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Tuesday, March 16, 2010

Mah Nishtanah

In the course of the discussion of the "Al Qaeda Seven," or the "Constitutional Seven" -- take your pick -- an often-featured argument has been that we can draw stronger inferences about the beliefs of those lawyers because they took on the representation of detainees on a pro bono basis.  This position gets a particularly strong statement in a post at NRO by Ed Whelan, who writes to complain that Sri Srinivasan was blocked by liberal interest groups for a seat on the D.C. Circuit because of work he had done in private practice and in government.  (If Whelan's unidentified sources are right, by the way, that is cause for regret; Sri is an excellent lawyer and a fine person.)  Whelan writes: "[O]f the three areas of government practice, paid private practice, and pro bono practice, the areas that least justify the drawing of inferences about a lawyer based on his clients are government practice and paid practice." 

I have seen some version of this argument repeated several times in the past couple of weeks as if it's obvious.  But it isn't -- and it's an especially weak argument for the generally elite lawyers who have been the focus of this argument.  Talented and well-credentialed lawyers make, and are able to make, all kinds of choices about which firm, which practice area, and which side of the bar (plaintiffs' work or defense work) to join.  Young lawyers with less sterling credentials in a straitened legal economy may consider themselves more obliged to go to work for whoever will pay them, but unless we want to deny these individuals their agency as moral actors, they make choices too; those choices are far less constrained for those lawyers who are lucky or talented enough to have a variety of employment choices.  Some of those lawyers join one side of the bar or the other for specifically ideological reasons.  Others do not, but end up forming an attachment to the ideas and arguments that characterize that sector of the bar.  Some of them go to the highest bidder, but we can draw inferences about their moral beliefs on that basis too.  I didn't go to a fairly typical large defense-side firm out of a deep ideological attachment to the goals of the clients we served, but it wasn't a pure accident that I ended up there either.

The same is even more true for government service.  Here, Whelan (and others) should at least draw a distinction between staff lawyers and lawyers in appointed political positions.  Obviously, many lawyers in the latter category may choose to join a particular administration because they are broadly sympathetic to its political and policy goals; even if they end up making particular arguments with which they disagree, the fact that they have taken an appointed political position surely suggests something about their sympathy with the administration and its goals.  The argument that government lawyers are different might hold more weight for line attorneys.  But of course, many of those who have made the argument that government practice is less indicative of a lawyer's beliefs than pro bono representation believe that plenty of line attorneys, in departments like the Civil Rights Division of the DOJ, joined those offices precisely because of an ideological orientation.  I happen to think they are right in this observation.  If so, the argument that government service reveals much less about a lawyer's beliefs than pro bono practice must be wrong, or at least overstated.  Moreover, as I argued in an earlier post, government lawyers, especially those in higher offices, at least temporarily forego income in order to select the government as a client, which is precisely the argument made about pro bono representation.

And what of pro bono work itself?  Well, as I've already observed, a lawyer might take on pro bono work without foregoing income, if she is an employee of a firm that gives credit for billable hours spent on a firm-approved pro bono client.  In any event, lawyers take on pro bono work for a variety of reasons.  As Orin Kerr has observed, lawyers take on particular pro bono cases for "a weird mix of reasons": ideological sympathy, yes, but also beliefs about the rule of law, prestige, the challenging nature of the cases, the possibility of doing high-level work and actually getting into a courtroom, and the sheer fact that some lawyers strangely prefer writing briefs for the D.C. Circuit to doing due diligence in a warehouse in Akron for weeks at a time.  That is not to say we can or should draw no inferences from a lawyer's choice of pro bono client, although I think it behooves us to do so in a nuanced and not a ham-handed fashion.  Rather, it is to suggest that we can, if we choose, draw inferences about a lawyer's choice of any client, including paying clients and the government itself.  The distinction that some insist on drawing here has taken on a commonplace character, but it is far weaker than its proponents seem to realize.       

Posted by Paul Horwitz on March 16, 2010 at 02:17 PM in Paul Horwitz | Permalink


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