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| | | -- By KatherineMackey - 16 Feb 2012 | |
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> | How I Read Lawyerland | | | | |
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< | Intro
I enjoyed reading Robinson’s Metamorphosis. I think it presents an entertaining and instructive portrait of success in the legal profession. Robinson’s specific version of success is refreshing because it is so different from what law school teaches you that success looks like. I want to discuss one specific lesson I learned from Robinson and why I think it is important. What I learned from Robinson is one way to make sure that a lawyer’s professional obligations to his client align with his broader obligation to society. I think this is one of the central lessons of the story about Robinson’s Fujianese-Serbian client. | >
> | I approached Law in Contemporary Society hoping to fill the hole left by Columbia’s career services: they focus on firm jobs and give lip-service to public interest, but they don’t talk about what else is out there and how to do it. This shaped the way that I did the readings for this class, particularly Lawyerland, which could be read as a long prose poem or an entertaining depiction of what it is like to work in the law. I was looking for lessons when I read Lawyerland, and that’s what I found. Reading this way has its drawbacks, because instead of seeing the wholeness of each character I was looking for what I could use and discarding the rest. Robinson is more complicated than my depiction of him suggests, but I want to discuss one thing I learned from reading about him, and why I think that lesson is particularly important. | | | | |
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< | (In the discussion below, I’m assuming that every lawyer has a duty to make sure that justice is done in society. I don’t think that it matters how any particular lawyer defines “justice,” but I view that obligation as something separate from a lawyer’s duty to represent their clients’ interests. When I mention justice or a just result, I am referring to any given lawyer’s idea of what that means, not a specific conception of it that I hold.) | >
> | Robinson’s experience with the Fujianese-Serbaian kid showed me one way to do justice as a lawyer: by making sure that your professional obligations to your client align with your broader obligation to society. | | | | |
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> | (I believe that every lawyer has a duty to make sure that justice is done in society and that this obligation is separate from a lawyer’s duty to represent their clients’ interests. When I mention justice or a just result, I am referring to any given lawyer’s idea of what that means, not a specific conception of it that I hold.) | | | Robinson’s Approach | |
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< | Robinson sees the Fujianese-Serbian kid as a criminal who is not very culpable. He is dumb, has a father who seems to care more about reforming his character than helping him, and has a home life that does not seem to have made him into a functional adult. He’s also only twenty, so he probably has not grown out of his adolescent impulsiveness. All those mitigating factors weigh against the fact that he broke into a home while carrying an eight-inch switchblade. Robinson claims that the kid is “not really bad” –which is our only trustworthy moral evaluation of him, since we don’t know exactly why he was breaking into the house, or what he would have done if he hadn’t been caught. What this “not really bad” kid gets in return for his somewhat-bad-but-not-terrible crime is a beating by the AUSA plus a year in jail waiting for the trial, and any associated psychological stress. Maybe the sum total of his punishments is too harsh for the crime he committed, but I don’t think that the discrepancy is egregious. Robinson worked on his client’s behalf to make sure that he was only sentenced to time-served, which was the minimum sentence that the kid could have gotten and accords with Robinson’s moral judgment of the kid. In this case, he was able to align his broader duty to society to make sure that justice is done with his duty to represent his client’s interests. | | | | |
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< | Robinson also aligns these two separate duties by choosing to not take on certain cases: organized crime, drug cases, and court-appointed representations. I think many people would argue that the penalties for drug cases—at least certain drug cases—are too harsh for the degree of culpability associated with them. Robinson could spectacularly represent the interests of his clients in drug cases, and still not manage to see justice done because the sentences are unfairly harsh. As for organized crime, perhaps the opposite is true (although I don’t know for certain, it seems plausible). Because of the money and power of organized criminals, it’s possible that Robinson could work really hard on their behalf and obtain punishments for them that are significantly below what he thinks they actually deserve. As for court-appointed representations, in these cases Robinson would have no power to compare the culpability of his clients against the punishments they are likely to get, so in taking on these cases he would risk that he would violate his duty to society by fulfilling his duty to his client, or vice versa. | >
> | Robinson sees the Fujianese-Serbian kid as a criminal who is not very culpable. He is dumb, has a father who cares more about reforming his character than helping him, and has a home life that does not seem to have made him into a functional adult. He’s also only twenty and has not grown out of his adolescent impulsiveness. All those mitigating factors weigh against the fact that he broke into a home while carrying an eight-inch switchblade. Robinson claims that the kid is “not really bad” –which is our only trustworthy moral evaluation of him, since we don’t know exactly why he was breaking into the house, or what he would have done if he hadn’t been caught. What this “not really bad” kid gets in return for his somewhat-bad-but-not-terrible crime is a beating by the AUSA plus a year in jail waiting for the trial, and any associated psychological stress. Maybe the sum total of his punishments is too harsh for the crime he committed, but the discrepancy is not too egregious. Robinson worked on his client’s behalf to make sure that he was only sentenced to time-served, which was the minimum sentence that the kid could have gotten and accords with Robinson’s moral judgment of the kid. In this case, he was able to align his broader duty to society to make sure that justice is done with his duty to represent his client’s interests. | | | | |
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< | Why This Matters
Robinson has arranged his practice so that he doesn’t have to choose between promoting the best interests of his client and promoting what he believes is a just result. He can work as hard as necessary to get his clients’ punishment reduced as much as possible without feeling like he is helping culpable people get away with things they shouldn’t get away with. I don’t think that this is a luxury that most lawyers have very often. The best many lawyers can hope for when working for a large firm is to be working on disputes that don’t have very much relation to what is just—for example, an associate who works on litigation between banks resulting in a few cents per share to the shareholders of one institution or another. Prosecutors don’t have much choice in their cases, and their obligation is to vigorously protect the interests of the government, which will only coincidentally be related to doing justice in society. Most defense attorneys do not have the luxury of choosing clients in the same way that Robinson does, so they will often be working to keep bad people from the punishments that are the just result. | >
> | Is There Another Way? | | | | |
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< | One potential response to this ethical dilemma, and one that is probably more common than Robinson’s, is to believe in the system rather than in your own idea of justice. In that case, you can see advocacy on behalf of your client as a necessary part of the system that you believe in, and shift the burden of deciding the justice or injustice of your client’s case to a judge or a jury. I don’t think that this is wrong, necessarily, although I do think what we have read in this class so far suggests that believing in the system instead of your own conception of justice is extremely risky. Furthermore, I’m not sure that trying to ignore your own ethical beliefs is a recipe for a satisfying or fulfilling career in the long term. I’m looking forward to exploring these ideas more in the class, because I am someone who doesn’t have much belief in the system, and because I hope to align my ethical beliefs with my practice as a lawyer.
