A Once Honorable Profession

My Great Uncle Dave was kind enough to move my admission into the bar of the United States Supreme Court. Uncle Dave was my idea of a lawyer as I was growing up. He was the kind of guy who would wear a three-piece suit to mow the lawn, because he believed he was a lawyer all the time, not just when he was in court or sitting in his corner office at Broad Street in Newark.

Uncle Dave “hired” me to “clerk” for him while I was still in college so I could see what lawyers did, who lawyers were. I wasn’t really a clerk, but the kid who fetched coffee for the lawyers in his office, sat in the library (that was a place where he kept all the law books) and looked up things for him and, mostly, listened to him as he explained why he did what he did.

He taught me about zealous representation. He taught me about the virtue of hard work. He taught me about honor and integrity. Uncle Dave would fight right up to the line of propriety, but he would never cross it. This wasn’t because he feared being disbarred. This was because he believed that honor mattered.

Lawyers have not had a good run over the past few years. Lawyers in the service of Trump have been disgraceful, often outrageously dishonorable. Between Rudy Giuliani, Sidney Powell and Lin Wood, one might get the impression that being a lawyer and mental health are incompatible. As for former Attorney General Bill Barr, there’s no explanation, even if he finally reached a line he wouldn’t cross with the rigged election scam.

Lawyers in the service against Trump haven’t been a lot better, whether throwing Molotov cocktails at police cars or manufacturing TrumpLaw, gross distortions of law to condemn Trump’s bad, but not necessarily unlawful, actions. And as the Trump impeachment defense team twists law its way, others twist it the other way.

Watching the news, Dr. SJ often turned to me and asked, “Can they do that? Can they say that?” Lawyers aren’t supposed to lie to courts. Lawyers aren’t supposed to bring frivolous litigation. She’s thinks lawyers are supposed to be honorable. I may have given her the wrong impression. No, they can’t do that, and yes, they can and do, all the time.

Sherrilyn Ifill, director of the NAACP Legal Defense Fund, raises a question of what to do about it.

The appalling conduct of the lawyers at the highest levels of government who behaved so shamelessly in seeking to maintain Trump in office was not an aberration, but a continuation. Throughout Trump’s presidency, lawyers were centrally involved in perpetuating some of its most repugnant excesses.

Lawyers have not done the profession proud during the Trump administration. I’m not sure if she means to say that lawyers for prior administrations were good guys, although that’s the implication. Was she a fan of the Thornburgh Memo? Did she support the OLC Torture Memos, written by John Yoo and signed off by Jay Bybee. Was John Ashcroft her idea of an honorable attorney general? But even if the DoJ wasn’t a lot worse than it ever was, it wasn’t good.

Despite this, there was little condemnation from the leadership institutions of our profession. The American Law Institute invited Mr. Barr to speak just months after his hijacking of the Mueller report, and ensured that there was no opportunity for questions from the audience. And neither judicial nor prosecutors’ associations ever issued condemnatory statements when Mr. Trump incited threats against the Black jury forewoman in Mr. Stone’s case.

If these are the worst examples of lawyers around, then things aren’t too bad. But they’re not, even if they’re the examples that matter most to Ifill. Perhaps they are brought up because they reflect the institutional failure to condemn Trump and his lawyers as Ifill believes they should.

Just as the president, members of Congress, and insurrectionists must be held accountable for their actions, the legal profession must urgently take collective stock of why so many prominent legal institutions and leaders were embroiled in supporting one of the most corrupt and destructive presidencies in our history.

This is the lead in to her point, that we should create a Truth and Reconciliation Commission, as was done in South Africa for apartheid, for lawyers who supported this “corrupt and destructive” regime.

This begins with a recognition that in a world in which raw power has come to transcend the unspoken code of civility and integrity among political lawyers, more is needed than the mere expectation that lawyers in government will behave honorably.

She has a point, that the mere expectation that lawyers will behave honorably hasn’t been sufficient. Nor has the threat of enforcement of our Code of Professional Conduct, honored mostly in the breach and almost never when it comes to government lawyers. Let’s be real, lawyers are disciplined for raiding the trust account, but rarely for lying or bringing frivolous actions, for being dishonorable. But is a TRC the something “to be done”?

