Winter 2004 - Volume 7 Number 1
Letters to a Young Lawyer.
New York: Basic Books, 2001
Lawyers are arguably the targets of a lot of jokes, perhaps more than politicians or professors. Given the lack of ethical standards that, according to the author, are pervasive in the field of criminal law in the US, this is understandable. After all, at the root, jokes really are an attack on someone, at least according to a recent talk rendered by a sexual harassment officer I attended. This book is a salutary lesson in what we do not have to laugh about. In essence, it is a morality tale rendered by Dershowitz, whose course in Biblical Law at Harvard seems to permeate the advice he is proffering. It is a chilling look at a criminal law system in which dishonesty, lying and unethical practices propel many lawyers to success in both court and the profession. It is also a plea by the author for law students to take an ethical stance, to ascribe to “higher inner standards of personal and professional morality” (p.182). In this review, I explore both the strengths and shortcomings of Dershowitzs advice to the élite Harvard students who will be graduating into the legal jungle of corruption that permeates the world of criminal law practice in the United States.
Who exactly is Alan Dershowitz? I believe this question is worth asking since so many in academia profess to not owning a television set. Dershowitz has been a professor of law at Harvard University for four decades, an author of over a dozen books on his famous cases, novels, and law texts, who also finds time to work on criminal cases for wealthy well-known clients and lesser known pro bono clients. His fame as a popular television commentator is linked to two cases: the appeal of Klaus von Bulow for the attempted murder of his wife Sunny, and the O. J. Simpson case where he had been engaged by the so-called “dream team” to handle, had it become necessary, any appellate work. Dershowitz followed almost everyone involved with the Simpson case in writing a popular book on the trial, and his book on the von Bulow case, Reversal of Fortune, was made into a movie with an animated Ron Silver portraying Dershowitz. The case attracted a lot of attention since von Bulow was the husband of a very wealthy woman, and had served as J. Paul Gettys assistant in London. Dershowitz has also represented Mike Tyson and Leone Helmsely. While celebrity cases are most commonly associated with the author, his work on pro bono cases underscores his commitment to using the law for its highest purposes. It is proof that he follows his own advice regarding “zealous advocacy” for “those most in need” (p.55). It could be argued that, as a tenured professor of law and wealthy individual, Dershowitz can afford to take on difficult pro bono cases while lawyers in private practice find it difficult financially to undertake these cases. This is not the case. While large firms could do a great deal of pro bono work, they simply do not do enough. The same sad state of affairs exits in Canada. At the call to the bar graduation ceremony several years ago in Toronto, Vern Krishnan, extolled graduating lawyers to commit to pro bono work given the real need of poor clients. In a sense, Dershowitzs book is rather like an address to a graduating class; flowery, full of high ideals, lauding high standards and community service, but likely to be forgotten before the watered down punch is served.
In our media-dominated society something rather grotesque has occurred, and that is that we now have lawyers who have been accorded the status of celebrities who can dispense meaningful advice on all manner of issues. Professor Dershowitz is a skilled lawyer who has entered this category of American popular culture, a public figure who speaks regularly on a variety of issues including the criminal law and Israel. This is in marked contrast to leading criminal attorneys and professors in Canada who largely restrict their work to the courtroom and the classroom. In the US, law professors and lawyers have recognized the personal and financial rewards associated with public exposure of their views in a variety of media forms. In Canada, it is rare to find lawyers seeking the public eye unless it is in support of their clients cause or an important debate in the law. Indeed, it would be hard for most Canadians to identify more than a handful of criminal trial lawyers who have achieved either local or national fame. Similarly, it would be difficult to identify a lawyer through association with a famous client. Who was serial killer Clifford Olsens attorney for example? Who is the lawyer in the so-called “pig farm” murders? Canadian lawyers and law professors seem content largely to practice the law rather than to expand their repertoire into the world of media fame. I expect most Canadians would not be able to name a criminal law professor at any institution in the country. Dershowitz has already written an autobiography, and has authored several best-selling books.
