Are lawyers morally guilty of the terrible things they help their clients to do? – Uprise RI
Are lawyers morally guilty of the terrible things they help their clients to do? It is a complicated question, and not enough discussed.
I started to be interested in this question when Boston Globe journalist Dan McGowan reported that Nicole verdi, from the law firm Adler Pollock and Sheehan, had been hired by the Governor of Rhode Island Gina Raimondo.
I noted that Verdi had been part of Invenergy’s legal team, fighting for the construction of a $ 1 billion gas and diesel power plant in the virgin forests of Burrillville. A power plant that Governor Raimondo fought for to the end, due to the massive campaign contributions it received from the owner of the company, Michael polsky.
McGowan countered, in Verdi’s defense, that attacks on lawyers based on the clients they represented had never been a successful political strategy. But I wasn’t making a political comment. I made a moral out of it.
I also received a reminder from Brian Jencunas, a Boston-based political consultant whose job it is to literally defend the reputation of corporate politicians. Jencunas felt that a “lawyer partner of a BigLaw firm” does not “define its policy according to its clients”, and insulted me to boot.
It sounded morally suspect to me. As a company, we regularly make moral judgments about people’s actions based on their actions. Why should lawyers be tried by a different standard? I asked Jencunas if lawyers are “just guns for hire, never morally or ethically responsible for the actions they take on behalf of their clients” and Jencunas replied: “Yes, it is literally a central concept. of Anglo-American jurisprudential philosophy.
Jencunas was wrong.
Abraham Lincoln, as a lawyer, is quoted as saying, “Yes, we can definitely win your case for you; we can put a whole neighborhood at loggerheads; we can afflict a widowed mother and her six fatherless children and thus get you $ 600 to which you seem to have a legal right, but which belongs by right, it seems to me, to the woman and her children as well as to to you. You have to remember that some things that are legally right are not morally right. We will not take your case, but will give you a little advice for which we will not charge you anything. You appear to be a lively and energetic man; we recommend that you try to win $ 600 in another way.
What Lincoln did was note the difference between what is legally permitted and what is moral.
Law is only one of at least three ways in which society is governed and an orderly society is maintained. The other two are personal ethics and social constraints or norms.
Professor of Law and Former Dean of the Hofstra Law School Monroe freedman resumed my question foresightedly in 1977. He asked, “Is the lawyer just a ‘mercenary gun,’ or must the lawyer obey his own conscience, not that of his client?” ” [Personal Responsibility in a Professional System (1977); Monroe H Freedman]
Freedman’s response was, “Except in extraordinary circumstances… the lawyer is free to exercise personal judgment as to whether to represent a particular client. Since a moral choice is involved in such a decision … others have the right to judge and criticize, on moral grounds, a lawyer’s decision to represent a particular client.
The mid-1970s was a time of deep reflection on the morality of lawyers, due to the Nixon Watergate scandal and the number of lawyers involved in crimes on behalf of the President.
Philosopher Richard wasserstrom in 1975 wrote that there is “something quite seductive” about “being able to dismiss so many ostensibly difficult moral dilemmas with the answer that my job is not to judge my client’s cause, but to represent his interest “. [Lawyers as Professionals: Some Moral Issues (1975); Richard Wasserstrom]
Stephen Pepper, a law professor at the University of Denver Sturm College of Law, may be the best advocate for the lawyer’s “amoral and ethical role” – the position that lawyers do not bear moral responsibility for actions taken on behalf of the lawyer. their customers, and in fact their actions are always good (when they are in accordance with the law.) [The Lawyer’s Amoral Ethical Role: A Defense, A Problem and Some Possibilities (1986); Stephen Pepper]
David Luban, professor of law and philosophy at Georgetown University, breaks down Pepper’s argument into three premises and one conclusion:
- The law is intended to be a public good which increases autonomy.
- “autonomy [is] preferred to “good” or “good” behavior “
- “Increasing individual autonomy is morally good”.
