The title of this lecture sounds worse than what I trust will be its contents. For all I want to do on this Law Day, after more than four decades as a lawyer of sorts, is puzzle through some thoughts about what the legal profession is or ought to be and grope towards a public interest role that might help improve the standing of our discredited profession. Such an excursion into ethical standards is, sadly, something we never had in law school and I would not attempt it here today except for Dean Auerbach's encouragement.
The ethical standards established by the Bar are pretty meaningless stuff -- they are at best the most minimal standards of personal conduct and even those standards go largely unenforced.
A conscientious lawyer will certainly want to consider a more far-reaching personal set of standards when he plunges into the practice of law. He will want to think of ethics not in narrow Bar terms, but in its broadest sense; not just whether lawyers should be honest with their clients, not mishandle funds placed in their trust, not shortchange clients with shoddy work, but the kinds of cases a lawyer should accept in the first place and the kinds of tactics properly used in a client's interest.
An example that illuminates the inadequacy of the ethical standards established by the Bar is etched in my mind by personal experience. In 1969, my client Jock Yablonski was the reform candidate for President of the United Mine Workers Union. He "lost" the election due to frauds committed by and on behalf of the incumbent President, Tony Boyle. For his efforts, Yablonski, his wife, and daughter were murdered on orders from Boyle.
The Labor Department instituted a civil suit against the Mine Workers to overturn the Boyle crowd's election and their continuation in office at the head of the Union. In the course of that suit, an issue arose over whether Boyle could continue to pay the salaries of two top union officials who were in jail under criminal indictment for the murder of the Yablonski family. There was little doubt as to the guilt of these officials; two witnesses against them had already given the prosecutors lie-detector controlled confessions as to their own roles in the murders and the participation of these two top officials.
During this period, Boyle had two sets of lawyers, the Union's in-house counsel and a prestigious Washington law firm. One of the in-house lawyers refused to give Boyle an opinion that it was legal to continue paying the salaries of these two officials. But the prestigious Washington firm gave Boyle the written opinion he wanted, analogizing the salary payments to sick leave and vacation time for corporate employees -- even though the recipients were in jail for murder, without bond, and with a massive case against them. Boyle conveyed this legal opinion to the indicted men through a co-conspirator the same day he received it, telling his co-conspirator that it "should please" the two jailed officials.
In effect, this law firm simply gave Boyle the opinion he was asking for -- that it was legal to pay salaries to these officials in jail under indictment for first degree murder when such payments could have no conceivable purpose other than to keep these officials from talking and implicating Boyle.1 No lawyer who had remotely considered the probable result of his actions or where the public interest lay could have rendered such an opinion. The only possible basis for it, if the prestigious law firm even considered the ethical problems involved, is the "hired gun" philosophy of advocacy: "I will represent any client on anything, I will represent him in any way he wants and the public interest be damned."
But even this is not the end of the story. Six months after the Mine Workers cases ended and a new UMWA President had been inaugurated, I was walking down the street in Washington and ran into the lawyer who had signed the opinion. Trying to appear civil and to think of something to say, I asked if he missed our daily battles. "Oh, no," he said, "I've been terribly busy working on the Disciplinary Committee of the Bar." You will forgive me, I trust, if I don't have too much confidence in the disciplinary functions of the organized Bar.
The just-described conduct by pillars of the Bar demonstrates the need for some new standards. Maybe that example will get us this far: A lawyer should not do anything for a client that he would not do in a tennis match, at the bridge table, or in any other walk of his own life. He should not do or say anything for a client he knows is wrong any more than he would do or say it on his own behalf. A lawyer should no more give an opinion which he could not believe to be correct than he would give such an opinion to his bank on his own behalf when seeking a personal loan. A lawyer should no more knowingly miscall a legal opinion than a tennis player should deliberately miscall a line decision. A lawyer should no more assist a client in covering up misdeeds than a doubles player should allow his partner to cheat. In short, the interests of a client, any client, are not sufficient to justify actions which a lawyer would not take in other walks of life with a clear conscience; a conscientious lawyer does something because it is right, not because the client wants him or her to do it. With this much said, it might be well to step back a bit and take a more generalized look at the role of lawyers.