There is an old saying of which I am rather fond. It goes something like this: “Self praise is no praise” and I found myself repeating this as a kind of mantra as I turned the of pages of this book. Professor Dershowitz seems intent in this book in informing us that he is a “controversial” figure who also has a lot of “chutzpah”, so much so that he wrote a best-selling book of the same name. While the term may be defined as the possession of audacity or cheek, Dershowitz is likely referring to the another definition, namely, “Gall, brazen nerve, effrontery, incredible ‘guts” as discussed by Jeffrey Miller in a recent edition of The Lawyers Weekly (January 23, 2004:5). In fact, both terms seem to be a stock part of his biography, (or autobiography, Self Defense).
In this work, Dershowitz embarks on a journey to provide sage advice to young lawyers contemplating or commencing a career in the law. I think that a perusal of the table of contents immediately conveys the tone of the book, where Dershowitz preaches high ethical standards as the mantra which all beginning lawyers must adopt. A selection of the chapter headings reveals to the reader the very personalized type of advice that is being proffered and the mixed messages that this presents to all those aspiring mid-twenties Harvard graduates who are raring to enter the legal boxing ring and begin their well-heeled careers: “Pick your heroes carefully”, “Have a good enemies list”, “Dont do what your best at”, “Dont limit your options by making a lot of money”, and “Dont follow “Off-the-Rack” Advice”. It is difficult to assail the messages that Dershowitz is delivering in his book, since they are apple pie and motherhood issues. However, it is the authors style which deserves criticism. The book is written rather like a series of short conversations where the author is offering advice to students, something which he writes that he does with regularity. There is something surrealistic about extolling the virtues of high ethical standards while describing a legal system that is highly corrupt. One is left with the feeling that the message Dershowitz delivers is not persuasive to a great number of law students in America who make a decision to enjoy the economic spoils produced by the legal system.
Dershowitz attacks both lawyers for organized crime and advocates who represent the cigarette industry. Both are worthy of condemnation since they knowingly represent clients who do harm, helping them to evade the legal consequences of their actions and to increase legal or illegal profits. Drawing on the legacy of the McCarthy era, he extols the need for lawyers to defend those “with whom they vehemently disagree” (p.55).
The author does spend time providing a critique of his legal heroes, including Clarence Darrow. Dershowitz argues that law students are prone to hero worship, and so he tries to show us that many of his own legal heroes had personal and professional flaws. His condemnation of Darrow rests on the revelation that the flamboyant attorney bribed jurors and witnesses to secure certain verdicts or mistrials (p.5). Darrows legendary skills of advocacy are popularly known through several important cases including the Scopes Monkey Trial portrayed in the motion picture “Inherit the Wind”. While I agree that Darrows tactics are unacceptable, the author also notes that Darrow fought large corporations in epic David vs. Goliath struggles. Since the American legal system apparently overlooks dishonesty and unethical practices to a large extent, the question is a difficult one with which Darrow had to wrestle. If he had taken the ethical high road, his clients would have paid the price, not Darrow. So while lawyers keep their ethical standards, who but their clients pays the price in a legal system that embraces misconduct? This is a question which I feel the author is not able to address. In the end, he argues, “There is simply no justification for corrupting the legal system, even if it is done to level the playing field” (p.5). One might have added that individuals should get prepared to have their rights trampled when involved in litigation with the powerful in America.
Dershowitz argues against naiveté on the part of lawyers while at the same time informing the reader that every court house in the United States should have a plaque hung over the door which states, “The end justifies the means.” In a world populated by “thousands of dishonest, shady and disreputable” lawyers (p.89) the author poses the question, “Are there any honest lawyers left?” There are, it is apparent, but they operate in a profession which “… preaches honesty, but all too often it practices and rewards corruption” (p.90).
Consider the observation given by Oliver Wendell Holmes Jr. and cited by Dershowitz. When questioned by a law clerk on a decision he felt was unjust Holmes replied, “We are in the law business, not the justice business” (p.65). This state of affairs should not come as a surprise to aspiring law students. The American criminal legal system embraces elections for the appointment of judges and prosecutors in the lower court system. Anyone who has lived in a border town has seen television advertisements by persons seeking election or re-election to these posts. Invariably the successful candidate is one that can boast the strongest law and order record, citing the number of cases where defendants who have been sentenced to prison.
