Tucson, Arizona -
When I began practicing law in
1946, justice was much simpler. I joined a small
Tucson practice at a salary of $250 a month,
excellent compensation for a beginning lawyer. There
was no paralegal staff or expensive artwork on the
In those days, the judicial system was
straightforward and efficient. Decisions were handed
down by judges who applied the law as outlined by the
Constitution and state legislatures. Cases went to
trial in a month or two, not years. In the courtroom,
the focus was on uncovering and determining truth and
I charged clients by what I was able to accomplish
for them. The clock did not start ticking the minute
they walked through the door.
The legal profession has evolved dramatically during
my 87 years. I am a second-generation lawyer from an
Irish immigrant family that settled in Yuma. My
father, who passed the Bar with a fifth-grade
education, ended up arguing a case before the U.S.
Supreme Court during his career.
The law changed dramatically during my years in the
profession. For example, when I accepted my first
appointment as a Pima County judge in 1957, I saw
that lawyers expected me to act more as a referee
than a judge. The county court I presided over
resembled a gladiator arena, with dueling lawyers
jockeying for points and one-upping each other with
calculated and ingenuous briefs.
That was just the beginning.
By the time I ended my 50-year career as a trial
attorney, judge and president of southern Arizona's
largest law firm, I no longer had confidence in the
legal fraternity I had participated in and, yes,
I was the ultimate insider, but as I looked back, I
felt I had to write a book about serious issues in
the legal profession and the implications for clients
and society as a whole. The Fraternity: Lawyers and
Judges in Collusion was 10 years in the making and
has become my call to action for legal reform.
Our Constitution intended that only elected lawmakers
be permitted to create law.
Yet judges create their own law in the judicial
system based on their own opinions and rulings. It's
called case law, and it is churned out daily through
the rulings of judges. When a judge hands down a
ruling and that ruling survives appeal with the next
tier of judges, it then becomes case law, or legal
precedent. This now happens so consistently that
we've become more subject to the case rulings of
judges rather than to laws made by the lawmaking
bodies outlined in our Constitution.
This case-law system is a constitutional nightmare
because it continuously modifies Constitutional
intent. For lawyers, however, it creates endless
business opportunities. That's because case law is
technically complicated and requires a lawyer's
expertise to guide and move you through the
The judicial system may begin with enacted laws, but
the variations that result from a judge's application
of case law all too often change the ultimate
When a lawyer puts on a robe and takes the bench, he
or she is called a judge. But in reality, when judges
look down from the bench they are lawyers looking
upon fellow members of their fraternity. In any other
area of the free-enterprise system, this would be
seen as a conflict of interest.
When a lawyer takes an oath as a judge, it merely
enhances the ruling class of lawyers and judges.
First of all, in Maricopa and Pima counties, judges
are not elected but nominated by committees of
lawyers, along with concerned citizens.
How can they be expected not to be beholden to those
who elevated them to the bench?
When they leave the bench, many return to large and
successful law firms that leverage their names and
Business of law
The concept of "time" has been converted into
enormous revenue for lawyers. The profession has
adopted elaborate systems where clients are billed
for a lawyer's time in six-minute increments. The
paralegal profession is another brainchild of the
fraternity, created as an additional tracking and
revenue center. High-powered firms have
departmentalized their services into separate profit
centers for probate and trusts, trial, commercial,
and so forth.
The once-honorable profession of law now fully
functions as a bottom-line business, driven by greed
and the pursuit of power and wealth, even shaping the
laws of the United States outside the elected
Congress and state legislatures.
Today the skill and gamesmanship of lawyers, not the
truth, often determine the outcome of a case. And we
lawyers love it. All the tools are there to obscure
and confound. The system's process of discovery and
the exclusionary rule often work to keep vital
information off-limits to jurors and make cases so
convoluted and complex that only lawyers and judges
The net effect has been to increase our need for
lawyers, create more work for them, clog the courts
and ensure that most cases never go to trial and are,
instead, plea-bargained and compromised. All the
while the clock is ticking, and the monster is being
The sullying of American law has resulted in a
fountain of money for law professionals while the
common people, who are increasingly affected by
lawyer-driven changes and an expensive, self-serving
bureaucracy, are left confused and ill-served.
Today, it is estimated that 70 percent of low- to
middle-income citizens can no longer afford the cost
of justice in America. What would our Founding
This devolution of lawmaking by the judiciary has
been subtle, taking place incrementally over decades.
But today, it's engrained in our legal system, and
few even question it. But the result is clear.
Individuals can no longer participate in the legal
system. It has become too complex and too expensive,
all the while feeding our dependency on lawyers.
By complicating the law, lawyers have achieved the
ultimate job security. Gone are the days when
American courts functioned to serve justice simply
It is estimated that 95 million legal actions now
pass through the courts annually, and the time and
expense for a plaintiff or defendant in our legal
system can be absolutely overwhelming.
Surely it's time to question what has happened to our
justice system and to wonder if it is possible to
return to a system that truly does protect us from
About the Author
John F. Molloy served as Chief Justice on the
Arizona Court of Appeals