Fixing America – Idea 21 – We Attorneys Are a (Big) Part of the Problem – Part 1
Blog No. 125
December 1, 2020
Fixing America – Idea 21
Reading Time: 6 Minutes
By Mack W. Borgen
University of California at Berkeley (Honors, Economics); Harvard Law School; National Award-Winning Author, The Relevance of Reason (Volumes I and II) (2013) and Dead Serious and Lighthearted – The Memorable Words of Modern America (Volumes I, II, and III (2018-2019).
My Resolution for the Year: To write shorter blogs. This is Part 1 on this subject. Part 2 will be posted on Thursday, December 3, 2020.
For a “cleaner” / non-email presentation of this and my other blogs, essays, and articles, please go to my website at https://www.mackwborgen.com/ .
Introduction
Over the last two years, I have presented a wide-ranging set of ideas for “resetting” and “fixing” America. This blog is the twenty-first idea in this “Fixing America” series of articles.
We Attorneys Are a (BIG) Part of America’s Problems
Part 1
(Note: All footnotes are at the very end of this article)
1. Background.
A. Even Before We Begin – Three Preliminary Notes and Caveats
First, my background and career. It is impossible for this author to be entirely impartial with respect to the practice of law in the United States since I have practiced business and real estate law for decades. During that time, it has been my honor to work for and with large national law firms, medium-sized law firms, small firms, sole practitioners, and corporate in-house counsels. With that experience, I hopefully can accurately address the roles (and abuses) of some attorneys in our society from the concurrent perspectives of both an attorney and a writer/social commentator.
Secondly, many good and honorable attorneys and the provision of many useful services. There should be no doubt or confusion that there are many good, conscientious, dedicated, and honorable attorneys and that attorneys provide innumerable essential services for many Americans and, in the process, for our economy and our society. They help clients memorialize agreements, structure businesses, anticipate problems, resolve disagreements, protect and preserve assets, establish estate plans, minimize taxes, and achieve clarity in documents and communications. The list of valuable services is endless.
Thirdly, awarding of attorneys’ fees. Many of the issues raised in this article could be resolved merely by changing America’s legal practice so that in the context of litigation attorneys’ fees are paid by the losing party. See my article, Fixing America – Idea No. 4 (Blog 107, October 28, 2019). However, just as the adoption of terms limits in the context of American politics is unlikely, there is regrettably little reason to believe that America will soon change its manner of awarding attorneys’ fees to the winning, i.e. the prevailing, party. Thus, other approaches, such as those included in this article, may be necessary.
B. Problem 1 – Too Many Attorneys. There are too many attorneys in our country. This is both a cause and a reflection of many societal problems. In the U.S., there are about 1,350,000 attorneys – about one for every 250 people. In California alone, there are about 266,000 licensed attorneys[1] and 199,000 licensed and active attorneys — about one for every 208 Californians (and one for every 161 adult Californians!).
In the opinion of this author, there are too many attorneys – especially, for example, compared to other professions. In California, where there are 266,000 licensed attorneys, but there are only about 143,000 physicians. There are 266,000 licensed attorneys, but there are only 119,500 full-time law enforcement personnel.[2] Worse yet and almost eerily, there are almost exactly the same number of attorneys in California as there are schoolteachers (266,000 attorneys vs 266,255 teachers).[3]
Admittedly, comparing the number of attorneys to other professions or to the total population is, at best, a very rough measure of whether there are too many or too few attorneys. Other factors, such as the size and legal complexity of our economy or the over-legislation and over-regulation by our government are contributory problems. Also, the high number of attorneys might merely reflect, but does not independently cause, many of the problems discussed below. But whatever the reasons or no matter the measure, there are too many attorneys in our society.
C. Problem 2 – Too Many Laws and Regulations. There are also too many laws and regulations in our society. I have discussed this subject before in the context of the over-criminalization in American society. [4] However, there are too many federal and state laws and regulations in the context of both criminal and civil statutes. Over the course of many years, these laws and regulations have been stacked upon us — one on top of another. The suggestion of mandatory sunsetting of all new legislation will be made in a future Fixing America article, but for now, it is only necessary to note that, almost definitionally, the more laws passed by politicians usually means, over time, a higher demand and need for more attorneys.
On the other hand, blaming politicians for the proliferation of our nation’s and state’s laws is a bit circular since 145 members of the U.S. House of Representatives (i.e. about 33%) and 47 of the U.S. Senators (i.e. 47%) are attorneys. One could argue that blaming politicians and legislative bodies merely leads us to come full circle … back to blaming lawyers once again.
D. Problem 3 – Too Much Litigation. For several primary reasons, litigation is far too frequently – indeed almost far too routinely — commenced in our country. In 2019, there were 610,627 civil cases[5] filed in California Superior Courts alone. Because many of these cases were initiated by corporations or other legal entities, it is difficult to juxtapose this number with the population of California. However, the number remains – 610,627 civil cases in one year alone. As briefly discussed above, it is tempting to blame this litigation volume upon the size and complexities of the world economy and the proliferation of laws and regulations, but we lawyers have played a substantial role as well.
