The Price of Justice: The Myths of Lawyer Ethics

By Ronald Goldfarb and Bernie Sanders

“Attorney and literary agent Goldfarb (editor, After Snowden) delivers a lacerating critique of inequities in America’s criminal and civil justice systems and the role of lawyers in perpetuating them… Legal professionals will want to take note.” – Publisher’s Weekly

With foreword by Senator Bernie Sanders

Real civil and criminal Justice is long overdue

InThe Price of Justice: Money, Morals and Ethical Reform in the Law veteran Washington Lawyer Ronald Goldfarb reveals the injustices in our legal system and how money and power have exceeded ethics in the legal profession for far too long.

Justice reform has become an increasingly present topic in the news and media, with movements like “I Can’t Breathe” and Black Lives Matter prompting national outcry from the public over the unethical actions of law enforcement, and remains one of the most controversial and highly debated issues for politicians and citizens today. With more than 2 million American’s incarcerated, it is beyond apparent that the justice system intrinsically ensures that lower-income people and minorities are shockingly under represented and offered little to no legal protection.

In The Price of Justice, Goldfarb offers powerful testimonies, media evidence, and first-hand expertise from working in the Justice Department as a longtime public interest lawyer to reveal how both the criminal and civil justice systems fail to serve lower and middle-class citizens, and makes an undeniable case for the profound justice reform that is so desperately needed. Goldfarb asks that we examine closely a legal system that has become largely pay-to-play, benefiting the administrators and those wealthy citizens who can afford to “lawyer up”, and shows little mercy for the lower-income citizens who fall victim to an endless cycle of conviction, fines, bail, lack of counsel and capital punishment.

Goldfarb exposes a system that values money over ethics and lawyers who value winning cases over finding truth and serving justice, pointing out that civil aid and public defenders are grossly under-staffed and under financed, making it nearly impossible to meet the challenges of well-paid private lawyers. This book begs the legal profession to consider it’s ethical code when considering cases to represent, not just represent crooks who can pay and turn away worthy clients who cannot afford absorbent fees, and equips the public with the knowledge needed to advocate for justice reform.

• Language: English
• Publisher: Turner Publishing Company
• Release date: Oct 6, 2020
• ISBN: 9781684425044

Ronald Goldfarb

Ronald Goldfarb, Washington DC attorney, author and literary agent studied at Syracuse University (A.B., LL. B.) and Yale Law School (LLM, JSD), worked for three years as a trial counsel in the U.S. Air Force JAG Corps, and for Attorney General Robert F. Kennedy for four years in the Justice Department prosecuting organized crime cases and in New York as Kennedy’s speech writer in the 1964 election. His website (www.ronaldgoldfarb.com) lists his many writings and unique role in public affairs to the present.

Book preview

THE PRICE OF JUSTICE

Money, Morals and Ethical Reform in the Law

RONALD GOLDFARB

FOREWORD BY SENATOR BERNIE SANDERS

TURNER PUBLISHING COMPANY

Turner Publishing Company

Nashville, Tennessee

www.turnerpublishing.com

Copyright © 2020 Ronald Goldfarb

The Price of Justice

No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, scanning, or otherwise, except as permitted under Sections 107 or 108 of the 1976 United States Copyright Act, without either the prior written permission of the Publisher, or authorization through payment of the appropriate per-copy fee to the Copyright Clearance Center, 222 Rosewood Drive, Danvers, MA 01923, [phone], fax [phone]. Requests to the Publisher for permission should be addressed to Turner Publishing Company, 4507 Charlotte Avenue, Suite 100, Nashville, Tennessee, [phone], fax [phone], E-mail: [e-mail].

Limit of Liability/Disclaimer of Warranty: While the publisher and the author have used their best efforts in preparing this book, they make no representations or warranties with respect to the accuracy or completeness of the contents of this book and specifically disclaim any implied warranties of merchantability or fitness for a particular purpose. No warranty may be created or extended by sales representatives or written sales materials. The advice and strategies contained herein may not be suitable for your situation. You should consult with a professional where appropriate. Neither the publisher nor the author shall be liable for any loss of profit or any other commercial damages, including but not limited to special, incidental, consequential, or other damages.

