ACYL Side Bar
The Lawyer as Counselor
By J. Wickliffe Cauthorn
Cauthorn Nohr & Owen
[email protected]
U
ntil the 1970s or 1980s, the vast majority of women
and men who enrolled in law schools sought not to
get a position with a prestigious corporate law firm in
a sexy urban area; but instead, to become a member of the
guild. Earning a law degree and becoming a member of the
bar gave a professional person access to a special kind of
knowledge: the knowledge to understand the ins and outs
of the common law legal system. With that knowledge, a
lawyer was expected to be a professional counselor.
Everyone who wants to practice law should read Bleak
House by Charles Dickens and The Trial by Franz Kafka.
Dickens’ litigants in the case of Jarndyce v. Jarndyce sacrifice
their entire lives and their futures expecting great returns. In
the end, they were merely pawns in the great pageantry of
protracted litigation.
Kafka’s protagonist, Josef K., is awakened one morning
and informed that he is under arrest. His lawyer is a buffoon
who does not guide him through the process, and only
complicates matters by giving Josef no hope. For Josef
K., his arrest is never explained, and his trial is long and
incomprehensible.
The important take away from both Dickens and Kafka is the
use of the legal system as a symbol of an opaque, absurd,
and arbitrary reality that has no meaning. Why is the legal
system the metaphor that these authors use? Because this is
precisely the experience the layperson has when confronted
with our profession.
In “The Path of the Law,” Oliver Wendell Holmes described
the law as “The prophecies of what the courts will do in fact.”
He illustrated his point by presenting the lawyer as a type
of soothsayer: lawyers learn to read the “oracles” (treatises,
statutes, caselaw, etc.), and predict what will happen to a
person when confronted with a given set of facts. For the
uninitiated, Holmes’ imagery is apropos; the law seems to
be indecipherable.
So what’s my point? As an attorney, you’re supposed to be
the person who can read the tea leaves. You’re supposed
10 THE ATLANTA LAWYER
March 2015
to be the member of your community who can guide the
Josef K.s of the world through the arbitrariness of our legal
system. Yes, specialization is important. In today’s day and
age, when you live in a large urban area, it’s important to
have a specific marketable skill set and a vast knowledge
of a small area of the law such that you position yourself as
an expert within the legal profession. Specialization protects
you because as your knowledge grows, you become a
valuable asset to your firm.
Specialization at the expense of your community, however,
does a disservice to our profession. Knowing the ins and
outs of OSHA regulations won’t help your sister at 3 AM
on a Saturday when your nephew has been arrested.
Understanding all of the newest tax incentives available in
a railroad merger doesn’t help your neighbor understand
an insurance policy. Being able to calculate the Federal
Sentencing Guidelines in your head isn’t going to help your
best friend when his grandfather needs a simple will or
power of attorney before tomorrow morning’s heart surgery.
As lawyers, we should be counselors to our friends and
family in times of fear and crisis. We should be available
to give competent legal advice in a wide variety of areas.
Should everyone be able to try a mass tort case and draft a
joint venture, no, but everyone should be able to help their
sister understand the basic process of an arrest and criminal
prosecution; everyone should be able to help their neighbor
interpret a basic contract; and everyone should be able to
draft basic documents that are used by average people on
an average day.
The point I’m making is that the most appreciated legal
advice you give won’t be to a high paying client, it will be
to a friend or neighbor with a real problem who needs real
advice. Don’t allow the idea of a lawyer as counselor die.
Be a counselor to your community. Use your basic legal
education. If you don’t know something off of the top of your
head, you know how to read the oracles. You are the person
in the best position to give the best advice to those close to
you. They depend on it.
The Official News Publication of the Atlanta Bar Association