Musings # 3: Thoughts on Lawyering

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“If . . . the machine of government . . . is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law.”

Henry David Thoreau, Civil Disobedience and Other Essays. [i]

I wasn’t kidding when I referred to “Once More into the Fray” (Episodes 5 and 6 of The Dogs of Looser Island series) as reflecting a bit of autobiographical angst.

For years I struggled with my role as an attorney. I believe in the rule of law, and the importance of a legal system that is and must be supported by attorneys. The rule of law falters unless we have attorneys providing zealous advocacy in civil proceedings and due process in criminal proceedings.

Unlike Larry the lawyer in “Once More into the Fray,” I have always felt uncomfortable in the role of zealous advocate, always worried that I was, or was helping my client, “to be the agent of injustice to another.”

Even when I believed my client was in the right, and the other party was in the wrong, I couldn’t help but think of factors that might have led to the bad behavior. A terrible childhood. Unbearable financial strain. Mental illness that is untreated or for which the cure is worse than the disease. Mere ignorance. Mistaken assumptions.

Most of all, I couldn’t help worrying about the effect on the other party.

Those who know me know my work for nearly fourteen years (in a career spanning over seventeen years) focused on representing employers. Much of that work involved helping them navigate disciplinary and termination decisions. I liked my clients, thought they were good people struggling with difficult situations. And I knew that even an unrelentingly terrible employee might have a family to feed, might grieve the loss of a job she/he/they loved, might feel adrift without the anchor of employment.

The reality is that most situations are not clearly delineated; there is often no good guy or bad guy, no side that is wholly “in the right” or “in the wrong.” Instead, there are clashing personalities, misunderstandings, irreconcilably different expectations, incorrect information, and failure to communicate.

I have enormous respect for attorneys who are able to navigate these issues, and I was lucky enough to work with many wonderful people who fulfilled their ethical duties to their clients with compassion and integrity.

I was also lucky enough to have a wise colleague that, like Sheriff Tom in The Dogs of Looser Island episodes, pointed out that I didn’t make “the mess” I was retained to address; that responsibility rests with the parties themselves.[ii]

Here’s that exchange from “Once More into the Fray” (Episode 5):

“Sometimes I hate my job,” Larry tells Sheriff Tom, though he expects no sympathy from a man whose job almost always involves addressing people at their worst, people who aren’t just strangers but neighbors and friends with whom you’ve stood shoulder to shoulder staring out over Gull Bay, shared a slightly bitter home-brew, burnt a burger, laughed over your shortcomings and later, several drinks later, secretly confessed a darkness you never wanted anyone to know, ever.

“Why?” Tom asks, even though he knows the answer, because that’s what friends do—they ask the question you want them to ask even if they already know the answer, because they understand you need to say it out loud.

“I’m going to have to step in and accuse someone I like, basically say they’ve done something bad, and help someone I don’t entirely like, and when I’m done there will be a big fat mess.”

“And if you don’t step in, what will there be?” Tom says.

Larry thinks for a moment. “A big fat mess,” he says.

“So do your best to minimize the mess, and the pain. It’s all anyone can ask of you,” Tom says.

In other words, lawyers who are called in when there is already “a big fat mess” did not create the problem, and are only responsible to address the problem with as much humanity and integrity as they can muster.

Our justice system is—or was until recently—the envy of the world. Not perfect, but exemplary in theory, at least. As I posited above, a society operating under the rule of law only works if there are attorneys willing to represent both sides in a civil conflict, and such a society may only aspire to justice if due process is observed in criminal proceedings. All of which requires intelligent, thoughtful lawyers who take their work seriously. I remain grateful for all the lawyers who willingly go, over and over, “once more into the fray.” [iii]

(Previous comments on lawyering and the law can be found in the Literary Titan interview and the Content Note.)

[i] Interestingly, this is the version of the quote I found, after searching the internet for the half-remembered statement, without the ellipses I’ve added. As if that was the sum total of Thoreau’s statement. In fact, this is part of a longer quote in which Thoreau exhorts us to “let it go” if some small injustice is a necessary part of the workings of government. https://southerncrossreview.org/56/thoreau.htm

Frankly, I prefer the shorter version, the version that calls us to refuse to participate in injustice, over the longer version where Thoreau first waffles and suggests it might be permissible to ignore injustice if it is “part of the necessary friction of the machine of government,” and then goes on to say disobedience is necessary only if one is required to be an “agent” of the injustice. The full quote appears to me to exhort and even attempt to justify “the appalling silence of the good people” decried by Dr. Martin Luther King, Jr.

[ii] If he gives me permission I will update this post to share his name.

[iii] As revealed in these episodes “once more into the fray” is actually a misquote from the movie The Grey. The actual Shakespearean phrase is “Once more unto the breach.”