Cover design: Rodrigo Corral

Book design: Tim Holtz

Library of Congress Cataloging-in-Publication Data

Names: Goldfarb, Ronald L., author. | Sanders, Bernard, writer of foreword.

Title: The price of justice : the myths of lawyer ethics / Ronald Goldfarb ; foreword by Senator Bernie Sanders.

Description: [Nashville?] : Turner Publishing Company, [2020?] | Includes bibliographical references and index. | Summary: The Price of Justice by Ronald Goldfarb with Foreword by Senator Bernie Sanders is a fascinating and edgy look at the shortcomings of our legal justice system and how many of them are rooted in the flawed construction of the ethical rules governing lawyers-- Provided by publisher.

Identifiers: LCCN 2020029308 (print) | LCCN 2020029309 (ebook) | ISBN 9781684425020 (hardcover) | ISBN 9781684425044 (epub)

Subjects: LCSH: Legal ethics--United States. | Lawyers--United States. | Justice, Administration of--United States.

Classification: LCC KF306 .G65 2020 (print) | LCC KF306 (ebook) | DDC 174/.3--dc23

LC record available at https://lccn.loc.gov/2020029308

LC ebook record available at https://lccn.loc.gov/2020029309

Printed in the United States of America

17 18 19 20 10 9 8 7 6 5 4 3 2 1

CONTENTS

Foreword by Senator Bernie Sanders

Introduction

CHAPTER 1: A Tale of Two Myths

Myth One: Finding Lawyers, Choosing Clients

Myth Two: The Adversary System

CHAPTER 2: The Criminal System

CHAPTER 3: The Civil System

CHAPTER 4: Personal Choices

CHAPTER 5: Conclusion

Acknowledgments

Notes

Index

The rich man and the poor man do not receive equal justice in our country.

—Robert F. Kennedy

From his review of Ransom: A Critique of the American Bail System

DEDICATION

Dedicated to my three special amigos:

Harvey Rosenwasser

Steve Rosenfeld

Hodding Carter

FOREWORD BY SENATOR BERNIE SANDERS

In the The Price of Justice: The Myths of Lawyer Ethics, veteran Washington lawyer Ronald Goldfarb raises the curtain on the subject of our justice and lawyering systems—an issue that has received increased attention in recent years. In this political season some politicians have discovered criminal justice reform as if it were a new subject. But Ronald has been out front on this issue for a long, long time. Throughout his long career Ronald has written books about bail reform, jail, prison reform and farmworkers abuse, and the blurbs on the back jacket by Robert F. Kennedy, Karl Men-ninger, Tony Lewis, Fred Graham and Harvard scholar Robert Coles attest to Goldfarb’s past contributions.

At a time when the United States has more people in jail then any other country on earth, over 2 million, it is shocking to learn how little we spend in making sure that defendants (who are overwhelmingly poor and minorities) get the legal protections that all Americans should be entitled to. In fact, as Ronald points out, the U.S. spends on justice for the poor all of $19 per client. Mind boggling.

In The Price of Justice Goldfarb offers powerful anecdotal stories, references to film and media, as well as his own experiences in the RFK Justice Department and the LBJ Office of Economic Opportunity task force with Sargent Shriver, and as a long time public interest lawyer. He provides analyses of interesting key cases, revealing how both the criminal and civil justice systems fail to serve poor and middle-class citizens. His underlying thesis makes a strong case for the profound systemic reform that we need.

The Price of Justice makes two fundamental points. One is that many of our major institutions, health and justice are prime examples, operate for the benefit of its administrators and not its clientele and users. Whether it is correctional institutions, courts or law schools that indictment often rings true.

