Column

Why Wreck-It Ralph Went to Law School

I’m bad, and that’s good. I will never be good, and that’s not bad. There’s no one I’d rather be than me.” – Wreck-It Ralph

The Ontario Bar Association’s marketing campaign, Why I went to Law School, has attracted media attention (National Post July 31 2013, Globe and Mail February 6 2013) as well as being cogently criticized by Jordan Furlong on SLAW back in February (Why Lawyer Image Campaigns are Pointless).

In this month’s column I want to add my two cents to that conversation. What I say is informed by two things. First, in my role as Director of Admissions at the University of Calgary I have read some 2000 statements by law school applicants answering the very question posed by the OBA : “Why do you want to go to law school?” Second, as a law professor, and in particular as a law professor interested in regulation of things like lawyer civility, I have thought a lot about how the profession ought to respond to its oft-referenced “poor public image”.

And here’s what I think. I don’t care why you went to law school (or, really, why you want to go). Maybe you want a financially secure future. Maybe you are attracted by the prestige of a profession. Maybe you know a lawyer – are related to one – and you think her job looks pretty good. Maybe you read To Kill a Mockingbird as a teenager. Maybe you saw Legally Blonde. Maybe it’s something you perceive as a challenge, and you want to see if you can meet it. Maybe you have nothing better to do. Those are all reasons people have to go to law school.

But why you want to go to law school does not, in and of itself, matter very much. We ask the question for admissions because it is a good way of finding out something about an applicant and it may give us some indication of the kind of law student the applicant will be or the kind of lawyer the applicant will become. And that last question is the truly relevant one. It’s not why you go to law school. It’s what you do after you go to law school that matters. Are you a good lawyer? Do you serve the social function the profession has been given?

If you do – great!

Except…

If you do, then chances are you are part of the reason why lawyers have a poor public image.

Yes, there are things that lawyers do that they do not have to do which makes the public view them – and us – poorly. Some make a lot of money. Some lie to their clients. Some don’t work very hard for their clients. Some steal money. Some even commit murder.

But if lawyers avoided all those things, if every lawyer achieved the highest professional excellence, the public would still not like us. Because being a zealous advocate within the bounds of the law means that, some lawyers, some of the time, will be professionally obligated to do things the public does not like.

Some lawyers, some of the time, will act for people the public (correctly) assumes to be have committed the factual and mental elements of the offence with which they are charged.

Some lawyers, some of the time, will point out the complexity in a situation that “everyone” knows is simply black and white (See New Yorker article on the Steubenville case: Was Justice Served in Steubenville?)

Some lawyers, some of the time, will present evidence to the court that they suspect is not truthful (the SCC just affirmed the legitimacy of this: R. v. Youvarajah, 2013 SCC 41)

Some lawyers, some of the time, will help ensure the proper application of laws that do not achieve popular results, or even “just” ones.

The legal system exists (in part) to help us achieve a way of living together despite the fact that we are flawed and imperfect people who do not agree on the best way to live the short lives that we are given. In working within that system, as advocates, advisers and counselors, lawyers necessarily participate in those human and societal flaws and imperfections.

And what if lawyers did it? What if they achieved the public image and reputation that some in the profession are seeking? That will not be the day that we – as people and as a society – have achieved perfection. It will be the day when we as a profession have failed, because forgetting the necessary and important – even if unpopular – social function with which we have been tasked.

Wreck-It Ralph was the video game villain, and he ran away from his game because he was unpopular and lonely. But after a series of adventures, he discovered that his role as the villain was essential for the future and welfare of everyone in his game world. He had to be the bad guy, so that his world could continue. Lawyers are not villains, but the role they play is as essential, even if as unpopular, as Wreck-It Ralph’s was.

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Comments

  1. I agree with Professor Woolley and would add three thoughts:

    i) While lawyers as a group are often not popular, most people in fact like (or at least respect) their own lawyers, if they have dealt directly with them.

    ii) Prof. Woolley’s points are mainly about barristers. But solicitors can run into the same image issues, as they try to help their clients manage legal or regulatory complexity. It is not just about finding and exploiting loopholes, though that may be part of it.

    For example, tax lawyers are criticized for getting their clients the benefits of tax incentive plans that were deliberately built into the law to encourage the activities that the clients then do. These are not loopholes, though the short-sighted media may call them that. (One can look to the role of the lawyer/lobbyists who created those tax policies, of course: do they really serve the public interest?)

