Golem, "Gollum", Gone: The Missing Ideals of the Legal Profession

David Barnhizer, Cleveland State University College of Law

Abstract

The golem is the mud and stick figure of folklore created to protect Jews from the abuses of Hungarian society in the 16th Century. But ultimately the powerful creature had to be destroyed because it lacked a soul and had no moral core to regulate its behavior and became a danger to those it was constructed to protect. Most people may be more familiar with the concept of the golem than they realize. In J. R. R. Tolkien’s book, The Hobbit, and the subsequent Ring Trilogy, the sad creature who relentlessly pursued Frodo to recover his “Precious” ring of power continually muttered “gollum” to the extent that Frodo began to refer to him in that way. The ring Gollum called “his Precious” was linked to the Dark Lord, and its use affected those who activated it to such a degree that it seduced them and stole their souls.

As the members of the legal profession increasingly abandon the anchoring moral principles of justice, fairness and client loyalty in pursuit of the “golden ring” of financial rewards, power and self-aggrandizement they have become little more than golem. The preservation of those anchoring principles is far more important than could ever be conceived by those who treat the practice of law as nothing more than another free market business activity. If that is in fact all private lawyers engaged in the practice of law for profit are then there is no justification for special treatment of the legal profession. Nor is there any valid reason to allow the organized bar and judiciary to set the rules of behavior and sanction because, after all, they are self-interested institutions who have been establishing the terms of operation and potential liability for misconduct on themselves. Such a license to control one’s own conditions of liability guarantees an absence of effective enforcement and that is precisely what exists in the American legal profession on the levels of ethical responsibility, civil liability for failure to provide a reasonable quality of representation and even criminal liability for diversion of client funds and fraudulent overbilling.