Most lawyers would consider burning evidence in a backyard barbecue outside the scope representation. Indeed, most lawyers would be astute enough, reasonable enough, to distinguish crimes committed by lawyers to be distinct from lawyers ethically representing despised clients. Kate Shaw does not.
Lawyers today have come of age in a legal profession that takes seriously its ethical obligations. That wasn’t always the case. In fact, it was the Nixon White House counsel John Dean’s question to the Senate Watergate Committee — “How in God’s name could so many lawyers get involved in something like this?” — that set in motion a reckoning for the legal profession. Watergate led to an extensive American Bar Association study and a set of ethics guidelines that to this day provide the foundation of the ethics instruction for law students and lawyers.
Those of us who hear the name John Dean and don’t confuse it with Jimmy the sausage guy are only too well aware of how the lawyers surrounding Nixon became, at best, complicit, and at worst, integral, to a criminal cover-up of historic proportions. For criminal defense lawyers, this is especially true as we’re given ample opportunity to be sucked into our clients’ criminal conduct in financially beneficial ways. And yet, there is a line that we can never cross between our representation of bad dudes and being a bad dude ourselves. As has been said a million times, we defend criminals. We are not criminals. We do not support crime. We support the Constitution.
But Shaw correctly draws a distinction between the constitutional promise of a lawyer to defend against criminal accusations and the volitional choice of a lawyer to represent a repugnant client in an unpopular civil proceeding.
In his criminal cases, Mr. Trump has a right to competent and effective counsel, and it is important that he be well represented. But the right to counsel guaranteed by our Constitution does not extend to efforts to subvert that very document.
Her point is that decent and moral lawyers don’t represent indecent and immoral civil litigants, foremost among them being Guinness Book of World Records biggest litigation loser, Donald Trump.
Yet for the most part, seasoned and well-credentialed attorneys were nowhere to be found in Mr. Trump’s post-election litigation. Instead he was represented by lone-wolf lawyers — many of whom have now been either criminally charged or disbarred. Indeed, the most recent filing by the special counsel Jack Smith suggests that Mr. Trump was forced to enlist these attorneys after the campaign staff members initially involved with Mr. Trump’s post-election challenges insisted on “telling the defendant the truth that he did not want to hear — that he had lost.” By contrast, the filing alleges, the outside attorneys Mr. Trump enlisted were, as the filing described one such individual, “willing to falsely claim victory and spread knowingly false claims of election fraud.”
There is little question that many of the lawyers who chose to represent Trump crossed the line from ethical representation to criminality. If there was a joke to be made about it, what’s the surest way for an unpaid lawyer to get disbarred and prosecuted? Represent Donald Trump. Funny, right? But sadly, true.
But this fails to draw the distinction taught by the Watergate lawyers, that one can choose to lie to courts, to fabricate evidence, to do the butthurt bidding of a malevolent moron, or one can choose to be a lawyer and zealously represent a client within the bounds of the law. The former is not lawyering, but criminality. The latter is what lawyers do, whether for people the public adores or for people the public despises.
Attorneys at prominent law firms should already know that they cannot defensibly assist in Mr. Trump’s specious efforts. If they waver, their corporate clients should make clear they do not want their attorneys associating with a candidate who has already told us he will not respect the will of the voters if they do not choose him. General counsels at the companies whose businesses employ these firms, who are also members of the bar and members of the electorate, must also make their objections known. Where appropriate, state bars should be aggressive in sanctioning egregious professional conduct.
Shaw is right, but for the wrong reasons. Being associated with Trump is the kiss of death for the lawyers in biglaw. It begins a chain of events with Trump haters blaming the firm for representing Darth Cheeto which reflects on the firms’ other clients, who become the targets of outrage for actions beyond their control. It’s hard enough for corporations to overcome their own blameworthy conduct that they surely don’t need the burden of being associated through their lawyers with Trumpian wrongdoing. So they pressure their firms, and their firms pressure their lawyers, and Trump is left to find the handful of door lawyers willing to take him on, now that Rudy has melted into disbarment oblivion.
It’s understandable, particularly given Trump’s reputation for not honoring his legal bills, among the vast array of things he fails to honor. But a critical component of our society is that disputes be resolved by courts rather than by crazies on the streets with guns. In order for that to happen, even the most despicable civil litigants need access to lawyers to represent them. Not lie for them. Not fabricate or destroy evidence. Represent them within the bounds of the law.
Shaw wants to make sure that doesn’t happen by vilifying lawyers not for their impropriety, but for the client they represent in civil proceedings. It’s not that you’re an evil lawyer for engaging in evil conduct, but merely for representing the evil Trump, no matter how ethically. The hope is that if no lawyer is willing to take on the case of repugnant clients, then repugnant clients will be denied any chance of prevailing in court.
The way she seeks to accomplish this is to demonize any lawyer willing to represent the evil Donald Trump. Shame them. Make them the target of hate as well. Scare away any ethical lawyer who would take on Trump so Trump will be left with no other option but to call upon his minions to take to the streets. I wonder if she’s thought this through?
Nevertheless, no lawyer should be vilified for the ethical representation of a client, even in a civil proceeding where the lawyer can choose to decline the representation. Lawyers represent clients. It’s what we do. And to the extent that it can be done ethically, no lawyer should be hated for the proper representation of a client even if he’s as hated as Donald Trump.
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English barristers are ethically bound to the cab rank rule. Under it, a barrister must:
“accept the instructions addressed specifically to you, irrespective of:
.a the identity of the client;
.b the nature of the case to which the instructions relate;
.c whether the client is paying privately or is publicly funded; and
.d any belief or opinion which you may have formed as to the character, reputation, cause, conduct, guilt or innocence of the client.”
If the subject matter is one the barrister is competent in and the fee arrangement meets the barrister’s usual standards, with a few exceptions, the barrister must take on the client.
Thanks–I’ll keep this in mind if I move to Nottingham.
Awfully quiet around here today. Maybe you could use a tune to liven things up?
“door lawyers”? Did you mean “poor lawyers”?
No.
As in “hanging around the door of the courthouse”?
No. As in, anyone who walks in the door.
“Being associated with Trump is the kiss of death for the lawyers in biglaw.”
Maybe in some circles, but them is small circles. A firm representing him won’t lose corporate civil clients, and Shaw has it all wrong. Clients won’t pressure a firm to drop other clients. The calculus for these clients has nothing to do with other clients: they just have a problem and want the lawyer to fix it with the least financial grief. It’s unthinkable that a client will tell a firm it won’t get business because it represents others the client doesn’t like. Target will hire a firm, even though it also represents Walmart.
The unique thing with Trump that keeps biglaw or any thing lawyer from representing him has two parts:
1. He don’t pay; and
2. He’s a pain in the ass.
Usually, #2 increases the need for #1. But #1 is a killer.
Sounds very enforceable
One of Trump’s former (defense) attorneys was anti-Trump politically. He ended up quitting, but he said that everyone had the right to legal counsel.
I can’t remember his name or which case he was on though.