As a profession, lawyers are charged with a special responsibility. We are licensed to practice law because permitting us to do so serves the public interest. We are charged with the implementation and enforcement of the law of the land and it is upon the successful execution of that charge that our democratic system ultimately rests. Over thirty years ago, Henry L. Stimson, one of this country's most distinguished lawyers, recognized the special responsibility of the Bar to protect our civil freedoms and warned that we must learn from
the experience of those in many countries possessing constitutions and bills of rights similar to our own, whose citizens had nevertheless lost their liberties because they did not possess a bar with sufficient courage and independence to establish those rights.... Without a bar trained in the traditions of courage and loyalty, our constitutional theories of individual liberty would cease to be a living reality.Our profession stands in a unique position: it has a special duty to the people of this country, to the interests of the public at large, and ultimately to the preservation of our democratic system of government based on law.
Put another way, lawyers are special because we are one of the learned professions. Mr. Justice Brandeis defined a profession in this way:
First. A profession is an occupation for which the necessary preliminary training is intellectual in character, involving knowledge, and to some extent learning, as distinguished from mere skill.
Second. It is an occupation which is pursued largely for others and not merely for one's self.
Third. It is an occupation in which the amount of financial return is not the accepted measure of success.2
On a personal level, I might note that it is a mighty lucky thing for me that Brandeis included his third paragraph. If financial return is the measure of success, I am afraid that I am a monumental flop and would never have received an invitation to lecture here or anywhere else. I concede this with absolutely no regrets, for I can truthfully say the legal paper chase has, for me, been a merry one indeed.
Intangible compensations, I would certainly argue, far outweigh financial gain, power and the like. Mr. Justice Holmes, with his usual eloquence, stated it best: "I always have thought that not place, or power, or popularity, makes the success that one desires, but a trembling hope that one has come near to an ideal."3 While the majesty of Holmes towers mightily above us lesser mortals, the ideal of making some contribution, however small, to the growth or implementation of the law in the public interest is one to which every lawyer can aspire, and even the most modest achievement in this area can provide a measure of life's satisfaction.
This brings us to the second part of Brandeis' definition. Lawyers qualify as a profession because our occupation "is pursued largely for others and not merely for one's self." The Justice often spoke of a lawyer's duty to represent the situation with which he was confronted, not just the client's parochial interest. In this context, a lawyer representing a client best fulfills his professional duty when he assesses his actions in the light of the public interest as he views it.
This obligation to serve the public interest applies to every lawyer because he has chosen law as a career. Yet today the organized Bar imposes no ethical obligation upon a lawyer to act in a fashion which furthers the public interest. As we shall show later, existing ethical rules of the Bar are little more than efforts to protect lawyers as an association or guild of advocates for hire.
To understand the importance of providing some personal standards of ethics today, one must be aware of the public's low esteem for our profession. President Carter voiced a widespread sentiment last year when he stated, "We are over-lawyered and under-represented."4 Chief Justice Burger estimates that one-half of all trial lawyers are unqualified to represent their clients.5 Public opinion polls have consistently ranked the legal profession as one in which Americans have the least confidence; law firms, for example, ranked below doctors, garbage collectors, organized religion, local governments, and police in a 1973 Harris Survey.6
Perhaps one of the sharpest, and most accurate, indictments of our profession was returned last month by Admiral Hyman Rickover in an address to the New York Patent Law Association. Admiral Rickover stated, "[M]embers of the legal profession are contributing substantially to the erosion of values and institutions on which our societies are based. In their quest for money and power, many lawyers seem to have forgotten their obligations.... The American people expect more than mercenaries. Yet, in pursuit of their own interest, many lawyers have lost sight of the public good.... There has been a breach of faith by lawyers -- and the public knows it."7
Here lies the basis of the widespread public contempt for the legal profession. Our fellow Americans believe with Admiral Rickover that lawyers are mercenaries concerned only with making money and obtaining power, recklessly pleading their client's case without "sight of the public good." Too often, sadly, that perception is reality.
