The Gazette 1982

GAZETTE

JULY/AUGUS T 1982

The Role of the Law Office in the Administration of Justice by Louis M. Brown Reprinted with kind permission of the American Bar Association.

S EVENTY-FIVE years ago Roscoe Pound, then of Lincoln, Nebraska, later thejllustrious dean of Harvard Law School, addressed the subject "The Causes of Popular Dissatisfaction with the Admini- stration of Justice" at the annual meeting of the American Bar Association. The opening sentence: "Dissatisfaction with the administration of justice is as old as law." He proceeded by limiting his subject to an "attempt only to discover and to point out the causes of current popular dissatisfaction. The inquiry will be limited to civil justice." His address concern- ed the law and law courts. He gave only a glancing reference to lawyers. It is my position that we have yet to give full recognition to the factors, elements, and institutions involved in the administration of justice. We practicing lawyers do not yet see ourselves as we should. There have been minds, great minds, who have drawn attention to the bar. Karl Llewellyn, the renowned professor of law, wrote strikingly in 1937 of "The Bar's Troubles, and Poultices —and Cures" (5 Law and Contemporary Problems 104 (1938)). His incisive observations were put in the context of a symposium on unauthorized practice of law rather than in the posture of dissatisfactions with the administration of justice. Discussions of the administration of justice consider the house of justice but neglect the entry way. Almost every dispute that gets to the courts does so through the entry way known as the law office. Ninety per cent of cases filed in the courts are not determined by court decision but rather by settlements made by and with lawyers and clients. There are, to be sure, tribunals from which lawyers are excluded (for example, many small claims courts) and others (arbitration and many administrative tribunals) where lawyers do not have the monopoly Karl Llewellyn described. Yet exceptions notwith- standing, the law office is the stellar institution in both the entry and exit of our dispute resolution justice system. The law office is the stopping point, too, for those client claims that never get filed. The circumstances may be that the claim is legally unwarranted, or practically unsound, or financially unacceptable to the law office, or settled without a court filing — circumstances that bear heavily on the total administration of justice. A major weakness in the academic and popular

consideration of justice is that the concern is exclusively dispute resolution. Law and justice are not thusly limited. Many of the legal consequences in nonadversarial matters have more to do with the lives of people than do the judgments of a court. I am utterly fond of the statement of Thomas Shaffer, "My father's will may have more to do with what my life will be like than anything the federal court of appeals will ever do." ( Legal Interviewing and Counseling , page 3 (1976)). And what is the legal tribunal that is the source of decisions regarding that will? The straightforward answer is, of course, the law office. It is the law office that is the supreme court for the legal decisions in the practice of preventive law. Signing on the dotted line legally commits the signer. Choices, legal and practical, available prior to that signature thereafter are barred or restricted. Some people, including me, assert that law office decisions are more numerous and often more significant to the clients than are even the court decisions in which a client might be a party. Importance in our society is often measured in dollars. I am hard put to find an authentic figure for the total cost in this country of all our courts. I am harder put to find an authentic figure for the total dollar payment to our law offices — that is, the total gross fees received by lawyers. Certainly the total cost to society of law offices must far exceed the total cost of all the operations of all the dispute resolution tribunals. My ballpark estimate is that the law office industry is somewhere in the range of $35 billion a year. Our informational weakness about cost and the items that account for costs lies deeper. We know nothing about the number of persons, either as clients or potential clients, who enter law offices, or about the purposes for their doing so, whether for litigation law practice (dispute resolution) or preventive law practice (non- adversarial matters). Our ignorance is appalling. We do not know the number and classification of dispute resolution matters that enter law offices. We are ignorant of the number and kind of these matters that go no further than the law office. If we looked at court filings, we might find out the number and kind of dispute matters that reach the clerk's cage, but this gives us only a fragment of law office entries. If there are public concerns about the law office in its dispute resolution function, the concerns about it as it functions in nonadversarial matters should be 219