It pains me greatly when a Facebook friend (and real friend too) posts something from a right-wing or left-wing website that is ignorant and misleading, as if she has something enlightening to share. Then I am forced to point out that 1) the post was written by someone pretending to have knowledge he did not; 2) those agreeing with him and assuming he had a valid point are hanging out with like-minded partisans who reinforce each others’ happy misconceptions, and 3) that the lawyers who cheer on conclusions that can only be explained by the fact that the concluder can’t spell law, much less under stand it. This typically loses two to ten names off my Facebook friends list. Well, too bad. They should be ashamed of themselves.
The case I have in mind: a site called “Forward Progressive: Forward Thinking for Progressive Action”—hmmm, I think it is a progressive site!—attacked Clarence Thomas for his participation in the recent SCOTUS decision in Bowman v. Monsanto. The Court ruled for Monsanto in a patent case against farmers in a matter involving the reproduction of products whose patents have expired. To Dyssa Fuchs, the writer for Forward Progressive in this case, Thomas had a clear conflict of interest and should have recused himself.
She cites the judicial code, she cites the U.S. statutes, she–of course—cites her belief that Monsanto is evil, and of course, like all good progressives, she hates Thomas, who has the effrontery to be both a hard-core conservative and black. The fact is, however, that she has no idea what she is talking about. Thomas had no conflict of interest in this case, nor does he have an “appearance of impropriety” problem because someone determined to prove that he is corrupt doesn’t understand what improprieties or judicial conflicts are, or for that matter, what lawyers do.
The ethical prohibition against lawyers being involved in a case opposing a party they once represented in a similar matter is not based, as many ill-informed citizens like Fuchs seem to think, on a presumption that the lawyer will be biased toward the former client. To the contrary, the prohibition exists to protect the former client against the appearance of disloyalty (if the matter is related to the matter the lawyer once handled for that client) and confidences that the ex-lawyer could use against the former client to benefit his current one. There is no presumption of lingering loyalties to former clients in the law, at least none that can be assumed by the mere fact of past representation. Thus there are no assumed conflicts when a former corporate client is a litigant before a judge who once represented it, absent other factors. For a judge, the presumption of a bias in favor of a former client is even less logical than with a lawyer.
Lawyers don’t represent clients because they like them, because they necessarily endorse their objectives, or because they have a personal bond with them: in fact, they do a better job when none of these things are true. A genuine appearance of impropriety, as used in the judicial ethics rules, does not include a mistaken belief based on misinformation and confusion about how the legal profession works, encouraged by partisan blogs determined to smear judges they hate. No citizen who understands what constitutes a conflict or even a reasonable appearance of one for a judge or a lawyer, or a former lawyer sitting as a judge, would see any impropriety at all.
Thomas worked for Monsanto, early in his career, as a staff attorney from 1976-1979. The chances that he worked on a matter over thirty years ago sufficiently related to one that comes before the Supreme Court now are miniscule, and the question didn’t arise at all in Bowman. It is likely that there isn’t anyone still at Monsanto that Thomas had a personal relationship with, either. They haven’t paid him for 35 years: where, exactly, is this bias supposedly coming from?
I notice that nobody at the site is alarmed that Justice Kagan sits in judgment of cases where the U.S. government is a party, though she was Solicitor General, meaning that her client was the United States. When Kagan had personally represented the U.S. on a matter closely related to a matter before the court, she recuses herself, and correctly so. No such issue has arisen involving Thomas and Monsanto. Nor can the fact that Thomas ruled for Monsanto in the case at hand be used to impugn his integrity: all nine justices did.
The tradition that federal judges have complete discretion regarding their own conflicts is a matter for serious debate, but Forward Progressive was less interested in the general problem than the specific goal of smearing its target, Clarence Thomas. In so doing, it completely misinformed its readers regarding conflicts, legal ethics, judicial ethics, Thomas’s obligations, and the appearance of impropriety.
There is nothing wrong with a political blog trying to persuade readers to adopt its political views. Expounding on ethical duties the writer hasn’t taken the time to understand, making readers dumber and prompting them to spread their misunderstandings far and wide, however, cannot be excused, justified, or forgiven.
Source: Forward Progressive