Consider the lawyers involved in Watergate: John Mitchell calmly discussing illegal break-ins while sitting in the Attorney General's office; Richard Kleindienst, another Attorney General, lying under oath; President Nixon, himself a lawyer, suppressing facts needed to enforce the laws he was sworn to uphold; Nixon's own personal lawyer flitting around the country arranging funds for known criminals; Ehrlichman, Dean, Colson -- the list is virtually endless. These lawyers shared one common failing -- they put their own political advantage and that of their leader above their duty to the public interest of all Americans.
But it would be wholly misleading to blame the low estate of the legal profession on persons now generally thought to be bad people like those involved in Watergate. Good people, people with high personal standards in every other area, lawyers who are friends of mine, also do things that raise ethical problems and, considering the present inadequate standards of legal ethics of the organized Bar, who can say they are doing anything wrong? Let us look at a few examples involving some of the best and the brightest.
I have a friend who is a senior partner in a large, respected law firm in Washington. We are both active members of a liberal religious organization and he was for a time its chairperson. A few years ago, supporting Cesar Chavez and the United Farm Workers' boycotts was a major project of this organization. My friend strongly believes in these things and, as the leader of the organization, he actively supported Chavez and the UFW boycotts.
As part of the Farm Workers' drive for recognition in the Gallo grapeyards, UFW supporters picketed Washington liquor stores that sold Gallo wine. Not too surprisingly, the Gallo distributor and the liquor stores got together and sought an injunction to halt the picketing. We ultimately got the courts to deny the injunction, but that is not the point. You can imagine my surprise when I discovered that, despite his personal beliefs and his organizational activity to the contrary, my friend's firm turned up representing the Gallo distributor.
At the luncheon recess the first day of the lengthy trial, I sent him a note, "How come, with what we did in our organization, you and your firm are representing Gallo?" The answer came back: "The distributor is a longtime client; I could not refuse to represent him." Thus, this lawyer, a fine public-spirited civic leader, preferred a double life to giving up a client. He was forced to take positions and defend actions which were contrary to his own ideology, his own public position, and his own concept of the public interest.
Take another example: Civil rights groups have been trying to force the North Carolina higher education system to desegregate for years. That State had a long history of de jure segregation in higher education, and the effects of that legally imposed segregation still persist -- North Carolina today maintains ll university campuses that are 94 per cent white and five that are 96 per cent black. Once again, you can imagine my surprise when I discovered that another old friend had been hired by the university to resist the efforts of the federal government to obtain desegregation of North Carolina higher education. My friend had obtained prominence in the legal community by being one of the first Southern lawyers to speak out publicly against racial discrimination, and had helped direct a distinguished civil rights organization. Now, without any suggestion that he is less devoted to the cause of civil rights than before, he is using his unusual talents on behalf of those who are trying to avoid their civil rights obligations.
Still other examples abound. The head of one of Washington's finest law firms testified on behalf of pharmaceutical manufacturers against congressional efforts to strengthen the FDA's regulatory authority over unproven drugs as follows:
The FDA's role should be to decide: Is there a responsible difference of opinion; and, if there is, they should let it on the market, even though a numerical majority or a preponderance of evidence, or whatever else you might call it, might still be on the side that the drug is not effective or not proven effective.8
A senior partner in possibly the most prestigious Washington firm of all, representing the Tobacco Institute, opposed cigarette warnings because the "widespread public awareness of the hazards of smoking" made such warnings unnecessary.9 I cannot believe either of these estimable gentle persons meant a word they said and I, for one, prefer the frankness of a younger lawyer friend. Sitting at a luncheon table of attorneys working on the American Civil Liberties Union case to get rid of the restrictions on picketing at the White House, this young lawyer regretfully announced that he had to go back to his also very prestigious law firm "to help screw the public."
These examples warrant asking some tough questions:
How does a lawyer justify saying one thing at an organizational meeting, another in a courtroom, one thing in a speech, another in a brief?
How does a lawyer justify a double life, a schizophrenia of one position as a lawyer, another as a citizen?
How does a lawyer justify taking a position on behalf of a client that he knows will harm the public interest?
