In Criminal Lawyer, Professor Wood, a sociologist, examines the characteristics and attitudes of criminal lawyers  in the perspective of the social system in which they function  (p. 15), and his finding show the extent to which criminal lawyers are themselves victims rather than the artificers of the maladministration of criminal justice. His method is to compare an ideal type, i.e., how criminal justice is supposed to function, with a picture of reality which emerges when lawyers speak for themselves

Read, William E.

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University of San Diego

San Diego Law Review Volume 5 Issue 1 1968 Article 21 1-1-1968 Criminal Lawyer. By Arthur Lewis Wood William E. Read Follow this and additional works at: https://digital.sandiego.edu/sdlr  Part of the Law Commons Recommended Citation William E. Read, Criminal Lawyer. By Arthur Lewis Wood, 5 SAN DIEGO L. REV. 279 (1968). Available at: https://digital.sandiego.edu/sdlr/vol5/iss1/21 This Book Review is brought to you for free and open access by the Law School Journals at Digital USD. It has been accepted for inclusion in San Diego Law Review by an authorized editor of Digital USD. For more information, please contact digital@sandiego.edu. BOOK REVIEWCRIMINAL LAWYER. By ARTHUR LEWIS WOOD. New Haven,Connecticut: College & University Press. 1967. Pp. 277. $6.50.The recently published Report by the President's Commission onLaw Enforcement and Administration of Justice1 has been criticizedby Professor Herbert L. Packer of Stanford for failing to recognizethat crime is not a natural phenomenon, like the weather or a plague,but rather what society chooses to treat as criminal.2 Contributing tothis failure, he believes, was the absence from the Commission ofphilosophers, economists, sociologists, and defense lawyers. TheReport does talk about defense lawyers under the euphonious heading"Officers of Justice"; it makes sensible recommendations for state-financed systems for providing accused persons with lawyers;' itspeculates about where the needed defense lawyers will come fromand, noting that meagre economic rewards contribute to theirscarcity, 4 makes the following judgmental comment about criminallawyers:Furthermore, in nearly every large city a private defense bar of lowlegal and dubious ethical quality can be found. Few in number,these lawyers typically carry large case loads and in many citiesdominate the practice in routine cases. They frequent court housecorridors, bondsmen's offices, and police stations for clients and relynot on legal knowledge but on their capacity to manipulate thesystem. Their low repute often accurately reflects the quality of theservices they render.5Arthur Lewis Wood's book, Criminal Lawyer, performs the impor-1 THE CHALLENGE OF CRIME IN A FREE SOCIETY: A REPORT BY THE PRESIDENT'SCOMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE (1967)[hereinafter cited as REPORT].2 Packer, Book Review, THE NEW YORK REIEw OF BOOKS, Vol. 14, No. 6, Oct.12, 1967, at 17, 18. "It was the conservative President Taft, later Chief Justice of theSupreme Court, who characterized our criminal law as a disgrace to civilization."Cohen, Mforal Aspects of the Criminal Law, 49 YALE L.J. 987, 1007 (1940).3 REPORT at 149-53; see also THE COURTS: A TASK FORCE REPORT BY THE PRESI-DENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE 52-64(1967) [hereinafter cited as The Courts].4 Of the 229 respondents to a survey of the 1951 graduating class from the Uni-versity of Michigan Law School, two admitted to being specialists in criminal law.Supplement, Class of 1951, 65 McH. L. REv. 1685, 1690 (1967). Of the about 200,000lawyers in private practice in the United States, between 2,500 and 5,000 acceptcriminal representation more than occasionally. THE COURTS at 57.5 REPORT at 152.SAN DIEGO LAW REVIEW[tant service of revealing-and, to a degree, correcting-the super-ficiality of this statement and of the Report's general treatment of theprivate defense bar, treatment which may be characterized as largelyunanalyzed disparagement.In Criminal Lawyer, Professor Wood, a sociologist,6 examines thecharacteristics and attitudes of criminal lawyers "in the perspective ofthe social system in which they function" (p. 15), and his findingsshow the extent to which criminal lawyers are the victims ratherthan the artificers of the maladministration of criminal justice. Hismethod is to compare an ideal type, i.e., how criminal justice issupposed to function, with a picture of reality which emerges whenlawyers speak for themselves. He describes his ideal type as follows:A constructed typology of criminal justice in a democratic societyhas as its guiding ideals individual rights and efficiency, but its formof organization is that of a bureaucratic structure. That is to say thatits personnel are expertly trained, their functions are strictly defined,and their authority is rigidly enforced by a system of norms whichhave been internalized by the actors to constitute what is commonlydesignated a professional service. The main actors in this typologyare the police, the prosecutor, the defense attorney, and the judge(p. 20).Against this model he projects the results of interviews with about200 lawyers in five