The Comfort Women Memorial Lawsuit: A “Disgusting” Legal Argument, Perhaps…Unethical, No

The Glendale Comfort Women Memorial

The Glendale Comfort Women Memorial

The large and respected law firm Mayer Brown has taken the ugly case of some Japanese-American clients who want the city of Glendale, California to remove a memorial to World War II “comfort women” from a public park. In doing so, and in the way it is proceeding, the firm has inspired harsh condemnation from two estimable legal commentators, both First Amendment champions: Marc Randazza, and Ken White. Their objections, which caused Randazza to call the firm “the least honorable law firm in the world,”and White to conclude, “This lawsuit is thoroughly contemptible. It should fail, and everyone involved should face severe social consequences,” are heartfelt, but, I think, misguided. Their argument, beside arguing that the lawsuit is frivolous, is best articulated by Randazza:

“Every law firm gets confronted (on a pretty regular basis) with the question: ‘should I put my name on this?’ That soul-searching comes into play when you wonder, ‘is this honorable?’ You know when it is, and when it isn’t. I’m not talking about representing a client that you know is guilty — they deserve a defense. I’m not talking about representing a really evil client — because there might be an important legal issue in play. I’m talking about when you do something truly disgusting. That bar is pretty low. Despite the lawyer jokes, I have encountered few lawyers who have ever even approached that line. If a law firm takes on the Nazi party as a client, in furtherance of some greater good, I do not look down on them. Nobody should. Represent a child pornographer? I can see plenty of justification there. There is almost no cause that doesn’t have some justification. But, sometimes you gotta say ‘no.’ Or, at least if you say ‘yes,’ you must do so with class and dignity. “

To Randazza and White, plenty of other lawyers I suspect and virtually all non lawyers, Mayer Brown charged across that line by including among its arguments that there were “two sides” to the “comfort women” controversy, a wartime crime against humanity  which some Japanese politicians have been reluctant to admit their nation’s  full culpability for despite officially apologizing in 1993. There isn’t any valid factual controversy: during World War II, Japan turned untold thousands of captured women, mostly from Korea, into sex slaves whose job it was to service Japanese troops for their “comfort.” The complaint describes the women as “prostitutes,” leaving out the crucial detail of compulsion, and also argues…

“Glendale’s installation of the Public Monument has a direct impact on U.S. foreign policy that is neither incidental nor indirect. By installing the Public Monument, Glendale has taken a position in the contentious and politically sensitive international debate concerning the proper historical treatment of the former comfort women. More specifically, given the inflammatory language used in the plaque that is prominently featured alongside the statue, Glendale has taken a position at odds with the expressed position of the Japanese government.”

I find it very strange to be on the other side of Marc and Ken on this, but it is their position that seems out of character. Yes, this is an unpopular and distasteful cause, but the plaintiffs should be able to press it with the best legal talent available, and be assured of their lawyers pushing as hard as they can, making every argument that they think might carry the day.

Randazza’s “take the disgusting case but pursue it honorably” plan sounds like punch-pulling to me. If a lawyer can’t take on a case without being uncomfortable making arguments he or she finds distasteful, then there is a conflict of interest, and the lawyer shouldn’t accept the case. Ken’s call for social consequences sounds a lot like what the law firm King and Spalding were threatened with when they were preparing to defend the Defense of Marriage Act in the U.S. Supreme Court. DOMA was a standing law of the United States that absolutely deserved its day in court, but some, including law professor and legal ethicist Deborah Rhode, argued that no decent and ethical lawyer should accept its defense, just as she has argued that tobacco manufacturers should not be have been able to find competent legal representation.

Ken White evokes a slippery slope if the case succeeds ( “If a case like this succeeds, what will the courts say to a Holocaust denier who argues that a memorial is too harsh in condemning Germany…?” ), but there are slippery slopes if either side prevails in many, if not most cases.  Law is a slippery slope. The slippery slope if lawyers avoid unpopular causes or do less than a zealous job when they do accept such cases is far, far more dangerous.