- Conclusion: “what the lawyer does is a social good… The lawyer is a good person in that he gives access to the law.
Luban notes that “helping people to exercise their autonomy is good” but “since doing bad things is bad, helping people to do bad things is bad. The two factors have to be weighed against each other, and this Pepper does not. [The Lysistratian Prerogative: A Response to Stephen Pepper (1987); David Luban]
Luban goes on to say: “The law cannot outlaw all intolerable behavior, for human society would then be crushed by a monstrous and incomprehensible mass of laws. And the scruples – conscience, morality – will not take all the relay …
“Instead,” Luban writes, “we rely heavily on informal social pressures to keep us in check. Why do people so rarely line up in the cafeteria? Why bus their own trays? Why do they keep malicious and chatty (relative!) Languages in the office? Why are they civil to subordinate employees? Why do they keep their word? … For many people the answer is scruples, morality; but for many people this is not the case. When awareness is too low, I think the answer to all of these questions is that people worry about what others will say, think and do, and guide their behavior accordingly.
At this point, I would like to differentiate between the different types of lawyers.
- Defense lawyers verify the power of the state through strong defense of those accused of crimes.
- Lawyers who defend their wealthy corporate clients as lobbyists or lawyers.
Defense lawyers exist, and are constitutionally mandated, to control state power and prevent the state from overzealous policing. Obviously, for many communities, the system does not work very well. The system is rife with racism and classism. But the idea is good: we need defense lawyers.
Corporate law, like that practiced by Adler Pollock and Sheehan, is different. They can choose their customers. They don’t have to represent positions with which they disagree. In fact, it would be fair to say that corporate lawyers have a moral obligation to say “No” to clients who want them to help them do things that are immoral but technically.
Ask yourself, in what other area do professionals receive a social pass when they commit immoral, but strictly legal acts?
Last year Harvard Law School students protested against the law firm Paul Weiss for their work on behalf of ExxonMobilThey were quickly attacked via an editorial in the Crimson Harvard.
As [former] State representative and student at Harvard Law School Aaron Regunberg underline in his rebuttal, the “premise of the Crimson editorial was a regurgitation of the basic tenet that everyone deserves a lawyer.”
“It’s always interesting,” Regunburg noted, “that apologists for corporate power are promoting this principle to defend a legal system that leaves 80% of the civil legal needs of poor Americans unmet, or to justify an educational pipeline in which only 17% of Harvard Law School graduates work for organizations dedicated to serving the bottom 95% of the income bracket. “
Harvard law students “choose a liveable future” by “pledging to disrupt business as usual until the leaders of the legal industry abandon Big Oil,” Regunburg wrote, a direct rebuttal of “the lawyer as a hitman” or the lawyer as “ethical amoral” necessity.
This issue is important in Rhode Island, long after the defeat of the Invenergy plant in Burrillville. We have a politically connected lobbyist lawyer, Nicolas hemond, fight to develop fossil fuels in the port of Providence.
Hemond launched a fundraiser of $ 1,000 per plate for the mayoral candidate of Providence and [former] Chief of Staff of Governor Raimondo, Brett smiley. Perhaps subscribing to the idea that lawyers are not morally responsible for their actions, Smiley gladly accepted support.
We have [former] President of the Rhode Island House William murphy, being paid $ 30,000 per year to ensure that payday loans are never banned in Rhode Island. Murphy is a mentor for [former] Rhode Island Speaker of the House Nicolas Mattiello.
[For more on PayDay loans, see here.]
The point is that the behavior of some lawyers on behalf of their terrible clients is shameful and should be understood as such. These lawyers show no understanding of their actions as immoral. As the law is necessarily incomplete, and these lawyers have no personal morality to guide them, it is up to society to make these lawyers worry “about what others are going to say, think and do” so that these lawyers lawyers “steer their behavior accordingly.”
[This piece originally appeared as a Twitter thread.]