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The Practice of Law as Confidence Game Organizational Cooptation of a Profession

Published online by Cambridge University Press:  01 July 2024

Abraham S. Blumberg
Abraham S. Blumberg*
Affiliation:
State University of New York at Stony Brook
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A recurring theme in the growing dialogue between sociology and law has been the great need for a joint effort of the two disciplines to illuminate urgent social and legal issues. Having uttered fervent public pronouncements in this vein, however, the respective practitioners often go their separate ways. Academic spokesmen for the legal profession are somewhat critical of sociologists of law because of what they perceive as the sociologist's preoccupation with the application of theory and methodology to the examination of legal phenomena, without regard to the solution of legal problems. Further, it is felt that “. . . contemporary writing in the sociology of law . . . betrays the existence of painfully unsophisticated notions about the day-to-day operations of courts, legislatures and law offices.” Regardless of the merit of such criticism, scant attention—apart from explorations of the legal profession itself— has been given to the sociological examination of legal institutions, or their supporting ideological assumptions. Thus, for example, very little sociological effort is expended to ascertain the validity and viability of important court decisions, which may rest on wholly erroneous assumptions about the contextual realities of social structure. A particular decision may rest upon a legally impeccable rationale; at the same time it may be rendered nugatory or self-defeating by contingencies imposed by aspects of social reality of which the lawmakers are themselves unaware.

Type
Research Article
Information
Law & Society Review , Volume 1 , Issue 2 , June 1967 , pp. 15 - 39
Copyright
Copyright © 1967 by the Law and Society Association

Footnotes

Editor‘s Note: In an essay contest sponsored by the Institute on American Freedoms for graduate students in sociology, this article (submitted under the title of: Covert Contingencies in the Right to the Assistance of Counsel) won first prize, in the amount of $1,000, in February 1967. Author‘s Note: The article is a revised version of a paper read at the meetings of the American Sociological Association, Miami Beach, Florida, August 30, 1966.

References

1. H. W. Jones, A View From the Bridge, Law and Society: Supplement to Summer, 1965 Issue of Social Problems 42 (1965). See G. Geis, Sociology, Criminology, and Criminal Law, 7 Social Problems 40–47 (1959); N. S. Timasheff, Growth and Scope of Sociology of Law, in Modern Sociological Theory in Continuity and Change 424–49 (H. Becker & A. Boskoff, eds. 1957), for further evaluation of the strained relations between sociology and law.

2. This decision represented the climax of a line of cases which had begun to chip away at the notion that the Sixth Amendment of the Constitution (right to assistance of counsel) applied only to the federal government, and could not be held to run against the states through the Fourteenth Amendment. An exhaustive historical analysis of the Fourteenth Amendment and the Bill of Rights will be found in C. Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 Stan. L. Rev. 5—139 (1949). Since the Gideon decision, there is already evidence that its effect will ultimately extend to indigent persons charged with misdemeanors—and perhaps ultimately even traffic cases and other minor offenses. For a popular account of this important development in connection with the right to assistance of counsel, see A. Lewis, Gideon's Trumpet (1964). For a scholarly historical analysis of the right to counsel see W. M. Beaney, The Right to Counsel in American Courts (1955). For a more recent comprehensive review and discussion of the right to counsel and its development, see Note, Counsel at Interrogation, 73 Yale L.J. 1000–57 (1964).

With the passage of the Criminal Justice Act of 1964, indigent accused persons in the federal courts will be defended by federally paid legal counsel. For a general discussion of the nature and extent of public and private legal aid in the United States prior to the Gideon case, see E. A. Brownell, Legal Aid in the United States (1961); also R. B. von Mehren, et al., Equal Justice for the Accused (1959).

3. In the case of federal defendants the issue is clear. In Mallory v. United States, 354 U.S. 449 (1957), the Supreme Court unequivocally indicated that a person under federal arrest must be taken “without any unnecessary delay” before a U.S. commissioner where he will receive information as to his rights to remain silent and to assistance of counsel which will be furnished, in the event he is indigent, under the Criminal Justice Act of 1964. For a most interesting and richly documented work in connection with the general area of the Bill of Rights, see C. R. Sowle, Police Power and Individual Freedom (1962).

