The Part of Legal Ethics The Public Will Never, Ever Understand

Sen. Brown has the pulse of the public on this issue, and like the public, he’s ignorant.

Especially since politicians like Scott Brown keep making sure that they misunderstand.

In this week’s Massachusetts Senate debate between Sen. Scott Brown and Democratic challenger Elizabeth Warren, Brown slammed the anti-corporate crusader, the self-styled intellectual catalyst for the Occupy Movement, for accepting $250,000 from the Travelers insurance company to help the company deny claims for asbestos poisoning. He said:

“You chose to side with one of the biggest corporations in the United States: Travelers Insurance. When you worked to prohibit people who got asbestos poisoning, and I hope all the asbestos union workers are watching right now. She denied, she helped Travelers deny those benefits for asbestos poisoning, made over $250,000 in an effort to protect big corporations….”

Brown is accurately stating the way most people look at lawyers and what they do. But he is absolutely mistaken. His characterization of what Warren did is incorrect, and his inference of hypocrisy is unfair.  It is all the worse because he is a lawyer himself. If Senator Brown, as a lawyer, doesn’t understand what’s wrong with his accusation, he should. If he does know, then he is undercutting his own profession for political gain. [NOTE: The original version of the post incorrectly stated that Brown was not a lawyer. My thanks to Mass lawyer James Flood III for flagging the error.]As a lawyer, Elizabeth Warren  is urged by the traditions of her profession and the ethics rules to offer her services to any person or organization who needs assistance to avoid running afoul of the law, or to use the law to advance their own interests, whether the lawyer agrees with or supports those interests or not. This is Rule 1.2 (b) and it is included in the ethics rules of every U.S. jurisdiction. A more central tenet of the profession does not exist:

(b) 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.

That means that a lawyer does not “side” with his or her client, any more than a house-painter endorses your choice of colors for your home.  A good lawyer is able to represent a party whose purpose and goals are antithetical to her own. If she cannot, then she should not take the representation, but the proper test is whether she can separate her own beliefs and values from those of her client, and thus give the client what the client has a right to get: zealous and competent legal representation. That— providing zealous and competent legal representation—is the mission of an ethical lawyer, and not providing zealous and competent legal representation only to those who share her goals.

Impugning the principles of lawyers, like Warren, who embody the best ethics of their profession by not only taking the cases of the clients they happen to agree with, is a threat to the democracy and our system of laws, for it proposes a tyranny of lawyers, where only those with popular opinions and objectives can have full access to the legal system. When the law firm that had agreed to take on the defense of the Defense of Marriage Act in Federal court was extorted into dropping the case after threats of boycotts by gay activists against the firm’s other clients, lawyer Paul Clement, who had taken on the case, resigned with a letter ringingly extolling the need for lawyers to represent all sides of disputes, even the most unpopular. In rebuttal, law professor Deborah Rhode wrote in part,

“…Except in rare circumstances, civil claimants have no right to counsel. The notion that lawyers should check their conscience at the door in these cases has implicated the profession in some of the worst public health and financial crises in the nation’s history. We do not, and should not, applaud the lawyers who enabled clients’ resistance to enforcement of civil rights guarantees or to health warnings about cigarettes. Lawyers, no less than other individuals, have a moral responsibility to consider the consequences of their professional actions.”

Simply put, Rhode’s position is wrong, unethical and dangerous. I know a lot of lawyers. My father, best friend, sister and many of my closest associates were or are lawyers, but I don’t trust them to apply their standards and values to my life, business and intentions, and to veto them by withholding necessary services and expertise that may be essential to my being able to gain the benefit of the laws every American should be able to use to his own advantage. I certainly don’t trust Elizabeth Warren to do that, because her values are very different from mine. She is a good lawyer, however, and presumably an ethical one, and I would trust her to do her best job for me even if she strenuously objected to my motives and purpose, because that’s what good and ethical lawyers do and must do, if the legal system is going to work.

If, however, Sen. Brown’s attitude (and Prof. Rhode’s) takes hold in the legal profession, and we encourage the public to regard those who defend, for example, serial killers as “taking the side of serial killers,” as if they are proponents of the right to kill, or those who defend a duly passed and signed law that is still on the books and has never been repealed, like DOMA, as bigots who oppose the right of gays to marry like anyone else, then we are offering lawyers power over us that they should not have, and forcing them to take it.

Representing a client you dislike, oppose or disagree with is ethical for a lawyer, and essential to justice. (If you would like to see a superb movie about why this is so, see Robert Redford’s “The Conspirator,” which I wrote about here.) I know that the public will never accept that, and that politicians like Scott Brown will continue to try to impugn lawyers running for office by trying to tie them to the conduct of their most dislikable clients.

Nonetheless, the public is wrong.


Pointer: Future of Capitalism


Source: Cornell Law

Graphic: Desmo Blog

Ethics Alarms attempts to give proper attribution and credit to all sources of facts, analysis and other assistance that go into its blog posts. If you are aware of one I missed, or believe your own work was used in any way without proper attribution, please contact me, Jack Marshall, at

8 thoughts on “The Part of Legal Ethics The Public Will Never, Ever Understand

  1. Good points Jack. Additionally, the way I understood the Travelers work, was that Warren set up a fund to pay asbestos victims as part of settlement compliance in a law suit. The work and deal was later scrapped, and/or altered. It was an unfair mischaracterization, and as lawyer (which I’m not) i can see how you would take offense. In my high school debate class, the first thing the instructor made us do was argue in favor of something we didn’t agree with. Advocacy of your client shouldn’t be so hard to understand. Unless one’s trying to mislead….

