"A Pig Is Born"

The two young lawyers, trying to serve a subpoena on a TV-repair store owner, thought it would be a lark to slip into their recalcitrant quarry's headquarters and surprise him. But when they got inside, one of them was elbowed in the stomach, and an ominous-looking man said to his boss, "If they gave that paper to me, I'd just put a bullet in em." The attorneys barely managed to talk their way out.

On another occasion, a young woman had been working undercover to investigate a firm that sold children's books from door to door. The day she quit, the company's owner barged furiously into her apartment building and pounded on her locked door for nearly an hour, while she stood inside, hardly daring to breathe. Finally a neighbor called the police, and the man left.

Such brushes with danger would not be surprising in the usual run of criminal law enforcement. But the undercover salesgirl and the two lawyers belonged to the enforcement division of New York City's Department of Consumer Affairs, organized in 1970 by Philip Schrag, who had drafted the city's tough consumer-protection code. After more than a year of frustration, Schrag, a onetime N.A.A.C.P. Legal Defense Fund attorney, found himself so leeched of civil-libertarian juices that he and his staff "were eager to emulate every police trick we despised, and indeed, ready to invent a few of our own."

In an article in the Yale Law Journal (excerpted from his forthcoming book Counsel for Ihe Deceived), Schrag lays out in choleric detail the serpentine methods used to block any legal redress for gypped customers. Accused businessmen hide out to avoid subpoenas. Lawyers with political influence apply pressure to kill an investigation. When a case finally comes to trial, the defendant's lawyer may ask for a stay because he has been sick; when it next comes up, he resigns from the case, supposedly because his client will not pay his fee; that means another delay for a "new" attorney to familiarize himself with the case; soon comes the judge's summer vacation. The whole system, says Schrag, operates to "let swindlers continue to swindle."

Though Schrag and his staff continued to press cases in the courts, they soon concluded that nonjudicial direct action might stop fraudulent practices more quickly. They began mailing letters to customers of suspect firms, telling them how to cancel their sales contracts. They urged the telephone company to cut off service to a firm that put a misleading ad in the Yellow Pages. Eventually, Schrag reports, "we had an impressive array of electronic gadgetry," including a tiny microphone that hooked onto a bra strap. "One hazard of a very young law-enforcement staff," observed Schrag wryly, was that the first time the device was to be used "our investigator forgot to wear a bra."

Choices. By the end of the year, Schrag saw a shift in his values, as well as those of his staff. "We [normally] condemned eavesdropping and wiretapping. We protested the use of informers and secret agents." But now he could understand how "a pig is born." Observing victims of fraud and a breakdown in civil justice is bad enough. But the policeman sees "the victims of physical violence. And when he turns to the courts, he discovers that criminal justice has failed [even] more completely." Such frustrations create "a determination to apprehend and punish the offender, one way or another. Conscientious law-enforcement agencies [are] stretched between their concepts of service and their devotion to the judicial system. It's a hell of a choice to have to make."

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