    I am not sure that it is even true any more that in an ‘ideal world’, people or businesses would not need lawyers to do this kind of thing. Complex regulation to balance competing interests is inevitable, and thus thickets of hard-to-understand rules are inevitable. I am in favour of plain-language drafting in principle, though not necessarily as a legal requirement, but one person’s plain language can still be another person’s thicket.

    iii) Lawyers can’t win anyway. I recall a columnist in an Ottawa paper when the CBA was holding its annual meeting there, repeating complaints about family lawyers. Boiled down, one complaint was that the lawyer was too friendly with the opponent, and the other complaint was that the lawyer was too unrelenting about stirring up needless controversy. Quite possibly each was doing what was in the client’s best interests and even according to the client’s instructions. The journalist did not notice the inconsistency – they were just stories to show how bad lawyers were, for him.

    In short, as Prof Woolley says, the public’s standards are not good ones to judge the profession by. This is not to say that we should ignore what the public thinks – we’re not perfect – but we should keep perspective on what we’re trying to do, which is not primarily to please everybody all the time.

  2. Many of us don’t have work UNLESS there’s a problem. It then becomes our job to attempt to fix the problem. There’s usually a Humpty Dumpty aspect even the best of solutions. We often have to be bearers of bad news even if the problem isn’t the client’s fault. There’s almost always some form of cost to the client – not just in a monetary sense. That’s the reality that these feel-good campaigns seems to miss.

    Many of us in the profession could use a business card with this motto: “I hope you’ll hire me if you need my services but I hope you never need my services”.

    My sister could use the same motto. She’s a surgical oncologist and general surgeon. However, we (or at least I) don’t read about campaigns designed to make cancer surgeons feel better about themselves. Jokes about the medical profession are rarely venomous.

    You (the generic you) might ask yourself why. To me, at least part of the reason is that most people believe that most portions of the medical profession surgeons are necessary for them (and society) to be better. It’s not the same for many aspects of the legal profession.

    It’s currently too often human nature to shoot the messenger. Arguing about the meaning of Jack Cade’s line in Henry VI (Part 2) is a waste of time that could be spent on a host of more useful pursuits, at least one of which starts with “m” and is more rewarding. If you don’t like that, change your profession. If you’re not going to, then learn this Eagles’ song.

  3. Lawyers make their living out of conflict, and the more conflicted a situation is, the more money a lawyer makes. After 85K spent on lawyers to settle a divorce, I can honestly say that I hope I never need to hire one ever again… because a lawyer’s interest in situation is not necessarily the same as a client’s interest. And the public knows this.

  4. Lawyers are not only acting as “advocates, advisers, and counselors” but they are also, officers of the court. Unfortunately, our judges are dealing daily with the negative political ads created by some lawyers who are willingly participating “in those human and societal flaws and imperfections” and trying to expose and exploit them in the court room. I will agree with “Batgirl” that family law is one area where what it means to be an officer of the court is sometimes ignored or has been lost in translation. What is the remedy? A justice system and self-regulating system (Law Societies) with equal public representation, who can work together to identify, discipline and monitor the legal practices of these “wreck-it” lawyers who like to believe they can beat the system.
    A likely function of this video game is to brain-wash a morally corrupt generation into believing that becoming a villain is OK, in fact it is being suggested (I have never played this game) that it is a necessity in order to secure one’s survival. Ultimately, if a tangible enemy is destined to absorb the blame for lawyer’s image problems, that otherwise could be solved, let the buck stop here. Why not generate solutions instead of video game excuses?

  5. Diane,

    On the civil side, no matter what, it is still the law that, so long as the lawyer is prepared to act for the client, the lawyer’s duty is to put the client’s interest first and do whatever is legal to fulfill the retainer.

    On the civil side, lawyers for both plaintiff and defendant breach their duties to their client if they put the interest of justice, or some other person, ahead of their client interest without instructions from the client to do so.

    That lawyers are officers of the court doesn’t change this.

    That doesn’t mean that the lawyer can’t tell the client that something legal ought not to be done, but that is a different issue.

    The dilemma all lawyers face is whether to continue to act if the client’s instructions are legal but contrary to something the lawyer believes is wrong; or taking the file in the first place.

    Historically, it wasn’t open to the lawyer to refuse to act in these cases. It’s called the cab rank rule. Wikipedia has an accurate summary: “In English law (and other countries which adopt the rule), the cab-rank rule is the obligation of a barrister to accept any work in a field in which he professes himself competent to practise, at a court at which he normally appears, and at his usual rates.”

    It’s only on the criminal side that lawyers acting for the state -prosecutors -(the state) are required to put the interest of justice ahead of their client’s (the state’s) success.

    The common law systems’ conceit, historically, was that this approach to the resolution of disputes was the one must likely to produce a solution that’s just as between the parties.

    If a society wants to lawyers, other than prosecutors, to put any interest of others ahead of their duties to the client, then society will have to change the definition of a lawyer’s duty. To some extent, that’s what family law lawyers are attempting in what’s called collaborative family law practice.

