Two Policy Changes That Will Make America More Democratic (and less contentious)

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Two Policy Changes That Will Make America More Democratic (and less contentious) - The legal profession is...

Two Policy Changes That Will Make America More Democratic (and less contentious)

The legal profession is over-represented and under-disciplined in public life

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By Contributing Authors | Americans For Innovation | Dec. 21, 2012 | PDF version

A: Argumentative, deceitful, irritating, manipulative, uncaring, greedy.

B: Cooperative, honest, trustworthy, considerate, respectful, able to get things done.

Which set of adjectives better describes most attorneys you know, all things being equal?

Precisely.

Could our societal problems be largely caused by an overabundance of “A” personalities (see above) having ensconced themselves in senior and middle management positions in our government? If the answer is “yes,” or even “perhaps,” then could the following policy recommendations improve America dramatically, and almost overnight?

1. Make professional qualifications and merit the basis for managing a government institution, and not mere knowledge of law and political payback.
   
   
2. Appoint a majority of non-lawyers to the attorney disciplinary councils in each State and at the Federal level.

This essay explores the premise that America’s economic and social polarization is being fomented largely by a perpetual Pig-Pen-like confusion created by the activity of a disproportionate number of attorneys running institutions without the proper qualifications, and not enough checks and balances on the legal profession. Too often attorneys and judges pretend to be ethical, and their disciplinary bodies pretend to police them.

By last count, 45% of the 20 White House cabinet positions (counting the President) and 43% of the 535 seats in Congress are lawyers. The White House and Congress oversee $3.5 trillion in spending each year. Using raw un-weighted numbers this means that every attorney running our government has oversight of $6.3 billion in taxpayer funds, and those attorneys collectively oversee $1.5 trillion a year.

Are we stupid or what?

Speaking metaphorically, show me an attorney who can keep his checkbook balanced and I’ll show you an aberration. Let’s face it, attorneys are some of the least organized professionals on the planet. How many attorneys let the court schedule manage them? Way too many. How often does that attorney make a panicked call to his client a day or two ahead of a court deadline simply because the attorney is bad at managing his time? How many “white lies” does that attorneys tell his client and the court for his chronic disorganization? And yet, we let this same profession run our country?

Why do we inflict this pain on society? Do we have to remain the victims of this illogical situation? No, change is possible.

Merit qualifications instead of cronyism

Would you hire a dentist for brain surgery, a plumber for electrical work, or a nurse for lumberjacking? Of course not, you say. So, then why in heaven’s name do we allow so many attorneys to manage trillions of dollars of the nation’s budget—simply because they schmoozed some politician and were given power as a thank you? Let’s send them a thank you note instead, then put our institutional budgets in the hands of experienced managers.

Right now we have attorneys running the Departments of State, Defense, Justice, Interior, Agriculture, Homeland Security, White House and Trade. Frankly, the only one that makes sense is Justice. More logically, we have an engineer running the EPA and an architect running Housing. And, at least Veterans Affairs is run by a former Army General. Strangely, we have a sociologist running Transportation. But mostly, we have attorneys.

We demand stringent professional qualifications of the civil engineers who build our skyscrapers, the doctors who fix our hearts and the professors who teach our children.

Why then do we throw those professional prerequisites out the window by allowing politicians (43% of whom are attorneys) to appoint fellow attorneys to run our federal and state agencies? This priority is out of whack. Should not the public welfare hold higher priority than political cronyism?

What if we had a professional qualifications requirement before we placed someone in charge of a massive federal or state budget, attorney or not? Logically, we’d have many fewer attorneys and a richer cross-section of the professional landscape managing our institutions and agencies. That cannot be a bad thing.

This over-abundance of attorneys in our state and federal legislatures creates a conflict of interest. Our legislatures approve the budgets. Since almost half of the members of our legislatures are attorneys, the profession that is authorizing budgets should not be the same profession that then walks across the street to spend the money that they have just authorized. As pathological liar Tommy Flanagan says, “How conveeeeenient.”[1]

The self-policing myth

A parallel issue is attorney discipline.

A license to practice law is a privilege, not a right. The supreme courts in each State grant an attorney the privilege to practice law, and those same courts can revoke that privilege for non-performance.

Attorneys are an ostensibly a “self-policing” profession. Each State has a disciplinary committee authorized by that State’s Supreme Court.[2] However, pundits agree that this system is broken. Too few attorneys and judges report their colleagues. It’s bad for the "old boys'" business. Speaking in generalities, attorneys only discipline drunks, womanizers and trust fund thieves. The current system of attorney self-regulation exhibits little accountability, as compared to other professions. For example, the self-policing of accountancy can refer to the law for outside accountability. But, in the legal profession there is no outside accountability. We let the fox guard the hen house, and the chickens are disappearing at an alarming rate.

