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.
What is it about Trump that makes otherwise smart people say the stupidest possible things? https://t.co/lkUgcOSp4t
— Scott Greenfield (@ScottGreenfield) February 13, 2021
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?