Now in Legal Rebels:
Posted Feb 01, 2008 04:51 pm CST
When I joined what was then known as Arnold, Fortas & Porter in 1965, I was the 30th lawyer in the firm. Housed in a brick Dupont Circle mansion, the firm was intimate and informal. My office was a charming, oddly shaped little room situated just under the eaves. Each spring, the serviceman climbed out my window on his way to tune up the air conditioner on the roof. It seemed like the kind of place I could be happy.
The name partners were New Deal alumni who had been creative designers of government institutions and programs to promote the public welfare. Paul Porter, a former chairman of the Federal Communications Commission, was a tall, elegant Kentuckian with oiled-back hair and immaculately tailored suits. A two-martini lunch was, for him, the kind of lunch you have if you have important business to do in the afternoon. Otherwise, you didn’t stop with two. His great skill was not legal analysis, but wooing clients.
Abe Fortas was a powerful legal mind, an intimate counselor to Lyndon Johnson and the center of the firm. He had the reputation of being the shrewdest tactician in the Washington bar. A superb draftsman who had turned the legal brief into an art form, he was famous for his brutality to associates and partners who made mistakes or failed to live up to his high standards. Some quite senior partners in the firm still bore the scars of their encounters with him. Unfortunately, their experience had not made them kinder to their juniors.
Fortas enjoyed the wealth that law practice had brought him. He and his wife, Carolyn Agger, who was the head of the firm’s tax department, lived in a mansion in upper Georgetown. Famous for her misanthropic toughness, she dressed in subtle pastels and smoked thick cigars. “Our swimming pool has two deep ends,” she said, “so that people aren’t tempted to drop by with their small children for a swim on a hot summer day.”
The third name partner, Thurman Arnold, had grown up in Wyoming and once served as mayor of Laramie. He later became a professor at Yale Law School and wrote The Folklore of Capitalism, an irreverent and influential book that won him the attention of President Roosevelt, who appointed him head of the antitrust division of the Justice Department and later a court of appeals judge in Washington. By the time I met him, he was a profane, messy old man, full of salty frontier humor and utter disdain for conventional thinking and habits. He had made peace with capitalism in a way that seemed to have deepened his cynicism.
Neither Porter nor Arnold could see a balloon without sticking a pin in it, usually with wit and enthusiasm. They presided over cocktails in the firm’s garden room every day at 6 o’clock, telling stories about Washington during the New Deal and the ways in which people had been making fools of themselves for decades. They were wonderful storytellers, their tales always drawing from a bottomless well of cynicism and a good-natured belief that people are absurd and greedy, and that anybody who does not look out for his own interests is a fool.
Shortly after I joined the firm, Fortas was persuaded by President Johnson to take a seat on the Supreme Court. By all accounts, he had wanted to stay in private practice, but Johnson’s legendary persuasive powers prevailed.
I was still at the firm a few years later, when he resigned from the court in disgrace because of an inappropriate financial relationship with a former client, a convicted felon with business before the Supreme Court. I wondered if his ethical failure had something to do with the peculiar schizophrenic career he lived as a lawyer—a New Deal liberal and a brilliant legal innovator in his youth who later offered his unique gifts to corporations selling cigarettes.
I postponed my starting date at the firm to spend a month in Louisiana with the Lawyers Constitutional Defense Committee doing volunteer legal work in support of the civil rights movement. The previous summer was the Mississippi Freedom Summer, when many Northerners went south to work in the civil rights movement and three heroic civil rights workers were murdered in rural Mississippi. By contrast, the risk in going to Louisiana did not seem to be inordinate, and I thought that going as a lawyer might afford me a measure of protection.
In Shreveport, in the tough northern section of the state, I shared a small rental house with two other Northern lawyers in the black part of town. We ate our meals in restaurants where we were the only white customers. I had never eaten collard greens before, nor had I ever seen such deep poverty. In virtually every town we came to, I could tell where the black neighborhood began because the streetlights and the street paving ended, giving way to darkness and dusty dirt roads.