Rarely is “white collar” attorney misconduct ever disciplined. White collar misconduct is more devious activity like the small business fee blackmail game: the lawyer overbills early in a case, makes impassioned promises to be there to the finish, then withdraws mid-case, only to sue for the overbilled fees (adding damages and interest) after the one-year statute of limitations for malpractice has expired. The judge then hammers down on the former client who has just been hoodwinked by this legal billing scam. It includes misconduct like theft of the client’s business ideas and know-how, or perhaps assisting surrogates with knowledge of the client’s weaknesses to take over the client’s business. Or, perhaps intentionally providing inferior legal work containing loopholes that the attorney then encourages a competitor to attack years later. Another favorite “dark arts” trick, this time by judges,[3] is allowing unscrupulous attorneys to use discovery to go on a fishing expedition to create new claims to replace the bogus ones, or allowing those same attorneys to stonewall discovery behind interminable “motion practice.” The examples are almost limitless, and go largely unchecked in America’s courts.

A majority of disciplinary committee members should be non-lawyers

According to a study by Dr. Richard Cordero, himself an attorney, judges don’t discipline each other, so why then should anyone believe that they are disciplining their fellow attorneys.[4] This lack of accountability must change. Democracy and justice deserve better.

A majority of non-lawyers should be put in charge of attorney and judicial discipline. If pragmatic laypeople comprise a majority of the members of a State and Federal disciplinary committees, it is almost certain that attorneys will either (a) change their wicked ways, (b) be shown the professional door, or (c) be introduced to a ball and chain.

The logic here is that laypeople are fed up by the undisciplined misconduct in the legal profession. However, until lawyers are held accountable by those whom they are supposed to serve, we will continue to see corruption and injustice as the unscrupulous continue to perpetrate undue influence on the judicial system.

Some of the most pragmatic minds on the planet are those of our engineers and architects—those responsible for the structures in which we place much trust for our care and well-being. They build our hospitals, sports stadiums, power plants, ships, skyscrapers and aircraft. However, in the current White House, we see just one architect and one engineer in the Cabinet. Instead of half the Cabinet being lawyers, why not put designers and problem solvers in charge instead? Then, apply that same logic to the middle-level bureaucracy, which also contains a disproportionate number of lawyers.

A massive dose of common sense may be all we need

Perhaps this observation explains the common criticism of the citizenry that government agencies do nothing but push paper around all day and call that work. Too many lawyers think that moving paper around is work! However, an engineer, designer or architect sees end results and believes paper-pushing to be nothing but a debilitating waste of human creativity.

Let’s face it, lawyers are good at stirring up trouble (because their profession rewards them for generating hourly fees), but what we need are designers, creators and problem solvers. People who make and meet goals, then move on.

Could these two policy changes, if implemented, do more to change America than anything we’ve tried in years?

We can’t do worse.

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Americans For Innovation (and against intellectual property theft) fights abuse of the constitutional right of authors and inventors to enjoy the fruits of their inventions, as a matter of basic property rights and sound public policy. © 2012. Americans For Innovation. Reuse and reprint permitted with simple attribution. http://americans4innovation.blogspot.com.

Illustration Credits:

• Big-Pen. Character in the comic strip Peanuts by Charles M. Shultz, known for the cloud of dirt and dust that follows him wherever he goes. © Peanuts Worldwide LLC <http://www.peanuts.com/characters/pigpen/>.
• Medical Cartoon 7481. © T. McCracken. <http://www.mchumor.com> and <http://katekelsall.typepad.com/.a/6a00d83451c95969e2011571923f93970b-800wi>.
• I’d like to confess a white collar crime. © Dean Vietor. <http://imgc.allpostersimages.com/images/P-473-488-90/60/6056/V69D100Z/posters/dean-vietor-i-d-like-to-confess-to-a-white-collar-crime-i-kept-you-on-hold-just-for-t.jpg>

Footnotes

[1] Comedian Jon Lovitz <http://www.imdb.com/name/nm0001484/>.

[2] See ABA Model Rules of Professional Conduct. Cornell University Law School. Accessed Dec. 21, 2012 <http://www.law.cornell.edu/ethics/aba/>.

[3] Code of Conduct for United States Judges. United States Courts. Accessed Dec. 21, 2012 <http://www.uscourts.gov/RulesAndPolicies/CodesOfConduct/CodeConductUnitedStatesJudges.aspx>.

[4] See Dr. Richard Cordero, Esq. “The Supreme Court Justices and the Chief Circuit Judges Have Semi-annually Received Official Information About the Self-immunizing Systematic Dismissal of Judicial Conduct Complaints, But Have Tolerated It With Disregard for the Consequent Abuse of Power and Corruption.” Judicial-Discipline-Reform.org, Dec. 8, 2007 <http://judicial-discipline-reform.org/docs/SCt_knows_of_dismissals.pdf>.