Fairness to Elizabeth Warren

Yes, even the 2020 Presidential race’s worst panderer and #1 demagogue deserves the same leave as any other lawyer, which is not to be held responsible for her client’s views and deeds. Every lawyer who ever runs for office or who comes within the cross-hairs of unethical pundits faces these attacks, which I have written about here repeatedly and pledged to address any time they come to my attention.Elizabeth Warren’s Days Defending Big Corporations” warns the Times, hinting at hypocrisy by noting,

“Ms. Warren has ascended toward the head of the Democratic presidential pack on the strength of her populist appeal and progressive plans, which include breaking up big technology companies, free public college and a wealth tax on the richest Americans…Against that backdrop, some of Ms. Warren’s critics have seized upon her bankruptcy work for LTV and other big corporations to question the depth of her progressive bona fides. How, they wonder, could someone whose reputation is built on consumer advocacy have represented a company seeking to avoid paying for retired miners’ health care?

Here’s how: a lawyer’s personal convictions, values and beliefs are completely irrelevant to her clients or choice of clients. Those who think otherwise don’t understand legal ethics, or lawyers, or their function in society. For the heaven-knows-how many-teenth time, here is critical Rule 1.2 b of the ABA Rules of Professional Conduct:

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 bedrock principle 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.

Let’s see…which of the many posts about this issue should I recall? The recent one about Harvard Law Professor Ron Sullivan, when Harvard’s ignorance on this topic made me wish I had attended Yale? No, let’s pick this one, my favorite, defending Hillary Clinton, whom you all know I’m so fond of, before the last Presidential election:

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. It means that it is disgusting for maleducated journalists to misinform the already disturbingly confused public by using a matter that a lawyer-turned-candidate’s client needed legal advocacy for as an excuse to impugn the candidate’s character.

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.

Yet this happens every election cycle, without fail: cheap shots directed at candidates who are lawyers based on one or more of their unsavory clients. 

That will do, I think.

Until the next time.



6 thoughts on “Fairness to Elizabeth Warren

  1. Copying, pasting, crediting (and linking if it will let me) for all my outraged friends with Facebook law degrees; of which I have many. Alas, I love them like my luggage.

  2. Jack, you have touched on one of the more irritating aspects of campaigns – though there are a mountain of them. The “disturbingly confused public” you mention is probably closer to where I belong on the spectrum than many here (though I might drop “disturbingly” for my own benefit). I hear about these issues from the past – in this case, Senator Warren’s past work – and I wonder what to make of it. I’m not a lawyer…not even close. I suppose there could be something important hidden in there, but frankly, it was bunch a years ago.

    So what I try to do – as best as possible – is filter out all the stuff from the past and more focus on here and now. In this instance, I don’t need to be upset or outraged about the Senator’s work with LTV years ago. There are plenty of positions she holds right now with which I strongly disagree. Regardless of previous work or previous stance, those things add nothing to the current landscape. What is she doing now? What is she supporting now? What platform and policy is she pushing now? That’s the best indicator of what she will do as President.

    People change and (hopefully) mature over time. Holding a person’s feet to the fire over something from years ago is, in most cases, unfair and unethical. This probably holds especially true for those in Warren’s profession, having to deal with good clients as well as evil.

    That was a timely post and a good reminder for me.

    • Except Jack’s point is that, even if her work for LTV was last year, it is irrelevant.

      Representing bad people is something lawyers never outgrow because there are always bad people out there who need lawyers.

      Lawyers don’t represent themselves; they represent other people; so, whom they represent should not give you any indication about who the lawyer is.

      Maybe an easier way to look at it would be to take a doctor. You would not fault a doctor who did his very best to save the life of an awful person, would you? (Having trouble coming up with a good example because, to make a good analogy, you, ideally, you would want someone who was injured in the commission of a crime.)


  3. I fully agree with this post.

    There is a possible caveat in Warren’s case. Elizabeth Warren commanded a tremendous salary at Harvard for teaching Bankruptcy law. She herself claimed that her work in that field attempted to work out “Fair” settlements.

    As an attorney, her role is to be a fierce advocate for the client. Fairness requires assessing what benefits “should” accrue to the opposition to the detriment of her client. That would be contrary to her role.

    So, by my logic she shortchanged her bankruptcy clients and then went on to teach young impressionable students to do the same thus undermining a client’s faith in lawyers. Or, she made one statement to help with her one of the people bona fides while teaching students how to screw creditors ( hyperbole alert) and the insignificant.

    Warren could choose to teach any number of subjects but specialized in Bankruptcy so that is a choice and not specifically zealous representation.

    Just a minor counterpoint because I know someone has to teach it.

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