First, any good lawyer can mold an argument and make a claim out of any set of facts, any bowl of clay, or — to be blunt – any pile of bullshit. Any good attorney can weave thin threads of truth into a thick rope of claims. Both attorneys and the litigation process itself can transform obvious truths into reasonable doubts. In most instances, such molded claims survive summary judgments, and the costly, protracted litigation continues — in part to the continuing economic advantage of the litigant attorneys.
Second, while litigation is sometimes necessary and unavoidable, too frequently litigation (or the threat thereof) is used as a tactic of negotiation, intimidation, or even retribution. In some instances, litigation becomes a test of resolve and resources more than a matter of right and wrong; a devil’s brew of staying power and stubbornness more than a means of finding truth or achieving justice.
Thirdly, it is tempting to suggest that the decision relating to the commencement of litigation is the sole province of clients but that is oftentimes not true. Clients do (and should) make the final decision, but attorneys have a powerful, influential role. As I wrote in an article published years ago (which was reprinted in a number of California legal publications),[6] attorneys should remind their clients more often and more aggressively that litigation is rarely a prudent course of action. There are certainly some major exceptions and unavoidable needs for litigation, but while the attorneys will normally be paid “upfront,” any favorable judgment (and the collection thereof) for the client will usually be the hardest money they ever earned.
Fourth, attorneys (and their prospective clients) too often blindly believe that everyone deserves vigorous, committed counsel and that clients deserve “their day in court.”[7] However, this author suggests that this adage is far too blindly and far too widely accepted. In the first place, except in the rare case of court-appointed representation, attorneys do not have an obligation to accept a client; to further his or its cause; or to advance his or its claims. Admittedly, once a matter is accepted, then withdrawing from a case has appropriate ethical and judicial restraints. But initially, cases can be turned down. And more cases should be turned down.
Fifth, states have various litigation containment mechanisms by which they seek to control the destructive, harmful whims of what are called “vexatious plaintiffs.” However, such variously named mechanisms (abuse of process or vexatious claimant statutes) are rarely invoked by the courts.[8] Consequently, if there is to be a meaningful control upon the filing of spurious claims initiated primarily for purposes of retribution, shakedown, intimidation or negotiating advantage, then attorneys can help society by merely asserting their right to decline representation. Not all news is fit for print. Likewise, not all cases are deserving of representation.
Thus, the focus of this article, is that Americans too often “abuse” the legal system and that attorneys too often are complicit in filing baseless Roy Cohn-type lawsuits for, as referenced above, purposes of harassment, intimidation, negotiating position, retribution, spite, and even whim. Author’s Note: It is beyond the scope of this article, however, it is also a financial reality that due to cost alone, the retention of attorneys is far beyond the capacity of most Americans. In that sense, attorneys themselves become an unwitting tool almost solely of the wealthy class or their corporate entities.
SOME SOLUTIONS AND IDEAS – SEE THURSDAY’S BLOG 126
INVITATION
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The Fancypants Word of the Day
Neophilia (Part of speech: Noun; Origin: American English) 1) Love of, preference for, or great interest in what is new 2) A love of novelty.
Examples of use in sentences: “My damn neophilia makes me always bring home the next generation of iPhone as soon as it’s released.”
“My aunt says she’s not a hoarder, but she admits suffering from extreme neophilia and has to get a new thing for her house every day.”
Source and thank to wordgenius.com and Shawna Borgen.
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Copyright 2020 by Mack W. Borgen. All rights reserved. No part of this article may be reproduced or transmitted in any form or by any means, electronic or mechanical, except in the case of brief quotations embedded in critical articles or reviews, without prior written permission by the author.
FOOTNOTES TO ARTICLE
[1] In California, there are 266,000 licensed attorneys, but of these only 190,000 are “active” and permitted to practice law at this time.
[2] Of this 119,500 law enforcement number, 78,500 are full-time officers with full arrest powers and 41,000 are civilian staff.
[3] This translates to an average California teacher:student ratio of 1:24 — compared to the national average teacher:student ratio of 1:16. In addition, there are about 16,555 school administrators representing an administrator to student ratio of about 1:386.
[4] See, Borgen M., “Streamline the Federal and State Penal Codes and Address the Issue of Over-Criminalization om American Society” (Blog No 114, February 25, 2020).
[5] This number even excludes criminal cases (189,013 felony and 766,782 misdemeanor cases), family law cases (375,529), juvenile law cases (74,507), and probate matters (49,152). See courts.ca.gov.
[6] Such publications included the Los Angeles Daily Journal, the San Francisco Daily Journals, and various other county and regional bar publications.
[7] This article focuses upon civil litigation rather than criminal cases where the right to counsel has been long established by the US Supreme Court.
[8] Since 1991, California has maintained a Vexatious Litigant List, however because the threshold for “repeated” motions or causes of action is very high, vague, and hard to prove. Thus, the Vexatious Litigant statutes are rarely invoked. After nearly three decades, the California list includes only a few thousand names. Other than The Church of Scientology and a couple of trademark trolls, most of them are not well-known individuals or entities.
