Is everyone a lawyer now? Whenever I turn on my TV these days—that is to say, when I turn it on at seven in the morning and turn it off at around midnight—I see Lanny Davis, Bill Clinton’s (and now Michael Cohen’s) lawyer, or Alan Dershowitz (famous for getting Claus von Bülow and O.J. Simpson off of murder charges), or that guy in Minneapolis, Richard Painter, who was George W. Bush’s ethics lawyer.
They’re the new celebrities. When Jeffrey Toobin, a staff writer at the New Yorker and CNN’s senior legal correspondent, walks onstage to interview Sally Yates at the New Yorker Festival, people cheer as if he’s Bradley Cooper.
There is also a rascals’ row of permanent fixtures installed around the networks’ fiberglass tables. Their offices are ransacked by the FBI (Michael Cohen); they’re accused of intimidation (Marc Kasowitz); they’re even described as having used the same tactics as thugs. (I refer to the mythic David Boies, who signed a contract with an outfit of Israeli undercover operatives called Black Cube to dig up dirt on accusers of Harvey Weinstein.)
They’re in so deep they need lawyers of their own. Do you believe the way they talk? Kasowitz, for a short period one of Trump’s lawyers, replied to a harsh e-mail with a barrage of profanity: “Watch your back, bitch” and “Call me…you piece of shit.” And here is Cohen in 2015, when he was special counsel to the Trump Organization, talking to a reporter from the Daily Beast who displeased him: “I’m warning you, tread very fucking lightly, because what I’m going to do to you is going to be fucking disgusting. You understand me?” All too well.
The sense of community has been lost, and with it a sense that there were rules. Everyone wants to talk at once, and they don’t care how they sound.
The once obvious distinction between white-shoe-firm lawyer and ambulance chaser is no longer so clear. Today’s real life lawyers make Bob Odenkirk’s moth-eaten character on Better Call Saul seem like a model of decorum (and, when he’s up to it, sartorial elegance). But it’s not just the New Crassness talking. The increased ease of communication has also put a dent in civility. “The growth of megafirms makes practice more impersonal,” notes the celebrated novelist and fearless lawyer Scott Turow, who in his days as a prosecutor in Chicago sent numerous crooked politicians “down the river,” as they say there.
“When you dealt only with lawyers from your city, you could be sure you’d see them again and didn’t want anyone carrying grudges. Now, if somebody shows up from Atlanta for a motion call, they have less vested interest in not making enemies.” The sense of community has been lost, and with it a sense that there were rules. Everyone wants to talk at once, and they don’t care how they sound.
In my day (forgive this hoary phrase), the law school–bound students tended to be at the top of the class. (Some of us—fools!—became writers.) They were principled, serious, idealistic; it was the ’60s, and laws were meant to be challenged, not broken. I’m not saying that lawyers have fallen from some exalted place in society. They have always drawn sharp words. Let’s not forget Dick the Butcher’s advice in Henry VI: “The first thing we do, let’s kill all the lawyers.” Or the grubby attorneys grinding away on the interminable Jarndyce and Jarndyce case in Dickens’s Bleak House: “Whole families have inherited legendary hatreds with the suit.”
Perhaps no lawyer has ever been more loathed than Donald Trump’s mentor, the late Roy Cohn, whose professional and personal qualities—tax evader, racist, mob defender, professional liar—earned him the role of cultural touchstone for unrepentant immorality in Tony Kushner’s 1991 play Angels in America. (“Am I a nice man? Fuck nice!” says Cohn, the based-on-the-real-man character. “You want to be nice or you want to be effective? You want to make the law, or be subject to it? Choose!”)
I miss distinguished representatives of the profession like Clarence Darrow, defender of a high school teacher prosecuted for teaching evolution, and the fictional Atticus Finch, the lawyer in To Kill a Mockingbird, with his suspenders and his Southern eloquence, defending a black man accused of rape. And remember Archibald Cox, a victim of Nixon’s Saturday Night Massacre? As I recall, he wore a bow tie. In times of crisis we depended on lawyers like these to offer stability and serve as referees.
I suspect there’s a disheartening reason for this dumbing-down of the legal profession. It has to do—like everything these days—with money. It’s not that lawyers don’t make a lot of it. David Boies charges $1,850 an hour, and a partner at one of the white-shoe firms can expect to pull in about $3 million a year. There are few poor lawyers. As Michael Avenatti, the lawyer for Stormy Daniels, said, “I’m a mercenary. That’s what people hire me for, and I don’t apologize for it.”
The problem is that their clients are making ten, a hundred times as much. As the members of the one percent grow richer, their lawyers become their servants, paid to perform clerical work for high rates that feel low. “Most clients recognize we are professionals, but some imagine that we are a species of service provider—vendors,” says William Tanenbaum, an intellectual property attorney at the firm Polsinelli. In response, law firms have turned into investment banks. “Since 2008 those companies have realized they have the power to push us into the procurement departments.”
Scott Turow offers another explanation: the publication of compensation figures in American Lawyer. (The magazine added the “compensation—all partners,” or CAP, metric to its annual AM Law 100 list in 1995.) This “has made everybody more openly competitive,” he says. “That competition makes lawyers more determined to prove to clients that they, the lawyers, are true pit bulls, with the result that lawyers are inclined to act like canines.”
