Lawyers, Not Priests

The reply was short and sweet, “Lawyers aren’t supposed to represent clients they know are guilty.” I would have shrugged it as with most of the inanity seen on twitter, but for the fact that its author was Charlotte Allen, who, among other things, was a lawyer.

About Charlotte Allen

I’m an award-winning journalist who has published prolifically in the Weekly Standard, the Wall Street Journal, the Los Angeles Times, the New York Times, the Washington Post, the Washington Times, Insight, City Journal, Washington Monthly, the New Republic, and the Atlantic. I’m the author of “The Human Christ: The Search for the Historical Jesus” (1998). I have a B.A. from Stanford, an M.A. from Harvard, a law degree from U.S.C., and a doctorate in medieval and Byzantine studies from the Catholic University of America.

Had this stunningly stupid reply come from the usual suspects, it would have been good for a chuckle. But a lawyer?  It started with my shocked reaction to a twit by Cato’s Clark Neily, who has dedicated his efforts to gathering unduly passionate youthful followers.

In what world do lawyers use words like “profoundly immoral” in the lawful and proper performance of their duty to zealously represent their client? Priests speak to morality. Philosophers debate morality. What does it have to do with lawyers? A lot, apparently, as David Lat explained.

Most students at top law schools are progressives. And many students at top law schools, including a fair number of progressives, go on to work for Biglaw—firms that defend fossil-fuel companies, opioid manufacturers, and corporations that are similarly unsavory, at least from a progressive perspective. Is this unethical?

That’s the question tackled by Professor Kwame Anthony Appiah in a recent edition of his Ethicist column for the New York Times. A law student from a working-class family, saddled with lots of law-school loans, wrote to Professor Appiah…

The question itself is unsurprising, the fairly common concern of the young about how they can resolve the inner conflict of needing the money Biglaw pays while despising what they do and who they serve.

But the firm’s work entails defending large corporations that I’m ethically opposed to, including many polluters and companies that I feel are making the apocalyptic climate situation even worse. Even if I stay at the firm only for a short time to pay off my loans, I would be helping in these efforts for some time….

I know it is selfish to take this corporate job. But is it unforgivable?

Like most inchoate lawyers, the questioner has dreams of public service, by which he means service of things he believes to be right and against things he believes to be wrong, as if his belief is what distinguishes right and wrong and all the corporations are by definition wrong.

Basically, I feel torn between two value systems. The first is the value system of my parents, which prizes hard work and self-sufficiency. My parents are very proud of me for working in a high-level job that allows me to support myself. The second is my own personal moral code — the little idealist within me who wants me to drop the corporate angle in order to help as many people as I can, even if it results in a difficult life for me.

But the interesting aspect is that the inquiry is whether it’s “forgivable”? He’s seeking  an advance ruling on absolution in the confessional of the New York Times Ethicist column, Not knowing this individual, I’m reluctant to suggest that if he chose to go the public service route, he would be inclined to support wage increases as required for human dignity and student loan debt forgiveness so he could enjoy the benefits of wealth while being able to do the job that suits his “own personal moral code.”

And there’s that word again. Moral. To his credit, Appiah faces the issue head on.

I’m not sure that this form of moral accounting makes much sense, though. Again, for an adversarial legal system to function justly, there have to be lawyers who are willing to serve clients they disapprove of. If that’s a demerit, it has to appear on somebody’s moral scorecard. But surely it can’t be both good that somebody does it and a demerit for the person who has done it. (You can regret having to do something as part of your job, even if that something isn’t itself wrong.) And, on the bright side, not all of your clients are likely to be evildoers; your company will also be doing some pro bono work for people you may actively enjoy working for.

It’s impossible to both want a functional adversarial legal system and believe, as do this person and Neily, that morality precludes the fulfillment of one’s duties to one’s clients. Lawyer all you want as long as I approve of it? Do they think this is free speech?

Curiously, Lat says he approves of Appiah’s reply, but really doesn’t.

I’m persuaded by Professor Appiah’s thoughtful response, and I know that many liberal and progressive law students and lawyers from years past would agree with him as well. But my anecdotal sense, from interviewing and writing about progressive law students today, is that views have shifted.

No matter what Biglaw attorneys tell themselves so they can sleep at night, they are, at the end of the day, perpetuating and protecting a social and economic order that’s fundamentally unjust. As a progressive, you should want no part of that.

