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The Public Servant
The newsletter of the ISBA’s Standing Committee on Government Lawyers

December 2009, vol. 11, no. 2

Essay: Law in a time of cholera*

There was an incredible sense of giddiness in our office a week or two ago. In at least some quarters, one could say it was reminiscent of what most of us recall at the end of the bar exam or getting that first job offer. The occasion was one which would not make a lot of sense in the world of the private practice of law, or even in the worlds of a lot of public law offices. The State of Illinois had announced it was rescinding the suspension it had imposed on paying for the burials of indigents, which is the way many of our clients are referred to by those outside our office walls. The ban on payment was supposed to be one measure to get the State through one of its most recent budgetary crises. Its imposition, we can all fairly conclude, did not necessarily help achieve that result. But it did create all sorts of predictable issues—issues at least which could have been predicted by anyone who has ever been responsible for making final arrangements, particularly but not exclusively for someone who lacked their own or family resources. The celebration reminded me of the question I so often have asked about our lawyers (and other professionals) since I became the executive director of the State’s Guardianship and Advocacy Commission four years ago—an agency which is, among other things, the guardian of last resort for those too poor, too disabled, too alone for anyone else to be responsible. That question is: why do they do it?

The question startled me again, when not too long afterwards, I peeked through an ajar office door and saw a highly qualified professional, with massive responsibilities, head held in her hands and I said “it can’t be that bad!” And she answered, “Well, it’s about a DNR order—for someone way too young.” That is one of the things we do—give consents to proceeding with, withholding, or discontinuing treatment, for wards we have known and served, and as well for some for whom our only nexus is the statutory surrogacy chain. It is a matter with which our lawyers deal with the utmost seriousness, thoroughness, and compassion. It is a matter which has no rewards attached. It makes anyone who speaks with them about it ask: why do they do it?

This question poses itself again and again, as our lawyers represent people they have never met before who are facing involuntary commitment proceedings; as they attempt to fight the involuntary administration of psychotropic drugs; as they try and get the right to an education in the least restrictive environment, guaranteed by courts but too often dishonored by school districts short of money, resources, or understanding, implemented for a client with Down syndrome; as they struggle with denials of access to and by wards in institutional settings; as they do many things that they ought not have to do for the most marginalized in a society which, despite the economic downturns, is still fairly kind to those deemed most successful, most significant, most powerful, most firmly in the mainstream. Why do they do it?

They don’t have to do it. They are exceptional lawyers. They could work anywhere. They went to the schools deemed excellent by the raters—Northwestern, Vanderbilt, the University of Illinois, Georgetown, St. Louis University, and Catholic University of America. They went to schools that their counterparts on the bench and in political circles of influence favored as well—Loyola, DePaul, Southern, Northern, Marshall, Kent. They have added graduate degrees to their credentials, in management, in the social sciences, in pastoral studies, in counseling. They hold LL.M.s achieved at their own cost and on their own time. They average 14 years of service. They teach, write, and lecture. They are respected by their peers across the country, by those on the bench and those in the bar who deal with similar issues for hourly fees or percentages of estate values. They study constantly. They are successful at the Illinois Appellate and Supreme Court levels. And they conduct their research, produce their briefs, and make their arguments with the encouragement of colleagues but in most cases without a single support staff member. Their clients will never get them tickets to a Cubs game, or even a cup of coffee. And while they may gain the respect of the judges before whom they appear, it is unlikely they will ever win the votes, either from the electorate or the full circuit judges who select associates, to join them on the bench. In much of their work, they encounter personal and legal situations so desperate and at the same time maze-like they know that they can literally “start anywhere.” Why do they do it?

