"The first thing we do, let's kill all the lawyers," William Shakespeare once wrote. Of course that's a little extreme for this millennium. However, Shakespeare's "poetic" words foreshadowed America's distaste for lawyers. Most people have their version of a lawyer horror story (I certainly have a few). It's not a secret that lawyers have greatly contributed to many of society's dysfunctions, and none more apparent than the most recent Wall Street debacles.
It's fitting that J.P. Morgan once said about lawyers, "Well, I don't want a lawyer to tell me what I cannot do. I hire him to tell me how to do what I want to do." We have seen this theme play out time and time again with respect to big finance. Compromised ethics seems inevitable when big law firms compete for huge legal fees. In that world, the "best" often means the most "creative" in coming up with interpretations of law. Sometimes it means that lawyer will show clients how to skirt the law because that's how they get a competitive edge.
In recent years, I have looked into fraud in areas such as health care, finance and tax. Each and every fraud has its own unique footprint. However, the common denominator is almost always that at some point, a lawyer was involved in the construct. I have seen legal opinions obtained by health care entrepreneurs in the service of creating a false record. I am also aware of illegal tax shelters created by tax attorneys.
The bar for accountability is high though. That's not surprising because lawyers are involved in the creation of law. Thus, many lawyers get away with egregious conduct -- but not all. In 2010, I settled a $34 million whistleblower case against several people and entities. But, none of it would have been possible without the lawyer who facilitated the fraud. That forum allowed me to hold the lawyer culpable when typically the system makes it very difficult to do so. I also once successfully sued a law firm for legal malpractice. It certainly wasn't easy. But, I always felt that lawyers shouldn't be insulated from liability just because they are lawyers.
Machinations by lawyers aren't limited to big finance or the private sector. Prosecutors shouldn't have impunity either. If more prosecutors were sued for due process violations then maybe they would pause before abusing the constitution they are supposed to protect. How many stories do we read about prosecutors who misuse their power? DNA testing has remedied some reprehensible acts but prosecutorial misconduct still persists. Challenging that misconduct is nearly impossible though both in law and in practice. Judges are also not typically looking to sanction their "partners" in the criminal justice system. Moreover, those who are in the best position to rebuke wrongdoing are part of the same club.
Lawyers are also afforded protection that laymen are not. Take blackmail and extortion, for example. Perversely, lawyers violate the technical sense of those laws every day. Conveniently, this creates an environment whereby people often need to pay a lawyer to handle matters they probably could have resolved themselves.
When I was young I actually wanted to be a lawyer. I bought into the notion that lawyers were special and sat on a pedestal. In many instances throughout history, lawyers have proven themselves worthy of that admiration too. After all, lawyers, particularly plaintiffs lawyers in many prominent instances, have been responsible for some of society's most important changes. Where would we be if lawyers didn't sue and challenge "separate but equal" classrooms? Whistleblower lawyers who I have worked with have also brought accountability to big companies engaged in huge frauds, thereby saving taxpayer money and in many cases protecting the safety of healthcare patients.
While there are lawyers on both sides who are the salt of the Earth (I believe I know some) and guided by an ethical conscience, society should remember that a license to practice law is a license to uphold that law, not subvert it. Too often, however, we see lawyers crossing that line of advisory or advocacy into complicity and sometimes even perjury. That is unacceptable and they should be liable.