I Expect Non-Lawyers And Journalists To Misunderstand This Basic Legal Ethics Principle….But HARVARD LAW SCHOOL?

Kaboom.

This is a repeat issue, so I could make this short and link to the previous Ethics Alarms post on this annoying subject, or  here, when I defended Hillary Clinton when she was being called a hypocrite for once defending  a child rapist, or maybe the post titled,  No, There Is Nothing Unethical Or Hypocritical About A Feminist Lawyer Defending Roger Ailes.or this post, when liberal icon and former Harvard Law professor Larry Tribe was representing a coal company. I have vowed, however, that if I accomplish nothing else with this blog, I will do my best to put a stake through the ignorant and destructive idea that lawyers only represent clients they agree with, admire, or personally support. Here its is again, the ABA rule that is quoted somewhere in every jurisdiction’s attorney conduct regulations. Let’s do it really big this time:

ABA Model Rule 1.2(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.”

Got that? Memorize it Print it out and carry it in your wallet, and hand it to your ignorant loud-mouth family member who complains about those scum-bag lawyers who represent bad people. Post it on social media and  in online comment sections where people are bloviating about the same. idiotic misconception.

What we can do about Harvard, however, I just don’t know. You know what they say, “Get woke, lose all respect and credibility as a trustworthy advocate for civil rights and the Rule of Law.” Okay, I’m going to have to work on that…

Harvard undergrad and law students are attacking law school Dean Ronald S. Sullivan and demanding that he resign because he joined the team of lawyers defending Harvey Weinstein, the Godfather of #MeToo, who is facing multiple charges of sexual harassment, rape, and sexual assault. Because the Dean is black, the Association of Black Harvard Women wrote in a public letter, “You have failed us.” Law student Danu Mudannayake  wrote in a petition, “Do you really want to one day accept your diploma from someone who … believes it is OK to defend such a prominent figure at the center of the #MeToo movement?” You mean from someone who understands what it means to be a lawyer? You shouldn’t get a degree, Danu, until you complete a 500 word essay explaining why what you just wrote should disqualify anyone from admittance to the bar.

Dean Sullivan tried to stem this embarrassing display by saying,  “Lawyers are not an extension of their clients.” Representing a client. he pointed out, “doesn’t mean I’m supporting anything the client may have done.” Sounds familiar, no?

Not surprisingly, given that this is academia and today’s professors and administrators place politics over integrity and education when push comes to show, the show of support for Sullivan has been less than ringing. Harvard College Dean Rakesh Khurana  called for a study of how students at the College’s  Winthrop House, where Sullivan is housemaster, regard the law professor’s role in the Weinstein case. He called it a “climate review,” review, whatever that means. How about simply telling the students that they don’t know what they are blathering about, and explaining how the legal system works? Another  dean, Diana L. Eck, concedes that everyone has the right to a strenuous defense but, on the other hand, Sullivan’s work is “fracturing that sense of community.”  Ah. So lawyers really shouldn’t defend unpopular clients. Would someone please dig up Harvard icon John Adams and explain why his defense of the British soldiers in the Boston Massacre trial was insensitive? I guess lawyer Frederick Aiken, the lawyer hero of Robert Redford’s historical film, “The Conspirator,” really was a fool to try to stop his client, Lincoln assassination conspirator Mary Surratt, from being convicted and condemned by a rigged kangaroo court. She was guilty after all, and “everybody” knew it. Why have a trial at all?

I’m not being hyperbolic, unfortunately. As we saw in the Kavanagh hearings, the political left is increasingly hostile to the concept of due process and equal protection of the law, as well as the principle that mere accusations should be sufficient to presume guilt. This pollution of democracy has been bubbling up through the muck for a long time: In a disturbing New York Times op-ed, law professor Deborah L. Rhode argued that lawyers had a “moral” obligation not to represent “bad” clients in civil cases, writing,

“In civil cases, the moral calculus is different. Except in rare circumstances, civil claimants have no right to counsel. The notion that lawyers should check their conscience at the door in these cases has implicated the profession in some of the worst public health and financial crises in the nation’s history. We do not, and should not, applaud the lawyers who enabled clients’ resistance to enforcement of civil rights guarantees or to health warnings about cigarettes. Lawyers, no less than other individuals, have a moral responsibility to consider the consequences of their professional actions.”