Or prima donnas. The media has made them stars. They tweet, they show up on The Rachel Maddow Show and on CNN, they are fawned over by NBC’s Hallie Jackson and CNN’s Alisyn Camerota. We can hear White House counsel Emmet Flood talk about impeachment and the 25th Amendment and the penalties for perjury on Fox & Friends. Michael Avenatti appeared on television 100 times in two months; he is even considering a presidential bid. If you have a degree in jurisprudence, the bookers are on the phone.
Unless you’re the craggy-faced Robert Mueller, entering his office from the garage. The man’s probity is surreal. He doesn’t talk to the press. He isn’t a guest on MSNBC. He leaves each day with a briefcase bulging (one assumes) with enough indictments to send a busload of lawyers and Russian money launderers to a minimum security prison. No one knows what’s in it—or even, really, who Mueller is. Virtually our only biographical information about this Lincolnesque figure is that he allegedly had a row with Donald Trump over golf fees at one of Trump’s country clubs. For now, he’s keeping quiet, but his silence could be broken any day, and what happens then?
But how could even Mueller, with his cache of explosive secrets, compete with the noise of a news cycle like ours? The airwaves are filled with talk of rape and sexual coercion. Every anatomical variation is discussed in clinical detail. Did someone wave a body part in the vicinity of someone else’s face? Did someone grab somebody he shouldn’t have grabbed?
There was plenty of salacious material in Bill Clinton’s impeachment trial too, but it was deeply shocking at the time to hear about semen stains and… other stuff. Now it’s routine, part of the daily diet of information we ingest on cable TV. Lisa Bloom, who was famous for representing sexual harassment victims before she became even more famous for briefly advising Harvey Weinstein, sounds like Dr. Ruth.
The lawyers are entertaining; their clients are colorful. Avenatti has been accused of rising to fame by “p---ing” (I can’t bring myself to use this word, but Rudy Giuliani did) for one of Donald Trump’s former girlfriends. Gloria Allred—this isn’t only a guy thing—speaks of “creative lawyering,” putting your case in front of the public before the trial has even started. “You can’t let these stories die—you have to keep them in the news,” she says. Allred has represented the family of O.J. Simpson’s murdered ex-wife, Nicole. It makes for good copy.
No development has contributed more to the high visibility of lawyers than the fallout from #MeToo. In a single day you can see on the front page of the New York Times the convicted sexual predator Bill Cosby being led off to jail and Brett Kavanaugh defending his case for confirmation to the Supreme Court before the U.S. Senate. Does a nondisclosure agreement still apply if everybody knows what’s not supposed to be disclosed? How many prior e-mail exchanges between plaintiff and defendant make it impossible to prosecute? What happens when an accuser is accused? We are in a whole new realm of law here.
Kavanaugh’s televised circus was the most riveting legal show since Anita Hill’s testimony against Clarence Thomas in 1991. Seen worldwide, viewed in airports, shopping malls, and office lobbies, it offered perhaps the most visible evidence of why the law has become a global form of tawdry entertainment, in which the quest for truth has become a quest for power. The pursuit of justice is no longer disinterested; it’s a pursuit in which only vindication matters, and the end justifies the means.
The phrase court of law has a sportive connotation: It’s all about the score. But I think there’s another reason for the intrusion of lawyers into our consciousness, and that is the winner-take-all mentality that dominates society. In this world guilt is irrelevant. Justice is no longer a value. It’s all about winning. Just as Wall Street has given up even the pretense of playing by the rules, just as politics has become a game of smearing your opponent, law is now a gladiatorial contest. When your client walks, it’s because you’ve outmaneuvered the other guy.
In itself, this is nothing new. In America everyone has the right to the lawyers he or she can afford. Consider the battery of attorneys who worked so hard to exonerate O.J. Simpson. Here was a case where, to a layman, it seems it should have been—was—ethically wrong even to defend the client. The goal wasn’t to serve justice but to circumvent it.
Or maybe the notoriety of lawyers correlates with the increase in crime—not street crime, which, despite appearances, has diminished over the past decade, but white collar crime. Only one Wall Street executive was sent to jail for the Crash of 2008, but a great many had to be defended, and the pace hasn’t slackened since. The incidence of banker malfeasance and theft is high, and someone has to represent all those employees who get caught.
I wonder if the American impulse to litigate has become less an effort to ensure a fair outcome than to pump up a profession that was beginning to lose its luster even as it gained in numbers. “Applications to law schools, especially the top half dozen, have risen sharply over the past couple of years,” Laurence Tribe, professor of constitutional law at Harvard and a regular on the TV circuit, told me. (Tribe suggested that the keen interest in the Constitution, perhaps sparked by the musical Hamilton, might have something to do with it. Or it could be Meghan Markle in Suits, Charlie Weber in How to Get Away with Murder, or any of the countless other bright, attractive denizens of our television law firms.) The number of lawyers in the United States has increased by 15 percent over the past decade. What are we to do with them all?
Maybe we should think of this new cast of characters taking over our screens as simply another act in our latest spectacle, here for our entertainment and edification, and soon to be pushed off the stage by the next bunch of operators, touts, and pundits who come and go in the pageant of American publicity. Admit that it’s hard to turn the channel.
This story appears in the December 2018/January 2019 issue
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Source : https://www.townandcountrymag.com/society/politics/a25009850/role-of-lawyers-in-american-politics-media-in-2018/