I suppose the only conceivable answer must lie in the doctrine that a lawyer is simply a "hired gun" for sale to any client and that his or her obligation runs solely to that client.
On this theory, the lawyer is justified in anything he or she does -- ethical or unethical, moral or immoral, right or wrong -- so long as the lawyer believes it to be in the client's interest. By following this "hired gun" philosophy of advocacy, lawyers avoid all personal ethical responsibility for anything they do while representing a client.
As summarized by Professor Irving Younger of Cornell and Harvard Law Schools, this doctrine means that "A lawyer's own moral sense requires of him nothing else but vigorous advocacy, without regard to the moral quality of the client or the cause."10 Possibly "moral escapism" would not be a bad way to summarize this position -- a lawyer abandons personal responsibility for the morality of his own professional conduct.
When a lawyer subordinates his conscience to the interests of a client, is he really not selling himself in the manner of the ladies of the evening? Is the lawyer really entitled to less public opprobrium? Can we say that the public's case against our profession is wholly unjustified?
Another, and more euphemistic way of stating the "hired gun" theory, is "everybody is entitled to a lawyer." But the very lawyers who defend their actions in taking anti-public interest clients or positions on the "everybody is entitled to a lawyer" excuse are the last ones to implement any such principle where the client cannot pay large sums or where the client represents an unpopular case. For example, no group had a harder time getting legal representation than those accused of Communist leanings in the McCarthy period, and many lawyers who use this shibboleth of "everybody is entitled to a lawyer," closed their doors when someone accused by McCarthy tried to get in.
A not very pretty example involved Henry Wallace, a former Vice President. During the McCarthy period, Mr. Wallace was called to testify before a congressional committee that was looking for "subversive" American diplomats who served in China a decade earlier. Wallace needed, or at least wanted, a lawyer for his appearance before the committee, and a group of us set out to find him one. Representing Wallace was hardly more than a day's work, but the one "respectable" firm that was willing to represent him told us they wanted a $5,000 fee. We said, "That seems like an awful lot of money for a day's work." And they responded, "We're not charging for the day's work, but for the dirt that will rub off on us." That was hardly practicing the "everybody is entitled to a lawyer" theory.
Civil rights activists, too, have found it difficult to obtain counsel. Professor Daniel H. Pollitt started his thoughtful piece on this subject in Harper's Magazine in August, 1964, this way:
During the recent attempts made by civil-rights organizations to encourage Negroes to register for voting in the South, a white student, Robert Zellner, who had been working as a volunteer, was arrested in McComb, Mississippi. He wrote to several lawyers in the state proposing that they take his case. They all refused. By the time he had exhausted his efforts to secure legal representation in Mississippi, he had written to no less than forty different white lawyers, including John Satterfield, the then president of the American Bar Association. The letters came back in a monotonous and negative trickle. Not only did they all decline help; some of them commented that the defendant and "people like him" were doing the state of Mississippi a disservice.Mr. Satterfield and his colleagues could hardly utter "everybody is entitled to a lawyer" with straight faces.
As far as I am concerned, everybody is entitled to a lawyer, but not to me unless he or she cannot find other counsel. There is no compulsion on me or on any lawyer to take a case the lawyer believes to be against the public interest. Those who do take cases believing they are against the public interest know what they are doing, and the "everybody is entitled to a lawyer" excuse simply does not hold water.
As long as lawyers follow the notion that they are just "hired guns," representing anyone who can pay and any position that is profitable, the profession will continue in its present low esteem. For too long lawyers have used the "hired gun" and "everybody is entitled to a lawyer" shields to conceal naked self-interest at work. Only by ending once and for all this philosophy of advocacy without moral responsibility can lawyers fulfill the special obligation our profession has to the people of this country and the law of the land, and begin to win back the esteem of their fellow citizens.
Instead of operating as a "morally-neutered" hired gun, I suggest that a lawyer should assess where the public interest lies and reject cases which are inconsistent with the dictates of that assessment and his own conscience. This does not mean that there is any one right position to advocate. One lawyer may vigorously defend the rights of organized labor, while another may just as conscientiously defend the anti-union actions of Right to Work groups. It is not the position itself which is critical; it is the lawyer's belief in the position that should be determinative.