In the system Professor Dershowitz describes, where “Everyone wants to win” (p.65), it is hard to follow the thin trail of justice. The question with which a law student is left is why a person with ethics would actually want to practice law. The author cautions against idealism without a good dose of realism, “lest you (the student) become naïve” (p.68). In the post-Watergate rush of law schools to enshrine ethics into curriculum, there is a concomitant need for law societies to vigorously pursue misconduct in the American legal system. According to the author this does not occur in enough cases owing, in some degree, to a brotherhood of lawyers that argues against incriminating other lawyers. Dershowitz again argues for the moral high road that requires lawyers to act in the best interests of the legal profession and justice. There is little consideration of what the legal and professional consequences of such actions might be, given the nature of the system itself which operates to squash ethical individuals regularly.
The author provides students with the benefit of his years of advocacy work stressing the need for preparation in arguing a case. While one would have thought this and other advice offered by Dershowitz is little more than common sense, apparently many lawyers depend upon their personal friendships with, and political support of judges to pave the way to victory in court. He rightly points out the need for law schools to offer more courses in the “basic skills of advocacy” (p.106), since law students tend to learn an inordinate amount of black letter law rather than the skills required to win in court. A cynic might argue that they should teach a course entitled “Schmoozing with Judges and District Attorneys 101.” The amount of misconduct in American courts, which is reported, is the proverbial tip of the iceberg but this should not surprise readers. In a country where Enron executives have largely evaded prosecution, why would anyone expect that the legal system operates on fundamental principles of justice?
In the end, where does this leave the student who aspires to uphold high ethical standards? The future, for them, does not look bright, according to Dershowitz. He advises, “Play by the rules, even if most of the time no one else does, even if it means losing, a lot. You may not practice law a long time, but you can always hold your head high.”
Dershowitz tells the reader that he is constantly asked for his advice by law students. His book is an attempt to translate his normally oral advice into a written form. In reviewing the book, I found the advice never rose above the obvious. Part of the solution to the failings of the American legal system falls, perhaps, beyond the scope of the book. Dershowitz tells us that most defendants are, in fact, guilty. However, the preponderance of accused in criminal matters is drawn from the lowest socio-economic strata in American society. It is hard to believe that the system will substantively change, since it purpose is clearly focused on those most disadvantaged in society. The wealthy can well afford to defend themselves against the juggernaut of the criminal prosecution, hiring “dream teams” of lawyers and expert witnesses to challenge the evidence against them. But the weakest in society must ultimately remain contented to know that, in all likelihood, given the state of affairs in American criminal courts, they are likely to fall victim to the machinations of a system designed to ensure a steady stream of the convicted to populate the most expansive prison system in the world.
In summary, this is a pickle barrel dialogue by a talented legal advocate and scholar that presents an ideal worth striving for, but warns that the price of ethical conduct is likely to be professional disaster for those who follow the road less traveled. One wonders if the élite graduates of Harvard Law School or indeed any of the other Ivy League institutions will find inspiration in the book. Perhaps the author answers this in the third part of his book when he asks, “Can a Good Lawyer be a Good Person?” This final section is peppered with quotations from the Bible and other religious sources discussed by the author and underscoring the moral message of the book, i.e., that “truly moral” persons engage in conduct without promise of reward or threat of punishment” (p.198). Given the price of this approach, it is likely to be a sobering message for students contemplating a career in the criminal law. Dershowitzs appeal is an important one that should be heard by those already in practice, those sitting on the bench, and those who supervise the conduct of the legal profession. My guess is those already engaged in disreputable conduct would be more prone to shoot the messenger than to follow him.
Dr. Thomas Fleming, Professor of Criminology and Contemporary Studies. Wilfrid Laurier University
• The views expressed by the authors are those of the authors and do not necessarily reflect those of The College Quarterly or of Seneca College.
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