Washington Lawyer

'Us Versus Them:' The Balkanization of Lawyers

From Washington Lawyer, May 2016

By Tim Webster

Photo by Patrice Gilbert"Us versus them" is a phrase that describes a lot of geopolitical situations, but I mean it here as a reference to a mentality that has galvanized certain practice types and areas of lawyers into mutually exclusive and sometimes antagonistic groups, like prosecutors versus public defenders, plaintiff's lawyers versus defense lawyers. This phenomenon works as a disservice to the profession and, more importantly, our clients. This is not a column about civility;rather, it's about recognizing attitudes and views that Balkanize the profession.

There's a good case for lawyers forming groups (the "us"). Law has become one of the most specialized professions, perhaps even more so than medicine, with dozens of practice areas. The D.C. Bar, for example, has 20 sections, and each is merely an umbrella for many subspecialties. In government agencies, some lawyers work in silos as narrow as one statute or even a single title of one statute. With the millions of existing pages of laws, regulations, guidance, case laws, and other interpretive materials, it's no wonder that the age of "reading the law" as a means of gaining admission to the bar is long past. No one person could master even a small fraction of the whole body of law.

In fact, over 40 years ago researchers identified a natural bifurcation of most lawyers into two "hemispheres," one in which the clients are primarily business entities and the other in which the clients are primarily individuals. Further subdivision seems logical.

Thus, lawyers of different practice types and areas coalesce into groups for professional and sometimes social purposes, to share knowledge and trends, develop business, and even just commiserate. We identify with others who work in the same area we do. This type of behavior benefits our clients, too, by enhancing our knowledge and skills. So far, so good—there's nothing wrong with lawyer groupings by practice type or area.

But in some cases groups have developed rivalries with other groups ("them"). Having a nemesis is a fine tradition in literature and cinema. The opponent is both a foe and a foil, helping the main character to shine in comparison to his or her rival. But in the law it can lead to unnecessary divisiveness and acrimony, neither of which is beneficial to clients or lawyers more broadly.

Over the last 50 years we've learned a lot about bias and prejudice, both conscious and unconscious, in the practice of law. Biases and prejudices are unlawful when directed toward certain protected classes of individuals, but lawyer practice types and areas are not protected classes. It is perfectly legal to believe and espouse that plaintiffs' lawyers are motivated solely by greed, defense lawyers hide the ball and stall whenever possible, prosecutors value victory over individual rights, and public defenders thrive on using technicalities to keep criminals on the streets. But these biases and prejudices can become motivators that influence our legal strategy and tactics and potentially even the outcomes of our matters. They shouldn't be.

As lawyers, we have many duties, including the twin duties of zeal and diligence, but those duties are moderated by our duty of loyalty to our clients and to act in a manner that is in the best interests of those clients. See, e.g., Rule 1.3 of the D.C. Rules of Professional Conduct. The concept of "us versus them" does not align well with our core duties. Our clients often benefit the most when we work cooperatively with opposing counsel toward a consensual resolution. Prejudices and biases toward that counsel can get in the way of the best interest of our clients. Even when adversarial proceedings are necessary, we need to remember that our opponent is not opposing counsel, although we often fall into the habit of speaking as if that were so.

We live in an increasingly binary society when it comes to groups of individuals. You are either in one group or the other, and the two do not necessarily mix. Unfortunately, some laws and rules that are designed to compel ethical behavior in public officials have unintentionally contributed to the "us versus them" phenomenon by mandating the separateness of certain groups that represent different interests, such as regulators and the regulated. The general need for such rules and laws is beyond dispute, but as they become more prescriptive, it likewise becomes more difficult for the groups to interact in meaningful ways that promote other goals, such as civility, understanding, and cooperation.

The same is true with lawyers. I hope I never see the day when two opposing lawyers cannot have dinner together without it constituting an appearance of conflict or some other impropriety. Litigators know that it's often wise to use an expert witness who has a history of representing both plaintiffs and defendants, because that expert is more likely to be, and to be perceived as, balanced. Yet we don't necessarily think that way about ourselves.

I said this was not a column about civility, but it's hard not to think of Ben Franklin's words here: "Be civil to all;sociable to many;familiar with few;friend to one;enemy to none." Let's take advantage of all the good things that groupings by practice type and area have to offer, but without the attitude.

Reach Tim Webster at twebster@dcbar.org.