The Lawyering Trade

Introduction

Lawyering is like being a plumber, sort of. At the beginning of the semester I made a controversial claim: lawyering is a trade, indistinct from other trades such as plumbing or electrical work. I stand by this to a certain degree. Most of the jobs performed by lawyers have the banality and consequential insignificance of plumbing, but, indeed, there exist cases in which what a lawyer does can be characterized as a prevention of injustice. This is the relevant distinction between the two occupations.

Analogies

The work performed by lawyers bears routine, trade like characteristics. Divorce, wills, and deeds seem to be some of the more common reasons for needing a lawyer. In this regard, it is difficult to determine how the average yellow pages lawyer serves a function greater than a blue collar tradesman. Both are needed to effectuate an output that possesses no intrinsic value. A sought after divorce decree or an orderly bequethment are examples of typical lawyer products and can hardly be said to effectuate justice. These products possess extrinsic value only because of how we have organized our society. The Kayapo would have little use for a divorce attorney, or an attorney to help them create a will, and it is not apparent that societies like the Kayapo would benefit from a system that necessitates this type of counsel.

• This is a peculiar way to seek for "intrinsic value" by cross-cultural comparison. Unless the attempt is to show that "intrinsic value" equals "cross-cultural universality," cross-cultural comparison merely takes a vote on the issue, and conducting such an election with only one voter, the Kayapo, is self-evidently absurd. Unless nothing that has intrinsic value has no value to Kayapo, which is not a premise you have proven or that seems likely to be true to me, you haven't said anything above at all.

The corporate lawyer is not immune from being analogized to a blue collar worker. In fact, their employment, viewed mechanistically, seems less notable than that of a plumber or a divorce attorney. At least a plumber or divorce attorney has an actual client, whom he makes personal contact with and provides tangible benefits for. The corporate lawyer neither sees his client nor is he able to quantify the benefit he provides for his client. Given these examples, it is difficult to see how the practice of law can be venerated above the practice of plumbing.

It was suggested in class that what sets the practice of law apart from other trades are the rules of ethics which have been established for its practice. Our system of law uses the adversarial process, and in order for the process to run as it is supposed to, rules need to be established to sustain efficient and “correct” adjudications. Privilege is just one example. Lawyers compete to convince a judge and jury that their side is correct, and if a lawyer were to break privilege the other side may have an unfair advantage. The rules of ethics, then, seem to be a consequence of the adversarial process, intended to instill legitimacy and faith, rather than an example of the law’s intrinsic superiority. Thus, the rules are there to correct for inherent shortcomings.

• Your explanation of the value of privilege is remarkably crabbed. Privilege exists to remove barriers to trust, of which the avoidance of betrayal in litigation is but one minor component. Whether you think of the rule (once you have described its intentions more fully) as "there to correct for inherent shortcomings" seems to be only a word game (including a reintroduction of the undefined term "inherent," which you overuse). You can't make anything logically depend on that merely rhetorical discrimination.

The Distinction

As I see it, the real distinction between a license to lawyer and a license to plumb is the ability to prevent injustice for clients like Tom Dudley. When it is apparent that a person has been unjustly accused and is facing incarceration or death, a lawyer can step in and use his license to prevent wrongful punishment. The product of acquittal for an unjustly accused is a good per se: a good even in a society such as the Kayapo. It possesses intrinsic value which other lawyer products do not and which products of plumbers do not.

Where I'm Left

This is as far as my certainty takes me. If justice means anything more than mere approval, then I am unsure as to whether it is instantiated when a guilty defendant is acquitted/convicted, when Pfizer loses one, or when the polar bear wins one (an issue close to my heart). However, injustice slaps you in the face. It stirs the viscera and agitates the mind. It is a conspicuous occurrence the prevention of which is unmatched in value.

• On the main point, we are now in agreement: the difference between law and mechanical trades is the importance of the transcendent value of justice. As with your first paper, once it is clear that we have reached basic agreement, your maintenance of the conversation in adverse form seems not to be related to the substantive needs of the conversation, but the psychic need of the conversant.