LAWYERS AS ASSHOLES

Assholes: What Are They?

“ASSHOLES: A THEORY” is the title of a short book by Aaron James, a professor of philosophy at the University of California Irvine. He published it in 2012 (Doubleday). It is a significant effort in what might be called “practical social philosophy.” Analytic philosophy, a language-oriented enterprise if ever there was one, has paid far too little attention to the substantive elements of non academic discourse, such as street language. It might be said that there has been too little metaphysics of slang. (There is a significant exception to this observation, Harry Frankfurt’s ON BULLSHIT (Princeton University Press 2005), but that is a different story.  I may write a blog about that book one of these days. It will be entitled “Lawyers As Bullshiters: A Theory.”

I have been wondering if it applies to lawyers, and, if so, how. This blog is a move in that direction and a critique of the book. Incidentally, Professor James has a YouTube lecture available on his topic. 

Professor James principal idea is that assholes have “(1) a stable trait of character, (2) that leads a person to impose only small or moderate material costs upon others, (3) but that nevertheless qualified the person as morally repugnant.” There are a good number of assholes around all the time. Being an asshole is not what make Hitler so evil, though he was an asshole. What made him so evil was his propensity to truly inhuman and life destruction by execution and torture.

The key ideas in James pantheon of dreadfulness is the existence of a stable trait of character.  This means that the true asshole will engage in unacceptable conduct frequently or all the time. I confess that I am not quite sure what a “material cost” might be here. I associate the idea with losses of money or wealth, but I don’t think that is quite what James means. It seems to me that non material costs are the bailiwicks of assholery as well as material costs. I have no difficulty understanding the idea of moral repugnance, and I have no difficulty understanding that there are degrees of it. 

One of the key traits of character James emphasized is having an irrationally inflated sense of entitlement, a sensibility well over and above other human beings. James says that the assholes outlook is “entrenched” in his/her character. Being an asshole, thus, is very similar to having a narcissistic personality disorder, though not all assholes are necessarily psychopathic. 

 By simple and obvious inference, however, the asshole has no sense of equality (or fundamental equal worth) among persons–fellow persons. 

(Does the reader find it odd that the locution “___ is an asshole” is almost always filled in by a male name referring to a male?)

At the same time assholes need not be crude in conduct or speech. They can be quite dignified; indeed, deceptively so. Not all assholes are boorish; they are not all smug; they need not be vicious; they are virtually all self-aggrandizing, but this may not be obvious.  In short, a necessary condition of being an asshole is an strong sense of generally superior entitle to virtually everything. This is true whether it involves standing in line or dominating decision-making. 

Assholes do not tend to feel obligations to others. They will violate them whenever they need to or whenever they can get away with it without endangering themselves in relevant ways. Assholes lack a sense of kindness. 

Curiously, assholes can be a force for good sometimes. Great leaders can sometimes be like this. Churchill maybe.  Still, for the most part, the typical asshole tends to lack a sense of kindness what might be called altruistic sentiment, except when it favors his self interest, including reputation. 

It seems to me that genuine assholes tend to fee neither shame or guilt. 

Now, what about lawyers. Assholery emerges in the practice of law in two major ways. The first one is in the actual practice, and the second is in the business of law. I am going to skip the second. Law firm senior partners acting as manages can be assholes, and, in fact, many are. What I care about here is the actual practice.

Asshole lawyers have several tendencies. Among them are these: obstructionism, skipping the following of procedural rules, oppression of opponents by pointless moves, such as unnecessary delays or pointless discovery objections, attempts to browbeat witness, attempts at undermining the weak (whether opposing counsel or opposite clients), charging clients too much and then never giving in, name calling, over use of counterclaims and/or grievance filings, and manifestations of sneering contempt. There are many more, but that’s enough for now. 

Interestingly, one may wonder whether the “ethical” of professional ethics of encourage lawyer assholery. The principle requiring truly zealous, but only if legal, representation, as a matter of logic tends to encourage some assholery, since zealousness by its very terms contains no limits, except for illegality.  this is true even though there are more specific rules forbidding certain kinds of asshole behavior, but only once in a while is such conduct sanction by bench, bar, or informal lawyer coalitions. 

I suppose it should be pointed out that the asshole, including the asshole lawyer, will have little or not real sense of the importance of justice. This is unfortunate, since it is inconsistent with a fundamental principle of lawyering in all civilized countries. 

One last point about the metaphor built into the term “asshole.” It should be remembered what real assholes actually are and do. This can be done by thinking for a moment on what passes through them, at least on the way out. 

*Michael Sean Quinn, Ph.D., J.D. Etc.

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