By Michael Hanks, Esq.
This article is written with an admitted bias. I am a lawyer. Some of my best friends are lawyers, and I enjoy the company of lawyers. However, it is also written with some experience and, I think, some insight into lawyers and the legal profession.
I have practiced law since 1975, or for almost a quarter of a century. I can say without qualification that the overwhelming number of attorneys with whom I have dealt have been honest, fair-minded and ethical people whose word was their bond. They have also been zealous advocates for their client’s best interests, and therein lies the rub.
Our legal system was designed as an advocacy system for a simple reason: No other system of law delivers true justice on a consistent basis. An advocacy system requires, by definition, advocates. The only things that prevent a party in a legal dispute from being an effective advocate for his or her position are greed, self interest, lack of objectivity, and ignorance of the law. Thus, lawyers were born.
Most societies, both in the past and present, failed to give private citizens effective access to the courts and to lawyers. In each of those societies, some other institution has existed to attempt to solve private disputes. In most societies it was (or is) the strong and arbitrary hand of either the church or state dictating to the citizens. In utopian societies (none of which have survived in their pristine form) it is inflexible and rigid social conventions. Iran and China are examples, but I don’t see boatloads of disaffected Americans trying to sneak into either nation.
However, such societies not only lack social freedoms, they are also completely unable to function as democracies having complex commercial structures. For instance, in order for modern commerce to function, private contracts must be enforceable. In order for that condition to exist, there must be both enforceable and commonly understood and respected laws, and a mechanism for enforcement in the event of breach. One of the primary reasons Russia is struggling to modernize and enter the modern community of nations as a full partner is because, under communism, the ordinary citizen was taught very little respect for the law. Further, he or she had no real access to the courts to redress private grievances. As a result, the Russian citizens are having to unlearn the old, autocratic ways and learn the modern methods of free enterprise democracy.
One of the more common modern myths is that, if only lawyers went away, all people would live in some sort of glorious harmony with their brothers, and all would willingly share the fruits of production on an as-needed basis. To test this hypothesis, we can look to the towns of the American frontier before the rule of law came to them. In those societies, although most citizens dealt each other fairly, or at least civilly, many did not, and eventually, a strongman came along to take advantage of the weak and powerless. Justice came from a gun, and the person with the biggest or fastest gun set the rules, at least until a bigger or faster gun came along. Hardly a model for a civil society.
If lawyers did not exist, modern disputes would be settled in the same manner for a simple reason: People would have no other avenue of redress. Indeed, rather than creating modern discord, lawyers are key in helping society to avoid it. In the practice of the attorneys with whom I have had the pleasure of working, settlement of a dispute without resort to litigation is considered a success.
Almost always, when someone complains of being molested by the legal system or by lawyers, the person who was on the other side of the case will complain as loudly, not because either one was in fact the victim of such outrageous conduct, but because, due to selfish myopia, they consider that the other side had absolutely no position to assert, and that somehow, the legal system should have delivered a result totally in his or her favor at no cost. Talk about utopian dreams. In order to fairly assess the treatment that person received, it is necessary to know both sides of the story, rather than the one the unhappy client tells you as the whole unvarnished truth.
Yet the same people who complain about the cost of legal services also assert, illogically, that there are too many attorneys. Legal services, just like every other uncontrolled market in society, are priced and distributed according to the laws of supply and demand. If you restrict the availability of legal advice (i.e. access to lawyers) the price of that service will rise, not fall. Japan restricts the number of lawyers in that nation, with the result that true access to the justice system is restricted to large corporations and wealthy individuals. Japan attempts to control its social interactions with strong tradition. It has worked reasonably well in the past, but as its society evolves and becomes more complex, so too does the need for lawyers. As a result, the need for and the number of lawyers in Japan is increasing to fill the void. The only way that need will be filled at a price within the reach of the ordinary citizen is to create more lawyers.
To say nothing of the other services provided by lawyers, from estate planning to organizing and facilitating commercial transactions. Fairly judged, lawyers help our nation, and the rest of the civilized world create wealth and live together without gunfights. The legal system is not perfect, but then neither is any other institution designed by man. Look at the modern system for delivering health care, for instance, but no one is advocating that doctors be eliminated. After all, the person in the Shakespeare play who advocated that they “. . .kill all the lawyers” was talking to his band of conspirators who were attempting to take over the government. The only thing standing in their way were those pesky and irksome lawyers.
To speak directly with Attorney Michael Hanks about a business, real estate, estate planning, elder law or prenuptial agreement matter, contact the Law Offices of Michael Hanks at (916) 635-0302.