As Paul Clement wrote in resigning from King and Spalding over its decision to drop the DOMA defense (after threatened boycotts):

“I resign out of the firmly-held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. Defending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high. Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law.”

The ethics rules clearly allow lawyers to refuse cases that make them uncomfortable or that they find repugnant, but doing so does not show superior ethics; I would argue the contrary. It is also true that a lawyer is not bound to present arguments that may be permissible but that the lawyer finds offensive, but again, I believe that if a lawyer thinks an argument might prevail for his client, he should present it, offensive or not. I also think that the supposition of both Randazza and White that this complaint will embarrass other clients of the firm and result in lost business is mistaken. I see a law firm that is willing to take an unpopular  client’s case knowing that it will be condemned, and fight for it, even if the lawyers handling the case have to keep their gorge down to do it, and even if it loses them business in the future.

Ultimately the jury decides if an argument is disgusting. Bostonians thought defending the British soldiers accused in the Boston massacre was disgusting, as well as John Adams’ strategy in the case, which involved blaming the dead victims. Prof. Rohde is certain that defending  the Defense of Marriage Act was unconscionable, because everyone knows there is only one virtuous side to the gay marriage issue. It puzzles me that two distinguished free speech advocates  want to constrain the ability of litigants to present unpopular arguments in a court of law by subjecting their attorneys to financial and social penalties according to a subjective “disgusting” standard.

I also want to point out that I do not concur with the reasoning of Above the Law’s David Lat, who argued against Randazza and White with this:

So Gingery v. City of Glendale doesn’t strike me as a particularly meritorious lawsuit. But does that make it “disgusting” and “despicable”? Maybe I’m taking too amoral a view — perhaps years of observing and writing about the legal profession have made me jaded — but I’m not sure. It seems not terribly different from any other case in which a Biglaw firm represents some powerful interest opposed to human rights (or arguably opposed to human rights, if you want to be a comfort-women-denier about it).

“Everybody does it” is not a good enough reason, or an ethical one, to defend the law firm. Preserving the rule of law is. Clarence Darrow’s quote is instructive here: “In order to have enough freedom, it is necessary to have too much.” I don’t want lawyers cutting off the opportunity to make “disgusting” arguments in court. For a very long time, arguing for same-sex marriage was considered disgusting.

Gingery v. City of Glendale seems like a terrible case to me, too, but I’ll trust a court to decide.

[Note and apologies: I found about six sloppy typos in the post after it went up; I think they are fixed now. I am sorry; this topic deserves more care.]

_____________________________________

Sources: Above the Law, Popehat, Legal Satyricon, National Review,

33 thoughts on “The Comfort Women Memorial Lawsuit: A “Disgusting” Legal Argument, Perhaps…Unethical, No

  1. Pingback: A very good critique of my position | The Legal Satyricon

  2. I don’t get the brouhaha. It’s a piece of art in memory of a group which was probably all passed, though their children may not have. It’s not obscene or violent, it’s certainly both more accessible and open for reinterpretation by a kid wanting a place to eat a sandwich than Picasso’s Guernica. We make art about all kinds of tragic events from movies about slavery to memorial coins and stamps.

    By what reason should uncomfortable art be removed? The group offended is balanced by the group whose experiences are not being swept under a rug anymore. This sounds like the same arguments about Holocaust monuments a generation ago, bit no one worries as much about dead Nazi’s feelings. The clients may be embarrassed by the statue, but the women were more than just embarrassed.

    And as much as this seems a clear ‘art being impolite’ case, this taking the cause to the meta level is absurd. Lawyers are just doing their job even if the clients are asking they try to go against art, free speech, validating survivors, and foreign state/historical influence on park here. I would have trouble advocating something I don’t agree with, but that is the ideal, so the little guy or outsider has a chance for bigger issues too. I just hope the town won’t fold, because it is a discreet and evocative piece, I would hate for it to be shuffled away because someone chickens out.