  2. Actually Jack, Scott Brown is a lawyer too (which makes it worse). I agree with you in principle but am willing to give Brown a bit of slack on it because Warren is drawing first blood on the issue, trying to cast Brown as the evil “corporate” candidate (with zero evidence of this beyond having an R next to his name) with her as the candidate “of the people”. If Brown advanced this line unprovoked I wouldn’t give him the same latitude.

    • Ugh. Why did I miss that Brown is a lawyer, and yes, that makes it much worse.(I’ll correct it.) As is the fact that Warren used the same approach. I’ve seen and heard lawyers in campaigns do this before to colleagues running against them, and it is despicable, as it undermines the profession for political gain.

  3. I guess I feel somewhat confused in this particular instance. If Elizabeth Warren consistently claimed she was an attorney (champion) for the ‘folks’ so to speak, and then goes to the other side in one case (Travelers), doesn’t it make her a bit of a hypocrite? She’s the one who wants it both ways. And . . . although it may not be directly her fault that the trust fund set up for the ‘folks’ eventually was not there for the ‘folks’, makes it sound all the more egregious.

    • As I said—to lawyers, there is nothing hypocritical at all. A lawyer can be, as an individual, a capital punishment advocate but should be able to challenge a death penalty verdict and argue that capital punishment is unconstitutional. A government lawyer who is asked to write a memo making the best case for torture in wartime, or that waterboarding isn’t torture, should be able to do so even if he or she absolutely believes torture is forbidden and waterboarding qualifies. The lawyer’s opinion is irrelevant. The lawyer is doing what the client wants, not what the lawyer wants. Clarence Darrow, a lawyer who championed the little people against power, took corporate clients and helped them crush “little guys”—to pay the bills.

      Your comment is understandable, but it is the reason for the post’s title.

  4. Dear Mr. Marshall: “Never, Ever” understand. The comma is the perfect touch to the condescension that your posts so often exhibit. A fine touch that Orwell would have used if he had thought of it.

    Who is Scott Brown’s opponent, the lawyer whose profession allows, even requires its members to perform in ways that would be dishonorable if the laity did them, or the politician saying “I’m worthy of your trust.” To the people whose claims against The Travelers failed because of Warren’s work, is she to be trusted? Hypocrisy is not the way to earn trust. It does no good to denounce the laity with commas and sighs in the manner of Al Gore debating Geo. W. implying they are ignoramuses sans law degrees. As the present incumbent shows every day, Harvard Law is proof of Superior Wisdumb. Professor Warren’s fake genealogy is more of the same. There’s a question for you: Is EW acting ethically by lying about her background? If she’s not, who’s to say she acted ethically (as opposed to “Not Getting Caught” ) in her work as a lawyer> Or how about her professional scholarship, which has had considerable questions thrown at it? It’s a neat trick that EW can act in these untrustworthy ways, and yet still be ethical by taking Traveler’s dough one year, and then howling that Big Business Is Immoral when it suits her book.

    I guess you are on target. “Never,,,,,,,,,Ever” indeed.

    Sincerely yours,
    Gregory Koster

    • Congratulations: Most pompous comment ever EVER by someone who starts by calling me condescending!

      Hard truths may appear condescending to those who aren’t really listening…like you in this matter. Your answer is YES, of course the Traveler customers should trust Prof. Warren if they hired her, at least based on her representation of that company (except that they couldn’t, because the ethics rules preclude an attorney switch sides on the same matter as a conflict of interest that would also likely breach confidentiality as well. I suspect most members of the public, even you, could understand that aspect of legal ethics, since it is not counter intuitive like the duty to represent parties even when an attorney disagrees with them personally.) They could trust her on the basis that she is, like any good lawyer, capable of representing either side of a dispute with equal skill and passion, making no adjustment for her own political beliefs, which are irrelevant to the representation of a client. That is how the system works best. Brown was criticizing Warren for being a a good, competent, zealous, ethical lawyer, which either suggests that he isn’t one, doesn’t know one when he sees one, or is lying to the public, intentionally confusing people like you. As James Flood pointed out in the comments, Prof. Warren also has made this kind of accusation against Brown, who is also a lawyer—making her guilty of the same ethical transgression.

      The post was specifically about the false accusation that representing a big corporation is an unethical act for a lawyer with Warren’s beliefs about corporations. It’s not. And the post was not about Warren honesty, which is a different matter. If you, as a diligent and fair commenter would, actually checked the blog for my commentary regarding Warren’s Cherokee lineage fiasco, your questions about how this affects her trustworthiness would have been answered before you embarrassed yourself by accusing me of not regarding that as unethical. It is, and it makes her untrustworthy, and in my view disqualifies her to be Senator or to serve in any other elected office. I have written many posts on the matter, for which I have been attacked by those on the other side of the political divide from you with the same venom you display here.

      Your comment merely proved that my headline was correct, and for that I am grateful.

      Otherwise, bite me.

  5. Pingback: » Still true: “a discussion with the likes of Brad DeLong is not productive” - Le·gal In·sur·rec·tion

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