of this civic involvement by lawyers may be nothing more than one might expect: lawyers doing lawyers' work in the interests of their clients, but unfortunately doing that work in part while engaged as a public servant or lawmaker. I will suggest that lawyers serving as public officials, especially making laws, may too often continue to act as lawyers act; they serve the interests of their clients while they are acting as public servants. (6) I am not suggesting any evil motive or flaw of the heart. I simply mean that by training and experience, lawyers tend to favor client interests, with less than normal regard for the interests of others and the public. …