A Lawyer Argues “Do No Harm” Should Be Added To The Legal Ethics Rules, Thus Proving Herself To Be A Hopelessly Unethical Lawyer

This is Alexa. She'll let you know if your client is good or bad, and whether you should help him. Just ask.

This is Alexa. She’ll let you know if your client is good or bad, and whether you should help him. Just ask.

Lawyer Alexa Van Brunt contributed a jaw-dropping op-ed to the Washington Post over the holidays. It was titled “The ‘torture’ memos prove America’s lawyers don’t know how to be ethical,” and argued that the legal profession needs the equivalent of the medical profession’s “First do no harm” ethical standard.

It was irresponsible for the Post to print such a piece, because it made its readers, most of whom are thoroughly confused about legal ethics already, even more confused. So far, I have yet to find any lawyer who regards Van Brunt’s theory as anything other than laughable, tragic, shocking, or proof that ideology rots the brain. She cannot possibly understand legal ethics or even what the duties of the legal profession are and compose such an embarrassing piece.

Alexa Van Brunt is, we are told, an attorney at the Roderick and Solange MacArthur Justice Center, a Clinical Assistant Professor at Northwestern University Law School and Center, and a Public Voices Fellow with The OpEd Project. This explains a lot. She is a public interest lawyer on a mission, and thus represents only causes that she thinks are good, right and important. Apparently she missed the part of law school where you learn that one of a lawyer’s jobs is to assist non-lawyer clients as they try to accomplish their goals, which they believe are good, right, and important. These often involve engaging in controversies with others, and zero-sum results. Someone is going to suffer “harm.”

In medicine, what “do no harm” means is frequently clear: make the patient better, not worse. There are usually not competing patients, where a limited amount of health must be allotted among suffering human beings. Thus a doctor will not ethically take a healthy heart from a living patient to give to another. In law, however, “Do no harm” would render many disputes beyond legal assistance. Is a defense lawyer who refuses to let a guilty client be convicted by insufficient evidence, jury bias and wrongful interpretation of the law doing harm by freeing a criminal, or is it harm to allow prosecutions to violate due process? Is a real estate lawyer who assists as a company purchases virgin land for the building of a factory doing harm to the environment, or is the lawyer for the environmental group that tries to block it doing harm to the economy?

Van Brunt’s primary focus is the torture issue, but even there, what is “harm” is muddy. Those who supported the use of torture believed that precluding it would place the U.S. population at risk. Alexa defines “harm” as violating international law and the Constitution, but the Constitution, some scholars believe, does not prohibit torture as the CIA practiced it, and in war, doing harm is necessary to win. Who decides whether a litigant who wants to sue for police brutality is going to do harm to public safety, or whether defending a police officer accused of murder will encourage police executions of unarmed men? Who decides, when it comes to  finding that a lawyer violated this new, sensitive ethics rule, what constitutes “harm”?

Why Alexa, of course! She and all those other good people who know with absolute certainty what is right and just in every case—they know what harm is. Just ask them. Meanwhile, client confidentiality is out, because sometimes a lawyer keeping his client’s secrets may cause harm to others. Providing legal advice to banks, defense contractors, auto manufacturers, gun-makers, processed food manufacturers, McDonalds, pharmaceuticals, the Defense Department, the CIA, pro-life organizations (abortion providers don’t harm anyone, of course), the NRA, the Republican Party, this all causes harm…by Alexa’s standards, and she knows best. We don’t need judges or juries, just let the consciences of lawyer and their associations decide which clients are virtuous enough to be worthy of legal representation.

The op-ed is not just absurd, but ignorant and alarming. How can anyone this warped and lacking in understanding of the law and the ethical duties of the profession be teaching at a law school, where she can assist in the minting of new lawyers as ignorant, arrogant and unethical as she is?

Talk about doing harm.

 

12 thoughts on “A Lawyer Argues “Do No Harm” Should Be Added To The Legal Ethics Rules, Thus Proving Herself To Be A Hopelessly Unethical Lawyer

  1. Now, THAT is interesting. It never occurred to me that the legal profession was, I assume from her belief system, much like Joseph Mengela of Nazi medical research fame.

  2. I would like to ask Van Brunt if Thurgood Marshall should have been disbarred for arguing Brown v. Board of Education when the settled law was to the contrary. Of course not.

    She also ignores the fact that lawyers do have ethics rules which balance service to the client with fidelity to the law. If anything, these ethics rules inhibit attorneys from making new arguments. Lawyers can be, and frequently are, disciplined or sanctioned for making arguments which are contrary to law and cannot be supported by a good faith argument for extension or modification of the law. What is a good faith argument? Depends on who is deciding the question.

  3. It seems to me that you could teach the perils and pitfalls of judicial activism in a 1 hour course at law school. How does someone like this slip through the cracks?

  4. A lawyer SHOULD do NO harm. Unfortunately, she misinterprets what “harm” means in this context. In this case, harm isn’t “What you feel harm is”, Harm is breaking the trust between ordinary people and lawyers, who are supposed to pursue their clients’ interests with zeal. To not do so DOES inflict harm on that trust, which is necessary for our system to function.

      • That may be the very reason they support the use of torture against those who are totally “devoid of rights, honor, and even recognition as a human being”, against those who are “enemy to mankind”.

        Many people would also support the use of toxic nerve gases against terrorists, regardless of whether they surrendered.

        https://groups.google.com/forum/#!original/talk.politics.mideast/JraCgGFCd1A/bh8SL12qIZYJ

        Nothing a little Sarin or VX gas won’t fix.

        You know – the kind that causes convulsions so severe it snaps bones
        likes twigs.

        Now that’s my idea of a dance party – 4 or 5 hundred million ragheads
        doing that horizontal “break” dance all in one shot.

        I bet it would feel like a stampede.

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