By Meredith McGroarty

Ten years ago, the Enron scandal obliterated more than $2 billion in pension funds, cost tens of thousands of people their jobs, and brought about the fall of one of the most respected accounting firms in the country. So why did the company’s lawyers—as well as the law firm whose eleventh-hour investigation failed to spot Enron’s fraudulent accounting practices—suffer very few consequences by comparison?

According to UT law professor Benjamin Barton, lawyers involved with Enron got off relatively easy because of both the nebulous nature of attorney–client privilege laws and the bias that judges generally show toward lawyers in cases of legal malpractice.

“Enron is a case study to show how judicial bias operates in the real world,” Barton says. “Many of the accountants and executives at Enron faced criminal charges and in some cases received jail time, while the lawyers inside Enron and the law firms that dealt with Enron felt a much smaller impact from the scandal. In fact, they’re still operating and, depending on how you look at it, paid a pretty small fine and walked away.” None of the lawyers involved were disbarred and they are all still practicing law.

In his recent book, The Lawyer–Judge Bias in the American Legal System, Barton argues that in applicable cases, judges are more likely than not to render verdicts that favor lawyers and protect attorney privileges and rights. For example, if a client sues an attorney for legal malpractice, the judge is likely to be more sympathetic to the lawyer’s case.

Barton explains that many factors contribute to lawyer–judge bias. First, nearly all American judges are former lawyers, and this shared background makes them more empathetic to an attorney than to a person in another profession with which the judge is not familiar. In a medical malpractice case, for example, a judge is instinctively more likely to view himself or herself in the role of the patient, since he or she has undoubtedly been a medical patient in the past.

Benjamin Barton

“In these cases, judges don’t identify with the physician. They think, ‘Good grief, I don’t want a doctor leaving a scalpel inside of me.’ But when judges hear a case about legal malpractice, they unconsciously put themselves in the position of the lawyer,” Barton says. “So when they ask themselves, ‘Is it reasonable to allow this fraud claim against a lawyer?’ they think, ‘Well, we certainly can’t have clients suing for every little mistake that we make.’ And so you end up with totally different types of law for legal malpractice.”

In addition to the psychological factors, judges have more physical contact with lawyers than anyone else. By nature of their respective professions, lawyers and judges communicate on a regular basis; however, for the sake of ensuring impartiality, judges are largely sheltered from the general public. In addition, elected judges receive most of their campaign contributions from lawyers, and unelected and elected judges alike seek endorsement from the American Bar Association, which can blackball a candidate of whom it disapproves.

“Bar associations have worked tirelessly since the turn of the twentieth century to raise the profile of judges, to raise judicial salaries, and to raise the public standing of judges,” Barton says. “Most judges are members of bar associations. In many states, they have to be a member of the bar association to be a judge. So there are all sorts of professional and monetary connections between judges and these associations.”

But judges are not the only ones protecting the legal profession from censure. The practice of law is largely self-regulated because state supreme courts can decide the constitutionality of laws, including those statutes that pertain to lawyers.

Legislators can pass laws pertaining to subjects like the bar exam or legal malpractice, but the courts—composed of attorneys—have the power to strike them down. For example, if a state legislature tried to loosen the laws governing the unauthorized practice of law (the laws that keep non-lawyers from offering legal advice), a state supreme court would likely strike it down as an impingement upon the inherent powers of the judiciary.

This complexity and ambiguity also helped shield Enron attorneys from the disciplinary actions accountants and executives faced.

“When you look back at what these lawyers did, it’s not really clear that they even violated the rules,” Barton says. “And that’s a statement about the rules themselves.”

According to Barton, some of the bias and disciplinary problems could be avoided by educating judges using a system currently implemented in France and Germany, where aspiring judges study law on a separate track from those training to be lawyers. This method ensures the judges receive education and training specific to a career as a judge, not as a lawyer, and their careers stay within the realm of judgeship.

Another option would be for courts to have non-lawyer judges serve alongside professional judges in hearing cases. The American legal system employed lay judges up until about a century ago, and Barton says there is no reason the United States couldn’t do so again.