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Monday, March 30, 2009

On Legal Representation II: The Case of Kirsten Gillibrand

The other issue concerning legal representation that I want to discuss today has to do with a story the Times ran on Friday about the legal work performed for Philip Morris by now-Senator Kirsten Gillibrand as a young lawyer.  The story discusses, at great length, her work in defending Philip Morris in tobacco litigation, which she apparently did very well.  I had rather expected more commentary on this to appear in the legal blogosphere, but there hasn't been much.  Today, however, Sandy Levinson has a post at Balkinization that I think can be fairly characterized as excoriating Gillibrand for doing this work for "an industry that has killed far more people than any of the various torturers some of us would like to see brought to [the] bar of justice."  Levinson, who of course has criticized John Yoo's legal work for the Bush administration (as have many people), says that Yoo was at least motivated by patriotism, while Gillibrand was only motivated by opportunism.  He says that it is fine for a public defender to represent "the worst axe murderer" against criminal charges -- he does not say whether it is fine for a private criminal defense attorney to do the same -- but questions Gillibrand's decision to represent the tobacco company.  He says the Democrats ought to choose another candidate for Senator in New York in 2010, and adds that any votes she may have cast against the tobacco industry in Congress won't suffice to exonerate her unless "she offers credible evidence that it [was] the result of a conversion experience."


I agree with Sandy on one thing: Senator Gillibrand's response to the story is weak.  In the story, she says through her people that she had "little control over the cases she was handed," and says focusing on her work for Philip Morris "would not reflect the range of her work as a lawyer, which also included representing pro bono clients."  There are two problems with this.  The first is that her firm apparently allowed associates to decline work on the tobacco cases.  I admit to having problems with this rule, which other firms have had.  The ethical rules already require lawyers, most certainly including junior associates, to decline representation in cases in which they have a serious conflict of interest brought on by personal views.  Carving out a specific "permission" with respect to the tobacco cases alone, as some big firms did, is thus both redundant and a fig-leaf, a public relations gambit that helps them recruit young associates with a somewhat glorified and untutored sense of moral self, allowing them to feel good about declining these few cases while taking on work that might be every bit as disturbing.  These firms ought to have had a blanket rule or none at all.  But in any event, it strips Gillibrand of her excuse that she "worked for the clients that were assigned to her."  (Nor would it be an excuse if she felt pressured to take the case; working at a big firm is not worth one's sense of integrity, and she could always have quit.)  Second, the story suggests she spent a good deal of time on this case, so I don't see what's unrepresentative about it; did she really spend an equal amount of time on pro bono cases?  (I might add that this also shows the ways in which big-firm pro bono work, whatever other value it may have, also serves as a fig leaf, and a vehicle by which top students with a tendency toward high moral dudgeon can be recruited to top firms without having to face up to whatever cognitive dissonance they ought, by rights, to be experiencing.)
Beyond that, though, I think Levinson is at least intemperate, and more likely simply wrong.  There is no doubt that some specific actions undertaken in the legal representation of the tobacco companies was troubling.  But it seems to me that most of that work came earlier, both in the temporal sense and in the sense that it came at the counsel stage rather than the litigation stage.  Defending companies against high-stakes class action litigation, even the tobacco companies, does not seem to me to be morally reprehensible as such.  Certainly that representation need not be carried out in a morally reprehensible fashion -- and none of the evidence in the story suggests that Gillibrand did so; only that she was heavily involved in the work.  Levinson treats her as nothing more than an opportunist.  He has no evidence for this charge.  Gillibrand could as easily have believed that the class actions were legally faulty, or that these were valuable cases in which to serve the process of justice on either side of the bench.  If, on the other hand, she was motivated by nothing more than the desire to do well on the cases she took on and succeed as a big-firm litigator, I still do not think this says very much, unless Levinson is saying that any big-firm litigator who fulfills his or her role in a perfectly honorable fashion should not serve in the Senate.  Perhaps he thinks only public-interest lawyers should serve as candidates; if so, he could fairly ask whether none of them ever operate for opportunistic reasons at times -- say, the desire for future political office.  His argument that any votes she cast against the tobacco companies in Congress should be discounted unless she experienced a "conversion" assumes that she must have loved the tobacco companies in the first place.  But this mistakes the usual nature of the relationship between lawyer and client, or at least mislays the possibility that she served her client for reasons having nothing to do with personal sympathy; maybe her votes in Congress are a more telling indicator of her policy views on these issues now that she is freed from her role as an advocate.

Finally, the comparison with John Yoo, which is largely a rhetorical point, strikes me as unsuccessful.  Most people, including me but also including some of Yoo's thoughtful conservative former colleagues, were troubled by the quality of Yoo's work and the question whether he provided the sort of analysis he was obliged to give or whether he instead offered questionable advocacy when he should have provided careful counsel.  His motives, in this sense, are less important than the work he did; if he wrote shoddy memos out of "patriotism," or love of torture, or love of the administration, they would still be shoddy.  On the other hand, a person could well have worked on these sensitive issues in the Bush administration, and taken positions I might not share, but still do so in a thoroughly honorable fashion.  Unless Levinson is saying that there is never a distinction between the lawyer and the client he or she represents, I just don't see the comparison between the two; if he is saying that, on the other hand, I tremble for the criminal defense bar, among other sectors of the legal profession.

Posted by Paul Horwitz on March 30, 2009 at 06:34 PM in Paul Horwitz | Permalink

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I also note that John Steele has a thoughtful post on this matter at Legal Ethics Forum.
http://www.legalethicsforum.com/blog/2009/03/judging-lawyers-by-their-clients-part-58-karen-gillibrand-and-the-tobacco-industry.html

Posted by: Alan Childress | Mar 31, 2009 11:47:58 AM

[Setting aside Sandy's suggestion that she abused legal process or otherwise came close (what does that mean?) to being part of a conspiracy to suppress evidence....]

First, we do and should judge lawyers by the clients they choose to represent, which is not to say we ascribe to them the actions, beliefs, or positions of their clients. For example, choosing to be a public defender (or prosecutor, or cause-type attorney [e.g. ACLU, or advocating for disabled persons]) is morally superior to choosing to work for a big firm. I think this claim is fairly uncontroversial. To the extent Sandy's making this type of claim, I think he is unquestionably right.

Second, although being a big firm litigator representing a "bad" client such as big tobacco is morally inferior to working in the public interest (even if doing so by representing an unpopular or even bad client), doing so is not unethical. An attorney who does this can't be condemned any more than an i-banker, a professional athlete, an academic -- it's a selfish career choice, but that's the extent of it. Our adversarial system requires the availability of counsel for all sides of any issue.

The extent Sandy disagrees with my second claim isn't entirely clear to me. I think we're comparing apples and oranges, and with his talk about the honorable nature of "motivations," he might actually not be that far off (once you separate out the attention-grabbing nature of his post). On the first level, John Yoo was attempting to serve his country, which is a good motivation; Kirsten Gillibrand was attempting to make money, which is an inferior motivation. But on the second level, Yoo distorted the law to effectuate torture by the U.S., which is unethical behavior for a lawyer; Gillibrand (let's assume) provided good legal advice/representation without stepping outside the role of lawyer to a client who did some awful things, which is ethical behavior for a lawyer. Motives to take a particular position on one hand, behavior from within that position on the other. Or more bluntly, human being vs. attorney.

Posted by: joe. | Mar 30, 2009 10:36:05 PM

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