LawNewz writes, and in so doing wins a Legal Ethics Dunce so easily that I’m not even going to bother,
Feminist attorney Lisa Bloom, who has represented dozens of women against accused sexual harassers like Donald Trump and Bill O’Reilly, is now representing an alleged sexual harasser. In, quite frankly, a shocking move, Bloom agreed to give her “advising” services to film studio executive Harvey Weinstein, who is accused of harassing women over a thirty-year timespan. Immediately, many in the legal world wondered what would motivate such a principled women’s rights advocate to represent a man facing such sordid accusations.
Weird! I have the strangest feeling I have been here before…it’s Ethics Alarms déjà vu!
No, I have been here before, and if you’ve read the blog regularly, so have you, like here, for example, when the post was called, No, There Is Nothing Unethical Or Hypocritical About A Feminist Lawyer Defending Roger Ailes.or here, when I defended Hillary Clinton….yes, you read that right…when she was being called a hypocrite for once defending not only a child rapist, but a guilty child rapist. Then there was this post, when liberal icon Larry Tribe was representing a coal company. Bloom, Tribe, Estrich and Hillary all have the same defense, not that lawyers should need a defense for being lawyers.
Let’s see…I think I’ll quote myself from the Hillary piece this time…
..I tell all my legal ethics seminar classes to start teaching their non-lawyer neighbors and relatives ABA Model Rule 1.2 b, which reads,
(b) 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.
This, combined with the principle of zealous representation of one’s client, as expressed, for example, in D.C. Rule of Professional Conduct Rule 1.3…
(a) A lawyer shall represent a client zealously and diligently within the bounds of the law.
(b) A lawyer shall not intentionally:
(1) Fail to seek the lawful objectives of a client through reasonably available means permitted by law and the disciplinary rules; or
(2) Prejudice or damage a client during the course of the professional relationship….
…means that lawyers represent clients, and are bound to seek those clients’ objectives when those objectives are legal, whether the lawyer likes or agrees with those objectives or not.
It means that it is ignorant, wrong and dangerous to the rule of law as well as the right of citizens to be the beneficiaries of laws in a democracy, and not the servants of them, for unscrupulous political opponents to attack lawyers for the positions, objectives and needs of the clients they represented…
Lawyers do not have to agree with or like their clients’ positions, objectives or character, is that clear? Everybody? Lawyers are not to be held accountable for their client’s motives, conduct or legal objectives. Bill Cosby’s lawyers do not approve of rapists. Johnnie Cochran did not support the hobby of ex-wife knifing.
And Lisa Bloom (she is the daughter of Gloria Allred, following in her feminist muckraking mother’s footsteps) was not violating her principles or being hypocritical when she agreed to be an “advisor” to Harvey Weinstein, also known as “being his attorney.” Bloom, as an attorney, was being faithful to the professional principles on which the practice of law in America is based. Her personal beliefs and principles are subordinate to those.
Nevertheless, LawNewz, a legal issues website, cross-examined Bloom as if she was engaging in a breach of integrity rather than doing what the legal ethics rules direct lawyers to do. The site’s Editor-in-Chief, Rachel Stockman, acted as if she had never heard of the concept of a lawyer who doesn’t necessarily like, admire or sympathize with a client, and whose personal values the client’s alleged actions seem to defy. “A lot of people would say you are being a hypocrite by changing sides,” asked Stockman, who also pressed Bloom on how differently she’s treating the beleaguered independent film tycoon from other alleged harassers. “Your reaction?”
Bloom’s reaction, in a setting where she was not constrained by the fact that she was representing Weinstein as she spoke and therefore her response had to be in his best interests, not hers, should have been something like,
‘My reaction is that “a lot of people” don’t understand what lawyers do and why they are important. I’m treating Harvey differently from other accused sexual harassers because he’s my client, and in other cases accused sexual harassers were being accused by my clients. I’m not “switching sides.” Lawyers don’t have “sides,” their clients do. The lawyers on both sides of any case, criminal or civil, are acting ion the best traditions of their profession by helping a client have full access to the law. Lawyers don’t judge their clients, they advocate for them and advise them. I’m advocating and advising Mr. Weinstein. He has every right to my professional services, and I have every right to provide them to anyone willing to pay my fee.’
Then she could have added this…
‘And I must say, Rachel, I am shocked that you are even asking these question. I know you’ve never practiced law, but you did get a Masters of Law at Yale, and I would think this concept was basic. Didn’t Yale teach you this? If not, you should get your tuition back. Or maybe LawNewz should get your salary back. The Editor in Chief of a website devoted to the law should at least understand what lawyers do, and not mislead its readers that there is something hypocritical about representing clients with diametrically opposed interests at different times.’
But wait…there’s more!
There is a twist to this tale, for it appears that Bloom may have violated at least the spirit of a different ethics principle in representing Weinstein. In April, she tweeted,
“BIG ANNOUNCEMENT: My book SUSPICION NATION is being made into a miniseries, produced by Harvey Weinstein and Jay Z!”
I don’t know when Weinstein hired Bloom, but whenever it was, it defies credulity to believe that this arrangement isn’t a key to the relationship.This, and not the fact that Bloom took on a client that her previous clients would find repulsive, makes me question her motives and integrity.
“A lawyer’s legal skill and training, together with the relationship of trust and confidence between lawyer and client, create the possibility of overreaching when the lawyer participates in a business, property or financial transaction with a client…When necessary, the lawyer should discuss both the material risks of the proposed transaction, including any risk presented by the lawyer’s involvement, and the existence of reasonably available alternatives and should explain why the advice of independent legal counsel is desirable…The risk to a client is greatest when the client expects the lawyer to represent the client in the transaction itself or when the lawyer’s financial interest otherwise poses a significant risk that the lawyer’s representation of the client will be materially limited by the lawyer’s financial interest in the transaction. Here the lawyer’s role requires that the lawyer must comply, not only with the requirements of paragraph (a), but also with the requirements of Rule 1.7. Under that Rule, the lawyer must disclose the risks associated with the lawyer’s dual role as both legal adviser and participant in the transaction, such as the risk that the lawyer will … give legal advice in a way that favors the lawyer’s interests at the expense of the client. Moreover, the lawyer must obtain the client’s informed consent. In some cases, the lawyer’s interest may be such that Rule 1.7 will preclude the lawyer from seeking the client’s consent to the transaction….”
I believe that Lisa Bloom’s arrangement with Weinstein does breach Rule 1.7, which involves, among other things, unwaivable personal conflicts of interest. It looks like members of Weinstein’s board made the same point to the lawyer: “You have a commercial relationship with TWC via a TV deal so how can you possibly provide impartial advice to Harvey or address this group with any credibility?” one board members wrote her in an e-mail.
Yesterday, Lisa Bloom withdrew as Weinstein’s lawyer.