Biglaw attorneys. Criminal defense lawyers, except perhaps public defenders, Prosecutors. To progressives, these are not legitimate areas of legal practice, but bastions of immorality. What sort of lawyer wants to engage in profound immorality by the lawful, proper and zealous defense of evil?

20 thoughts on “Lawyers, Not Priests

  1. Chris Van Wagner

    Kept reading to the end, looking for the priest story. Oh well. But for guilty people, what would I do all day? On the defense side of zealous advocacy, an attorney’s sworn duty includes no ethical mandate to judge guilt. Of course, one’s strategic duty always requires an assesment of guilt or, better stated, of the strength of the case. But I don’t KNOW if they are guilty in taking on or even in completing representation, nor does it matter one whit (twit?) to my conscience. They can even tell me they did it and I still do not know. This twitter law pablum has been the staple of quizzical friends’ cocktail hour queries (over old fashioned at fish fry’s?) for decades – that is, until their poor sweet little Johnny is suddenly “guilty” and needs me. Is it Scotch o’clock yet? (Forgive me, Rabbi, for I have sinned.)

    Reply
  2. Lee

    “I’m sorry general Yamashita, but I cannot defend you against these War crime accusations because it offends my progressive sensibilities,” said Colonel Harry E. Clarke, Sr, never.

    And if defense attorneys are going to judge the guilt of their clients without the necessity of a trial, then what’s an adversarial legal system for?

    But despair is a sin.

    Reply
  3. Jeffrey M Gamso

    Nobody says that just because you go to law school you have to become a criminal defense lawyer (or prosecutor or public interest lawyer or do mergers and acquisitions or whatever). And if you do criminal defense as anything other than a public defender, and accepting the financial consequences, you can turn down the defense of anyone you like or limit your practice how you will. (In my retiredish situation I’m only accepting direct appeals in death penalty cases; you’ve said, Scott, that you won’t take child sex cases.).

    Of course personal moral values can help one decide what kind of law (if any) to practice. But the law itself? If you’re gonna do law in this country you kind of need to accept the legal system we have, a system built on the idea that folks on all sides of a question should have counsel. (I’m reminded of that old blawgosphere discussion of the law student who wanted to change her morality so that she could help her criminal clients and also wanted to get them convicted when it would be for their own good.)

    Reply
      1. Nigel Declan

        “By making the decision to post your thoughts publicly, you invite public scrutiny. Do not expect a pat on the head when your thoughts are wrong.”

        As true today as it was in 2009. And yet, the hue and cry to protect everyone from criticism or scrutiny for fear that their feelings might be hurt or their personal sensibilities offended seems to grow louder by the day.

        Reply
  4. phv3773

    A problem for everyone, not just lawyers. Suppose you’re a computer science major and you get offers from Boeing (war planes! missiles!) and PepsiCo (sugary drinks! salty snacks!) or Aetna (health insurance; need I say more?).

    Reply
  5. The Infamous Oregon Lawhobbit

    “How in the world can you represent someone who’s guilty????”
    “Easy. If I do my job well – he’s not guilty.”

    Reply
  6. Anonymous Coward

    I sense an opportunity to sell indulgences handwritten on vegan free trade parchment by an intersectional worker’s cooperative absolving these shmoes of their sins against progressivism. This would of course be an annual subscription to generate that sweet recurring revenue for the IPO and the actual indulgences would come from a sweatshop in Malaysia.

    Reply
  7. B. McLeod

    A law degree from USC (or anywhere) doesn’t make someone a lawyer. Maybe the unsavory aspect of representing the guilty dissuaded her from seeking a license or practicing. Never taking the license means never becoming subject to the disciplinary rules. Hence, no impediment to the career in “journalism,” where there is no duty of candor.

    Reply
  8. Elpey P.

    And when you know they are innocent, you can just say “Your Honor, my client’s freedom is not up for debate.” Moral high ground ftw.

    Reply
  9. SamS

    We CPA’s and tax preparers face this questions constantly: How can you use your skills and knowledge to keep rich people from paying their share of taxes? My answer is the law is the law and I follow it. My duty is to my client, not to the government.

    Reply

Leave a Reply

Your email address will not be published.