Should the U.S. abolish private legal practice?

• Does private counsel create inequity in our judicial system?
• Would federalizing legal counsel subvert the judicial pursuit of truth?
• Can we justify prohibiting citizens from using their wealth in their own legal defense?

What is a criminal lawyer? Redundant.

But the Roundtable discussion of lawyers this week certainly wasn’t, and in two hours we explored a remarkable range of topics and perspectives. One of the first challenges we addressed was to determine the proper priority of the justice system. We settled on a dichotomy of purpose—on the one hand, to achieve equitable treatment for all participants in the system; and on the other, to determine the truth of each case. Then we considered the potential effects of federalizing legal counsel for either objective.

With respect to determining truth, we observed that by paying lawyers more (in the private system) we create a market system that maximizes the ability of lawyers to win cases. But winning cases may even detract from the overall truth accuracy of the system, since distortion of the facts can play a pivotal role in swaying a jury. One method of better determining truth would be to ensure that every case is represented not necessarily by the best, but by equally qualified counsel on both sides. A public system would certainly be better equipped to accomplish that objective. And by ensuring equality of counsel, we would also eliminate the socioeconomic disparity inevitable in a private system—thus coming closer to the “equitable treatment” objective. Eliminating or reducing free market competition therefore might decrease the overall quality of lawyers while increasing the quality of justice.

Our own John Behan noted, however, that the power of money is difficult to stem—for instance, even if participation in a public legal system were mandatory, a wealthy individual could contribute to his own case by hiring private consultants.

The alternative seems to be raising the salaries of public attorneys so as to allow closer competition with the private sector, and one proposal suggested that we tax private firms and allocate the revenue to the public attorney system. Though difficulties certainly remain with this proposal, it seems to approach the two objectives we identified without sacrificing practicality.

One significant diversion from the thrust of the argument deserves recognition here, namely the hypothetical implementation of a “Justice Supercomputer”. This device would weigh evidence according to a strict predefined code and assign sentences accordingly. The Supercomputer would eliminate potential biases in the implementation of the law, thereby enhancing our pursuit of equity in justice. The significance of this argument is the question of whether the human justice system ought to approximate this proposal as closely as possible. Objections included a concern that justice isn’t universal—that a jury ought to be able to override laws that the community deems inappropriate due to special circumstances. With consideration for our appeals process, the “human element” allows for both tragedies like the Emmett Till case and seemingly necessary precautions (like the socioeconomic injustice inherent in the outlawing of sleeping under bridges). Are we comfortable allowing such exceptions, or is it too dangerous for our society to sacrifice the consistency of justice?