cities, approximately evenly divided betweencriminal and civil lawyers, about their career patterns, professionalbehavior, informal relationships, and attitudes.70 Professor Wood received his Ph.D. from the University of Wisconsin. He ischairman of the Department of Sociology and Anthropology at the University ofConnecticut.The ingenuity of sociologists in finding types of lawyers to investigate seems bound-less. A recent tabulation lists other studies, published or in progress, on the solo lawyer,the matrimonial lawyer, the Negro lawyer, the Detroit lawyer, the Wall Street lawyer,the corporate lawyer, and the female lawyer. Smigel (author of TH WALL STRErLAWYER (1964)), Book Review, 76 YALE L.J. 1252 (1967). It would be disappointingif someone is not at work on the hippie lawyer.7 The interviewing was done in the summer of 1951, i.e., as a part of the survey ofthe Legal Profession of the American Bar Association. The five cities and their approxi-mate total populations in 1951 were: New London, Connecticut (31,000); the Boroughof Brooklyn, New York (3,000,000); Jersey City, New Jersey (300,000); Birmingham,Alabama (330,000); and Madison, Wisconsin (100,000). The interviews coveredvirtually all lawyers doing appreciable criminal work in three locations and over 40%of such lawyers in two locations. Approximately equal numbers of civil lawyers fromeach location, selected at random, were also interviewed to provide a basis for com-parison with criminal lawyers as to careers and characteristics. The totals were 101criminal lawyers and 104 civil lawyers (pp. 28-29).Both groups were asked a series of 53 questions about their education, family back-ground and religion; the general nature of their legal practice, why they became lawyers,and their difficulties getting established; their satisfaction with their profession and[Vol. 5BOOK REVIEWThe inquiries on career patterns of criminal lawyers deal with theirsocial origins (lowly), how they chose (most did not) and preparedfor (minimally) their work, and how well adjusted they are to theirroles (not very). Two quite distinct groups of criminal lawyersemerge:The one who has failed to establish a really successful practice andtherefore accepts criminal cases as a way of enlarging his practice;and second, the more successful attorney who relishes the excite-ment of criminal work and who feels that it secures justice for thoseaccused of crime (p. 66).Profiles are presented of three types of criminal lawyers: a generalpractitioner who does some criminal work, a politician, and a criminallaw specialist. The general practitioner seems prone to recommendguilty pleas. The politician admits that "to be a successful criminallawyer you have to participate in a number of activities which wouldnot bear the light of day" (p. 81). The specialist, a breed which canbe found mainly in large cities, handles over 200 run-of-the-mill casesa year, does no appellate work, and is referred to by some as ashyster (p. 89).The responses on professional behavior reveal that most criminallawyers practice alone; that their client relationships are generallyunsatisfactory; and that they are thought by civil lawyers to be un-ethical and are not welcomed in organized bar activities. Thefollowing observations are of particular interest to educators:It is possibly significant for a system of criminal justice that we findthose attorneys who are without a college degree less likely to refusea case because he [sic] is morally objectionable; more likely to becounsel for guilty persons in trial court; and more likely to takehardship cases without collection of a fee (p. 101).Rather than proving that the criminal law practice is more un-ethical than the practice of civil law, the accumulated evidence...raises questions of standards in both fields. .. . Several types ofevidence indicate that many attorneys have a laissez-faire regard forquestions of professional ethics, and relatively few persons of thisprofession appear to have thought much about why unethical prac-tices exist (p. 127).Some of the most interesting and significant material in the bookincome; their political, bar assodation and other group activities; friends; clients, howthey got them, and how they collect fees; and their attitude about correctional proce-dures (Appendix, pp. 278-92).1968]SAN DIEGO LAW REVIEW[is Professor Wood's treatment of responses concerning the informalrelationships of criminal lawyers: community and political activities;relations with administration officers; and systems of informal rela-tions. He notes that these informal relations tend to develop "wherethe cultural norms for behavior place a strain on the participantsoccupying the socially defined roles" (p. 135). He emphasizes thepivotal position of the prosecutor's office in the criminal lawyer'swork and the pressures on the lawyer to become a member of theclique that is "in" with the administration. In this regard he states:Clique membership tends to stabilize a practice and to bringgreater certainty to registration. For the solo practitioner, a strongclique relationship takes the place of security derived from member-ship in a law firm (p. 164).Professor Wood concludes:All forms of informal relationship in criminal practice-whetherthey