4. See N.Y. Times, Nov. 20, 1965, p. 1, for Justice Nathan R. Sobel's statement to the effect that based on his study of 1,000 indictments in Brooklyn, N.Y. from February-April, 1965, fewer than 10% involved confessions. Sobel's detailed analysis will be found in six articles which appeared in the New York Law Journal, beginning November 15, 1965, through November 21, 1965, titled The Exclusionary Rules in the Law of Confessions: A Legal Perspective—A Practical Perspective. Most law enforcement officials believe that the majority of convictions in criminal cases are based upon confessions obtained by police. For example, the District Attorney of New York County (a jurisdiction which has the largest volume of cases in the United States), Frank S. Hogan, reports that confessions are crucial and indicates “if a suspect is entitled to have a lawyer during preliminary questioning . . . any lawyer worth his fee will tell him to keep his mouth shut”, N.Y. Times, Dec. 2, 1965, p. 1. Concise discussions of the issue are to be found in D. Robinson, Jr., Massiah, Escobedo and Rationales For the Exclusion of Confessions, 56 J. Crim. L. C. & P.S. 412–31 (1965); D. C. Dowling, Escobedo and Beyond: The Need for a Fourteenth Amendment Code of Criminal Procedure, 56 J. Crim. L. C. & P.S. 143–57 (1965).

5. Miranda v. Arizona, 384 U.S. 436 (1966).

6. Even under optimal circumstances a criminal case is a very much one-sided affair, the parties to the “contest” being decidedly unequal in strength and resources. See A. S. Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149–99 (1960).

7. F. J. Davis et al., Society and the Law: New Meanings for an Old Profession 301 (1962); L. Orfield, Criminal Procedure from Arrest to Appeal 297 (1947).

D. J. Newman, Pleading Guilty for Considerations: A Study of Bargain Justice, 46 J. Crim. L. C. & P.S. 780–90 (1954). Newman's data covered only one year, 1954, in a midwestern community, however, it is in general confirmed by my own data drawn from a far more populous area, and from what is one of the major criminal courts in the country, for a period of fifteen years from 1950 to 1964 inclusive. The English experience tends also to confirm American data, see N. Walker, Crime and Punishment in Britain: An Analysis of the Penal System (1965). See also D. J. Newman, Conviction: The Determination of Guilt or Innocence Without Trial (1966), for a comprehensive legalistic study of the guilty plea sponsored by the American Bar Foundation. The criminal court as a social system, an analysis of “bargaining” and its functions in the criminal court's organizational structure, are examined in my forthcoming book, The Criminal Court: A Sociological Perspective, to be published by Quadrangle Books, Chicago.

8. G. Feifer, Justice in Moscow (1965). The Soviet trial has been termed “an appeal from the pretrial investigation” and Feifer notes that the Soviet “trial” is simply a recapitulation of the data collected by the pretrial investigator. The notions of a trial being a “tabula rasa” and presumptions of innocence are wholly alien to Soviet notions of justice. . . . “the closer the investigation resembles the finished script, the better . . .” Id. at 86.

9. For a concise statement of the constitutional and economic aspects of the right to legal assistance, see M. G. Paulsen, Equal Justice for the Poor Man (1964); for a brief traditional description of the legal profession see P. A. Freund, The Legal Profession, Daedalus 689–700 (1963).

10. I use the concept in the general sense that Erving Goffman employed it in his Asylums: Essays on the Social Situation of Mental Patients and Other Inmates (1961).

11. A. L. Wood, Informal Relations in the Practice of Criminal Law, 62 Am. J. Soc. 48–55 (1956); J. E. Carlin, Lawyers on Their Own 105–09 (1962) ; R. Goldfarb, Ransom—A Critique of the American Bail System 114–15 (1965). In connection with relatively recent data as to recruitment to the legal profession, and variables involved in the type of practice engaged in, will be found in J. Ladinsky, Careers of Lawyers, Law Practice, and Legal Institutions, 28 Am. Soc. Rev. 47—54 (1963). See also S. Warkov & J. Zelan, Lawyers in the Making (1965).

12. There is a real question to be raised as to whether in certain organizational settings, a complete reversal of the bureaucratic-ideal has not occurred. That is, it would seem, in some instances the organization appears to exist to serve the needs of its various occupational incumbents, rather than its clients. A. Etzioni, Modern Organizations 94–104 (1964).