Goldfarb’s second fundamental point is that the reality of the justice system differs significantly from its rhetorical goals and purposes. The words equal justice under law are etched on the spandrel of the United States Supreme Court building in Washington DC and quoted in flowery speeches and legal opinions. But the reality of the justice system differs from its hortatory words. Goldfarb refers to and describes what one law professor called the manor houses of justice (courts and law schools) and their opposites, the gatehouses (police stations and the streets). Another law professor Goldfarb cites described the due process model of justice for the wealthy who lawyer up (the criminal goes free because the constable has blundered) and the crime control model for the poor (whatever it takes, I can’t breathe, get the conviction, the verdict, the civil judgment). We all cheer the tough cops on TV who capture their criminal prey at the same time our children see the noble Atticus Finch in To Kill A Mockingbird as their hero.

Lofty principles about equal justice are irrelevant for the poor people who are prejudiced by fines, bail, lack of adequate counsel and the widespread use of capital punishment which, among major industrialized countries, is unique to the United States. The Constitution guarantees the right to counsel in criminal cases; but the fact is that about 95% of all cases do not go to trial before a judge and jury. They regularly are plea-bargained and, in those situations, the prosecutor holds all the cards. In civil cases, the Constitution guarantees the right to trial by jury but not to lawyers, a hollow guarantee as Goldfarb’s stories demonstrate. Goldfarb quotes an SEC insider who stated that the agency polices the broken windows on the street level and rarely goes to the penthouse floors. Lawyers make the difference and money gets the legal representation you can afford.

The two myths referred in Goldfarb’s subtitle are, first, that lawyers use the adversary system to justify their excessive behavior which is aimed at winning cases rather than finding truth or serving justice. And, second, that they should not be criticized for or even compared with the clients they represent and the causes they espouse that go against public interest (auto safety, bad drugs, dirty air and water, advocating torture, for examples). It is their ethics rules that require they do so, they argue. Not so, says Goldfarb. Lawyers turn away worthy clients regularly simply because they cannot pay their often exorbitant fees, and they represent scoundrels who can. Similarly, it is not uncommon for doctors to turn away patients without proof of insurance.

Despite the advent of legal services legislation, in criminal and civil cases Goldfarb describes a chasmic justice gap. Civil legal aid and criminal public defenders are out-staffed and underfinanced to meet the challenges of well-paid lawyers, in those few cases they are retained. So much for the adversary system. You or I would not last a second in the ring with the heavyweight champ. And while pro bono representation is helpful, it is available in one percent of all the cases, an average of half an hour a week per attorney in the United States.

Legal philosophers like former Supreme Court Justice Harlan Fisk Stone and Louis Brandeis warned, a century ago, that the legal profession was becoming a business, ignoring public interests by offering an expensive menu of advice, litigation and lobbying to which only the wealthy few had access. Goldfarb’s book may not make the American Bar Association happy. But if it prompts the public and his profession to pursue the reforms he concludes are necessary, his accomplishments will be very significant. Real civil and criminal justice reform is long overdue, and Goldfarb’s book takes us one step closer.

INTRODUCTION

In the over half century since I became a lawyer in 1957, the profession has changed. Some changes are welcome.

I graduated two law schools, Syracuse University and Yale. There was one woman in my class at Yale Law School, two at Syracuse University Law School. No African Americans in either. Today women make up about half of most law school classes. The impressive dean of Syracuse Law School, Craig M. Boise, is African American, and the dean at Yale, Heather Gerken, is outstanding scholar, a woman. The Washington Post reported on February 7, 2020 that for the first time in history, the editor’s-in-chief of law journals at the top 16 law schools in the U.S. are women. Barack Obama edited Harvard’s Law Review; not so long before he became president.

Technological advancements have accompanied the gender and racial sociological changes in our profession. When I was a student doing research for a law review article, I would spend months in the library stacks; today my young clerk can do the same amount of work in half a day because of the internet. When I began practicing law I used carbon paper, added a fax machine, and eventually was consumed by the internet. The legal world has changed: shrunk, expanded, speeded up.

