As discussed in the first section of this post, the once sacrosanct principle that lawyers and law firms were ethically obligated to represent unpopular clients when they needed legal assistance has been deteriorating for the last decade, most recently under pressure from the self-righteous Left. Victims of the new progressive ethic that the ends justify the means, Lawyers and law firms have been threatened when they dared to align themselves with the opposition to progressive agenda items, because, in the universe to the port side of the ideological spectrum, those who don’t agree with the righteous are evil.
And it seems clear that few lawyers possess the courage and integrity to remains professional in their response to such threats.
After the King & Spalding embarrassment described in the earlier post, a similar episode occurred involving Obamacare. In House of Representatives v. Burwell, the House challenged the legality of subsidies the Obama administration paid to insurers. After the House authorized the suit, David Rivkin and his firm, Baker Hostetler, signed a contract to litigate the case.
Rivkin was warned by members of the firm that litigating a case in opposition to Obama could drive off potential clients and hurt Baker Hostetler’s credibility…that is, its bottom line. Within a week after the contract was announced, partners at the firm, which represents many hospital management firms and insurance companies, started to receive urgent calls from general counsels of clients in the health-care industry. The messages were identical: their companies could not continue to associate with Baker Hostetler if it litigated the House’s lawsuit. Many suspected that the Obama administration was behind the scenes, urging health-care companies to drop Baker Hostetler. The firm dropped the case.
The House, suddenly without legal representation, frantically sounded out many of the top firms in Washington without success. The House finally selected D.C. lawyer William Burck of Quinn Emanuel Urquhart & Sullivan LLP. Three weeks later, without any explanation, Burck also withdrew from the case under pressure from his firm’s partners.
Concluding that an academic would not face the same kinds of threats, the House chose law professor Jonathan Turley, who filed the suit.
But progressives smelled blood in the water. For example, Harvard students, including Harvard law students, and at least one dean, pressured Harvard Law Professor Ronald S. Sullivan to drop his role as one of Harvey Weinstein’s attorneys. They also forced him and his wife to resign as resident dean of Winthrop House, because the students didn’t feel safe being overseen by a lawyer who represented bad people. This is as ignorant as it is dangerous. The ABA rule that is quoted somewhere in every jurisdiction’s attorney conduct regulations, Model Rule 1.2(b), reads,
“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 language is in the various state rules to protect lawyers against exactly the kind of pressure that the Left now mounts against attorneys who allow those who oppose progressive to exercise their right to legal representation. Obviously, it doesn’t work.
As questions were raised about the legitimacy of the election and Trump campaign lawyers began to file cases in various states alleging everything from deceased voters to biased authentication, the strategy of the AUC (The Axis of Unethical Conduct) became, as Professor Turley neatly described it, “Get rid of the lawyers. No lawyers, no cases, no Trump.”
What is most unsettling is that this effort is led or cheered on by lawyers. Take Washington Post columnist Randall Eliason, who gained notoriety supporting an array of theories on impeachment or criminal claims against Trump, including a bribery interpretation long rejected by the Supreme Court and not adopted even by the impeachment-eager House Judiciary Committee. Eliason wrote a column, “Yes, going after Trump’s law firms is fair game.” (Everything seems fair game if the ultimate target is Trump.) Eliason shrugged off the notion that attacking a person’s lawyers, rather than his positions, is beyond the pale: “Law is a profession, but these mega-law firms are also big businesses. Like any business, they can be held accountable by the public — and by their other customers.”
The law is not like any other business, however. Lawyers speak for others, including some of the least popular among us… I have never seen such a campaign led by lawyers against lawyers.
Our legal system works best when competent lawyers present cases to dispassionate judges. In this case, some 72 million Americans voted for Trump, and many believe changes in the process — particularly the massive increase of mail-in voting — undermined the election’s integrity. That is why these cases are important: Faith in our legal and political systems depends on fair access to and representation in the courts. Trying to strip people of their counsel, of course, is the real attack on our democracy.”
The fact that lawyers are complicit in the destruction of their own professional ethics standards tells us just how far this profession has fallen, and how without ethics, limits or shame the enemies of democracy have become. Without professionals who remain objective champions of our rights and liberty, the survival of the republic is in doubt.
What a pity that the voters who chose the party adopting this strategy couldn’t connect the dots.