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Tuesday, October 29, 2019

Judging Lawyers Based On Their Clients

Yesterday the New York Times published a lengthy story on external work that Elizabeth Warren did while she was still a law professor.  The story, which is titled “Elizabeth Warren’s Days Defending Big Corporations” focuses on a few different themes—the amount of money that Warren made off of these external gigs, the fact that her campaign’s summaries of these representations is overly simplified, and the identity of the clients she represented. 

As I explained last spring, when the Washington Post wrote about the fees that Warren collected for this work, the amount of money that Warren made for these representations seems to be within the range of what other professors with comparable experience and profiles charge.  And while I think that we could have a fruitful and worthwhile conversation about the desirability of law professors taking on this paid external work, that doesn’t seem to be the upshot of the Times or WaPo stories. 

The Times does point out that the summaries that the Warren campaign put out of these representations are overly simplified.  And as someone who generally expects candor and nuance from other law professors (even former law professors), I was sorry to see that Warren’s campaign isn’t holding themselves to that standard.  But the Twitter horde’s response to the story seems to be one of outrage: How dare Warren have any corporate clients? Corporations are, by definition, evil!!  In light of this weird, kneejerk response, I understand the campaign’s decision—even if I don’t approve of it—to oversimplify in order to push back against this lack of nuance in public opinion.  And the Times headline suggests that the editors at the paper at least know about this rabidly anti-corporate viewpoint (and perhaps share it themselves).

I won’t rehash here the argument that I made on Twitter – which is that even a non-simplified description of Warren’s work for corporations shows that she was, in all of these, cases pushing for a robust bankruptcy system in which the bankruptcy process fully and finally discharges all debts and liabilities.  (In other words, according to the Times’ own reporting, Warren’s work for corporate clients was consistent with her academic principles—principles, which she undoubtedly believes are important to protecting ordinary people.)  Instead, I’d rather talk about why it’s newsworthy to talk about the identity of Warren’s clients.  Because there is no denying that it is the identity of Warren’s clients—i.e., that they are corporations—that folks who support other candidates in the Democratic primary seem to be most worked up about.

I think this is a topic worth talking about because it is part of a larger question—namely whether to judge lawyers based on the identity of their clients.

 

Whether to judge lawyers based on their clients is, of course, hardly a new issue.  The issue is even mentioned in the ABA Rules of Professional Responsibility, which say that “A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.” I’d always assumed that this rule represented the conventional wisdom within the legal community, but I’m no longer so sure.

My doubts started when I saw a number of lawyers and law professors that I know criticize Jamie Gorelick for her decision to represent Jared Kushner.  Gorelick is a long-time Democrat who served in Bill Clinton’s DOJ.  My doubts grew as Harvard Law School’s Ron Sullivan faced heavy criticism by other lawyers for representing Harvey Weinstein.  Some people defended Sullivan (and criticized Harvard’s actions), but other lawyers and law professors who I admire joined the chorus of Sullivan’s critics.

The criticisms about Gorelick and Sullivan seemed to fall into two related but different categories:  The first was about the professional choices that the lawyers were making.  Specifically, the argument was that high-profile lawyers can pick and choose among their clients.  Every client that a lawyer represents comes with opportunity costs—if you represent client A, then you may not have the time to represent client B.  Because lawyers must choose between clients, so the argument goes, their choices should account for whether clients or causes are worthy of their time.

The second argument was about the fact that these clients could choose between lawyers.  Because Kushner and Weinstein could afford to pay for an attorney, the ordinary arguments about how everyone needs a lawyer didn’t apply.  Their wealth was going to buy them a lawyer, the critics argued, and so people like Gorelick and Sullivan didn’t have to take the case in order to ensure that justice was done.  In some ways I think that this argument was made defensively.  If the argument is about whether clients can pay, then it distinguishes the Kushners and Weinsteins of the world from the indigent criminal defendants who are accused of horrific crimes.  Those indigent clients can’t pay, the critics argued, and so the access to justice argument still has force.