  3. An estimated 3/4 of these poor women died as a result of their work which was compelled. They were Koreans, Filipino women, Chinese, and even some Dutch women in the former Dutch East Indies. This law firm is disgusting in taking this suit.

    • The two statements are unrelated.

      It’s frustrating to spend time on a post, have someone read it, and ignore everything you wrote. Happens to me a lot, but it is still annoying.

      • I didn’t ignore it Jack. Just wanted to bring to the attention of people that read these posts the scope of suffering that these comfort women had to endure and why the City of Glendale put the monument in the park.

  4. Lawyers (as a class) have some responsibility to ensure that defendants (whether criminal or civil) are properly represented, and this means that it may be proper to accept clients that you do not approve of.

    This does not, however, necessarily mean that it is proper to accept a plaintiff as a client if the case in question is one you disapprove of. I think this is an important distinction.

    It is telling that all of the other cases you mention in support of your position are about representing unpopular defendants, not unpopular plaintiffs.

    • I think it DOES mean exactly that ” it is proper to accept a plaintiff as a client if the case in question is one you disapprove of.”
      Hence my favorite rule in the book, 1.2b: 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.

      The lawyer’s personal views on the cause or the client is irrelevant, and should stay that way.

      • Hmmm. I note this rule as quoted doesn’t actually say anything about whether or not representing the client constitutes an endorsement of the claims being made in the specific lawsuit in question. Perhaps that’s supposed to be implicit, but it seems a bit odd.

        • Give me an example where a client’s lawsuit wouldn’t come under the umbrella of “political, economic, social or moral views or activities”? A lawsuit is an activity, motivated by the client’s political, economic, social or moral views (and interests, which in inseparable from “views,” as the include “views on what is in their interests.”

          A lawyer is required to be as neutral as possible regarding the actual lawsuit, but partisan regarding whose position he devotes his time to supporting. Rule 1.7 pronounces any personal interests affecting the case as a conflict of interest.

          • Ordinarily, in my opinion, a phrase like that wouldn’t have the meaning you’re giving it. I’d interpret it as a passive statement that the simple act of accepting a client’s case doesn’t mean the lawyer approves of everything the client may have ever said or done. You’re interpreting it as meaning that nothing the lawyer does while representing the client can possibly be an endorsement of *anything* the client believes, even those beliefs directly relevant to the putative endorsement in question.

            One reason this seems odd to me is that it implies that a statement made by a lawyer in representing a client might constitute an endorsement by that lawyer of a particular point of view – but only if that point of view was *not* one held by the client.

            However, I can only assume that you know what you’re talking about, so I’ll take your word for it that your interpretation is the correct one in this particular context.

            … whether that rule (as so interpreted) is ethically correct is a whole other discussion. I’m not sure it is. There’s no overriding social interest in ensuring that people can sue one another – if there were, the state would pay for it, the same as it does for criminal defendants – so I see no reason to insist that lawyers must ignore their own ethics when deciding whether to accept a client who wants to file an obnoxious lawsuit.

            • Huh? You’re overthinking it. It simply means that the act of representing a client and his cause should not be assumed to be an endorsement of either. It could be, but that’s not an assumption that follows. The lawyer’s personal opinion is completely irrelevant, as is, traditionally, his conscience regarding permissible tactics in pursuit of the client’s cause.

              “There’s no overriding social interest in ensuring that people can sue one another”—wrong!!! In fact, spectacularly wrong. The law is exists a means of order and social justice; law exists to allow ordinary citizens to use the law fr their own benefit and protection. Lawyers, as a profession, exist as the activating instrumentality that allow citizens to benefit from their own laws. Society does pay for it, in different ways. The legal profession is a profession as well as a business, meaning that it is pledged to assist society in its legal needs regardless of profit. This is why contingent fees exist, why all members of the bar are required to perform a certain number of hours of pro bono legal work, and why there are government agencies and non-profits dedicated to providing landlord-tenant, divorce, tax, tort,contract and other services for the indigent.