One night I attended a meeting in a rural black church near Monroe, where the charismatic James Farmer, then director of the Congress of Racial Equality, was speaking. The audience was made up of two white lawyers, a few civil rights organizers and local people—shopkeepers, students and sharecroppers, who were risking their livelihoods and possibly their lives by being there. After hearing Farmer’s resonant voice describe a new world in which blacks would be able to vote and to go to integrated schools, we all sang We Shall Overcome.
It was a powerful moment for me. I believed in the possibility of Farmer’s vision, and I thought we could overcome—and that I was part of the “we” who would make it happen. We walked through the double doors at the back of the sanctuary, shook hands with the pastor and headed out into the moonless night under a dense canopy of stars.
We drove slowly past the police cars pulled off the road by the church driveway with their lights off. I knew my status as a lawyer meant little protection. All the way back to Shreveport, I kept an eye on the rearview mirror.
Despite its brevity, my time in Louisiana had fundamentally changed me, though it had no major impact on the civil rights movement. I had glimpsed another kind of law practice, where my work had meaning for me and the larger society, as well as my clients. Arnold & Porter, on the other hand, would require some compromises. Would they be worth it?
Most of the firm’s lawyers were liberal Democrats who spent their days representing large corporations, managing with apparent ease the built-in dissonance between their politics and their careers. Here was a group of lawyers who apparently had values like mine, and they seemed to enjoy their very lucrative work.
I was generally assigned to cases that were intellectually interesting and relatively neutral from a moral perspective. I developed a nodding familiarity with antitrust, banking, food and drug, real estate, and litigation. I was never assigned to work on the ethically toxic matters involving Philip Morris and the Tobacco Institute.
Like many lawyers, I did work that I basically didn’t believe in, taking satisfaction in the skillful and responsible way that I executed my assignments. The legal system is set up for zealous advocates who need not think too much about the value or merit of any particular position they take. But this justification never fully satisfied me.
My colleagues thought of me as tough-minded, aggressive and lawyerly. When they came to dinner and met my children, they found something quite different. My wife, Susan, and I had moved into a small brick house just north of the District of Columbia, with a dogwood tree in the front yard. We had married young and promptly began to have babies—two by the time I came to Arnold & Porter, a third by the year I left.
When we came into the house, adult conversations were interrupted by our children bouncing up and down, shouting, “Daddy! Daddy!” Dropping legal issues immediately, I got down on the floor, entering into their play, with dolls, with building blocks and simply with imagination. I had the ability to leave the intensity of law work behind instantly and enter into the mind and games of small children.
The double life I led saved me from some of the excesses of the law world. Being a father to small children gave me the experience of unconditional love and a deeper sense of connection to other beings than I had ever felt before. It also gave me exposure to the frustration that comes from dealing with people who are unresponsive to reason.
As I look back, I can see that my family life was calling me into a life of balance, building the resources of the heart as well as the head. It helped blunt my lawyer’s tendency to self-importance and to see the world as fitting neatly into logical frameworks. The time I spent with my children taught me a lesson in the limited effectiveness of logic and rules.
Susan brought greater psychological sophistication into the marriage, as she completed a master’s degree in social work and became a psychotherapist. She helped me to constrain my lawyer’s mindset.
At law school they had promised to teach us to “think like a lawyer.” It was the only way I knew how to think —the way my father, a lawyer and a judge, thought—logical, unemotional, doubtful of intuition and passion. My experience as a young husband and father was a milestone in my learning to think like a nonlawyer.
Back at the firm, I was assigned to an antitrust case, representing Allis-Chalmers, a large farm equipment manufacturer in Milwaukee. It was a bread-and-butter case for the firm, a civil suit brought by the government involving a novel legal theory. I welcomed the assignment as a way of getting to see the inside of a major corporation.
Allis-Chalmers had considered going into the lawn-mowing business by designing and building its own line of riding garden tractors. Instead, it acquired a successful manufacturer, Simplicity Manufacturing, in a neighboring Wisconsin town. The Justice Department claimed that this decision violated antitrust laws because it removed Allis-Chalmers as a potential competitor with its own product line, reducing the choices available to the consumer.
