membership includes every attorney licensed to practice law in the State of Texas.” It does not take a great leap of logic, for non-lawyers and so-called strict constructionists alike, to deduce that attorneys are constitutionally proscribed ipso facto \(to borrow a bit of “their” legislature. While the percentage of lawyers in the Texas legislature has recently gone down, it is still the most common profession represented. There are many understandable reasons for this, but some of them are based on public misconceptions. Until a recent Supreme Court decision, attorneys were not allowed to advertise their services in the same manner as accountants or insurance agents or members of other professions. A political campaign allowed an ambitious lawyer an opportunity to spread his name around the community. Even if he lost the election, he won the added business which could result from all that name-identification. A “selfemployed” person, such as an attorney, also has the freedom to take off to Austin once every biennium, whereas people who earn wages and salaries generally cannot. The greatest misconception is in the public’s apparent belief that legal skills translate into legislative skills. While the two talents are related in the sense that they are dealing with laws, the latter task is one which, to be effective, requires a totally different kind of savvy than the former. Legal expertise is needed, of course, in the drafting and marking-up of legislation, but these jobs could be supplied, if necessary, by attorneys on the staffs of the various committees. It is commonly taught even in high school civics texts that bill-drafting is routinely done by staff and lobbyists anyway. The legislature suffers not from a lack of expertise, but from too much esoteric blather in the statutes it produces. Sir Thomas More wrote, in describing the idealized society in Utopia among them, for they consider them as a sort of people whose profession it is to disguise matters.” A healthy attitude, but one, alas, not prevalent in the House and Senate. Citizens are also usually unaware of the retainership system. This, quite simply, allows lawyer-legisla tors to receive pay from a corporation, individual, or group while serving in either chamber as a representative in Austin. While they are not allowed to take public actions in direct response to their retainer check, many of the groups who have lawyers on retainer have a direct interest in what the legislature does. And it is easy to see why a newly elected lawyer-legislator can find himself with many new clients who want his legal advice. It is not difficult to find, therefore, in addition to a constitutional violation, a possible conflict of interest. That one hundred and fifty lawyers should do business together ought not to be expected. Thomas Jefferson Few rational people make the claim that lawyers are morally or intellectually inferior to others. I personally have nothing against them; I hope both my daughters marry lawyers or become lawyers themselves. To disallow them from serving in the legislature would not exclude them from public life or deprive them of freedom of expression. It would, however, not allow them to dominate at least two of the three branches of government. We often exclude people from deliberative bodies who might have a personal interest in the result. Educators, for example, are not allowed to serve on the State Board of Education. All our problems are not caused by attorneys, but it is time to do what is merely sensible, and that is to bar them from making laws. The time may be right politically also. Public opinion polls have been showing for the last several years a dramatic decline in the status of the legal profession. The public spectacle during the Watergate affair of so many lawyers going to prison no doubt contributed to this attitude. A 1973 poll of new lawyers rated their chosen occupation sixth out of the nine listed vocations \(just ethics of the profession \(37 Texas Bar Journal public mainly has discovered, or is beginning to discover, that a law degree is not a badge of virtue; no diploma is. In other countries, lawyers are treated and viewed on the same level with the other professions and are not seen as being uniquely qualified for political . office. The American public is prepared to move to that view also, but the deck is already stacked. So what is to be done? Practical solutions to the problem here in Texas range from the facile to the quixotic. A suit filed in 1977 in Travis County claiming that, as members of the state bar \(and thus ineligible to serve in the legislature obviously got nowhere. But it did attract attention. Attorney General John Hill contended that attorneys were “of’ but not “in” the judicial branch, and in so doing illustrated the Orwellian semantics required to maintain the lawyers’ position. At the very least, the bar association should be forced to decide among the various roles it plays what it wants to be a government agency, a special-interest group, or a professional association. It escaped being eliminated through the “Sunset” process in 1979 and perhaps some needed reforms are occurring as a result of such a close call. Institutions, when they are criticized, do tend to circle the wagons, however, and it appears unlikely that sudden change is on the horizon. As with most truly significant legal changes, it will come with the public’s increasing awareness of the problem. Critics of lawyer-legislators are no doubt perceived by the insiders as cranks and yahoos who don’t understand or appreciate their training and expertise. To be sure, there are probably many people who do react emotionally after being “burned” by an attorney in a divorce settlement or title transfer and would leap at the idea of excluding them from lawmaking based on that reaction. But I think a reasonable, educated person can take a rational look at the process and soberly conclude with Thomas in his Autobiography in 1821 on the subject of Congress, “That one hundred and fifty lawyers should do business together ought not to be expected.” It is time to consider seriously the abolition of the legal profession’s monopoly of public policy in Texas. It won’t make life better, just perhaps a little more tolerable. LI 18 DECEMBER 9, 1983
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