Without question, these changes will be difficult and controversial. But we must have a full accounting and examination of our profession’s role in contributing to the erosion of our democracy. Even now, the outcome of Mr. Trump’s second impeachment trial will depend on the integrity and courage of lawyers, who make up a majority of the United States Senate. As a profession we must confront ourselves if lawyers are to be worthy of the mantle of leadership that is so routinely and unquestioningly conferred upon us, and if we are to protect the rule of law in our democracy.

The complaint here isn’t merely about dishonorable lawyering bolstering a corrupt president, but about lawyers being lawyers for the wrong side, representing the wrong people and wrong ideas. Beware the fake flattery of lawyers being worthy of the “mantle of leadership.” We’re not leaders, but lawyers. Even the worst among us is entitled to representation, something Ifill more than anyone should recognize, even if that furthers the erosion of her version of democracy because there are also lawyers on the other side to prevail, as they did here.

Dick the Butcher would support this idea, rid us of those lawyers who would defend the side we hate, and then there will be no one to oppose us. Yes, we need to be far more honorable in refusing to cross the line, and it needs to be enforced. No, it is not dishonorable to be the lawyer for those clients and ideas deemed unworthy in the eyes of Ifill’s Truth and Reconciliation Commission. Maybe we were never all that honorable as a profession, but only as to those individual lawyers who believed that honor was their personal duty.


Fourteen years ago today, I published my first post at SJ. Was it worth it?

35 thoughts on “A Once Honorable Profession

  1. Bruce Coulson

    Every profession, every job, has a few people who shouldn’t be there. Maybe they’re incompetent, or perhaps they’re actually criminals. And the question always arises, ‘What should be done?’. Firing, disbarment or criminal charges always come after the damage is done. And there are always people who will argue that the profession should be ‘cleaned up’, that somehow that will make everything perfect. But it never works. Dick the Butcher was opposed by someone who understood that no matter how you remove the bad apples, more will arrive. All that can be done is to police the professions, the jobs in such a way that the damage is as minimal as possible.

    Reply
  2. MIKE GUENTHER

    It is quite a feat to keep a blog going for 14 years and maintain a strong readership. The byways of the internet are littered with the refuse of long forgotten blogs and web sites.

    For this layman, I sure hope you keep writing and giving us some learnin’ on the law. You deserve some Maple Bacon Donuts and a shot or two of your favorite liquor.

    Reply
  3. Skink

    Yesterday, you were cranky about tummy rubs. I attributed most of the cranky to the weather getting you down. If so, Rich has an excellent solution, but it means plane fare. If you do it, you get meat with bones, grouper still wiggling and lobster as big as your head. Of course, bacon is the only garnish for booze.

    Today, you write a sentence that is sure to result in belly bops. I sense danger in the equivocalitudization. Therefore, I say only that 14 is adolescence. Get back to work–there’s more to be done.

    I worry about people like Ifill, but to understand and rationalize my concern requires that I first get past her name. I need to understand where she comes from. Did the name lead her to fill the holes of our horrible profession, or was the name created to lend credence to her created expertise? Until I figure that out, I can’t address her tribunal approach to determining who gets to hire me.

    Reply
  4. Paleo

    No, no, a thousand times no. Ms Ifill long ago decided what the Truth was and her idea of Reconciliation is for those who disagree with her go sit down and STFU or else.

    Apparently she hadn’t noticed that the people who we send to work for us in government and the people they hire to work for them are among the worst of whatever profession they represent.

    I’m not a lawyer, rather an engineer, but among my areas of oversight was our regulatory efforts. Hearings and permitting and such. So I worked with and against a lot of lawyers. The vast majority – virtually all – were completely ethical and moral people. Good people are easy to find. The problem with our government isn’t the lawyers but the people who hire them.

