REGULARS

FROM THE PRESIDENT

These are words and phrases often thrown around by lawyers, but not adequately understood by voters, or by those elected to the legislative and executive branches, or even by lawyers. I wonder what answers Jay Leno would get in his sidewalk interviews if he asked what was meant by “independence of the bar.” I even wonder what the answers might be if the same question was presented to lawyers!

These words and phrases, often repeated into cliche status, largely form the basis for core values in our constitutional democracy. Yet there is a subtlety about them that leaves them unknown or misunderstood by far too many people. This is reflected in cocktail party questions about a lawyer representing someone known to be guilty, or a lawyer protecting clearly confidential communications of a mean corporation we would all like to see whacked, or a judge appointed for life and not subject to election, or a lawyer seeking to exclude evidence improperly obtained, or a lawyer arguing against a public school teacher leading a prayer that most everyone wants to hear.

The failure to understand subtle core values of our profession is one of the reasons why lawyers have a bad image. Another reason is our self-importance and self-righteousness while pursuing our undeniably important duties in our constitutional democracy. With humility, therefore, let us review the importance of the two related but different concepts of an independent judiciary and an independent bar. Such reviews might make our subtle core values more obvious to citizens, and to legislative and executive officers, and, yes, even to lawyers.

The bottom line on judicial independence is that it is necessary in any society where a simple majority does not always rule. In our society, a super majority would ultimately be required to enact laws contrary to certain constitutional values. An independent judiciary is necessary to assure that legislative and executive officials elected by a simple majority do not destroy these constitutional values. Thomas Jefferson protested in the Declaration of Independence the fact that King George III “made Judges dependent on his will alone.”  United States Chief Justice William Rehnquist has called judicial independence “one of the crown jewels of our system of government.”

ABA President William G. Paul recently stated:

“The genius of the American system of government is the delicate balance that has been crafted between and among the three independent branches. For more than two centuries, this separation of powers has worked to protect and defend freedom in our nation. Indeed, our progress as a society often has been forged by a judiciary free from partisan politics, a judiciary acting on the basis of what is right and just, not what is popular.”

We must keep alive the crown jewel of judicial independence.

Another subtlety often ignored is the difference between an independent judiciary and an independent bar. The important work of judges is done with an independent judiciary.  But the work of judges can only be done through cases and issues framed and presented by lawyers.

In this sense, lawyers, as adversaries, are the principal players in our adversary justice system. As noted in a previous president’s column, lawyers (and bar associations) also play an important role as supporters and defenders of our judicial system and its judges, a role made more important by the limitations placed on judges in performing this role.

All these important functions of lawyers are threatened if the bar’s independence is threatened. I was struck by this point a few years ago when a lawyer from South Africa noted that justice in his country could not be obtained without an independent bar. Despite the importance of this point, it is generally overlooked in our country, and deserves more attention.

Our system is indeed based on subtle core values expressed in phrases too often lost as cliches, phrases like an independent judiciary and bar. Lawyers and bar associations must crack through these cliches and preserve our vibrant core values.