Dale C. Doerhoff
Cook, Vetter, Doerhoff & Landwehr
Jefferson City

Several lawyers responded to my invitation in this Journal's September-October 2002 issue to engage in a dialogue about "what lawyers do." Each offering was valid, as far as it went. But like the parable about several blind men asked to describe an elephant after each touched different parts, most of the observations, while accurate in themselves, were limited to one perspective. One lawyer's answer stood out, because it tackled the "whole elephant":

In my opinion, what we "do" is a function of what we "are." On that point, our Supreme Court tells us: "A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice." (Preamble to Rule 4). It's important to keep our many hats in mind because doing so allows us to step outside of our habitual contextualization of our job as purely customer service. True, we spend the overwhelming majority of our time doing things for clients (the Preamble goes on to identify lawyers as advisors, advocates, negotiators, intermediaries, spokespersons and evaluators, all roles related to client service), and clients keep the lights on, but we also owe allegiance to our courts and the public in general. Hence my reluctance to offer any aphorisms about our job. None are applicable.¹

Was it an accident that the best answer came from a lawyer less than three years out of law school? Why is it that older lawyers tend to use aphorisms like "lawyers help people" or "lawyers are problem-solvers," which fail to differentiate lawyers from other professions or trades?

During my service on the Missouri Bar committee that studied multi-disciplinary practice (when the accounting profession was trying to take over the legal business), I was unpleasantly surprised that a number of lawyers in Missouri and elsewhere viewed themselves as mere service providers, indistinguishable in any meaningful sense from accountants. As a result, they took an "if-you-can't-beat-'em-join-'em" attitude toward merging the professions. The early surge in favor of MDP led some lawyers to express interest in partnering with used car lots, coffee shops, title insurance companies, stock brokers, patent research companies, investigators, mental health counselors, and sports agents, to name a few.² While the MDP tide ultimately turned, the controversy proved that defining what lawyers do is much more than an academic exercise. How can we keep non-lawyers from encroaching on what we do, or keep greedy lawyers from selling out the profession during the next Great Temptation, if we are unable to describe what we do?

The young lawyer who contributed the "winning" definition had the advantage not only of being closer in time to what he learned in law school texts, but he was also closer in time to his oath of admission. Our special status as attorneys, and the characteristics that distinguish our profession from all others, are apparent from the Oath of Admission.³ The first sentence states:

I do solemnly swear that I will support the Constitution of the United States and the Constitution of the state of Missouri;"

A promise to support the Constitution is a pledge to support popular sovereignty, due process, and individual liberties. This part of the Oath reveals that we serve higher interests than those personal to the client or ourselves. No other profession requires this.

The second and third clauses of the Oath confirm our special status as officers of the court:

That I will maintain the respect due courts of justice, judicial officers and members of my profession and will at all times conduct myself with dignity becoming of an officer of the court in which I appear;

That I will never seek to mislead the judge or jury by any artifice or false statement of fact or law;

The role we play in the functioning of the courts is complicated. On the one hand, we are advocates and sometimes even warriors in the dialectic crucible from which truth and justice is believed to emerge. On the other, we cannot deceive, or let others deceive, the judge or jury even if it would promote the client's cause. Even outside litigation, such as when we engage in transactional work, each side has the right to seek help from an attorney to ensure due diligence and advocacy for the respective rights of the parties. But even in this arena, advocacy is not unbounded. A lawyer may not resort to trickery or dishonesty. It is this quality that sets us apart from non-lawyers who purport to do legal work.

Just so there is no doubt that we are constrained by ethical rules, the next provision of the Attorney's Oath of Admission states:

That I will at all times conduct myself in accordance with the Rules of Professional Conduct;

The Rules of Professional Conduct require that attorneys adhere to core values of the profession, which include: 1) truthfulness in statements to clients, courts, and others; 2) loyalty to the client through avoidance of conflicts of interest, protection of confidential client information, and independence of professional judgment; 3) expertise in knowing and applying the law; and 4) professionalism in relations with lawyers and others.

The next clause of the Oath requires lawyers to have a social conscience:

That I will practice law to the best of my knowledge and ability and with consideration for the defenseless and oppressed.

Consideration for the defenseless and oppressed can be rendered through pro bono service. The extent to which lawyers provide professional services free of charge, for low income people and for public service, is unmatched by any other profession.⁴

The final phrase of the Oath of Admission is:

So help me God.

While someone unfamiliar with American culture and political history might misinterpret the invocation of God's help in the Oath as an entanglement of church and state, we recognize it for what it is: an acknowledgment of a higher authority than the state. It is part of a philosophy of government that traces back to the Enlightenment and the writings of Locke and Milton, who taught that all people have natural, God-given rights, to be secured through self-government. The purest expression of this principle was penned by Thomas Jefferson in the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness; that to secure these rights, Governments are instituted among Men, driving their just powers from the consent of the governed.

The idea that individual rights exist independent of a royal grant was revolutionary in 1776. Today, the principle is so integrated into American political life that the citizens take it for granted, like the air they breathe. But it is not self-executing. So how are the "unalienable Rights" of the people secured?

Our courts are the bulwark, the final authority which guarantees to every individual the right to breathe free, to prosper and be secure within the framework of constitutional government.⁵

The courts may be the bulwark of freedom, but it takes foot soldiers to man the bulwarks, and the foot soldiers in this piece are the lawyers. Lawyers "are so important to the exercise of the functions of the judicial branch of government that the courts cannot exist as operative institutions without them."⁶ This is the fundamental precept that the lawyers who tried to yank us out of the judicial branch and plug us into the "Borg" of the Big Five did not fully understand.

Recognizing that what we "do" is a function of what we "are," and that we are officers of the legal system and public citizens having a special responsibility for the quality of justice, will help us make better decisions for ourselves and for our profession.

If you have some answers or random thoughts to share, please send them to "Dialogue on Justice," c/o Dale C. Doerhoff, 231 Madison St., Jefferson City, MO 65101 or e-mail them to ddoerhoff@cvdl.net.

Footnotes

¹ Thomas G. Pirmantgen, J.D., University of Missouri-Columbia (2000).

² The Florida Bar's Report and Recommendation 10B to the ABA House of Delegates on August 9, 1999.

³ Missouri Supreme Court Rule 8.15.

⁴ Missouri lawyers provide 500,000 pro bono hours per year for legal services for the poor according to a recent survey by the University of Missouri.

⁵ State ex rel. Weinstein v. St. Louis County, 451 S.W.2d 99, 102 (Mo. banc 1970); quoting Noble County Council v. State ex rel. Fifer, 125 N.E.2d 709, 713 (Ind. 1955).

⁶ In re Conner, 207 S.W.2d 492, 494 (Mo. banc 1948).