A lawyer, states the American Bar Association Model Rules of Professional Conduct, is “a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” Preamble ¶ 1 (2016). Yet in contrast with the many rules that define the role of lawyers as representatives of clients and the handful of rules that deal with lawyers as officers of the legal system, the rules have little to say about the role of lawyers as public citizens. Only one comment is directly on point, explaining that “[a]s a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession.” Id. ¶ 6. What the special responsibility lawyers have for the quality of justice is and how they are to go about improving the administration of justice are questions mostly left unaddressed by the rules.
Scholars of the legal profession have long complained about this significant omission, and their call for infusing the role of lawyers as public citizens with actual content, has been answered by a public intellectual, Ta-Nehisi Coates, in his book Between the World and Me, which any lawyer interested in improving the quality of justice in the United States must read. That Mr. Coates should provide a foundation for a much needed discussion about the role of lawyers as public citizens is surprising, both because the author is not a lawyer, and because the book does not mention lawyers even once. Nonetheless, Between the World and Me is nothing short of a compelling call for arms, a wake-up call for members of the legal profession.
Injustice prevails in the U.S., argues Coates, because while Caucasians get a chance to pursue the American Dream – the belief, according to Jennifer Hochschild, “that all Americans have a reasonable chance to achieve success as they define it—material or otherwise—through their own efforts, and to attain virtue and fulfillment through success,”1 – “[f]ear is omnipresent for blacks” (P. 14), constituting the foundation of the culture of the streets, their streets (P. 24). “Fear ruled everything around me, and I knew, as all black people do, that this fear was connected to the Dream out there, to the unworried boys” (P. 29). Of course, concedes Coates, “[v]ery few Americans will directly proclaim that they are in favor of black people being left to the streets.” Yet, “a very large number of Americans will do all they can to preserve the Dream” (P. 33). In this sense, concludes Coates, “the Dream rests on our back” (P. 11).
This culture of fear has very real consequences, causing black kids to grow up with “stunted imagination” (P. 85). “When I was a boy, no portion of my body suffered more than my eyes. If I have done well by the measures of childhood, it must be added that those measures themselves are hampered by how little a boy my captive class had seen” (P. 116). Sadly, observes Coates, “I had missed part of the experience because my eyes were blindfolded by fear” (P. 126). Such fear constitutes injustice: “[T]here is the burden of living among Dreamers, and there is the extra burden of your country telling you the Dream is just, noble, and real, and you are crazy for seeing the corruption and smelling the sulfur” (P. 106).
Injustice, however, is not merely the result of individual indifference to the fear of blacks. Ironically, fear rules the lives of all Americans: “[t]he police reflect America in all of its will and fear… the same self-generated fears that compelled the people who think they are white to flee the cities and into the Dream. The problem with the police is not that they are fascist pigs but that our country is ruled by majoritarian pigs” (Pp. 78-79). As a result of majoritarian fears, “[a] legacy of plunder, a network of laws and traditions, a heritage, a Dream, murdered Prince Jones as sure as it murders black people in North Lawndale with frightening regularity” (P. 110). Between the World and Me is a powerful indictment of American injustice: “[t]he killing fields of Chicago, of Baltimore, of Detroit,” argues Coates, “were created by the policy of Dreamers” (P. 111). Moreover, this injustice is not only tolerated by the majority, it is necessary to maintain its Dream: “[t]he Dreamers accept this as the cost of doing business, accept our bodies as currency… Our bodies have refinanced the Dream of being white” (Pp. 131-32). Indeed, “[t]he forgetting is habit, is yet another necessary component of the Dream… They have forgotten, because to remember would tumble them out of the beautiful Dream and force them to live down here with us, down here in the world” (P. 143). And so fears are left unquestioned. As a result, “[s]ome of us make it out. But the game is played with loaded dice (P. 124) … I felt myself to be among the survivors of some great natural disaster” (P. 129).
Justice, asserts Coates, requires constant use of the tools of questioning. (P. 29-30.) It demands being “politically conscious” as a state of being. (P. 34.) Equality for all means an ongoing individualized critical scrutiny of hierarchy, of feeling “discomfort” with every dream. (P. 53.) Such questioning and critical scrutiny, struggling against the Dream, has a meaning, argues Coates. (P. 69.) Indeed, it is the meaning. (Pp. 69, 71.) The hope of having a just society depends on our ability “to awake the Dreamers, to rouse them to the facts of what their need to be white… has done to the world.” (P. 146.) Justice depends on our ability to wake up, to question our Dream and overcome our fears.
Which is where lawyers as public citizens come into play. Lawyers, as public citizens owing a special responsibility to the quality of justice, have a duty to lead the fight for equality by questioning and scrutinizing the status quo, the Dream. “In America,” opined Thomas Paine, “law is king,” the social glue that binds us together. Lawyers, therefore, are well-positioned, in their role as public citizens, to act as civic teachers and lead the way by denouncing fear, modeling and teaching political consciousness, exposing the legacy of plunder, and advising and assisting clients, public and private alike, to undo the networks of laws and traditions, our policies and regulations, our heritage, our culture of injustice.
All lawyers can act as civic teachers.2 All lawyers have long been doing so. To their role as representatives of clients who teach, model, and assist the pursuit of atomistic self-interest, all lawyers must add the role of public citizens who teach and fight for justice. As public citizens lawyers must first learn (and for some, relearn) and teach themselves to critically question the Dream, as well as the laws, policies, and regulations that legitimize it, enforce it, and reconstitute it. Then, lawyers must teach clients, all clients, to critically examine aspects of the Dream and challenge them: how we interact (and fail to interact) with each other; how we design and enforce polices and regulations, from zoning to education, incarceration, and immigration; to how and what we invest in (and fail to invest in); to how we prioritize economic, political, and cultural goals. How we go about pursuing our Dream, and exclude others from it, must be continuously reexamined and challenged, every day, and in every interaction we have. Lawyers as public citizens must act as civics teachers to help question and teach clients to question the status quo. They must lead in the quest for justice and equality.
That Ta-Nehisi Coates explores injustice in America and does not even mention lawyers is a sad statement about how irrelevant lawyers have become to the cause of justice. Yet members of the legal profession, who define their calling as public citizens having a special responsibility to the quality of justice, must prove Coates wrong. Justice requires ongoing individualized critical scrutiny of hierarchy, and lawyers as public citizens must model and teach such critical scrutiny. Between the World and Me is required reading for all lawyers who value justice. It is thus required reading for all lawyers.
- Jennifer L. Hochschild, Facing up to the American Dream: Race, Class, and the Soul of the Nation xi (1995).
- Eli Wald & Russell G. Pearce, The Obligation of Lawyers to Heal Civic Culture: Confronting the Ordeal of Incivility in the Practice of Law, 34 U. Ark. Little Rock L. Rev. 1, 5 (2011).