13. Three relatively recent items reported in the New York Times, tend to underscore this point as it has manifested itself in one of the major criminal courts. In one instance the Bronx County Bar Association condemned “mass assembly-line justice,” which “was rushing defendants into pleas of guilty and into convictions, in violation of their legal rights.” N.Y. Times, March 10, 1965, p. 51. Another item, appearing somewhat later that year reports a judge criticizing his own court system (the New York Criminal Court), that “pressure to set statistical records in disposing of cases had hurt the administration of justice.” N.Y. Times, Nov. 4, 1965, p. 49. A third, and most unusual recent public discussion in the press was a statement by a leading New York appellate judge decrying “instant justice” which is employed to reduce court calendar congestion “. . . converting our courthouses into counting houses . . ., as in most big cities where the volume of business tends to overpower court facilities.” N.Y. Times, Feb. 5, 1966, p. 58.

14. R. L. Gasser, The Confidence Game, 27 Fed. Prob. 47 (1963).

15. C. W. Mills, White Collar 121–29 (1951) ; J. E. Carlin supra, note 11.

16. E. O. Smigel, The Wall Street Lawyer 309 (1964).

17. Talcott Parsons indicates that the social role and function of the lawyer can be therapeutic, helping his client psychologically in giving him necessary emotional support at critical times. The lawyer is also said to be acting as an agent of social control in the counseling of his client and in the influencing of his course of conduct. See T. Parsons, Essays in Sociological Theory 382 et seq. (1954) ; E. Goffman, On Cooling the Mark Out: Some Aspects of Adaptation to Failure, in Human Behavior and Social Processes 482–505 (A. Rose ed., 1962). Goffman's “cooling out” analysis is especially relevant in the lawyer-accused client relationship.

18. The question has never been raised as to whether “bargain justice,” “copping a plea,” or justice by negotiation is a constitutional process. Although it has become the most central aspect of the process of criminal law administration, it has received virtually no close scrutiny by the appellate courts. As a consequence, it is relatively free of legal control and supervision. But, apart from any questions of the legality of bargaining, in terms of the pressures and devices that are employed which tend to violate due process of law, there remain ethical and practical questions. The system of bargain-counter justice is like the proverbial iceberg, much of its danger is concealed in secret negotiations and its least alarming feature, the final plea, being the one presented to public view. See A. S. Trebach, The Rationing of Justice 74–94 (1964); Note, Guilty Plea Bargaining: Compromises by Prosecutors to Secure Guilty Pleas, 112 U. Pa. L. Rev. 865–95 (1964).

19. For a conventional summary statement of some of the inevitable conflicting loyalties encountered in the practice of law, see E. E. Cheatham, Cases and Materials on the Legal Profession 70–79 (2d ed. 1955).

20. Some lawyers at either end of the continuum of law practice appear to have grave doubts as to whether it is indeed a profession at all. J. E. Carlin, op. cit. supra note 11, at 192; E. O. Smigel supra, note 16, at 304–305. Increasingly, it is perceived as a business with widespread evasion of the Canons of Ethics, duplicity and chicanery being practiced in an effort to get and keep business. The poet, Carl Sandburg, epitomized this notion in the following vignette: “Have you a criminal lawyer in this burg?” “We think so but we haven't been able to prove it on him.” C. Sandburg, The People, Yes 154 (1936).

Thus, while there is a considerable amount of dishonesty present in law practice involving fee splitting, thefts from clients, influence peddling, fixing, questionable use of favors and gifts to obtain business or influence others, this sort of activity is most often attributed to the “solo,” private practice lawyer. See A. L. Wood, Professional Ethics Among Criminal Lawyers, Social Problems 70–83 (1959). However, to some degree, large scale “downtown” elite firms also engage in these dubious activities. The difference is that the latter firms enjoy a good deal of immunity from these harsh charges because of their institutional and organizational advantages, in terms of near monopoly over more desirable types of practice, as well as exerting great influence in the political, economic and professional realms of power.

