I love my job. Sure, I don’t get the huge payouts of the personal injury lawyers, or the television snippets of the criminal defense bar, or the posh offices and guaranteed salary of the corporate lawyers. But I get something a lot of lawyers don’t: I get to ask for justice. I represent humans who want nothing more than to be fairly compensated by the people and businesses who have screwed them. I punish law breakers, liars, scoundrels, and those who have no respect for the law. It’s like being a prosecutor without having to work for the government.
Ours is an adversarial legal system, meaning that some lawyer has to represent the guys on the other side (the cheaters, liars, and thieves). That guy’s job is totally different from mine. Rather than move the judicial process along to a fair and efficient conclusion, his job is to delay the justice system’s operation as much as possible. To do anything in his power to avoid that trial date where the truth will come out. He is the civil defense lawyer. NOTE: I don’t have anything against the civil defense bar. Many of its members are my friends. And I can’t really blame them for doing their job, which, unlike my own, comes with a steady paycheck.
One of the greatest justice-delaying weapons in the civil defense lawyer’s arsenal is Arbitration. If you’ve ever bought any product or service (except a residential mortgage loan) from a business in the past 20 years, you have signed a mandatory arbitration clause. Mandatory arbitration means that if the business screws you somehow – for instance by committing fraud, identity theft, selling you a product that explodes in your face or poisons you, etc. – you can’t take them to court. Instead, you have to go to arbitration. Most importantly, you cannot file a class action. So if a corporation screws you for only $250, you won’t be able to find a lawyer to represent you. If they defraud 10,000 people out of $250 (thereby profiting $2.5 million by fraud), nothing will happen to them.
Unsurprisingly, this drives people like me crazy. The idea that in the United States of America in 2015, you can make millions of dollars through fraud and get away with it by slipping 20 pages of ridiculous legalese into your contract is just absurd. I’m not alone. In 2009, Congress decided to do something about this. The Dodd-Frank Wall Street Reform Bill authorized the CFPB to conduct a gigantic, thorough study of arbitration clauses and empowered it to issue regulations limiting the use of arbitration in consumer finance – including class action bans.
Finally, after the CFPB study found what every lawyer already knows – that arbitration clauses and class action bans screw consumers – they have issued a proposed regulation prohibiting the use of class action bans. This is common sense and in accord with 90% of Americans’ idea of justice and fair dealing. But of course the industries who want to keep class actions from ever happening have thrown a major hissy fit. And they have paid their lawyers to write a bunch of lies and publish them.
Here’s what I’m talking about: An article by a partner at a major corporate firm had this to say:
“[A]rbitration could serve as a helpful complement to the CFPB’s complaint portal. More specifically, arbitration could be used to resolve those disputes that are not resolved through the complaint process.”
This is complete and utter bullshit. Everyone knows that arbitration clauses and class action bans save corporations money by keeping them from having to pay for things they do wrong that cost humans money. Otherwise their contracts wouldn’t be three feet long. But the shocking thing is that lawyers – who are ethically obligated not to disseminate false information – are willing to make false statements to regulators and the public just to appease their clients. An equivalent would be if, for instance, one of my clients asked me to write an article on this blog stating that any interest rate over 6% was illegal usury. That may have been the case in medieval Europe, but it isn’t true now. I would never publicly make a statement I knew was false.
But despite all of our ethical rules and professional standards, the fact remains that some lawyers get paid to lie. And that is why people think lawyers are full of it.