    Reply
  5. John Barleycorn

    Houston, we have a problem…

    Richard Shelby: Lawyer

    Tommy Tuberville: Football coach

    Lisa Murkowski : Lawyer

    Senator Dan Sullivan: Lawyer

    Kyrsten Sinema: Lawyer

    Mark Kelly: Astronaut

    John Boozman: Optometrist

    Tom Cotton: Lawyer

    Dianne Feinstein: Womens Parole Board

    Alex Padilla: Engineer

    Michael Bennet: Lawyer

    John Hickenlooper: Geologist

    Richard Blumenthal: Lawyer

    Chris Murphy: Lawyer

    Tom Carper: U.S. Navy officer

    Chris Coons: Lawyer

    Marco Rubio: Lawyer

    Jon Ossoff: Documentary film producer

    Raphael Warnock: Pastor

    Brian Schatz: Teacher

    Mazie Hirono: Lawyer

    Mike Crapo: Lawyer

    Jim Risch: Lawyer

    Richard Durbin: Lawyer

    Tammy Duckworth: Army National Guard Officer

    Todd Young: Lawyer

    Mike Braun: School Board

    Chuck Grassley: Farmer

    Joni Ernst: Army National Guard officer

    Jerry Moran: Lawyer

    Roger Marshall: U.S. Army Reserve officer

    Mitch McConnell: Lawyer

    Rand Paul: Ophthalmology

    Bill Cassidy: Physician

    John Neely: Lawyer

    Susan Collins: House staffer

    Angus King: Lawyer

    Ben Cardin: Lawyer

    Chris Van Hollen: Lawyer

    Elizabeth Warren: Lawyer

    Edward Markey: Lawyer

    Debbie Stabenow: Social worker

    Gary Peters: Lawyer

    Amy Klobuchar: Lawyer

    Tina Smith: Public relations consultant

    Roger F. Wicker: Lawyer

    Cindy Hyde-Smith: Farmer

    Roy Blunt: County Clerk

    Josh Hawley: Lawyer

    Jon Tester: Music teacher

    Steve Daines: Businessman

    Deb Fischer: Rancher

    Ben Sasse: Professor

    Catherine Cortez Masto: Lawyer

    Jacky Rosen: Computer programmer

    Jeanne Shaheen: Teacher

    Maggie Hassan: Lawyer

    Robert Menendez: Lawyer

    Cory Booker: Lawyer

    Martin Heinrich: Public relations consultant

    Ben Ray Lujan: Administrative Services

    Chuck Schumer: Lawyer

    Kirsten Gillibrand: Lawyer

    Richard Burr: Sales manager

    Thom Tillis: Business consultant

    John Hoeven: Banker

    Kevin Cramer: Tourism Director

    Sherrod Brown: Teacher

    Rob Portman: Lawyer

    Jim Inhofe: Specialist Fourth Class, U.S. Army

    James Lankford: Teacher

    Ron Wyden: Teacher

    Jeff Merkley: Nonprofit organization executive

    Bob Casey Jr: Lawyer

    Pat Toomey: Currency trader

    Jack Reed: Lawyer

    Sheldon Whitehouse: Lawyer

    Lindsey Graham: Lawyer

    Tim Scott: Insurance agent

    John Thune: South Dakota Republican Party Executive Director

    Mike Rounds: Businessman

    Marsha Blackburn: Marketing consultant

    Bill Hagerty: Management consultant

    John Cornyn: Lawyer

    Ted Cruz: Lawyer

    Mike Lee: Lawyer

    Mitt Romney: Businessman

    Patrick Leahy: Lawyer

    Bernie Sanders: Filmmaker

    Mark Warner: Businessman

    Tim Kaine: Lawyer

    Patty Murray: Teacher

    Maria Cantwell: Marketing

    Joe Manchin: Corporate executive

    Shelley Moore Capito: Career counselor

    Ron Johnson: Accountant

    Tammy Baldwin: Lawyer

    John Barrasso: Orthopedic surgeon

    Cynthia Lummis: Lawyer

    Reply
    1. SHG Post author

      I have no idea why you did this. I have no clue what you think this proves. I don’t know why you think it was worth this much space in my comments.

      But this being the most effort you’ve ever put into anything other than creating the Habeas Healey, I would be remiss to trash it just because I have no clue why.

      Reply
      1. Corey

        I am equally confused and yet I just read through that list twice, so clearly Barleycorn understands something I don’t.

