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Sunday, January 19, 2020

Law Professors, Lawyers, and Ethics

It was announced last week that Harvard law professor Alan Dershowitz has been added to President Trump’s impeachment legal team.  As Dershowitz has told multiple media outlets, it will be his role to argue that, as a constitutional matter, a President cannot be impeached unless he committed a crime.  I assume that Dershowitz’s faculty position at Harvard will give his argument additional gravitas and authority in the eyes of at least some Senators and some members of the public.

When Dershowitz appeared on CNN’s State of the Union this weekend, CNN legal analyst Jeffrey Toobin took great pains to point out that Dershowitz was making his argument about what the Constitution requires as an advocate for Trump, not as a neutral expert.  Dershowitz seemed surprised and annoyed that Toobin made such a big deal about the issue. Dershowitz readily conceded that of course he was “just a lawyer” who will be acting as an advocate, not as an expert witness. (You can see the exchange here, beginning around the one minute mark.)

But we shouldn’t overlook why Toobin thought it was important to emphasize this point on national TV.  Dershowitz is routinely identified as a constitutional scholar and a Harvard law professor. Those titles allow him to claim expertise. It gives him an air of neutrality that he wouldn’t have if he were appearing only as a lawyer. As Toobin implied, because of Dershowitz’s position at Harvard and because he will be making an argument about how to interpret the Constitution, people might mistake Dershowitz as a neutral expert.  Indeed, I imagine that it is his position at Harvard that has (at least in part) given Dershowitz the large public platform that he enjoys and that led President Trump to ask Dershowitz to join his legal team.

I’ve previously expressed concerns about law professors offering opinions on matters of public discussion.  In particular, I have concerns about law professors offering opinions outside of their areas of expertise—concerns that have only grown with the current impeachment.  But I think that Dershowitz’s joining the President’s legal team as a lawyer in order to make a particular legal argument sets up a conflict between his ethical obligations as a lawyer and his ethical obligations as a scholar. 

I believe that Dershowitz, as a scholar, has obligations of sincerity, candor, and openmindedness.  And I think that those scholarly obligations may conflict with his ethical obligation as a lawyer to “act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf.”   For example, I don’t see how a law professor who has been specifically asked to represent an individual in order to make a particular legal argument about a difficult legal question, such as the original meaning of a particular constitutional provision, can say that he approached that question in an openminded fashion.  He was retained to arrive at a particular conclusion; that seems like the opposite of openmindedness to me.

I want to acknowledge, of course, that some law professors earn money by consulting with practicing lawyers or by appearing as experts in litigation.  And plenty of law professors will, at least from time to time, litigate on behalf of one or more clients.  Those positions probably come into conflict—at least some of the time—with our ethical obligations as scholars.  And so I wish that law professors would spend more time thinking about our ethical obligations.  (For those who are interested in the topic, I recommend this effort that I was a part of a couple years ago in connection with the Marquette Law Review; relatedly I also recommend this excellent article by Richard Fallon about law professor amicus briefs: )

But I do worry that the particular example of Dershowitz and the Trump impeachment raises even more problems that these other situations—namely, it raises a serious problem of role confusion and unsophisticated actors.  When a law professor makes representations as an expert witness in a litigation, she has not assumed the ethical obligations of a lawyer.  She can still give an honest expert opinion that complies with her ethical obligations as a scholar without worrying that she has breached an ethical obligation to the client.* When law professors represents clients in litigation, they often do not identify themselves as law professors and so there is no role confusion.  When law professors do identify themselves by their academic role in litigation—such as when they sign a brief and include their academic institution—judges can act as a check on any role confusion.**  Perhaps judges might be more likely to accept a constitutional argument that is made by a high-profile constitutional law professor at a fancy school.  But judges also know that, once they are representing a client, law professors are bound to zealously advocate for that client.  In other words, judges are unlikely to mistake a law professor who is acting as a lawyer as a neutral expert in that case.

But Senators and the general public may well mistake Dershowitz as a neutral expert in this case.  They may be unaware of the ethical obligations that he has towards the President --- obligations that will almost certainly affect how he shapes his testimony and answers questions posed by the Senators.  In light of that, I worry that it may not be enough for Dershowitz to concede in a television interview that he will be acting as an advocate.  He may need to acknowledge it during his Senate argument.  He may need to articulate how his role as an advocate necessarily affects what he can say or do. It might even be necessary for him to say that he is appearing, not in his role as law professor, but in his role as a lawyer for the President.

 

* Of course, the law professor might have a financial incentive to give something other than an honest expert opinion that complies with her scholarly ethical obligations.  And that is also troubling.

** I don’t know how often law professors will identify themselves as such at a trial.  And even if they did, I imagine that they will rarely make arguments based on personal legal expertise.  And if they did, the judge will always instruct the jury on the actual.

Posted by Carissa Byrne Hessick on January 19, 2020 at 04:54 PM in Carissa Byrne Hessick | Permalink

Comments

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Posted by: Private Instagram Viewer | Jan 23, 2020 7:10:17 AM

It's easy enough to demonstrate that a criminal violation of US law is not needed for impeachment. Consider the following hypothetical. Suppose a president were to ask a foreign leader to fabricate fake evidence of a crime in the foreign country implicating a presidential rival. To simplify the jurisdictional analysis, suppose the request is made in person, on foreign soil, without using any instruments of interstate commerce. Isn't it obvious that this would constitute an abuse of power of the kind against which the impeachment clause is directed? If the Democrats had made such a charge against President Trump, they'd be sitting pretty now. Of course, the evidence supports no such charge which is why they didn't make it.

