to be a
By Peter R. Jarvis
In The Lost Lawyer, Dean Anthony Kronman of Yale Law School bemoans the passing of the lawyer-statesman as a role model.1 According to Dean Kronman, the loss of these larger-than-life figures has deprived the present generation of working lawyers of what we need to set and meet high standards.
In my 23 years as a lawyer, I have met and worked with a great many lawyers, including some who might be called lawyer-statesmen. There is no necessary connection, however, between the level at which lawyers practice, the clients whom they represent, the kind of work that they do and their qualities as human beings. As Huckleberry Finn observed years ago, '[A]ll kings is mostly rapscallions, as fur as I can make out.'
You can find good lawyers and good people almost anywhere you look, just as you can find bad ones. Similarly, some people with the best of reputations cannot be trusted at all, while others with supposedly poor reputations can be both reliable and fun to work with, if treated with respect rather than contempt.
Most of us who work as lawyers have never been or wanted to be lawyer-statesmen. In fact there would not be room for most of us at that exalted level if we did want to be there. This does not mean, however, that what we do does not matter. As working lawyers, we know that the opposite is true: What we do and how we do it matters a lot. What this does mean is that we would be better advised to look for a more realistic and accessible model than that of the lawyer-statesman - one that is closer to home.
I submit that the appropriate model on most occasions is the lawyer-mensch. 'Mensch' is a Yiddish word that refers to a person who, among other things, knows right from wrong, knows enough to treat others with dignity whether or not they deserve it and tries to act accordingly.2 A mensch tries to suppress feelings of snobbery and superiority. A mensch tries to avoid cheap shots and unnecessary aggravation. A mensch must also be an optimist, because in many cases only an optimist can see the tangible and intangible benefits from taking the better or higher road.
The concepts behind the word mensch are by no means exclusive to the Yiddish language. Quakers, for example, speak of 'respect for the light in every person' and of 'a divine presence in each person which . . . commands our highest respect.3 The Dalai Lama has observed that 'all the world's major religions stress the importance of cultivating love and compassion.'4 In one way or another, most groups and cultures have similar concepts.
Quite apart from the potential benefits to others, there is also another benefit to being a mensch, even if it is sometimes not apparent. It is good for the soul. In fact, it is also good for the mind and the body. There is certainly a time for righteous anger, just as there is a time for war, but not all anger is righteous and not all wars are holy. If we are honest about it, few of us benefit in the long run from unnecessary or self-imposed stress. Why, then, should we push or help others push things to the limit when there may be another way to achieve the same results with less wear and tear? Fighting fire with fire is dramatic, but fighting fire with a fire extinguisher - or, better still, with fire prevention techniques - usually makes more sense. As working lawyers, we also know that every now and then, careful and respectful listening to even the most ungrateful clients or disrespectful opponents will prompt a solution to a problem that benefits everyone. Nothing ventured, nothing gained.
Being a mensch is not the same thing as being a patsy. To borrow from Justice Douglas' famous remarks about prosecutors, a lawyer-mensch 'may prosecute with earnestness and vigor - indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.'5 And as Monroe Freedman, one of the nation's foremost legal ethics experts, has observed, it is always acceptable to reason morally with one's clients.6 It is equally acceptable to seek to act and reason morally with others.
When all is said and done, most of us are likely to have our biggest effect on the people and institutions with whom we come into immediate and daily contact, not on the state or country level or world at large. Similarly, the biggest effect we are likely to have on our own lives will, in all probability, come from how we regularly and repeatedly conduct ourselves toward others, and not from an occasional and ostensibly heroic moment. In this sense, we can aim the highest and achieve the most by setting our sights the lowest. Our clients, our opponents, the system that we serve and our own lives will all be the better for it. +
1. Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession (1993).
2. Leo Rosten, The Joys of Yiddish, 234 (1968).
3. Paul A. Lacey, Growing Into Goodness, Essays on Quaker Education, 19 (1998).
4 The Dalai Lama, Ethics for the New Millenium, 123 (1999).
5. Donnelly v. DeChristoforo, 416 U.S. 637, 649, 94 S Ct. 1868, 40 L ed. 2d 431 (1947) (Douglas, J., dissenting).
6. Monroe Freedman, Understanding Lawyers' Ethics, 50-52 (1990).
ABOUT THE AUTHOR
The author is a partner with Stoel Rives in Portland. His essay appeared previously in the Washington State Bar News and the Professional Lawyer (summer 2000), and he was a mensch about letting us reprint it here.