    DC

  6. Dear Dianne,

    Thank you for your comments. Unfortunately I think the analogy may have misled you somewhat as to my point. Wreck It-Ralph is not a video game in “real life”. It is the name of a Disney movie and a video game in that Disney movie. However – as one might expect in a Disney movie – the video game is actually a “real” place – a social system in which individuals have assigned social roles. That social system is a video game, and therefore has bad guys, good guys and victims. The bad guys are not lionized – the role they play is correctly characterized as bad, and the things they do are correctly labeled as bad. But the trick of this world is that the only way that a person can opt out of that role – can choose not to do the “bad” things – is by destroying the whole social system of the game. Because games have to have bad guys, good guys and victims, and when someone opts out there is no game anymore.

    Our world is not a video game, and there are not easy divisions between good guys, bad guys and victims (as you noted in your comment on Mitch’s conflicts post). However, we also have social roles that are as necessary to our functioning as a social order as the bad guy is to the functioning of the social order of a video game. Further, those roles may be viewed as bad, or at least as morally ambiguous by others. But if they are necessary, then someone has to occupy that role or else or social system will – like Ralph’s video game – be lost.

    The question therefore is not “are lawyers popular”? Rather, there are two questions: what is the social role of the lawyer and is that role necessary? My response to those questions is that the social role of the lawyer is to be a zealous advocate within the bounds of legality, and that that role is necessary. Moreover since our legal system is a compromise between the competing moral beliefs and values of different members of our society, no lawyer fulfilling her role will be able to act in accordance with the moral beliefs of every person. For that reason, unpopularity is almost inevitable if lawyers are doing their job the right way.

    The officer of the court point simply expresses the duty to remain within the bounds of legality in a different way. It does not – and ought not – impose on lawyers an obligation to act in accordance with their own moral values, or the moral values of some, in preference to the entitlements and obligations and processes instantiated in law. If they prefer morality to legality then we have rule by lawyers not rule of law, and that seems to be the worst possible outcome.

    Do I think lawyers act perfectly in practice? No. But the bad action of lawyers are not failing to satisfy the moral codes of some. They are failing to act with due respect for the substance and process of law.

    Ultimately I do not believe that it is the misconduct of the few that leads to the bad reputation of the many. It is rather the extent to which the legal system itself fails, or the extent to which human inadequacy flourishes even within the rule of law, or the fact that the legal system reflects moral values that some disagree with. Lawyers can only ever be as popular as the laws they work within.

    If lawyers want to be more popular than they are, they can work to improve the legal system – not necessarily in the representation of clients, but in their broader professional and personal occupations. Many lawyers and legal organizations do just that. My own pessimistic view is that in a world filled with humans that will never be satisfactorily accomplished, but we do good when we try.

    Alice

  7. Hello Alice, thank you for your comments and clarifications. As a parent, my Disney movie days expired in the late 1990′s but I am glad to hear they are continuing to produce challenginging dilemma’s for heroes, anti-heroes and others contained within a moral message. I googled Rotten Tomatoes and they gave it 7.5/10.

    Firstly, I agree that our legal system is a social system with imperfections and inequities which will always exist. Our only hope is to mitigate the damage caused when the “bounds of legality” are ignored, betlittle or threatened. Most of the public acknowledges that our entire system of law has been designed to produce winners and losers which can also feature ,the inevitable injustices on both sides of the fence. What is often missing from this movie is the establishment of a level playing field. David has correctly pointed out the exceptions can be found in collaborative family law and/or other forms of dispute resolution which are aimed at creating a level playing field and thus, avoid a costly court drama. According to a review I read, poor frustrated and powerless “Wreck-It Ralph” had to opt out in order to create his own level playing field so he could know what it felt like to be a hero. Maybe that is why more of the public are representing themselves, in court , because they don’t trust the system to create a level playing field for them to be fairly and justly heard. Ralph was programmed but Fix-It Felix wasn’t? Maybe, the two should have discussed role reversal and job sharing (creative solution) and sought victim and viewer input before Ralph’s personal crisis could impact the social order of the game. However, that would defeat the purpose of exercising self-determination to bring about who you think you really are. As you have so aptly stated, if any of the stakeholders/role-players (heroes, anti-heroes and victims (society) opted out of the game. The game is over. Therefore, if we are going to make it work and improve the game for everyone (accountability, transparency, access to justice, e-problem solving, etc) then “why don’t we (judges, law society and public) just fix it ourselves?” In this way, the powerless (society) will stop watching those programmed to wreck everything (lawyers and their clients repeated failures to comply with court orders and few consequences) and undertake to participate in stopping the cycle (provided there was no legally valid reason for it to be wrecked in the first place) of “wreck” vs. “fix-it.”
    Unfortunately, the viewing public (audience) sees how some lawyers repeatedly engage in misconduct and bad behavior and no one fixes the problems. In short, the consequences are little more than part of the game and this is one message the public does get.
    “If I wish upon a star” I would always look for improvement and not perfection because I want all of us to have a chance to win this game.