Posted by: Douglas B. Levene | Jan 22, 2020 1:07:30 AM

The ethics of legal scholars SHOULD demand open-mindedness, but when one considers that about 90% of them are professed liberals, it makes it quite hard to believe they actually are open-minded. I don't see these egalitarian people hiring and promoting faculty with a conservative world view.

Posted by: Phil | Jan 21, 2020 5:32:17 PM

Slightly different example, but somewhat relevant: The latest episode of the We the People Podcast (from the National Constitution Center) featured a debate between Joan Biskupic and Ken Starr on the Senate trial and the Chief's role. It posted a few days before Starr was announced as a member of Trump's defense team.

Posted by: Howard Wasserman | Jan 21, 2020 6:50:52 AM

I'd also add that this isn't a problem unique to professors. When Paul Clement argues for a view it's also true that his status as former solicitor general lends it credibility. Similarly, sometimes it is desirable to hire a female lawyer (eg to attack the credibility of a claim of sexual assault). Even though we understand that a female lawyer is tasked with representing their client vigorously it's still the case that the public is influenced by the lawyers gender (presumably out if some kind of sense that they will be, to some extent, loyal to their gender).

It's not quite the same but it's worth pointing out that this isn't a unique way in which the other roles a lawyer plays in society are leveraged to provide a more effective defense.

Posted by: Peter Gerdes | Jan 20, 2020 10:54:16 PM

Oops should be lure of celebrity and Trump not Trumo. Sorry.

Posted by: Peter Gerdes | Jan 20, 2020 10:44:18 PM

While I appreciate the concern about the potential confusion between the roles of lawyers and scholars I don't think it's as practically dangerous as the confusion between neutral scholars and motivated public commenters.

At least the public will understand that Dershowitz is on Trump's team now. Up until this point he maintained the pose of the liberal scholar admitting principles against his interest.. While formally Dershowitz may not have had any duty but to his scholarship as a man he is affected by the life of celebrity and the ego stroking he can get from conservatives if he breaks ranks. Yes, you might hope that scholars wouldn't be swayed but I don't think anyone can look at Dershowitz's behavior and think he has stuck to his principles so far.

If anything it seems like the situation has gotten better now that he is officially council to Trumo.

Posted by: Peter Gerdes | Jan 20, 2020 10:43:00 PM

These are good points in theory, but in reality I think you way overstate the public's perception of lawyers and law professors. It's not a profession thought to be credible.

Americans saying following professions have high or very high ethical standards, 2018.

Nurses: 84%
Doctors: 67%
Pharmacists: 66%
Teachers: 60%
Police officers: 54%
Accountants: 42%
Clergy: 37%
Journalists: 33%
Bankers: 27%
Lawyers: 19%
Members of Congress: 8%

(Gallup)
https://twitter.com/spectatorindex/status/1218578800885170177

P.S. Check out my blog on the ethics of my prior firm. https://www.omelvenymyersethics.org

Posted by: AMG | Jan 20, 2020 10:46:27 AM

In my view, when professors appear representing a client, they should drop the "professor" label and school affiliation in all appearances and correspondence. They should be introduced as a lawyer, not a professor, and their address should be their personal law practice address without a university affiliation. (That address may be their faculty office, but without the name of the law school.) . That way, no one is confused that their views are made in their academic capacity.)

Posted by: Orin Kerr | Jan 19, 2020 10:42:12 PM

Dershowitz was the target but Charles Kingsfield is hardest hit.

Posted by: thegreatdisappointment | Jan 19, 2020 9:30:06 PM

And just presenting from court records also:

Complaint lodged at the time (04/16/19 ) against Deroshowitz ( Southern District of NY) for defamation ( in the Epstein affair) here:

https://www.courthousenews.com/wp-content/uploads/2019/04/guiffre-dershowitz.pdf

Thanks

Posted by: El roam | Jan 19, 2020 7:17:58 PM

Important issue Carissa.And,you are right basically. Yet, when dealing with Alan Dershowitz, well, he has already, long time ago, lost any possible neutral position in the eyes of so many groups, rendering the whole issue, out of context simply. He has been involved, personally and professionally in so many affairs, got such huge publication, that it is really bit problematic, to think that someone needs any reminder about him being zealous lawyer, over, neutral expert. Here some ( in the US and abroad ):


Long list of articles in the the " Gatestone institute " siding typically with the right wing:

https://www.gatestoneinstitute.org/author/Alan+M.+Dershowitz

Let alone involved personally and professionally in the Jeffrey Epstein affair:

"Alan Dershowitz helped sex offender Jeffrey Epstein get a plea deal. Now he’s tweeting about age of consent laws."

Here:

https://www.vox.com/identities/2019/7/30/20746983/alan-dershowitz-jeffrey-epstein-sarah-ransome-giuffre

He has even been involved in the "Greek island affair" in Israel ( defending a business man, David Appel ) here:


https://en.globes.co.il/en/article-753934

So, you can definitely stay cool, no one is going to mix nothing with nothing at all Carissa here.

Thanks

Posted by: El roam | Jan 19, 2020 6:20:49 PM

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