              • That’s a very interesting perspective. It’s not really a subject I’m prepared to debate, but do let me point out that here in New Zealand lawsuits are rare and we seem to get by perfectly well. 🙂

                  • Careful, that sounds offensive, the US may feel slandered and might sue you.

                    The court will now consider The United States except Jack Marshall vs Jack Marshall.

                    Gads… If we sued you for several trillion dollars, we could settle the debt.

                    • Do you have any idea how hard I would crack up to see that nomenclature used in criminal trials? “I now call to order the case of the people of Ohio except for Bob Anderson versus Bob Anderson”

      • I think your citation of RPC 1.2 (b) is apt. It saddens me how widely it is ignored. If offensive claims are headed off because attorneys are afraid to litigate them, then are we a nation governed by laws, or a nation governed by men?

          • Thanks. 🙂 Capital habeas made me sensitive to this rule and the rule of law.

            I do question, though, whether there is a different ethical issue. Strategically, the litigation seems to me to undermine the clients’ true goals. It makes them look really foolish or insensitive in the court of public opinion. From where I sit, the attorneys seem to me to be violating their duty of loyalty by undermining their clients’ interests and billing them for it.

            • That’s a tough tight-rope to walk. The lawyer is obliged to say “I think this case is a terrible idea, and here’s why.” She is alos obligated to say:”But it’s your choice, not mine.” A lawyer who quits every time a client decided to do something the lawyer thinks is a bad idea wouldn’t be much of a lawyer, or very helpful, either. In such cases, the lawyer’s role is to mitigate the damage.

    • And professional ethics are something else again, closer to morality, in that they are codified and enforced, but with “unwritten rules” and values that circle back toward ethics again.

      • I always thought of professional ethics as being a sort of weird ethics suspension zone. Legal ethics: You’d never say it was OK to try and blame a murderer’s victim, but a lawyer not only can but must if it’s got a shot to work. Science ethics: Most people wouldn’t kill small animals, but lab mice and rats? hack em up. Veterinary ethics: There was a brouhaha at my university when people found out that the vets were anesthetizing cats and removing their eyes while they were still alive (they did euthanize them immediately afterward, before they woke up).

        Not that I think any of it is BAD per se, but I always read “professional ethics” as “People in this profession do things that we all agree are horrible in general, because the social contract has agreed that the benefits are worth it as long as it’s controlled and limited to trained professionals.”

        • The right way to view it is through Star Trek (I use this analogy in classes.) Every profession is defined by its own ‘prime directive’, an ethical priority that is unique to the profession. Thus “Do not interfere” may not seem like valid ethics to the public, but in the context of a starship captain where interference could have galactic consequences, it is ethical. (The Federation would not have moved to stop the Nazis.) Prime directives seem unethical outside of the particular profession’s mission and activities. (This analogy originated with ethicist and Star Trek fan Michael Daigneault,who may not have taught me everything I know about professional ethics, but came damn close.)

          • Ooh, a good nerd summary. Reminds me of the D&D alignment chart that dared to place Picard as “Lawful Neutral,” you should have seen the fans raging that he wasn’t called “good.”

  5. I’m not a lawyer so bear with me for a second if my ignorance of the profession and it’s ethics rules explains my silly confusion. But if you’re going to represent a client with a totally repugnant claim, shouldn’t you check whether they have any legal basis for suing? Because the plaintiff here is trying to suppress someone’s (the artist’s/city’s) speech, which I understand has to clear some legal hurdles to even have a snowball’s chance in hell of winning.

