Time to be peacemakers

by Harrison Sheppard

Thomas Jefferson, commenting on the institution of slavery, wrote that he trembled for his country when he reflected upon the long-term inevitability of justice. I have similar concerns about my profession.

Many lawyers now agree with economists, social and political scientists, politicians and the public that there is much seriously wrong with the way lawyers are behaving. This broad-based consensus suggests that the situation may be ripe not just for reform, but for revolution.

Replacement of the ordinary ethical standards with which students enter law school by the amoral habits of current legal practices (though approved by warrior-lawyer advocates like Harvard University's Alan Dershowitz), has produced an epidemic neurosis among American lawyers, many of whom are suffering from depression, chronic anxiety and discontent.

If current trends continue, almost all lawyers are likely to become hired gun technocrats, operating outside commonly held ethical values. Most alarming is the prospect that without revolutionary change in typical legal practice, we are likely to witness ever greater disrespect for our legal institutions. How can we maintain a stable "government of laws" if the public loses all respect for those whose duty it is to interpret and advocate the law in both the private and public interest?

The following 21st century scenario is not farfetched: Suppose our habitual American litigiousness continues, with a scarcity of lawyers skilled in the arts of conciliation. Isn't it likely that our increasing diversity, coupled with our insistent American individualism, will lead to increased social unrest and overt violence?

If that were to happen, an increase in violence against lawyers themselves also would be likely, creating demands for more socially restrictive law enforcement measures to help strengthen public (and law professional) security.

In this setting, we would become a society progressively armed against ourselves, with the well-off using weapons of uncivil litigious warfare, and the less well-off resorting to actual violence.

The nightmare does not have to happen. If lawyers and legal educators awaken soon enough to what they have become or are becoming, they can choose a course that will strengthen the bonds of our American community. They can do that by adopting a problem-solving model of legal education and practice, one that emphasizes counseling, negotiating and peacemaking, rather than adversarial skills.

This change would sharply reduce wasteful litigation and make unnecessary revenue-churning formal procedures unacceptable.

This kind of reform could also open an untapped market for legal services to the middle class, increasing professional satisfaction (from providing efficient client services in a much larger number of smaller cases), and domestic tranquility, instead of civil conflict.

Being a lawyer would not only mean earning a decent living, but living decently, with a minimum of conflict between professional responsibilities and personal ethics. The profession would again attract the best and the brightest.

And lawyers' improved peacemaking skills could help produce a renewed sense of civil community and preserve our civil liberties and unprecedented political stability.

Ancient and modern history show that when conflict among sharply differing factions in democratic societies grows, and legal institutions become inadequate to resolve them peacefully, the result is either authoritarian government or mob rule.

American democracy may survive and prosper in the 21st century only if we lawyers learn to do more than ever before to help harmonize our miraculous American diversity.

This is a challenge for us lawyers to think of ourselves, and to act, as peacemakers first, peacemakers second, peacemakers third, and as warriors only in the very last resort.

Harrison Sheppard, a San Francisco lawyer, participated last month in a professionalism conference co-sponsored by the State Bar.