Monday, August 5, 2013

Pounds of Flesh

According to Texas Rule of Professional Conduct 3.08, lawyers for a party to a lawsuit are not competent witnesses on contested issues and facts. In other words, if you are pursuing or defending against a lawsuit, you can’t rely on your lawyer to swear that certain things are true and then expect to carry the day; and so, as a matter of professional ethics, lawyers are not even supposed to try to attest to issues or facts that are critical to resolving disputes in which they represent one of the parties.
Because this rule is not unique to Texas, I imagine most practicing lawyers would recognize a problem with Al Pacino’s fantastic performance as “Arthur Kirkland” in the movie And Justice for All.  When Kirkland turns on his own scumbag client during closing arguments, the scene may seem like righteous poetry; but from a professional standpoint, Kirkland is committing a grotesque ethical breach. So what if his client has admitted to the rape for which he is being prosecuted? When Kirkland tells the jury, "My client, the honorable Henry T. Fleming, should go right to f-ing jail! The son of a bitch is guilty!"—this action is a professional breach not only because lawyers are not supposed to serve as witnesses to “contested issues and facts” when they are busy representing someone in that same case as per the rule cited above; it is also a breach because Kirkland is attesting in a manner directly adverse to the client for whom he is professionally bound to serve as a zealous advocate. Most people would consider this a fairly obvious “conflict of interest.”
Why might it be that, in art, lawyers often look their best (or at least more interesting) when they are busy breaking fundamental rules of profession conduct?
Shakespeare gives us some clues. What drives people nuts about lawyers is the profession’s obsession with precise application of rules, which, from a distance, can look like strained formalism, mere tricks intended to “undo a man.” [Henry VI, Pt 2, IV.2] This obsession with the letter of the law is what undoes Shylock in The Merchant of Venice. Even when he is offered a settlement worth three times the price of the bond that Antonio has been unable to pay, Shylock insists that a court of law authorize him to extract “the pound of flesh” that was the precise penalty promised for forfeiture of the bond in the contract that he and Antonio forged.  Portia, while impersonating an officer of the court (another violation of professional rules), presides over the dispute between Shylock and Antonio. She first urges Shylock to show a little mercy.  But when he refuses, she turns his insistence on the letter of the law on him:
This bond doth give thee here no jot of blood;
The words expressly are 'a pound of flesh:'
             Take then thy bond, take thou thy pound of flesh;
But, in the cutting it, if thou dost shed
             One drop of Christian blood, thy lands and goods
             Are, by the laws of Venice, confiscate
             Unto the state of Venice.

This is a cruel trick indeed. But the audience is definitely induced to cheer, not for Shylock—the victim of gross breaches of professional responsibility—but for those who make him suffer for insisting on technical adherence to rules, promises, and the like. “Therefore prepare thee to cut off the flesh,” Portia says, tauntingly.  “But just a pound of flesh: if thou cut'st more/ Or less than a just pound, be it but so much/ As makes it light or heavy in the substance,/ Or the division of the twentieth part/ Of one poor scruple, nay, if the scale do turn/ But in the estimation of a hair—” Well, if he can’t do that, they’ll kill him and seize everything he has.
Talk about lawless. Portia’s way of handling Shylock’s insistence that words in a contract should be construed to mean what they say is a “what’s good for the goose, is good for the gander” fairness argument. And, luckily, the law actually has ways to handle contract disputes where the precise letter would result in unduly harsh remedies or the contract itself was unconscionable or forged under duress.  In fact, the law is full of rules that permit or even require taking equity and mitigating circumstances into account so that judges and juries may craft relief that accommodates specific facts and circumstances.  But then that discretion that the law gives to judges and juries can produce results that leave outsiders decrying the arbitrary and capricious nature of the process. . . .
In short, the law can’t win for losing.
No wonder artists, like our man Shakespeare, have long portrayed Justice as something that is generally separate and apart from the law. And perhaps the law is best understand as a shadowy approximation of Justice. Even so, it is the best we humans have to offer at the moment to preent us from settling al disputes by exacting pounds of flesh.

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