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
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