This legal theory was potentially significant in a wide range of industries, but it turned on a simple factual question: Do riding garden tractors compete in the same market as ordinary power lawn mowers, which can be bought in any hardware store? If all power lawn mowers competed in a single market, the market was huge, and any anti-competitive effect of Allis-Chalmers’ purchase of Simplicity would be trivial. If, however, riding garden tractors were their own market, then the acquisition would be a significant anti-competitive development. Our job was to establish that the relevant market was all power lawn-mowing equipment—the $55 walk-behind power mower and the riding garden tractor that sold for several thousand dollars.
I spent weeks traveling around Midwestern towns in the dead of winter, talking about lawn mowing to riding garden tractor dealers, lawn mower dealers and manufacturers. I felt like Willy Loman. Most of the people I spoke with were hostile to government interference in business, so they were naturally sympathetic to our client. I picked a half-dozen potential witnesses who saw the world our way and discarded the rest.
This case taught me how to travel well on an expense account. For the first—and only—time in my life, I flew first class. As we were sitting enjoying a martini on a flight to Milwaukee in the dead of winter, one of the partners I was working with told me, “They are lucky to have us working for them, coming to Milwaukee for a client conference when there is a foot of snow on the ground. They have no complaint if we travel first class. We’ll get to know the best restaurants in town. I’m just sorry that we have to eat so much sauerbraten in Milwaukee. Too bad the place wasn’t settled by the French.”
After a long and boring bench trial in Milwaukee federal court, our client prevailed. My primary responsibility had been to keep track of the voluminous exhibits and depositions. At the celebration dinner, well-lubricated with alcohol, I found myself feeling empty. Amid all the gaiety, I confessed to myself that I really hadn’t cared whether we won this case or not.
About this time the firm had just finished computerizing the time-record system, so it was easy to find out how many hours I had spent working on our recent victory. I had logged more than 2,000 hours—a full year’s work—representing Allis-Chalmers in something that made little difference to anyone beyond the company’s stockholders.
My real satisfaction and most imaginative work during my years at Arnold & Porter was associated with pro bono matters. During the Vietnam War, the decisions of local draft boards—which determined whether young men would be granted the status of conscientious objectors—were often unreported and inconsistent. Some friends and I created the Selective Service Law Reporter, generating a body of precedent that was easily accessible. That allowed lawyers to give more sophisticated advice to their draft-age clients.
Another potential pro bono matter grew out of my civil rights work in northern Louisiana.
The most frightening town in that area was Jonesboro, a center of racist resistance and CORE organizing. The main employer in the town was a paper mill that had been bought by Crown-Zellerbach, a San Francisco-based corporation with a reputation for good works and community responsibility. But it had done nothing to desegregate the plant or integrate the workforce. The Civil Rights Act of 1964 made these practices illegal, but the corporation did not want to disrupt its operations and unsettle the local customs by complying with the law.
It occurred to me that stockholders ought to have the right to demand that the corporation comply with the law. I did some basic research on the legal theory and found that there was a good argument that a stockholder could maintain such an action.
Before I could bring the case, I had to get approval from the firm’s management committee. Thurman Arnold, wearing a seersucker suit with cigar ashes streaking his shirtfront and vest, greeted me with a question: “I don’t suppose that Crown-Zellerbach is doing anything different from other companies down there, do you?” After some desultory discussion, the committee turned the case down, and once again I was left frustrated, confronting the limitations on practice in a firm that is devoted to corporate representation.
The experience reminded me of what I had been told at my job interview: “We are in business to make money; we are not a charitable institution.” I had never been confused about the point, but I now realized how large the number of off-limits matters was likely to be. And I didn’t think that a little pro bono work on cases that were inoffensive to the firm’s clients and senior partners was going to be sufficient to reconcile me to a career as a corporate lawyer.
During breakfast the day after Martin Luther King was assassinated in 1968, I listened to radio news reports of the riots and looting that were spreading around the country and through the District of Columbia. As I drove down 16th Street to the firm, the city was under military occupation, with soldiers in battle gear behind sandbag bunkers at major intersections north of the White House. Sirens wailed and low-flying airplanes buzzed overhead. Clouds of smoke billowed over 14th Street, the major black shopping and entertainment street.