In designing a formal set of rules to govern an attorney's personal standard of ethics one must start, I suppose, with the competing demands upon the lawyer. As an individual, a lawyer has an obligation to his own conscience. As an advocate, a lawyer has an obligation to his client. As a professional, licensed to implement and enforce the law of the land, a lawyer has an obligation to the legal system and to the public interest. Our proposed rule attempts to state a lawyer's obligations as an individual and as a professional, while allowing an attorney full scope to meet his obligations as an advocate.
The proposed rule has two parts. The first deals with what cases and clients a lawyer should take. The second deals with what actions a lawyer should take in the course of representing a client.
First. A lawyer shall not accept employment from a client, where successful representation will lead to results which are inconsistent with the lawyer's own perception of the public interest, or from a client whose objectives will require the lawyer to advocate a position which he considers inconsistent with the public interest. In the unlikely event the client cannot obtain other counsel after a good faith effort, a lawyer who is unable to accept employment for these reasons shall assist him in obtaining representation. In the even more unlikely event that the lawyer is unable to obtain other counsel for the client, he shall agree to represent that client himself.
Second. In proceeding with any legal action, a lawyer shall not advocate a position which, in his or her view, furthers a public harm, or take any action to advance a client's interests that the lawyer could not take with a clear conscience on his own behalf or would not take in any other walk of his or her life.
The first part of the rule governs client selection. A lawyer should only accept employment if doing the job he is being asked to do is not inconsistent with his or her own concept of the public interest. Thus, the first part of the rule makes a lawyer's obligation to his conscience, to the legal system and to the American people concrete and specific.
The second part of the rule is a direct corollary. In the course of representing a client, a lawyer should utilize only tactics and arguments that he deems consistent with the public interest. No longer will a lawyer be able to claim that he is only a "morally-neutered" hired gun, and therefore not responsible for the actions he takes. The end of moral escapism could be the first step up the ladder of public esteem for lawyers.
My suggestion would be that some version of the proposed rule be included in the oath every lawyer takes upon admission to the Bar.11 Being a subjective rule, however, it should not be adopted for purposes of institutional discipline. Even without Bar discipline, however, the rule should bring substantial results. Most lawyers would obey plainly-articulated rules of the game, and, at a minimum, the rule would become part of a lawyer's consciousness as day-to-day professional decisions are made.
Although powers of self-delusion are great, even they are not without limits. If the rule becomes an accepted standard of conduct, and the public is aware of this formal ethical obligation, lawyers will be sensitized to their personal ethical duties. Once the "hired gun" philosophy is exorcized, the lawyer who takes cases and actions that people know are contrary to his own views of the public interest will suffer public and professional ridicule. Evaluation of one's conduct by one's colleagues -- peer pressure -- is likely the best method of enforcement available. And, when lawyers are being chosen for judgeships or other office, consideration of the lawyer's general adherence to the proposed rule would not be inappropriate.
It seems entirely consistent that standards of individual ethics should be predicated upon individual means of enforcement. The proposed rule is subjective, and its enforcement is as much a matter of altering public and professional perceptions as it is an exercise in persuading a lawyer to follow his own conscience. Actually, enforcement by peer pressure from the individual lawyer is bound to contribute to the ethical development of the entire legal profession and the demise of the moral escapism resulting from the "hired gun" philosophy.
The alternative, an objective rule with institutionalized discipline, simply would not serve the personal side of the equation. Since my perception of the public interest and yours will inevitably differ in substantial respects, basing a rule of an objective standard defeats the purpose of having such a rule at all. What the rule does is promote an integrated life and a consistent set of personal ethics. No longer may a lawyer have or perception of the public interest in his professional life and another in all other walks of life, and then defend his professional conduct as a "hired gun" or justify his actions by reciting "everybody is entitled to a lawyer."