        Reply
      2. verylosingtrader

        You certainly trashed most, if not all of the comments in those 2007 days.
        It’s a wonder how you built a following with your early use of cancel culture.

        Reply
  6. Daniel Partain

    Yes. I have found your blog to be of great use to me. You have constantly reminded me that being an attorney is not a career but a profession. I thank you for being the voice in the wilderness.

    Reply
  7. B. McLeod

    Biden will need lawyers for pen-and-phone, to help draft “dear colleague” letters and to cleverly define “DVEs” in a way that leaves friendly paramilitaries freedom to operate. So there won’t be a change. It’s the same reason we still have the CIA and protect agents from being punished for their misconduct. Neither tribe is ready to get rid of unethical lawyers, foreseeing a time of need.

    Reply
    1. SHG Post author

      I hate it when this happens. I was just saying, not fishing for compliments. Now Skink and GD are gonna make fun of me for this for months.

      Reply
      1. Guitardave

        ‘Tis just a wee bit ironic that after I tell you “…no ones gonna mistake this place as being all about [ tummy rubs] ” you go and make a post like this.

        I wish you could hear the inflection of the Heh heh heh I’m emitting right now….and the rest of the evening. 🙂

        Scott, I love what you do here, and I’d be bummed if you quit, but either way you’ll always be high on my “friends I love and am blessed to know” list.

        Reply
          1. Guitardave

            You know, I could say you set yourself up for it…but no, even I’m not that cynical.

            I don’t have to say this, and after the second rocks glass full of ‘Old Tub’, I probably shouldn’t, but I’ve stumbled upon a huge nugget of truth you may not like, but will not, in all your wordsmithy-ness, be able to refute.

            You’re an honorable man with a ‘lawyers view’ of the issues. They impel you to seek the truth. You use all the tools you’ve acquired ( that some of us don’t have) thru education, experience, and the mad ability to examine the evidence.

            This skill-set appears to me, and many others, to make your take on things a whole lot closer to that elusive thing called truth.
            Even when I don’t agree at all, your thoughts almost always temper my tendency to ‘go radical’.

            So don’t forget, Socrates…truth is beauty.
            People like beauty…it makes them feel better, it counters the chaos.
            Yeah, I said ‘FEEL’ better.
            They FEEL obliged to thank you.
            So shut up, and take it like a man.
            You earned it.
            GD ( Mic drop )

            Reply
            1. SHG Post author

              Now that this post (and hence, the comments) are further downstream from the top, I’ll tell you my reasons. First, I really don’t seek validation here. It’s not that it’s not nice (although hitting the tip jar does more to keep this hotel open than a tummy rub), but that it sidetracks the substantive comments I really want to see happen here. Yes, that may be more my concern, but it’s my house so tough shit.

              Second, tummy rubs in general create peer pressure on others to do the same, and that’s bullshit. No one should ever feel that they need to give a tummy rub lest they seem to be unappreciative.

              Third, I want to be able to raise things without it coming off as being self-aggrandizing. There are a lot of problems out there that I want to address, but would backfire on me if I did so and make me feel, if not be, hypocritical. I don’t want to be hypocritical, and I don’t want to create a situation that makes it appear as if I’ve created the scenario that gives rise to hypocrisy with some plausible deniability.

              It’s not that I don’t appreciate the kind words, but it’s not what I’m doing here and I fear that it will give rise to a circle jerk of validation within the commentariat. If that happens, we’re no better than the echo chambers of pathetic baby lawyers who twit about their failings to get a thousand “likes” on twitter. I don’t want SJ to be pathetic cult of positivity; I want it to be illuminating and thought-provoking, and you just being here is all the tummy rub needed.

            2. Kathleen Casey

              Sometimes our host keeps a tight grip on his own truth just like everyone else, and just like me. Sometimes I want to tell him to cancel my subscription but I know what the answer will be.

            3. SHG Post author

              GD wasn’t around here back in the old days, when you were the Hinterlands Correspondent. A lot of people have made SJ what it is today, and you are one of them, Kath.

  8. Kathleen Casey

    A tummy rub, oh good Lord. Things have been quiet in The Hinterlands or more accurately I don’t run across as many strange things to report since I cancelled that subscription.😏

    Reply

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