I raised the question of judging lawyers for their clients in my Professional Responsibility class earlier this semester.  The students were pretty split.  Those who students who see lawyering as a way to bring about change in the world seemed more open to criticizing those who choose to represent the Kushners and Weinsteins.  But others argued that the distinction between clients who can pay and those who can’t is unable to take the weight of the argument—they seemed to think that the worldview that endorsed judging lawyers for their paying clients is all too likely to bleed over into judging lawyers for their non-paying clients.

Personally, I’m not really sure what to think.  My inclination is that we should judge lawyers by the quality of their arguments, rather than the deeds of their clients.  But I am hardly confident about that view, and I’d be interested to hear from others.

As for law professors in particular, I think that the issue is probably more complicated than we’d like to think about.  It’s tempting to say that this external work is entirely discretionary, and so we ought to feel more comfortable judging law professors for their clients.  But for some law professors—especially those who live in expensive cities or who don’t come from family money—I’m sure that they take on this work, at least in part, because they are trying to pay their mortgage or pay their kids’ tuition bills.  And, in any event, if a law professor is using external representation or consulting as a way to change the law—especially to change the law in a way that is consistent with her scholarship—I’m not really sure that it matters who the client is.  The law is, after all, generally applicable. And the fact that a change in the law might benefit people or companies that we don’t like hardly seems like a good reason not to improve the law itself.

Posted by Carissa Byrne Hessick on October 29, 2019 at 09:28 AM in Carissa Byrne Hessick, Current Affairs, Law and Politics | Permalink

Comments

We should judge lawyers, and law professors, by the qualtiy of their arguments. We are free to judge politicians by the quality of their paymasters. Jaime Gorelick's representation of Kushner should diminish her future role in Democratic Party politics. Senator Warren is a politician. Since her occasional corporate work was consistent with her political views, it won't hurt her politically.

Posted by: arthur | Oct 29, 2019 2:51:32 PM

And here as illustration, the lawyer of three fans associations of Michael Jackson ( in France) issued at the time, sort of press release ( put by me, in another post of Wasserman at the time) here:

http://www.emmanuelludot.fr/images/affaires/mj/mj_suit-01.pdf

Posted by: El roam | Oct 29, 2019 11:40:56 AM

By the way, one needs subscription there in the NYT ( Elizabeth Warren, linked in the post). He who wants, can read about that issue, here in "Foxnews":

https://www.foxnews.com/politics/elizabeth-warrens-corporate-advocacy-past-could-ding-image-as-working-class-champion


Posted by: El roam | Oct 29, 2019 11:26:05 AM

Important post indeed. Just worth to note some few issues:

First, lawyers not once, find themselves, or rather, must find themselves, involved in extra legal issues. We live in different era. Many times, one may find, that lawyers defend their client, beyond the core duty of representation in litigation in courts. Example, press releases, explaining to media or defending their client from lynching or alike. Now, once you deal with public opinion, you are no longer then, perceived as a professional, doing his job faithfully, and no more. Surly, when public opinion, plays such crucial role in such era.

Second, we always tend to perceive the job of a lawyer, in binary terms. Zero v. One. winning or losing in a given case. This is not always really so. Many times, it is about exhaustion of justice, over winning or losing. Example:

In criminal case, the issue not once, is not whether your client is simply guilty or innocent. But rather, how can he get away with it, with minimum damage ( legally justified of course ). Maybe he is charged and indicted as co- perpetrator, but, he was only accessory, and not at all perpetrator. Maybe, the sentence can be reduced significantly, thanks to personal circumstances. Maybe the issue is the best plea bargain, not totally guilty or innocent.

So, at first place, there is no need always, to identify the lawyer with the client. Because, what the lawyer is doing, is not to win or justify ( legally or otherwise) but:

To mitigate damage and harm to his client, all in reasonable and moral legal method.

Thanks

Posted by: El roam | Oct 29, 2019 11:07:17 AM

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