AB INITIO - THE BIRTH OF A LAW SCHOOL

Previous articles in this series have recounted some of the troubles of the legal profession. Studies show that the overall reputation of the profession is at an all-time low. Many people distrust lawyers and question their ethics. Scholars and practitioners lament the loss of professionalism. As my colleague, Associate Dean Patrick Schiltz, has written, a growing number of practitioners have become disenchanted with their work, even as some of their salaries have soared.¹ Not surprisingly, fewer people are choosing to study law and enter the profession.

There are, of course, numerous reasons for the troubles of the legal profession. And it is important to bear in mind that the vast majority of lawyers are highly professional; relatively few lawyers violate the codes of professional responsibility or the other rules that govern the profession. But it is nevertheless true that the profession, as a whole, is losing touch with its roots. Even exemplary attorneys reflect only rarely on the origins or importance of their profession.

No one event can be identified as the “beginning” of the legal profession, but it is likely that the development of the legal profession closely paralleled the development of the other ancient professions. As formerly nomadic hunters and gatherers settled into permanent communities, new opportunities arose, but so did new problems. The establishment of communities made a division of labor possible, allowing certain community members to become “experts” in certain subjects and use their expertise to serve the entire community. But the establishment of communities also gave rise to problems that people experience when they live in close proximity for long periods of time.

One ancient profession was medicine. Someone in each village or tribe was designated to treat physical problems - plights of health and of dying. Whether that person worked with herbs or animal parts or “magical” incantations, he or she was sought out to cure problems of the body. This ancient public servant was a predecessor of today’s nurses and doctors.

A second ancient profession was ministry. Someone in each village or tribe was looked to for help in answering spiritual questions. Whether this person was called a shaman, priest, priestess, minister, or some other name, he or she ministered to the spiritual needs of the people. This ancient public servant was a predecessor of today’s priests, pastors, rabbis, and other clergy.

There was a need for a third “professional” in ancient communities. In virtually every tribe, village, or settlement, someone was needed to resolve disputes about property and personal rights - to decide what those rights were, when those rights had been violated, and how violations of those rights would be remedied. In their need, the people of ancient communities turned to a Solomon-like person to heal societal divisions, resolve disputes, and record the rules or “laws” for the future. This ancient public servant was a predecessor of today’s mediators, arbitrators, and judges.

As society became more complex, this ancient “judge” needed help in healing the divisions in the community. Other specialists arose to make certain that the judge considered all of the relevant facts and perspectives and to help community members structure their affairs so as to make the intervention of the judge unnecessary. These specialists, the predecessors of today’s lawyers, were not so much adversaries as they were advocates and guardians of the judge’s efforts to maintain justice and peace in the community. Thus the legal profession, like the other two ancient professions, has its origin in healing.

A few words about healing are in order at this point. In his great television series and book, Healing and the Mind,² Bill Moyers distinguishes “treating” from “curing” and “curing” from “healing.” Those in the medical profession, those in ministry, and those in the legal profession are all trained to treat the respective problems brought to them by their “patients” or “clients.” And, if their treatments are successful, many of these professionals are able to cure the problems they confront. But healing goes beyond treating and curing. Healing involves restoring the emotional and spiritual peace of all persons affected by the problem. A person can be treated and cured, yet never be healed; similarly, a person who is untreatable can be healed.

The primary goal of a healing lawyer is peacemaking. This is clearly an example of emphasizing the “do good” side of “do good and avoid evil.” Peacemaking is not a substitute for “adversarial” ethics. In fact, the two are complimentary.

A nation that was never prepared to “do battle” would not survive long. The same is true of a nation that was anxious to go to “war.” Some battles are necessary; some are not. When a battle is necessary, it must be fought hard, skillfully, and fairly; a war that is unnecessary must be avoided.

A lawyer who is never willing and prepared to “do battle” for a client will not serve his or her clients well. But the same is true of a lawyer who is anxious to go to “war.” Again, some battles are necessary; most are not. If a lawyer is in an adversarial situation, he or she must be zealous in advocating for his or her client within the bounds of the rules of professional responsibility. But a lawyer must always be prepared to avoid adversarial situations when possible.

The ultimate goal of a lawyer is not to “win” but to achieve justice and healing. Just as a doctor can treat or cure a patient without bringing about healing, so, too, can a lawyer win a lawsuit without healing his or her client. And just as a patient can be healed by a doctor even though his or her disease remains uncured, so, too, can the client of a lawyer be healed even if the client’s problem can’t be cured.

The perspective of lawyer as healer is not “pie-in-the-sky.” I practiced law for many years, first as a government lawyer, and then as a partner at a prestigious law firm. Although practicing as a healing lawyer, I was as passionate an advocate as any lawyer when my client or cause called for it. Chief Justice Warren Burger, who cared as much about the practicing bar as anyone in living memory, often spoke movingly about lawyers as healers. It is not only scholars and judges but practitioners who agree that the best lawyers are those who go beyond treating and curing to healing.

The University of St. Thomas School of Law is strongly committed to graduating lawyers who will act as healers. As I hope I have made clear, we cannot do that unless we also train our students to be skilled warriors. To be a great healer, a lawyer must be a great negotiator, and to be a great negotiator, a lawyer must be a great litigator.

St. Thomas students will be skilled advocates, but they will also be taught that, as attorneys, their goal is not to pick and win fights, but to achieve justice and healing for their clients. Attorneys who approach their work from this perspective will likely find greater purpose in their professional lives, greater fulfillment in their relationships with clients, and greater satisfaction in their lives in the law.

Notes

¹ Patrick J. Schiltz, On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession, 52 Vand. L. Rev. 871, 881-88 (1999).
2 Bill Moyers, Healing and the Mind (1993).

David T. Link
Dean
University of St. Thomas School of Law

posted October 2, 2000

For more information please contact:

University of St. Thomas School of Law
MPL 440
1000 LaSalle Ave
Minneapolis, MN 55403

E-mail: Lawschool@stthomas.edu
Web: http://www.stthomas.edu/lawschool

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Discussion

• Healing -- this is a wonderful concept, but when you are in the ditches like I am, it never occurs. Perhaps I have become cynical as a defendant representing a public school district but I rarely see plaintiff's lawyers wanting to heal their clients. Mostly I see people who want to punish the district and its employees, often without even a minor review of elementary law. For instance, I have a case in which a student was robbed in the school building by two outsiders. The district is being sued for breach of warranty and fraud. Just writing this makes me so angry that the clients of this attorney are being so poorly served and that I have to spend my precious time working on this ridiculous theory. Most people who sue us want money, they are poor and have a poor understanding of society and the law. Their attorneys, who should be helping them, are not much better.

  Jane B. Moore
  Oakland Unified School District
  California