    In Randazza’s piece he argues (I think) that the plaintiff’s two initially rational-seeming arguments don’t withstand legal scrutiny. The first is that the art piece is affecting diplomatic relations with Japan and Korea. That argument seems to be a nonstarter given that the case he cites makes it clear that “smooth foreign relations are not a sufficient justification to suppress speech.” The second is that the city didn’t follow the proper procedure before installing the memorial. That argument is seems frivolous given that it focuses not on the general principal of the statue going in but on the specifics of the statue’s inscription.

    If those two things are even mostly correct, I think it was highly dickish of this law firm to take the case. If you are a big law firm with lots of talented lawyers to look at the facts and decide whether a potential client’s complaint has any legal merit whatsoever, and it clearly doesn’t, and that claim is both hurtful and trying to suppress speech, and the client is clearly doing so to defend an indefensible “other side” of unimaginable suffering on a huge scale… I think taking that case is not honorable. The opposite of the claim that a lawyer shouldn’t be looked poorly upon for taking a repugnant case is not true if the repugnant claim is also bullshit from a legal standpoint.

    I think it’s not too hard to reconcile these people (Randazza and White) being both free speech advocates and also disgusted about this- after all, someone’s free speech is being suppressed here. And I really have to question why if there isn’t at least a somewhat strong legal argument.

    • You misunderstand “any legal merit whatsoever.” Yes, its unethical to bring a case or offer a defense where the lawyer in good faith can’t honest say there is some…but good lawyers can find theories and make arguments that prevail even when you or I may think they are frivolous. Product liability used to be considered a frivolous argument—it was “let the buyer beware.” Creative, long-shot, seemingly absurd or “dickish” theories often win, whereupon they aren’t considered strange or far-fetched at all. This is why it is extremely rare for rule 3.1, which forbid “frivolous” actions, to ever result in discipline.

  6. Pingback: CLBR Segment 2: News Update From Video Censorship to Eradicating HTML | Cyber Law & Business Report

    • Dear Toshiaki Haginoya:

      Oh, please. Go see here:

      https://web.archive.org/web/20070228195049/http://foreignaffairs.house.gov/110/ohe021507.htm

      (Statement of Jan Ruff O’Herne, Subcommittee on Asia, the Pacific, and the Global Environment Committee on Foreign Affairs, U.S. House of Representatives (Hearing on Protecting the Human Rights of “Comfort Women” Thursday, February 15, 2007)

      … and here:

      http://www.awf.or.jp/pdf/0205.pdf (informal translation)

      Ministerie van Buitenlandse zaken (January 24, 1994), “Gedwongen prostitutie van Nederlandse vrouwen in voormalig Nederlands-Indië [Enforced prostitution of Dutch women in the former Dutch East Indies]”, Handelingen Tweede Kamer der Staten-Generaal [Hansard Dutch Lower House], 23607 (1), ISSN 0921-7371, authored by the Dutch Minister of Foreign Affairs.

      I hope this will get you started..

    • Dear Toshiaki Haginoya:

      Oh, please. Go see here:

      https://web.archive.org/web/20070228195049/http://foreignaffairs.house.gov/110/ohe021507.htm

      (Statement of Jan Ruff O’Herne, Subcommittee on Asia, the Pacific, and the Global Environment Committee on Foreign Affairs, U.S. House of Representatives (Hearing on Protecting the Human Rights of “Comfort Women” Thursday, February 15, 2007)

      … and here:

      http://www.awf.or.jp/pdf/0205.pdf (informal translation)

      Ministerie van Buitenlandse zaken (January 24, 1994), “Gedwongen prostitutie van Nederlandse vrouwen in voormalig Nederlands-Indië [Enforced prostitution of Dutch women in the former Dutch East Indies]“, Handelingen Tweede Kamer der Staten-Generaal [Hansard Dutch Lower House], 23607 (1), ISSN 0921-7371, authored by the Dutch Minister of Foreign Affairs.

      I hope this will get you started..

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.