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.]