A pretense of objectivity in these highly personal areas might prove counterproductive. As the ABA and local Bar associations have often demonstrated, a facially objective rule of conduct is likely to be enforced in a discriminatory fashion. The wealthy and prestigious lawyer is not often subject to professional discipline for ethical violations. More often, it is the less than successful attorney or the lawyer who represents an unpopular client or cause who comes under the scrutiny of disciplinary panels.
As noted at the outset of this talk, those who are in the greatest need of professional discipline are all too often the lawyers who "enforce" Bar association ethics. As a result, disciplinary actions have been initiated in Washington against Neighborhood Legal Services lawyers because they litigated suits against slumlords or refused to represent a client when ordered to by a judge even though there was a clear conflict of interest.12 Lawyers in Mississippi, Virginia, North Carolina, and elsewhere have faced disbarment charges, directly or indirectly as a result of this involvement in racial cases.13 These examples of discrimination in the application of objective rules not only argue cogently for a subjective rule of personal ethics, they also illustrate the inadequacies of the American Bar Association in the area of professional responsibility.
The record of the ABA and its local affiliates in ethical matters is dismal. The organized Bar has consistently acted as a guild or trade association protecting lawyers' vested interest rather than supervising lawyers' conduct. Further, the ABA has actually impeded the growth of legal ethics by a stubborn adherence to outdated standards of conduct. One need only glance at the ABA's Code of Professional Responsibility to recognize the extent to which the Bar merely protects the status quo ante.
The American Bar Association record is no better in other areas. For example, in the Joe McCarthy days it accommodated itself to the temper of the times and even supported the excesses of the House Un-American Activities Committee before the Supreme Court; similarly it urged the overriding of President Truman's courageous veto of the now practically defunct Internal Security Act of 1950. Its record in civil rights was no less ignominious; it continued its color Bar long after segregation had been outlawed by the courts in other areas of public participation and supported the confirmation of anti-civil rights judges like Haynsworth and Carswell.
Not unexpectedly, the ABA has generally supported high legal fees, and long opposed efforts to make legal assistance available to the poor -- the group which is most often in desperate need of service. The ABA has used professional discipline as a means of protecting the economic and political interests of wealthy lawyers, under the guise of enforcing ethics. The most compelling evidence of this practice is the fact that the Supreme Court has ordered state or local Bar associations to cease practices which violate the Constitution or the Sherman Antitrust Act on six occasions. 14 One must look elsewhere for improved ethical standards and enhanced public esteem for our profession.
The rule suggested in this lecture is intended as a challenge to the organized Bar and fellow lawyers. They have every right to attack any proposal, but the public is entitled to alternatives when they do so. The present low estate of the Bar is not going to be cured by more of the same conduct that got us into this pickle in the first place. There is need of public discussion leading to greater respect for the profession we all chose. Despite Shakespeare's directive that "The first thing we do, let's kill all the lawyers," I propose we find a way to live with ourselves and with our countrymen.
The perjury problem was not too difficult; perjury is a crime and no lawyer should condone it. But the conflict of interest problem was quite serious. The best thing for the Union might well have been for the witness to lie, because there was a very good chance that he would get away with it. The best thing for the witness was clearly to plead the fifth amendment. How could a lawyer properly serve the divergent interests of both these clients?
What do vou do at eleven o'clock at night with such a problem? I suppose you ask yourself whether you have any lawyer friends you can wake up and ask to represent the witness the next morning. I have lots of lawyer friends, but I could not think of one who might be pleased to come down so late and take over this problem just to make me sleep better.
There was nothing I could do but decide the question myself, clear conflict of interest and all. After a rough night, I finally decided that, despite Mr. Reuther's position, the witness' personal interest was more substantial than the institutional interest of the UAW. I told the witness to go ahead and plead the fifth amendment and the union would have to take the consequences. In the anti-climax department, Senators Goldwater, Mundt and Curtis who were out to get the UAW scalp at these hearings, failed to ask the right questions, the witness never did have to plead the fifth amendment, and both of the conflicting interests were served.
Conflict of interest raises its ugly head, too, when there is a problem of determining just who one's client is. The problem sounds like it should not be too difficult to resolve -- whoever pays the bill is the client. But is that so? What about a lawyer who represents a large labor union? Does he represent the incumbent officers who sign the checks, or the members of the union whose dues make those checks possible?