21. This does not mean that most of those who plead guilty are innocent of any crime. Indeed, in many instances those who have been able to negotiate a lesser plea, have done so willingly and even eagerly. The system of justice-by-negotiation, without trial, probably tends to better serve the interests and requirements of guilty persons, who are thereby presented with formal alternatives of “half a loaf,” in terms of, at worst, possibilities of a lesser plea and a concomitant shorter sentence as compensation for their acquiescence and participation. Having observed the prescriptive etiquette in compliance with the defendant role expectancies in this setting, he is rewarded. An innocent person, on the other hand, is confronted with the same set of role prescriptions, structures and legal alternatives, and in any event, for him this mode of justice is often an ineluctable bind.

22. “Any communicative network between persons whereby the public identity of an actor is transformed into something looked on as lower in the local scheme of social types will be called a ‘status degradation ceremony.‘ ” H. Garfinkel, Conditions of Successful Degradation Ceremonies, 61 Am. J. Soc. 420–24 (1956). But contrary to the conception of the “cop out” as a “status degradation ceremony,” is the fact that it is in reality a charade, during the course of which an accused must project an appropriate and acceptable amount of guilt, penitence and remorse. Having adequately feigned the role of the “guilty person,” his hearers will engage in the fantasy that he is contrite, and thereby merits a lesser plea. It is one of the essential functions of the criminal lawyer that he coach and direct his accused-client in that role performance. Thus, what is actually involved is not a “degradation” process at all, but is instead, a highly structured system of exchange cloaked in the rituals of legalism and public professions of guilt and repentance.

23. The name is of course fictitious. However, the actual court which served as the universe from which the data were drawn, is one of the largest criminal courts in the United States, dealing with felonies only. Female defendants in the years 1950 through 1964 constituted from 7–10% of the totals for each year.

24. My own data in this connection would appear to support Sobel's conclusion (see note 4 supra), and appears to be at variance with the prevalent view, which stresses the importance of confessions in law enforcement and prosecution. All the persons in my sample were originally charged with felonies ranging from homicide to forgery; in most instances the original felony charges were reduced to misdemeanors by way of a negotiated lesser plea. The vast range of crime categories which are available, facilitates the patterned court process of plea reduction to a lesser offense, which is also usually a socially less opprobious crime. For an illustration of this feature of the bargaining process in a court utilizing a public defender office, see D. Sudnow, Normal Crimes: Sociological Features of the Penal Code in a Public Defender Office, 12 Social Problems 255–76 (1964).

25. Failures, shortcomings and oppressive features of our system of criminal justice have been attributed to a variety of sources including “lawless” police, overzealous district attorneys, “hanging” juries, corruption and political connivance, incompetent judges, inadequacy or lack of counsel, and poverty or other social disabilities of the defendant. See A. Barth, Law Enforcement Versus the Law (1963), for a journalist's account embodying this point of view; J. H. Skolnick, Justice Without Trial: Law Enforcement in Democratic Society (1966), for a sociologist's study of the role of the police in criminal law administration. For a somewhat more detailed, albeit legalistic and somewhat technical discussion of American police procedures, see W. R. LaFave, Arrest: The Decision to Take a Suspect Into Custody (1965).

26. Aspects of the lawyer's ambivalences with regard to the expectancies of the various groups who have claims upon him, are discussed in H. J. O'Gorman, The Ambivalence of Lawyers, paper presented at the Eastern Sociological Association meetings, April 10, 1965.

27. W. J. Goode, A Theory of Role Strain, 25 Am. Soc. Rev. 483–96 (1960) ; J. D. Snoek, Role Strain in Diversified Role Sets, 71 Am. J. Soc. 363–72 (1966).

28. Some of the resources which have become an integral part of our courts, e.g., psychiatry, social work and probation, were originally intended as part of an ameliorative, therapeutic effort to individualize offenders. However, there is some evidence that a quite different result obtains, than the one originally intended. The ameliorative instruments have been coopted by the court in order to more “efficiently” deal with a court's caseload, often to the legal disadvantage of an accused person. See F. A. Allen, The Borderland of Criminal Justice (1964) ; T. S. Szasz, Law, Liberty and Psychiatry (1963) and also Szasz's most recent, Psychiatric Justice (1965) ; L. Diana, The Rights of Juvenile Delinquents: An Appraisal of Juvenile Court Procedures, 47 J. Crim. L. C. & P.S. 561–69 (1957).