emphasize political activity, contacts with officials, or cliquesamong themselves-are a response to the strains imposed upon acompetitive practice in which the rewards are limited in professionalprestige and financial success as measured by the standards of thelegal profession. These informal systems can also be considered apartial substitute for associations with the business community inwhich the criminal lawyer fails to participate. Where the civillawyer often finds his social and recreational contacts as well as hisclients in various civic organizations, the criminal lawyer associatesfor the same reasons with local government officers and politicians.It would be much too facile and partly erroneous to attribute in-formal relationships or violations of professional codes to manifesta-tions of individual deviates and inadequacies of law school train-ing.... [T] he system becomes a defensive organization in responseto the minority status of the criminal practice... the subculture ofa professional group (pp. 179-80).It is possible, of course, that the criminal lawyer's relative dis-association from the business community is not unhealthy; it mayleave him freer and better able to perform his functions than hewould be if he had the business relationships characteristic of civilpractitioners.8Responses on criminal procedure and penology confirm ProfessorWood's other findings that criminal lawyers, particularly those with-8 Dean Pound noted that judges have "the prejudices which ... the dogmas learnedin a college course in economics, and habitual association with the business and pro-fessional class, must inevitably produce." Pound, Common Law and Legislation, 21 HAiv.L. REv. 383, 404 (1908).[Vol. 5BOOK REVIEWout college degrees, tend to be relatively sensitive to and interestedin the professional needs of the indigent and the desirability of treat-ment, rather than segregation of offenders. Thus, a hopeful findingof the study is that criminal lawyer selection has provided defensecounsel who tend to be more aware of human needs than are thegeneral run of lawyers:There would seem to be an inherent affinity between the low socialclass origins of criminal lawyers and their sympathetic understand-ing of the criminal. Conversely, these social origins are incompatiblewith the symbols of prestige in the profession of law as well as thelarger community, and consequently these avenues to professionalrecognition are frequently denied (p. 258).In his concluding chapter, Professor Wood indicates what hethinks are major strains in the part of the system of criminal justicehe has examined: the criminal lawyer's problem of procuring clients;the circumstance that most of his clients are guilty of some offense;the "bargain system of justice" resulting from the prosecutor's widediscretion; and lawyer attitudes, which seem, as we have noted, toincrease in callousness with education and financial success. He makesthree suggestions for easing these strains (pp. 273-74): (1) "estab-lish government officials with whom the criminal lawyer must work-police, prosecutors, clerks and judges-on a nonpolitical profes-sional basis of appointment and careers"; (2) create "a strong,competent agency for serving indigents accused of crime"; and (3)increase the number of large criminal law firms. While admittingthat the bar's present attitudes toward these suggestions "are of in-difference or active antagonism," he sees some hope that "[a]spublic funds are used more generously for providing counsel toarrestees, greater attention will be paid to the quality of this practice"(p. 276).There are, however, formidable obstacles to change. Notwith-standing its variance with professed ideals, the maladministrationof criminal justice has itself become institutionalized, creating self-interested aversion to change among judges, prosecutors, and defenselawyers. This aversion is unlikely to be significantly disturbed bylegislatures, bar associations and law schools preoccupied with morerespectable, better paying concerns.To this reviewer two points come through strongly from ProfessorWood's study. First, it would appear that the condition of criminallawyers can neither be explained nor improved by calling them in-1968]284 SAN DIEGO LAW REVIEWferior people; in fact, in some lights many of them are relativelysuperior people when compared with other lawyers. Second, it wouldseem that their condition can be better understood and perhapsimproved by also examining and improving the way police, prosecu-tors, judges, and clerks function. And, returning to Professor Packer'spoint with which we began, it is possible that much of the malfunc-tion of these officials is due less to character and training defectsthan to the condition of our substantive criminal law. By purportingto regulate more human conduct than can or should be regulated bycriminal sanction, our substantive criminal law has given those whoadminister it (including criminal lawyers) more discretion than isgood for them or for society.WILLIAM B. READ** Professor of Law, University of Louisville.

Criminal Lawyer. By Arthur Lewis Wood

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Criminal Lawyer. By Arthur Lewis Wood

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