Lawyers and politics: Creating a necessary wall

By Bruce Walker
web posted March 12, 2001

Hillary and Bill ClintonClinton's odious reign is now done. How can we prevent another such nightmare? The roots of Clintonian corruption reach deeply into our legal system. The ex-First Couple were both lawyers whose careers were built on the practice of law: Bill Clinton began his career as Arkansas Attorney General, and Hillary's first big public role was as a member of the Legal Service Corporation Board of Directors.

And who did the Clintons bring with them from Little Rock? Webb Hubbell and Vince Foster. Hillary's oafish and crooked brother Hugh Rodham is a lawyer whose misconduct involved legal representation. And how did the Clintons do to defend themselves from the many, legitimate allegations of wrongdoing? Through litigation, bogus attorney and executive privileges, and absurdly legalistic "statements" on the other hand. How did Al Gore try to steal the Presidency? Through the Florida Supreme Court.

The need to clean up the mess we call our legal system is necessary and joyful work for conservatives. Trial lawyers donate oceans of money to Democrats, and supposedly "neutral" groups like the American Bar Association take potshots at impeccably honorable lawyers like John Ashcroft, and then do nothing to clearly corrupt lawyers like Bill and Hillary.

Compounding the incestuous relationship of lawyers and politicians is the swooning surrender of that other theoretical guardian of honest government, "The Press." Although conservatives have create an effective counter-media, "The Press" still showed its influence and its utter willingness to surrender the rule of law to advance ideological and power agenda during Gore's disrupted junta.

Reforming the legal system is an easy sell to the American people, who smell the sewage, and but need strong leadership and ideas to support. Two types of reforms are required: (1) We must separate law from politics; and (2) We must place hard limits on the powers and privileges of lawyers.

How can law and politics be separated? No one can or should be prohibited from running for office, campaigning for office, donating to campaigns, serving in office, or working for political parties. All citizens have those rights. But citizens can choose to seek privileges and powers bestowed by government which in turn limit the political rights of those citizens. Military officers, for example, cannot criticize the President. Judges are not allowed to discuss ongoing litigation except in the courtroom. Law enforcement officers and intelligence agents also must accept restrictions on their speech and actions in return for the profession they have voluntarily chosen. So also with lawyers.

The practice of law, like nearly every other profession, is governed by state governments. States, which can act quickly and individually on measures with wide popular support, can enact new and special conditions on the practice of law. Such as? Lawyers may not run for elective office. Lawyers may not openly support a political candidate or contribute to a political party. Lawyers may not hold a position within a political party. Any person can engage in a full and vigorous political campaign - just not while he also holds a license to practice law.

There is a reason for this, by the way. Lawyers and judges are part of the judicial branch of government. Collectively - not just judges alone - these people "judge" the law. There is a conflict of interest when the same people who pass laws or who execute laws also are in a position to judge those laws.

There would, of course, be strong opposition to this reform. Which is why the ability of a few states to test this reform - particularly those states in which the people can vote on statutory or constitutional changes - is so helpful. The same people who predicted Armageddon when state governments passed term limits (or that Governor Engler would let people starve in doorways with his welfare reform) will predict dire consequences.

And the people will prove these elitists wrong again. Removing lawyers from the political system were, almost at once, change the whole perspective of policy. Legalisms, micro-management, arcane and silly case law, and all the other sources of delay, distortion, and digression in our government would be replaced by a commonsense and real world perspective. Legislators would once again pass laws that people can read and understand.

The second and parallel reform involves the practice of law itself. The vast wealth acquired by lawyers through contingent fees destroys commerce, inhibits liberties, and causes social chaos. State governments (and the people) once again have the power to introduce simple, clear reforms. Liberals love to talk about soaking the rich and helping the less fortunate, so how about applying that to trial litigation?

Enact a state statute limiting the contingent fee any lawyer or law firm based upon a progressive scale. For example: 25 per cent fees could be allowed for settlements or verdicts up to $50,000; 15 per cent fees for all amounts for all fee amounts between $100,000 and $50,000; and only 5 per cent for any amounts above $100,000.

All those noble tobacco-hating lawyers could still sue the evil corporations - they just could no longer get rich doing so. The impact upon entrepreneurial activity is difficult to overstate: Litigation drives insurance costs sky high, and makes many otherwise safe activities uninsurable. This reform would not limit the liability of bad companies who do bad things, but it would take the honey out of silly litigation brought by greedy lawyers. Any state could pass this law and see how it worked.

Most people believe that the Constitution insures people with certain rights, like the attorney-client privilege or the right to have your lawyer lie for you. This is just not so. States can, and should, restrict the attorney-client privilege or eliminate it entirely. It does make lawyers more valuable to clients, but how does that help society?

The myth that lawyers have a right to use false or misleading evidence to acquit a guilty client or help a client through civil litigation is also costly to business and culture. Truth, not legalisms and privileges, should govern the practice of law. How to make that work? Allow the other side (the victim, in the case of a crime; the adverse party, in the case of civil litigation) to sue the lawyer who used evidence or testimony that he knew or should have known was false, and remove any privileged communications so that the lawyer's state of mind is clear.

Doubtless many liberals would break open their cyanide capsules before living in such a world (i.e. a world in which plain facts and simple principles governed human affairs). For them, indeed, it would be Hell. But for the rest of us, it would be Heaven.

Bruce Walker is a frequent contributor to The Pragmatist and The Common Conservative.

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