I think this is a very
interesting interpretation of the information Robinson discloses in
the course of his conversation. It's ingenious, and you draw from it
some very important speculations for your own purposes. I do think,
however, that your theory is almost certainly wrong.
I don't believe Robinson or any similarly-situated lawyer could so
operate his practice as to discharge a supposed duty to society by
getting his clients on the whole approximately the amount of
punishment he thinks is "right" or "just" in their situations. I
also don't think he's determining what types of clients he takes and
refuses in order to avoid areas in which he thinks clients are on the
whole over- or under-sentenced. He doesn't want a CJA practice of
appointed cases because the fees are too low and he doesn't need the
work. He avoids industrial criminality because when a drug ring or
an organized crime family is paying you regularly, you're "beholden"
to them. He gets his professional freedom by building his book
around clients who are non-repeaters and whose misfortunes will pay.
What his book is made of, in human terms, he keeps away from us: it's
none of our fucking business. You can be sure there are bad people
there as well as not bad, stupid ones. He does not think that all of
them are more sinned against than sinning.
Maybe, as your interpretation suggests, he is presenting himself to
us with his easiest propositions on his outside. Because I know,
because I've also talked and joked with the men out of whom Robinson
is made, and/or because I've had a client or two over the years
myself, I believe quite easily that in all the stories he ever tells,
he never tells the worst thing he knows about anyone. That's the
instinct of privilege: no matter how you take the name off
everything, there's no way to disclose safely the really serious
things you know. And though we are never, as lawyers, far from evil,
we like all the other "good" people have a raft of unconscious
motivations never to publicize just how close we might be.
But your Robinson isn't the whole man, it seems to me. The one whose
tension sometimes overcomes him, who is haunted by the
"supercriminals" pesudo-sociology that was in vogue back at the turn
of the century. The one who keeps the file on "lawyers," that
includes the archetype of white-shore moral pomposity, but no doubt
contains some other things too.
Once upon a time, I had occasion to watch closely the trial and
conviction of a former New York County Assistant District Attorney
for perjury and obstruction of justice. I'll bet Robinson has press
cuttings about that case in his file on lawyers, too.
I'm pleased, in a way, that you want Robinson to be the fellow you've
presented here. That Robinson helps you choose your roads through
life. He helps you think about issues you need to consider in order
to make good decisions about your practice. He's brought you some
useful clarity. But in return he has become less real than he was in
the poet's mind. And he's not the man whose battered, compromised,
complex vision makes him, for me, such a powerful literary and human
creation. | >
> | Though my reading of Robinson’s actions might be wrong, the way he structures his practice—specifically the fact that he can be picky about who he represents—means that he does not have to choose between promoting the best interests of his client and promoting what he believes is a just result. He can work as hard as necessary to get his clients’ punishments reduced as much as possible without feeling like he is helping culpable people get away with things they should not get away with. | | | | |
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> | I don’t think that many lawyers are consistently able to achieve this balance in their work. The best many lawyers can hope for when working for a large firm is to be working on disputes that don’t have very much relation to what is just—for example, an associate who works on litigation between banks resulting in a few cents per share to the shareholders of one institution or another. Prosecutors don’t have much choice in their cases, and their obligation is to vigorously protect the interests of the government, which will only coincidentally be related to doing justice in society. Most defense attorneys do not have the luxury of choosing clients in the same way that Robinson does, so they will often be working to keep bad people from the punishments that are the just result.
One potential response to this ethical dilemma, and one that is probably more common than Robinson’s, is to believe in the system rather than in your own idea of justice. In that case, you can see advocacy on behalf of your client as a necessary part of the system that you believe in, and shift the burden of deciding the justice or injustice of your client’s case to a judge or a jury. I don’t think that this is wrong, necessarily, although I do think what we have read in this class so far suggests that believing in the system instead of your own conception of justice is extremely risky. Furthermore, I’m not sure that trying to ignore your own ethical beliefs is a recipe for a satisfying or fulfilling career in the long term.
Why I Asked This Question
I came into law school wondering how I could strike this balance in my own career. My parents have jobs that are intellectually satisfying, remunerative enough, and socially beneficial; the fact that they know that their jobs improve the world is an essential part of why they find them satisfying. Their jobs are different from law because they are not representing clients; one of them works one-on-one with individuals, while the other works for an institution whose very existence is socially beneficial. Their example showed me what I need to look for in a job but did not show me how I could find it in law. Reading about Robinson showed me one way I could find what I’m looking for, even if he didn’t mean to. |
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