Yes, and the consequences of adopting Rhode’s view and the views of the protesting Harvard students would be an end to equal access to a vigorous legal representation and access to the laws of the land. Progressives will just decide whether you deserve your rights or not, and that will be that.

It is a mark of how far this ethics rot has seeped into the culture that Harvard University no longer can muster a full-throated defense of lawyers’ professional imperative.

_________________________

Pointer: Arthur in Maine

Facts: RealClearPolitics

 

24 thoughts on “I Expect Non-Lawyers And Journalists To Misunderstand This Basic Legal Ethics Principle….But HARVARD LAW SCHOOL?

  1. I’m no lawyer but I have always understood that fairness in a judicial setting either criminal or civil requires counsel vigorously advocating on both sides.

  2. How about simply telling the students that they don’t know what they are blathering about, and explaining how the legal system works?

    Because students are right, and the collective “we,” who are not only educated professionals but experienced in life as well as our chosen field are wrong because we don’t let identity politics inform every single decision we make.

    Get that? Wrong. Rationality == complicity in hate. If you fail to purge identity politics bugaboos from every corner of your life, including in direct contravention of professional ethics (which are also wrong if they aren’t woke), you must be sanctioned, investigated, removed and/or physically beaten.

    That’s why they don’t do that. Because to do otherwise creates cognitive dissonance so destructive it produces insanity and cerebral detonations.

    Another dean, Diana L. Eck, concedes that everyone has the right to a strenuous defense but, on the other hand, Sullivan’s work is “fracturing that sense of community.” Ah. So lawyers really shouldn’t defend unpopular clients.

    Correct. Due process, legal norms, historical justice all mean dick if they aren’t “woke,” and representing an alleged rapist isn’t “woke,” because it creates a circumstance in which identity politics must be subordinate to something. Intolerable — “woke” people simply cannot intellectually grasp that concept without their thin-walled heads exploding.

    Yes, and the consequences of adopting Rhode’s view and the views of the protesting Harvard students would be an end to equal access to a vigorous legal representation and access to the laws of the land. Progressives will just decide whether you deserve your rights or not, and that will be that.

    You have perfectly encapsulated the entire rationale of the Left. If they get to decide this, everything else must logically follow suit. Logic is something the Left only uses when it serves their ends.

    Tragic, but utterly predictable and perfectly consistent. And they say consistency is a good thing…

  3. Yes, and the consequences of adopting Rhode’s view and the views of the protesting Harvard students would be an end to equal access to a vigorous legal representation and access to the laws of the land. Progressives will just decide whether you deserve your rights or not, and that will be that.

    It is a mark of how far this ethics rot has seeped into the culture that Harvard University no longer can muster a full-throated defense of lawyers’ professional imperative.

    This seems so related to your previous post .

  4. Haaaavvard should have told the students to shut up while their betters go about supporting the legal system. That is what they have told fly over states for decades. Short answer is ‘Bite Me.’

    I have no sympathy for the system they created on purpose biting them now. I don’t enjoy it, but they must suffer the consequences of what they have wrought.

    How else will they learn, or be an example to others?

  5. I am getting cynical enough to believe that these types of developing “woke” attitudes toward crime and punishment are just prequel to establishing the coming socialist paradise the left has planned for us, or at least those of us who won’t violently resist the “general will.”

    • I expect there to be a lot fewer on the left if that happens… followed by a LOT fewer in the middle and right if the left wins.

      Death camps are socialist fact.

  6. I know emotionally I have a problem separating a diligent lawyer from a scumbag, but I think you’re bing too kind to assign only a five hundred word essay. Anyone with any advanced degree, and the law is, should be able to slop one that long while they are upside down and drunk. I’d demand a full on unique research paper from each miscreant on applicable Constitutional concepts with a detailed breakdown as to what they did wrong. If there was any suspicion of plagiarism, make sure there’s draft stage handed in.

