The Helpful Role Lawyers Can Play in Rebuilding American Democracy

Last week in San Diego, the annual convention of the Association of American Law Schools (AALS) was held. This annual event is the largest single gathering of legal educators in America, and it always affords an opportunity for deans, professors, administrative staff (and also a smaller number of lawyers and judges who attend) to reflect on the state of legal education and its relationship to the profession and society. This January, as we enter a very important election cycle, there was much discussion of the important function that lawyers, law professors, and law students can perform in modeling and facilitating a more perfect democracy.

I had occasion to collect my own thoughts on this and related subjects late last year, when I was asked by one of the justices of the Illinois Supreme Court to deliver keynote remarks at the swearing-in ceremony of newly minted lawyers in the Illinois state capital, Springfield. Because these remarks may be of more general interest as a window into how a law dean (or, should I say, at least one law dean) views the possibilities of and constraints on the lawyer’s important roles in society—and with apologies to those readers who may have seen or heard some of these observations in other public fora in which I have shared them—I reproduce below a (slightly edited) version of the comments I offered to the new crop of Illinois lawyers:

Thank you for having me here on this most joyous and important of days. I am honored to be with you.

The Illinois Lawyer’s Oath that you are about to undertake goes something like this:

“I do solemnly swear (or affirm) that I will support the Constitution of the United States and the constitution of the State of Illinois, and that I will faithfully discharge the duties of the office of attorney and counselor at law to the best of my ability.”

As someone who believes that a little text can go a long way (here in Springfield, I am of course reminded of Abraham Lincoln and his Gettysburg address—only 270 or so words but, oh, so contentful), I would like us to linger a bit on the 50 or so words that make up the Illinois Lawyer’s oath.

Let us start with “I do swear/affirm”; understand here that you are making a promise, not just expressing an aspiration, a hope or a prediction. You generally don’t make many public promises in life (perhaps marriage is another occasion), so this is a big deal.

What are you promising? That you “will support the constitutions” of the United States and Illinois—not that you will support whatever version of the fundamental law you’d like to see enacted, but that which the governing law of the land actually requires, which isn’t always the same thing. As great as our constitutions are, they do not embody everything each of us might want, but it is to these constitutions—and not to our preferences—that we pledge support.

You are also promising that you “will discharge the duties of the office of attorney and counselor at law.” Note that what you are entering into today is not just a job—and not even just a profession—but an office. As of this morning, you are officeholders.

And that office has “duties”—what are they?

Well, as a lawyer, you will serve variously as an advisor, educator, advocate, negotiator, intermediary, evaluator, etc. But these aspects of being a lawyer are more in the nature of roles, and do not fully capture or describe the particular obligations involved.

So what are the specific requirements/duties of the office?

I don’t think there is an official list, but here are six or seven items that I—after a quarter century as a judicial law clerk, practicing attorney, law professor, and now dean of a wonderful law school—would identify as belonging in any remotely thorough enumeration:

1. Lawyers deal in facts, grounded in evidence—they don’t trade in speculation, and certainly they do not create or promote fabricated falsehood.
2. Lawyers apply logic—and not preconceived notions or forgone conclusions—to the facts. Logic must be tempered by history and experience but at base relies on principled reasoning.
3. Lawyers, in their various roles—even as advocates—maintain open minds; they go where facts and logic lead.
4. Lawyers respond honestly, and again based on facts and logic, to opposing arguments—they do not bluster, obfuscate or bully; they reply on the merits, so to speak.
5. Lawyers treat those on the opposing side of any dispute with respect and civility; today’s opponent may be tomorrow’s situational ally or co-party.
6. Lawyers abide by fiduciary requirements, which means they avoid conflicts of interest; they maintain confidences; they communicate responsibly and regularly with those they represent; and they do their homework before they act.
7. Lawyers serve the public interest as well as private interests, which is why lawyers are supposed to engage in pro bono activities.

I emphasized a few moments ago that lawyers are officeholders. In today’s world, I think that, collectively, lawyers may be the most influential officeholders. To be sure, we talk a lot about people who hold the office of president, or governor, or legislator, or United States Supreme Court justice, or state court justice or judge, but these folks are relatively small in number and many are transient in their officeholding duration. And, sorry to say, they—at least many of them on both sides of the aisle—are not doing a particularly good job of adhering to all the duties I just listed.

If this country is going to get its act—and its people—together to tackle the immense social, economic, and scientific challenges it confronts, it is going to need a large cadre of professionally minded leaders to show it the way, to set the tone, to offer an example. Doctors are great—they heal individuals. Engineers are wonderful—they help construct things. But if we want to heal not just individuals but society, and if we want to construct not just devices but institutions, the single most important profession over the next few decades may very well be the one you are entering today. We are depending on you, and have every confidence that we have picked the right people to hold this awesome office.

Godspeed to all of you, and please accept my deepest congratulations.