A group of young lawyers at the firm got together early in the morning to go down to the District of Columbia courts to provide legal representation for people who had been arrested during the riots.
Just as we were leaving the firm, Paul Porter pulled into the U-shaped driveway in his long, black Cadillac limousine, with his driver, a smiling African-American named Henry Ford, behind the wheel. Paul asked where we were going, and when we told him, he insisted that Henry drive us to the courthouse. Paul loved the humor of it, and we imagined him retelling the story over martinis at his favorite restaurant, the Palm, a hangout of Washington insiders.
We self-consciously got out of the limousine before we reached the courthouse, walking the last few blocks. This odd incident captured for me some of the incongruities of the life I was leading. About this time, the term limousine liberals was developing currency, used to disparage the hypocrisy of people who espoused liberal views while living lives of privilege. Its literal application made me squirm.
One warm spring night not long after the limousine incident, I sat with Susan on the screened porch behind our little house in suburban Chevy Chase. “I don’t want to find myself after another 25 years of law practice, registering another hollow victory, spending my efforts on behalf of a client I don’t give a damn about,” I said.
We sifted through the arguments for and against staying at Arnold & Porter. The firm was attractive in many ways. The people there were pleasant, and the financial security was reassuring. It was still a small firm, fewer than 50 lawyers, and it was easy for a junior associate to engage senior partners. There was an appealing level of chaos, which gave me the flexibility to follow my own interests. And they genuinely supported pro bono work, up to a limit. I told Susan, “If he were alive, my father would advise me to stay and try to work things out. ‘These are first-rate lawyers, and they value your work,’ he would say.”
“He’s been dead for a while,” Susan replied. “Who knows how his views would have evolved in this cataclysmic decade. You know he didn’t care about money.” She reminded me that his partner used to complain that he didn’t charge his clients enough, and that he would be so grateful to a client who brought him an interesting legal problem that he felt the client was doing him a favor.
I worried about what a lifetime of work in a firm like this would turn me into. I looked around at the senior partners and I did not see anyone I wanted to be like. They lived with the insecurity of having to continually prove themselves in this highly competitive environment, both by turning out a great deal of highly polished work and by attracting corporate clients.
I had no skill at schmoozing with general counsel and chief executives in the clubhouse after a round of golf. I couldn’t imagine bringing new corporate business into the firm. Ultimately, that’s what the firm was all about. Lawyers who lacked that skill, no matter how brilliant, stalled partway up the ladder. The meritocracy that seemed to flourish in law schools and in the first round of law firm hiring was replaced by a different meritocracy—one that was explicitly attuned to attracting corporate clients.
Photo by Charles Terry
Susan and I discussed a series of articles in the New Yorker written by Charles Reich, my old constitutional law professor (and, ironically, an old Arnold & Porter associate who left the firm before I joined it). He criticized the traditional liberal response to social problems—passing new legislation, creating a new bureaucracy to enforce the law, increasing the size and power of the federal government. He had been moving toward a different, deeper agenda for change, which he spelled out in the New Yorker articles and later in his book The Greening of America. His analysis resonated deeply with me.
Reich contended that a new consciousness was emerging among young people that was going to transform our institutions, creating a new kind of revolution—one based in love, an expression of the authentic self and an inclusive sense of community. The new consciousness was joyous, communitarian, ecological, compassionate and spiritually rooted. His analysis seemed like a revelation, holding out a possibility of wholeness. It suggested that the intellect, the body, the emotions and the spirit might converge.
I reflected on the orderly world I grew up in. Buffalo was a city that had been laid out in a strict geometrical grid. Our house was large and solid, built of dark brick at the end of the 19th century. It crouched like a sphinx, facing a street vaulted by enormous elm trees. My family would sit after dinner on our front porch, a few steps up from the sidewalk, rehashing our day’s activities, reading the Buffalo Evening News and conversing with passersby.
“I don’t want to live a life that is too predictable and orderly,” I told Susan. “The lawyers in the firm have settled into lives of respectability and security—private schools, big houses, season tickets for Redskins games. Something new is emerging, and I don’t want to read about it in the newspaper.”