problem with construction lawJonny Wells ignited a little firestorm when he posted a Viewpoints article in April simply titled “Lawyer as Constructor.”

I personally loved this article, and it inspired me to chime in on the topic.  Are there Too Many Lawyers In Construction, I asked? This led to a small flurry of conversation, including a piece from my friend Chris Hill who suggested on his blog that Construction Lawyers Can Be Part of the Solution.  Another lawyer chimed in with another ENR Viewpoints article to defend lawyers, writing “Bash All The Lawyers? Not So Fast.”

And then, just this morning, Chris Hill wrote about the topic again in “Just When I Thought the Debate Had Died Down…

Lawyer Bashing or Frustration With The System?

If you survey the articles written and each’s comments you’ll find folks chiming in to defend lawyers and others complaining about the role of the lawyer in a construction project. The responsive viewpoints article from Andrew Ness, for example, defends the attorney by  dismissing all of anti-lawyer talk as “classic lawyer bashing.”

But is it really?

Jonny Wells – the author of the original ENR piece – had a pithy and funny comment on the Ness defending article:

First, there seems to be no dispute about my assertion that lawyers, not architects and not engineers, are running the construction business today. Nor does there seem to be any disagreement with my observation that, with lawyers calling the shots, the construction process (i.e., production) is much slower than it was when architects and engineers were in charge. Had classic lawyer bashing been my objective, I could have done a much better job of it…

Again, I strongly agree with Wells.  However, one thing I think he misses with his response is that support for his overall position is stronger than he thinks as the only people coming to the defense of the attorneys are…the attorneys.

Ness and other attorneys may want to quickly dismiss this outcry as “classic lawyer bashing.” They will then want to go on to explain about the value brought by attorneys to a construction industry. However, it seems clear to me that the folks supposedly benefiting from attorneys, aren’t seeing the value.

Are A Few Lawyers Ruining It For The Lot?

In a comment on Christopher Hill’s Construction Law Musings blog, Chris writes about a frustration with:

[T]he rush to lump all construction counsel into one big cabal seeking to line their pockets at the expense of their clients.

I just hate to see a few kill off the reputation of those of us that seek to assist and streamline the process as opposed to prolonging it.

To a large degree, I agree with Chris here. I claim that lawyers are out of touch and that the legal system at large is broken, but despite my complaints, I’m aware of that lawyers can bring value to the table and can be an asset in the construction process. One thing that Hill often mentions (and to which I agree) is that mediation is a excellent tool for construction disputes.

However, I don’t necessarily agree with Hill so much that I believe a “few lawyers” are killing off the reputation of the whole. While there are certainly good lawyers out there for the construction industry – Christopher Hill certainly included, and at the top – I think that the problem is deeper than a few bad apples.  There seem to be a lot of bad apples, and the system as a whole has flaws.

The best evidence of this can be found in the articles and comments spawned by Wells’ ENR article in April. The lawyers are defending the lawyers, but no one else is taking up their case. That should say something.