The Gazette 1978

MARCH 1978

GAZETTE

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

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

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