One of the many benefits of the Trump Administration and the concomitant 2016 Post-Election Ethics Train Wreck, one theory goes, is that it has exposed the ethical rot and lack of integrity of so many previously admired and trusted professions.
Among those that have thoroughly disgraced themselves in their rush to enamor themselves before their progressive, President Trump- loathing colleagues and friends—you know, the good people—have been journalists (of course), academics, psychiatrists, doctors, epidemiologists, ethicists, historians, teachers, judges and lawyers. Thus it shouldn’t have been a surprise (though it was to me, as always an optimistic sap) when efforts to prevent the Trump campaign from having the best possible legal advocates as it pursues challenges to the 2020 election results would bear ugly fruit.
The NeverTrump Lincoln Project joined the anti-Trump Democrats in targeting the law firms hired by the campaign. Election law specialists Porter, Wright, Morris & Arthur and its lawyers were threatened with professional ruin. The theory went that daring to support the President of the United States constitutes a “dangerous attack on our democracy.” The firm, showing a dearth of legal ethics and integrity withdrew, whining that the assault on its reputation created a conflict of interest, was disrupting the firm, and had prompted at least one lawyer’s resignation. Since then other firms have dropped the campaign as a client, and the reason was fear—of losing clients, of being shunned in the legal community, of losing money. Mostly the latter.
This is only the latest progression in the decay of basic law firm ethics that began during the Obama administration. The reason is—broken record here—bias.
T’was not always thus. When Bush Department of Defense Deputy Secretary Cully Stimson, who is a lawyer, gave a radio interview in which he condemned attorneys from large law firms who were representing Guantanamo Bay detainees pro bono, and suggested that corporations avoid employing those firms because they were aiding the nation’s enemies, even reading the names of the firms involved, the legal profession reacted with indignation and horror. Karen J. Mathis, then the president of the American Bar Association, said, “Lawyers represent people in criminal cases to fulfill a core American value: the treatment of all people equally before the law. To impugn those who are doing this critical work — and doing it on a volunteer basis — is deeply offensive to members of the legal profession, and we hope to all Americans.” Prof. Stephen Gillers, the media’s favorite legal ethicist thanks to his penchant for being hard on conservatives and lenient on liberals, wrote, “This is prejudicial to the administration of justice. It’s possible that lawyers willing to undertake what has been long viewed as an admirable chore will decline to do so for fear of antagonizing important clients.”
Christopher Moore, a lawyer at the New York firm Cleary, Gottlieb, Steen & Hamilton continued the professions defense of basic lawyer ethics, telling the New York Times, “We believe in the concept of justice and that every person is entitled to counsel.” The Society of American Law Teachers, representing over 800 members at 165 law schools, delivered an eloquent rebuke in the form of a press release:
…Mr. Stimson – who, as a lawyer, should know better – has violated the highest standards of our profession by challenging the lawyers engaged in pro bono representation of Guantanamo detainees and calling on the clients of their law firms to withhold their business from those firms.
Lawyers are essential to upholding the rule of law in our country, and the ule of law is precisely what the President claims the United States is defending in the “war on terror.” In a just and fair legal system the accused – no matter who they are or what they are accused of doing – must
have representation. If Mr. Stimson is speaking for the government, then our leaders have lost sight of this fundamental principle….A democracy under the rule of law cannot, should not, and must not threaten or punish lawyers who represent unpopular clients. Although this is especially true for the wrongly detained, it remains important that all should have representation…
Well, those were just terrorists, being prosecuted by a Republican administration, and the effort to intimidate lawyers was coming from the Right. Apparently the principle does not apply when the unpopular client seeking legal assistance is a Republican President of the United States, and it is progressives who are trying to scare the lawyers away.
But I’m getting ahead of myself. The principle that lawyers should not allow fear of negative reactions from the public, media or others to dissuade them from doing their professional duty began to erode in 2011, when the distinguished Law firm King & Spalding announced that it would no longer represent congressional Republicans before the U.S. Supreme Court regarding the constitutionality of the Defense of Marriage Act (DOMA), the 1996 legislation that defined marriage as being only between a man and a woman. The firm devised a plausible cover story for this, but everyone knew what was going on: Coca-Cola, the firm’s largest client, was being lobbied by gay marriage advocates, so Coke told the firm essentially, “Nice little firm you have here—be a shame if something were to happen to it!” The firm dropped the case like the proverbial hot potato.
Constitutional law specialist Paul Clement, who had joined King & Spalding specifically to handle the case, immediately resigned and earned an Ethics Hero designation here by writing in his letter to firm management,
“…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.”
His ringing assertion of a core professional principle that had never before been in question did not, however, stop the rot.
(to be continued)