That said, not all changes are for the best. As firms grew from eight lawyers to eight hundred, from one city to many around the world, and technology spread, the corresponding emphasis on money fundamentally transformed the justice profession into a business. The modern practice resembles an internationally exclusive casino, where only the well-off are allowed a seat at the table. The scales of justice are increasingly tilted in favor of the rich, with serious consequences to us all—lawyers and clients alike.

As a result of these changes, the economics of the modern legal profession now twist the original meaning of Mr. Shakespeare’s overused and often misquoted line in Henry IV, Part II. First thing we do, let’s kill all the lawyers. The Bard was conveying that lawyers were the guardians of justice in his time and deserved respect as the people’s protectors against government misrule. Instead, today one critic suggested that in securing justice in an efficient and affordable fashion, lawyers can in fact be the primary obstacle.¹ With fees often ranging from $200 an hour up to $1,500 an hour, most people cannot afford a lawyer, and low and middle class families are left to fend for themselves. Even wealthier people who become enmeshed in legal processes are suffering.

If there is a major deficiency in the availability of legal services in civil and criminal cases in America—and there is!—and if lawyers are part of the problem—they are—then the marketplace fails most people in this country in providing access to fundamental justice.

In the Federalist Papers, Alexander Hamilton called justice the first duty of society, and James Madison wrote that justice is the end of government … of civil society.²

In today’s capitalist system, money provides preferential access to most services and products—homes, cars, vacations, the luxuries of life. There is nothing wrong with that. But as we have witnessed in current debates about the lack of adequate health care in the United States for many people and the need for systemic social reforms—health care and equality of justice, surely—the question must be faced: How do we resolve these problems with the justice system when laissez-faire doesn’t work?

Economist Katharina Pistor offers an historical analysis of this problem.³ Lawyers, she posits, since feudal times, and now, shield, expand and protect the wealth of landowners (then), the wealthy and corporations (now), in what she labels an empire of law. Corporate law no longer is focused on producing goods and offering services, but instead has adapted feudal land law into a virtual capital mint. Law and lawyers have assured that the state protects these special economic interests to perpetuate inequality with the force of law.

Yale Law School professor Amy Kapczynski conducts a law and political economy blog that explores how legal doctrines enable the free market to subordinate democracy by concentrating economic and political power in dominant groups who are able to imbed the economy in social life.⁴

Pistor’s theory is supported by Oxford scholar Bernard Rudden who compares the land in feudal days with stock and bonds of today, which are abstract values that breed a habitat of wealth.⁵ As a result law facilitates the gigantic speculative dynamic of modern finance, Pistor concludes, and the legal profession controls the clash between capital and the people.⁶

Economic theory is not my expertise, but this book will provide examples that support this view about law, lawyers and the marketplace.

The public has a love-hate relationship with lawyers. Sarcastic lawyer jokes are common, like Ninety-nine percent of all lawyers give the rest a bad name, and Legal ethics is an oxymoron, and Lawyers believe a man is innocent until proven broke. Yet popular lawyer television shows from Perry Mason to LA Law to The Good Wife and Blue Bloods portray lawyers heroically.

A paradox is at work. The public disparagement of lawyers is common, but when an individual needs a lawyer, that person’s attitude changes: I want the toughest, meanest street-fighter out there on my side. Whether it is a civil dispute, such as a difficult divorce negotiation, or a consequential criminal trial, clients want a lawyer who will aggressively pursue their private interests. If they can afford one. Most cannot. Justice has its price. Clients in these cases are self-interested and rarely looking for justice. Too often they get neither lawyers nor justice.

In 2015, the president of the New York State Bar Association noted the need to improve legal ethical standards, to evolve a better work-life balance in what has become a sometimes grueling profession, and to develop higher moral and qualitative standards.⁷ Gallup polls of public mistrust of lawyers’ honesty and ethical standards show consistently subpar results.⁸ At the same time, bar studies reveal that many lawyers are distressed by their lifestyles.

