Montana Lawyer October/November 2024

PRESIDENT’S MESSAGE Reflections on the Role of Lawyers in a Democracy

the legal professions, 50% of respondents gave lawyers an “average” rating, with 18% giving lawyers a “high” rating and 19% giving them a low rating. 4 We are, as a profession, resound ingly average in the eyes of the public. The public perception of lawyers is a two sided coin. On the one hand, we help grease the wheels of commerce and resolve inter personal conflict. On the other hand, we are viewed as an elite group of highly educated individuals who wield a great deal of power. Early America rebelled against the “elite” lawyer class. Colonial Virginia, which was influenced by Thomas Jefferson’s vision of a largely agrarian society with little interference from the central government, “displayed a violent and prolonged aversion to the lawyer.” 5 Massachusetts exhibited an “abiding hostility to lawyers[,]” partly as a result of the colonists’ desire to distance themselves from the common law of England but also due to the “prolonged intellectual repression” of seventeenth-century New England. 6 There are echoes of anti-lawyer sentiment in two constitutional initiatives that qualified to gather signatures for the 2024 general election ballot in Montana. CI-124 (Ballot Initiative No. 7) purported to remove the regulation of the practice of law from the province of the ju diciary. CI-125 (Ballot Initiative No. 8) sought to curtail prosecutorial discretion by allowing a relatively small number of a county’s electors to convene a grand jury. Although similar legisla tive bills failed, and neither of these initiatives garnered the requisite number of signatures, it

We have all heard of the four “pillars” of democracy: the legislature, the executive, the judiciary and the media. I would submit to you that lawyers are the fifth pillar of democracy in that we play a pivotal role in maintaining the boundaries among the three branches of government and upholding a common belief in the justice system. If lawyers are unscrupulous, the public confidence in our institutions as they currently exist will erode. But if lawyers are viewed as champions and problem solvers, all of the institutions that make up our democracy are strengthened. As stated succinctly by for mer U.S. Supreme Court Chief Justice Warren E. Burger, “Lawyers [are] necessary because, in their highest role, they are the healers of conflicts[,] and they can provide the lubricants that permit the diverse parts of a social order to function with a minimum of friction.” 1 After visiting the nascent United States of America in 1931-32, Alexis de Tocqueville concluded that there were only three coun tervailing forces against the tyranny of the majority: the institution of trial by jury, the limited power of the central government, and the legal profession itself. 2 Reflecting on de Tocqueville’s observations, Phil C. Neal, former Dean of the University of Chicago Law School, noted in 1967 that “lawyers in America more than elsewhere have come to play the role of all-purpose social engineers, of roving experts in getting things done.” 3 But this rosy picture is not universally shared. In a Gallup poll conducted in late 2022, when asked to rate the honesty and ethical standards of people in

Toni Tease is a registered patent attorney and a solo practitioner who specializ es in intellectual property law. Her office is located in Billings, Montana, and her website is at www. teaselaw.com.

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