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.