Charles Green helpfully sent me the link to today’s New York Times piece documenting how…
“the imbalance in legal firepower in the same-sex marriage cases resulted from a conviction among many lawyers that opposition to such unions is bigotry akin to racism. But there were economic calculations, too. Law firms that defend traditional marriage may lose clients and find themselves at a disadvantage in hiring new lawyers.”
“Am I right that something’s quite amiss here?” he asks. Indeed he is, and I’ve touched on it before.
There are several factors at work here, but the result is deplorable, and indictment of the corrupt values of the legal profession. One of the factors is bias, and it is a bias that the lawyers themselves are either unaware of, or are unwilling to avoid its effects as their professional codes of ethics require.
The majority of high-powered lawyers hail from urban centers where liberal culture flourishes among the wealthy, the powerful and the influential. These are cosmopolitan lawyers, sophisticated and urbane, who have gay colleagues, gay friends and gay children. They are less likely to be religious, and more likely to have contempt for those who are. Combine with them the legal academics who drive consensus on legal ethics matters—like most academics, they have marinated in the extreme leftist attitudes of U.S. academia—and it becomes clear why, as Michael W. McConnell, a former federal appeals court judge who teaches law at Stanford, tells the Times, “The level of sheer desire to crush dissent is pretty unprecedented.”
I noticed this in 2011, when the legal ethicists I follow, know and debate with decreed virtually en masse that a judge who was not only gay himself but in a long term domestic relationship with his partner had no ethical obligation to recuse himself before he issued the decision on the constitutionality of California’s anti-same sex marriage Proposition 8. Nor did they feel he was ethically obligated to disclose his situation before ruling. I wrote:
Almost all of these distinguished ethicists—people whom I read, respect, and frequently quote, also fervently argued five years ago that Justice Scalia’s participation in a large duck hunt with then-Vice-President Cheney created sufficient public doubts about the integrity of the judicial process that he should have recused himself from a Supreme Court case that had Cheney as a named party, and I agreed with them. But if you interviewed 100 reasonable, non-partisan fair and objective members of the public, is there any question that the vast majority of them would agree that a judge in an undisclosed same-sex relationship, deciding the constitutional status of gay marriage in the state in which he resides, has a far greater appearance of bias problem than a Supreme Court Justice who had participated in a duck hunt with one of the individuals named in the suit in his official (as opposed to personal) capacity?
To read the frankly insulting commentary issuing from otherwise respectable sources, you would think we live in Bizarro World. These experts argue that to even suggest that Walker had the appearance of bias is tantamount to bigotry….that’s a problem, because the recusal rules are not there to protect the regard in which the judicial process and the rule of law is held by elite, progressive Democratic lawyers and ethics professors. It is there to ensure the faith and trust of the public—the normal people, the 99.99% who base their judgments on life experiences and not on reading legal ethics opinions, codes of conduct and legal ethics treatises all day long. And those people, the ones whose belief in the fairness of the judicial system is critical to the the nation’s vitality and existence, do not go through the labyrinthine, and I think, cynical, legal ethics analysis required to conclude that Judge Walker had no obligation to reveal his domestic status, because, really, it was completely irrelevant. They hear about Judge Walker’s late disclosure, and raise an eyebrow…because it raises reasonable doubts.
They think, in other words, that the case may have been fixed.
…The legacy of this case, future appeals aside, is that a measure voted on and approved by California voters was overturned by a judge who had an apparent personal interest in the subject matter of the case, an appearance of a conflict which he intentionally failed to disclose until a full year after his decision, and the legal elite and academics brushed all of this aside as unimportant because they want same-sex marriage on the books.
I concluded with this…
We are going to have legal same-sex marriage, in California and the rest of the country, sooner or later. That will be a positive development. The troubling question is whether the judicial system will have any perceived integrity left by the time it happens. It will not, if those who are charged with identifying and criticizing professional conduct that jeopardizes public trust in our courts allow their political and social beliefs to warp their own independent judgment.
Sadly, I was even more correct that I thought I would be.
Then, later that same year, the debacle occurred in which a large and distinguished law firm that had taken on the defense of DOMA—remember, it was the law of the land then, signed into law by the noble husband of the recently-declared annointed Dem0cratic selectee to succeed Barack Obama as “National Trialblazer”—and capitulated to the pressure of its largest client’s insistence that it drop the case. I wrote at the time that this was a horrific breach of the ethical traditions of the law. Paul Clement, the lead lawyer in the case who resigned from the firm in protest, received an Ethic Hero designation here by writing, in his letter:
“…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.”
Yet the episode represented an ugly truth that had little to do with DOMA or even the legal profession’s bias in favor of gay marriage. The requirements of big business are incompatible with the integrity required of legal professionals. Fiduciary duties in a business require responsible management decisions in the quest for profits; legal professionalism dictates that lawyers put their personal beliefs and financial needs aside in order to ensure that unpopular people, movements, organizations and positions are represented, defended and given a chance to prevail in our system on their merits. I raise the Clement fiasco in my legal ethics seminars for law firms, and point out that it is unethical in every way for a lawyer to even discuss another client’s matter with a second client’s representative. Nobody, literally nobody, disputes it. And yet when I ask if that firm would meet with its biggest client if it expressed concerns about an adverse reaction to the firm’s high-profile representation of an unpopular cause, every lawyer agrees that they would. In the real world, they won’t sacrifice millions of dollars worth of annual business for principle, even though it is among the defining principles of the profession.
So yes, a lot is amiss. Bias has infected a profession that makes the avoidance of bias a core value, and the legal profession’s financial realities are corrupting its integrity. In the long run, the second is far more dangerous to the profession and society than the first.