Lawyers, Not Priests

The reply was short and sweet, “Lawyers aren’t supposed to represent clients they know are guilty.” I would have shrugged it as with most of the inanity seen on twitter, but for the fact that its author was Charlotte Allen, who, among other things, was a lawyer.

About Charlotte Allen

I’m an award-winning journalist who has published prolifically in the Weekly Standard, the Wall Street Journal, the Los Angeles Times, the New York Times, the Washington Post, the Washington Times, Insight, City Journal, Washington Monthly, the New Republic, and the Atlantic. I’m the author of “The Human Christ: The Search for the Historical Jesus” (1998). I have a B.A. from Stanford, an M.A. from Harvard, a law degree from U.S.C., and a doctorate in medieval and Byzantine studies from the Catholic University of America.

Had this stunningly stupid reply come from the usual suspects, it would have been good for a chuckle. But a lawyer?  It started with my shocked reaction to a twit by Cato’s Clark Neily, who has dedicated his efforts to gathering unduly passionate youthful followers.

There are sound, rational reasons why Qualified Immunity is a bad defense and legally unjustifiable.

To argue that using a legally viable defense is "profoundly immoral" is as absurd as arguing it's immoral for a murderer to move to suppress illegally seized evidence. pic.twitter.com/Db8HfM6ksa

— Scott Greenfield (@ScottGreenfield) September 15, 2022

In what world do lawyers use words like “profoundly immoral” in the lawful and proper performance of their duty to zealously represent their client? Priests speak to morality. Philosophers debate morality. What does it have to do with lawyers? A lot, apparently, as David Lat explained.

Most students at top law schools are progressives. And many students at top law schools, including a fair number of progressives, go on to work for Biglaw—firms that defend fossil-fuel companies, opioid manufacturers, and corporations that are similarly unsavory, at least from a progressive perspective. Is this unethical?

That’s the question tackled by Professor Kwame Anthony Appiah in a recent edition of his Ethicist column for the New York Times. A law student from a working-class family, saddled with lots of law-school loans, wrote to Professor Appiah…

The question itself is unsurprising, the fairly common concern of the young about how they can resolve the inner conflict of needing the money Biglaw pays while despising what they do and who they serve.

But the firm’s work entails defending large corporations that I’m ethically opposed to, including many polluters and companies that I feel are making the apocalyptic climate situation even worse. Even if I stay at the firm only for a short time to pay off my loans, I would be helping in these efforts for some time….

I know it is selfish to take this corporate job. But is it unforgivable?

Like most inchoate lawyers, the questioner has dreams of public service, by which he means service of things he believes to be right and against things he believes to be wrong, as if his belief is what distinguishes right and wrong and all the corporations are by definition wrong.

Basically, I feel torn between two value systems. The first is the value system of my parents, which prizes hard work and self-sufficiency. My parents are very proud of me for working in a high-level job that allows me to support myself. The second is my own personal moral code — the little idealist within me who wants me to drop the corporate angle in order to help as many people as I can, even if it results in a difficult life for me.

But the interesting aspect is that the inquiry is whether it’s “forgivable”? He’s seeking  an advance ruling on absolution in the confessional of the New York Times Ethicist column, Not knowing this individual, I’m reluctant to suggest that if he chose to go the public service route, he would be inclined to support wage increases as required for human dignity and student loan debt forgiveness so he could enjoy the benefits of wealth while being able to do the job that suits his “own personal moral code.”

And there’s that word again. Moral. To his credit, Appiah faces the issue head on.

I’m not sure that this form of moral accounting makes much sense, though. Again, for an adversarial legal system to function justly, there have to be lawyers who are willing to serve clients they disapprove of. If that’s a demerit, it has to appear on somebody’s moral scorecard. But surely it can’t be both good that somebody does it and a demerit for the person who has done it. (You can regret having to do something as part of your job, even if that something isn’t itself wrong.) And, on the bright side, not all of your clients are likely to be evildoers; your company will also be doing some pro bono work for people you may actively enjoy working for.

It’s impossible to both want a functional adversarial legal system and believe, as do this person and Neily, that morality precludes the fulfillment of one’s duties to one’s clients. Lawyer all you want as long as I approve of it? Do they think this is free speech?

Curiously, Lat says he approves of Appiah’s reply, but really doesn’t.

I’m persuaded by Professor Appiah’s thoughtful response, and I know that many liberal and progressive law students and lawyers from years past would agree with him as well. But my anecdotal sense, from interviewing and writing about progressive law students today, is that views have shifted.

No matter what Biglaw attorneys tell themselves so they can sleep at night, they are, at the end of the day, perpetuating and protecting a social and economic order that’s fundamentally unjust. As a progressive, you should want no part of that.

Biglaw attorneys. Criminal defense lawyers, except perhaps public defenders, Prosecutors. To progressives, these are not legitimate areas of legal practice, but bastions of immorality. What sort of lawyer wants to engage in profound immorality by the lawful, proper and zealous defense of evil?