  8. Hi David,

    Secondly, I agree that one of the primary roles of a lawyer is acting as an advocate for the client , implied in the s-c trust, but there is also an absolute ethical duty, as an officer of the court, to recognize conflicting duties which do not promote effective operation of the judicial system. Even in civil matters, if the client instructs the lawyer: to lie to the judge, tells the lawyer not to produce court ordered documents, follows instructions to create fairy tale reasons why his/her client in not appearing, and other matter of ignoring, delaying or evading pre-determined legal responsibilities, a bright-line must be drawn. At this point, the lawyer must make the difficult decision to pull rank, withdraw from representing the client, and call he/she a cab. I concur that when some lawyers are faced with this decision they may have wished they never took the case in the first place. Once again, we have wreck-it (lawyer) opting to fix-it (officer of the court) because this is also an another important role to prevent the justice system from falling into disrepute.
    I do not think society has to change the definition of the duties of a lawyer as these are well defined by the various professional codes of conduct and by the law. Both lawyers and the public need to continue raising the question as to whether or not they are part of the problem and/or part of the solution. For those of us concerned about a level playing field, it seems only fitting for the former, persistant wreck-it characters, to be made accountable because the law is no game.

  9. Hello John,

    Lastly, I agree with you that most individuals like and/or respect the lawyer representing them. I think many of us, who have retained a lawyer, pride ourselves on being a good judge of character and on being able to make sound decisions in our best interest. Competent and caring legal advice and direction are a necessary part of successfully navigating the ever changing global legal landscape. Unfortunately lawyers like politicians are perceived very differently by non-lawyers when being addressed collectively. One explanation maybe a low trust index created by reports of conflicts of interest, hidden agendas, interpersonal conflicts, scandals, professional misconduct, trust fund abuses, shoddy legal advice, etc. within the profession. Why do people agree with and repeat negative stereo-types? Whatever the reasons, which are many and varied, one of the best ways to avoid the predictable collective view of lawyers is to protect your most valuable asset, your integrity. This will always produce the most extraordinary dividends in every aspect of one’s personal and professional life and really doesn’t need the approval of anyone but you. We will always need lawyers because in the words of Samuel Smiles (British Author and Biographer) “the only relationships in this world that have ever been worthwhile and enduring have been those in which one person could trust another.”

  10. Diane,

    Situations where the client wants the lawyer to do something which is illegal are easy. You don’t, if you’re honest. Everything you’ve referred to is illegal in some sense, for example, contrary to existing rules of professional conduct or practice.

    Beyond that, we’ll have to disagree about your claim – if that is your claim – that, somehow, lawyers other than those who represent the state, have duties in respect of the adminstration of justice that override the lawyers duty to the client even where the proposed conduct is not illegal in any sense. (Other than for prosecutors) the claim that the administration of justice trump one’s duty to one’s client mistates principle. Properly carrying out one’s duty to one’s client advances the administration of justice.

    As to the reputation of lawyers as a class, remember this: were Adolph Hitler alive and charged in Canada under Canadian law, some lawyer in Canada would have a duty to represent him to the full extent of the law. That duty would include doing everything that is legal to get him acquitted.

    Cheers

  11. Greetings David,

    I would agree with you that an honest lawyer would make the correct decision faced with a request to act on his/her clients dishonest and/or illegal suggestions. I am suggesting that one’s duty as an officer of the court plays an important but, not exclusive role in managing these difficult clients who would rarely do the right thing by choice. I am suggesting that both of these roles, of the lawyer, as advocate and officer of the court are complimentary and necessary to help establish and maintain desirable behavior in the administration of justice. Why do some lawyers follow the rules while others knowlingly, willingly and repeatedly break them? I suspect this will be a future study for the cognitive neuroscientists. How we stop these legal abuses is what matters? I don’t believe that any theory of justice can separate questions of fairness and rights from arguments surrounding honor, virtue and moral/ethical orientation. Yes, clients are entitled to have access to legal representation even if the client is an infamous mass murderer. In our democracy, this is considered a standard social and legal practice rightfully afforded to everyone under the law. A lawyer who fails to reason or argue exclusively for the client’s rights to be fairly and justly heard just isn’t doing their job adequately.

  12. “Why do some lawyers follow the rules while others knowingly, willingly and repeatedly break them?”

    I doubt the explanation is any different for lawyers than it is for plumbers, drivers, or athletes, even politicians (lawyers or otherwise); notwithstanding Twain’s comment – equally applicable to Canada – that “There is no distinctly native American criminal class save Congress.”

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