  7. “. . . civil claimants have no right to counsel”. Statements like this are the reason students cannot think critically. On its face the statement is correct but a right to counsel means that goverment must provide counsel. It does not mean that counsel can be proscribed because of some moralistic stance. If that were the case Roe would never had a chance.

  8. Deborah Rhode: “In civil cases, the moral calculus is different. Except in rare circumstances, civil claimants have no right to counsel.”

    That is a head-exploding statement. Civil claimants have an ABSOLUTE right to counsel (okay, a bit of hyperbole on my part). They just do not have the right to counsel at the expense of the State.

    Because people have the right to a lawyer, the profession has an obligation to vindicate that right. And, the moral bar for vindicating that right is whether the claim is frivolous. Frivolous claims impair the justice system, another thing the profession is supposed to protect. It is only where the lawyer’s personal feeling would impair the lawyer’s ability to vindicate that right to counsel that the lawyer should step aside (or, of course, if they can’t pay your fee).

    If her attitude becomes pervasive, the profession may have to implement the cab-rank-rule, which requires a lawyer to take any case brought to him or her that is within his area of practice. I would not like that.

    -Jut

    • Jut you said it far better. I was trying to figure out how to differentiate a 7th amendment right to counsel and the right to pay for one while economing on text.

        • Thanks, Chris. This conflation of “right” really bugs me.

          Let me give you a trivial example:

          Do I have the right to have chicken noodle soup?

          Not if you mean that I can require someone to provide me chicken noodle soup.

          However, if someone is willing to sell me chicken noodle soup, I sure as hell have the right to purchase it. I have the right to have chicken noodle soup.

          The big problem is two-fold: 1) when people talk of rights, they often don’t distinguish between positive rights and negative rights, making the talk of rights ambiguous; and 2) negative rights often are equivalent to freedoms, creating another ambiguity when talking about rights.

          -Jut

    • The right to counsel in a criminal matter is clearly provided for within the framework of the US Constitution and the Bill of Rights as well as statutes and case law, which also means that an accused may decide not to retain counsel and represent himself or herself.

      Civil cases/matters are different because of the nature of the cases. For instance, indigent litigants are not entitled to a state-compensated counsel in civil cases (personal injury, wrongful termination, divorce, etc.). Some jurisdictions have indigent representation organizations or pro bono attorneys available but that is up to the parties, not the judges. The Texas State Bar has the Equal Access to Justice program that is supposed to provide funding sources for pro bono or indigent parties (it is funded out of lawyers’ IOLTA accounts – which is derived from interest paid on deposits of funds held in the accounts*).

      Yet, pro se litigants may proceed by representing themselves. Appellate issues of lack of adequate representation do not arise in those situations because Texas law presumes a pro se litigant “knows” or is “aware” of the consequences of representing one’s self in civil matters.

      jvb

      *Ed. Note: How this is not a “taking” under the Constitution is a mystery to me. IOLTA accounts are attorney trust fund accounts, where retainers, settlements or other funds belonging to clients are held by lawyers where monies should not be commingled. For instance, I represent Paul Plaintiff in a personal injury case and the case is settled. Plaintiff receives $100,000 in a joint check, payable to the Plaintiff and counsel. The funds are deposited into the attorney’s trust account and distributions (authorized by the client) are made from that account (either to the Plaintiff/client, or approved expenses such as litigation expenses or medical provider liens, etc.). The interest generated off of deposits are transferred to the Texas Bar’s EATJ program, but the client is the one entitled to interest on the money – after all, it is the client’s money. But the State Bar transfers the interest to itself to fund the program. Clients rarely get to object or consent. Retainer agreements typically disclose this to the clients but the client really does not have an idea of what the consequences are until such time as funds are distributed.

      • I believe that my state, and probably most others, allow you to set up a separate IOLTA for substantial sums paid by a client. In such cases, the interest does go to the client; it does not get sent to the state

        That does not quite address your broader question about whether the 10 cents of interest on a 100 dollar deposit is a taking. However, I suspect that the explanation would be that, if the bank is fine setting up 50 separate IOLTA accounts for each of the 100 dollar deposits by the firms 50 clients, fine. However, where the firm co-mingles all of those trust funds in order not to set up 50 separate sets of trust accounting books, it would be unreasonable for the firm to have to try to divvy use the 1.35 in interest between 50 clients. So, the requirement that the money be put into trust comes with an agreement that the interest funds the legal system.