The moral culture of law schools and the profession encourages students and lawyers to serve clients’ interests, not the public’s interest. In return, lawyers receive generous compensation. And that compensation is based on whether the client can pay the fees set by the lawyer. If a potential client cannot afford such fees, then the lawyer is likely to decline the case. Moreover, private practitioners expect to be well compensated. Lawyers at successful law firms typically receive more in salary than Supreme Court justices or US senators or law professors.

When I graduated Yale Law School in 1960, the number one member of that class began work at a well-known New York City firm at the then impressive annual pay of $16,000. According to the ABA Journal, three large New York firms are now charging over $1000 an hour for senior associates for bankruptcy work ironically.⁹ In 2019, a managing partner at a major multicity law firm wrote to me that average compensation of partners in firms of two hundred to five hundred lawyers [is] $625,000. In firms of over five hundred lawyers: $1,000,000. Starting associate compensation at top firms in major markets: $190,000 plus bonus. Senior associates in top firms: $350,000 plus bonus. Staggering!

The old fashioned, personal law firm has been replaced by the mega-firms. A Bloomberg article¹⁰ about changes in law firms in the 2010’s provided several examples. One D.C. anti-trust firm at its peak had $573 million in revenue, $1.3 million for partner profit. It had 700 lawyers in 8 offices round the world. Then, the firm collapsed, due to overexpansion and lax management. After the merger of two big New York City firms into a 1000 member firm, the new firm went $300 million into debt. It went bankrupt and some managing partners were indicted. A Boston firm that earned $860 million in 2009, with partners earning $1.4 million had to cease operations. Several years later over 200 lawyers moved to another firm, and that former firm went out of business. Comparable stories of firms in Richmond, VA and San Francisco were told.¹¹

Bloomberg News also reported that at most law firms today, partners are primed to compete with each other for clients,¹² especially in their areas of expertise. And as more businesses become more complex and reinvent themselves, the world of outside counsel in private firms must adapt with their clients. One change noted is the evolution of swarm intelligence where attorneys collaborate within firm special units and outsource to smaller firms and alternate legal service providers. The law firm of the future reflects the business model of their large international business clients, focused on economics—not a bad idea—but different from the image and culture and as a result value systems that prior generations of lawyers foresaw.

These high income levels do not improve the lives of law firm employees, only the lawyers themselves. According to one study, In the mid-1960’s, profits per partner at elite law firms were less than five times a secretary’s salary. Now they are over 40 times.¹³ Former head of the Legal Services Corporation, the largest funder of civil legal services in America, James J. Sandman left a successful and profitable corporate law practice because, I came to feel as if I were devoting myself to making rich people richer, and I’m not talking about clients; I’m talking about my colleagues.¹⁴

With the growth of the number of students graduating law school, many neophyte lawyers graduate in debt and have difficulty finding rewarding jobs, despite what would seem to be a perfect needs match of lawyers and clients.

How did our profession get to this place? The late US Supreme Court justice Harlan Fiske Stone, a member of the pantheon of our profession, stated a century ago that the mission of law schools should be to teach its students how to live rather than how to make a living.¹⁵ That notion of social responsibility for how work is performed is what distinguishes professionals from other occupations. Justice Stone instructed us to measure what we do by personal ethical standards along with our public professional responsibilities. Yes, we work to earn a living, and there is no virtue or sin to that reality—except, I would argue, if what we do in our work can be considered by reasonable standards to be virtuous or sinful. And what might these standards be? To adapt the late justice Potter Stewart’s wry remark, we know that when we see it—or we ought to.¹⁶

Justice Stone’s twentieth-century notion about the proper role of lawyers was examined a century later by retired Yale law professor Owen Fiss.¹⁷ In 2017, Fiss wrote that lawyers "exercising the power of the