This is a question which admittedly is asked by those who are thoughtful observers. It has rarely been a professional path whose responsibilities were well respected, or whose motivations were well understood. Government lawyers, like government employees in general, have often been seen by the general public as enjoying a too secure and too undemanding life on the public’s dime. And they have been seen by the members of their profession in private practice as perhaps a bit less ambitious, and even a bit less talented, than the ones who go for the gold in high profile work on the “outside.” And at least at one time government lawyers could, I admit, count on a fixed pension and guaranteed health benefits someday—but as we all now know, even that is no longer the case. But now, more than ever, the atmosphere can be exhausting and the workloads harsh. In just the last year, these lawyers have been tarred with the brush of a lawyer/governor impeached for misconduct and indicted for bribery, in many cases been threatened by “fumigation,” had their salaries frozen, and in some cases reduced by mandatory furloughs, been called part of a bloated workforce at the base of an unbalanced budget, worried about layoff plans, and fought battles for clients with ever decreasing alternatives as social service providers struggled for funds due but deferred and with programs promised but unable to be provided. Why do they do it?

I look at our lawyers, these committed, talented, and under-compensated professionals of the highest possible competence and ask this question, now, more than ever. In the highly choleric atmosphere of public life, why do they do it, day after day, week after week?

The answers that emerge are those that are the stuff that continues to give life and spirit and purpose to our profession. The answers that our lawyers create “on the ground” are those that make our codes of professionalism have significance and meaning. The answers suggested by their lives and work on behalf of those who are truly voiceless remind us all of that which our lives as lawyers can attain. Why do they do it?

They do it because they believe. They believe that law is a vocation first and foremost, which requires that life be lived for and on behalf of others, with those “others” taken in both the general and the specific sense. The general sense is society as a whole, which for the preservation of its very nature can do with no less than the preservation and advancement of its values and aspirations, including most particularly that of justice for the least. The specific sense is the client without voice, without status, without resources, and sometimes without even an appreciation of his or her own peril or possibilities. The specific is the client who puts a face on the challenges with which society as a whole must successfully deal in order to be who we claim to be.

They do it because they remember. They remember the motivations that brought them to this vocation in the first place. They remember and recall each day of their working lives the ideals they brought to law school, the adversities they overcame, and the colleagues and professors who helped shape their ever-maturing understanding of those ideals and began to give them the tools to make them flesh in a world with too many sharp edges. They remember as well the lives of the clients and causes that first intrigued them. They remember the ideas and they remember the names, the places, the circumstances, and the things that should have been different, but weren’t. They remember the successes and they remember so vividly the failures and their consequences.

They do it because they hope. They hope and they imagine and dream. They do these things about that which is or could become tangible with the right words and the right courage, counted among them that needs receive appropriate responses, that situations receive resources, that those who are poor find justice, that where there is weakness, it is aided, that what is human is respected, that what is broken is healed, and that when there is voicelessness, voice is given in strong chorus. They do these things in tangible ways, with their daily practice and their daily lives, their scrambling for resources, their articulate arguments, and their well-developed skills. They do this with the staying power that makes hope meaningful, imagination a tool of change, and dreams the cutting edge of new realities.

And they do it because they are here. Just here and just now, they themselves and no one else. They know that the responsibilities they have undertaken are in fact theirs. How this came about differs in each case. Why it is this lawyer and not another may be a matter of choice or chance or both. But however it came about, the very fact of being here, of being for and with those we serve has created for each a most specific obligation which asks each day—will you stay the course? Will you answer the call? Will you speak the word that no one else will speak? Will you be the bond that guarantees justice, dignity, and the possibility of light in an otherwise very dark world?

Why do they do it? Each time I ask this question about the lawyers of Guardianship and Advocacy I find new answers. And perhaps more important, each time I ask it I find new questions that turn themselves back to me and my own vocational imperatives, and do not relent in asking me to believe, to remember, to hope and to make tangible all that brought me to be and to remain a lawyer, and for this time and season at least, to have the honor of being here—just here and just now—a member of the community of government lawyers in the community of the Guardianship and Advocacy Commission. ■


*With apologies to Gabriel Garcia Marquez.

**Mary Milano is Executive Director of the Illinois Guardianship and Advocacy Commission, a government lawyer, and a priest of the Episcopal Diocese of Chicago. She is currently the Secretary of the Standing Committee on Government Lawyers and an ISBA Assembly delegate.