        -Jut

  9. Yessss. I’ve been waiting for you to cover this topic. It’s really concerning. But I find it more troublesome that Harvard is even indulging these student’s complaints. Would they do the same if a small group of students were complaining that they feel uncomfortable talking to their Dean because he married a white women? And that these students don’t believe in interracial marriage? It’s like complaining that a mechanic who works on a pedofile’s car can’t be a good parent.

    A major argument I’m hearing in support of the students is that some may feel uncomfortable speaking with the Dean since he may “attack” the credibility of a sexually harassed witness, and that this may harm this witness psychologically. And that this would make students who are also sexual harassed, hesitant to speak with him. What are your thoughts on that?

    Never mind the fact that the Dean isn’t even the person who you go to for sexual harassment discussions. I would say that harming a witness is rare, and is something that didn’t even happen yet. How would the students even know that a witness was harmed anyway? And even if the Dean does hurt a witnesses’ mental well-being, he can do so without malice and with integrity. This is something these students should respect. They should take pride that the Dean can carry out this job honorably and that vetting a witnesses’ testimony and confronting your accusers are crucial parts of our judicial system…Parts that deserve veneration.

    • What are my thoughts on that? My thoughts are that anyone making that dumb an argument shouldn’t be going to Harvard. A lawyer for an accused harasser isn’t defending harassment, nor is the lawyer indicating support for sexual harassers, nor is the lawyer any more skeptical of accusers than anyone should be. A lawyer takes a particular position for a particular client, and may take the opposite position for a different client.

      • Oh I totally agree. I’m just arguing with people who are saying that the Dean may hurt a witness who was sexually harassed.

  10. New page design is ugly, repetitive, space-wasting and destructive of the unique and ever-changing collage representing the blogs current content.

    Any argument? Or am I the only person who is seeing this? (WordPress also appears to have forgotten my name, but that’s par for the course.)

    My contribution to this post is “yes, of course, I think” … but to make absolutely sure, please excuse me whilst I go consult my Perry Mason Legal-Eagle Library of Law and Liverwurst-on-toast. It seems to me there was a chapter on the Santa Claus Clause which stated that attorneys who had been very very good during the past year would get all the innocent clients and the other defenders would divvy up the rest. (But there would be something for everybody: that’s only fair!)

    • The new design isn’t a new design, it’s the first option my son clicked on that allowed the blog to be readable. The collage will be back. I just need time to work through all the dozens of options. As I noted, my old design is no longer supported. But it was time to try something else.

  11. Design-svhmein, can you read the text? The rest is frilly uselessness

    Now back to figuring out why my wife won’t let me make bookshelves out of cinder blocks and 1X8s… worked great in college…

    Tim: /sn

    • Cause cinder-blocks shed cinders, fella

      But yeah, and pine board shelves, up to where the structure wobbled significantly.

  12. I agree with the general outrage about how Harvard approached this firing, and the alarming approach to criminal representation.

    But the author ruins his credibility by betraying his own echo-chamber allegiances and suggesting that only “the left” prosecutes people (on social media and elsewhere) with no regard for due process.

    If you are writing an article that includes criticisms about hypocrisy, it’d be a good idea to avoid it yourself.

    • Spare me the boilerplate. The “Left” has indeed grabbed full ownership of the no-due process approach. If you have a recent and valid example of conservatives doing the same, send it to me, and I’ll write about it, if I haven’t already done so. But people aren’t “prosecuted” on social media, the on-line mobs are overwhelmingly leftist, and you are engaging in desperate ‘whataboutism.” You also might do your research–every time a lawyer, including Hillary Clinton, Larry Tribe and other Democrats, have been attacked for who he or she represents, I have defended them. Oddly, almost all of the attacks I defend them from come from the Left. A coincidence, I’m sure.

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