During the course of litigating the various suits initiated by Jock Yablonski against the United Mine Workers and its officers, the same lawyers represented UMW President Tony Boyle individually and the union as an institution. The conflict of interest was obvious to us on the Yablonski side. As lawyers for the Union, these Boyle-UMWA attorneys should have been serving the aggregate interests of the union members. Instead, they were representing the interest of Boyle and the other incumbent union officers who were defrauding the membership and depriving them of any semblance of union democracy. But the same prestigious Washington firm that had given the "opinion" discussed at the outset persisted in the dual representation. Eventually, the Court of Appeals ordered these lawyers to stop appearing for both the union and Boyle.15
The situation is no better in some other unions. For six or seven years Edward Sadlowski and his reform group have been trying to bring some measure of democracy to the United Steelworkers Union by challenging unfair and dishonest elections run by the union's "Official Family". In this period something like seven or eight Steelworker lawyers have been involved, and at no time has a single one of them ever taken any position except to defend the actions, no matter how outrageous, of the "Official Family" incumbents. At first they did not even bother to have a lawyer for the challenged incumbent officers; now at times they have a token lawyer enter an appearance for the challenged incumbents and let the union lawyers do the work of defending the incumbents' interests in the guise of representing the union. About all I got for my pains in pointing this out was a threatened libel suit which, happily, never occurred after the union lawyers were notified that the defense would be "truth."
These union lawyers were simply following the "hired gun" philosophy of advocacy. The incumbent officers hired (and could fire) them and, if thwarting the public interest in union democracy was what those incumbent officers wanted, that is what they were going to get. Sadly, they defended the anti-democratic and anti-public interest actions of the officers signing their checks without even considering the conflict of interest between the rights of the officers and those of the members whose dues paid the fees.
The "who-is-the-client" problem is not, of course, unique to labor lawyers. For example, who is the client of the Attorney General of the United States? Is it the President of the United States or the American people?
High-level government lawyers are often subjected to pressures from the White House or from executive agencies to act in a politically expedient manner. Adherence to the proposed rule would require these lawyers to refuse to take politically expedient actions which they believe to be contrary to the public interest. Like union lawyers (and corporate lawyers, too, though I have little experience in that area), high-level government attorneys ought to represent the aggregate interests of their constituents, i.e., the American people.
Examples of Attorneys General succumbing to political pressures abound. To avoid any suggestion of Democratic partisanship, I will use as examples only Democratic Attorneys General, some of whom were personal friends. Francis Biddle, one of America's great civil libertarians, prosecuted the Dunne brothers under the Smith Act to appease Roosevelt's top labor supporter, Dan Tobin of the Teamsters. Howard McGrath indicted the ten top communists in aid of President Truman's 1948 re-election bid. Robert Kennedy's recommendations for Southern judges reflected his brother's political needs far more than the public interest in civil rights which Robert Kennedy so strongly defended. During the Vietnam era, Ramsey Clark, another great civil libertarian, prosecuted Dr. Spock, Bill Coffin and others for anti-war activities under pressure from the Johnson White House. Most recently, Griffin Bell decided to defend the constitutionality of the Eagleton-Biden anti-busing amendment despite the fact that the Department of Health, Education and Welfare and most of the Justice Department lawyers took the position that the amendment was clearly unconstitutional; the White House obviously feared the political consequences of an "Administration Supports Busing" headline.
Examples of top government lawyers who bucked the tide and subordinated political and personal considerations to their own concepts of the public interest are not hard to find. Let me give you just one.
Shortly after World War II, President Truman initiated loyalty and security programs designed to purge suspected communists and fellow travelers from the civil service. Possibly the most significant civil liberties issue of this period was whether employees caught up in these loyalty and security programs had the right to face their accusers. J. Edgar Hoover, protecting his network of informers, said "no" to such confrontations, and in those days that meant "no".
One potential victim of the loyalty program was a consultant for HEW, Dr. John Peters. Peters was subjected to an investigation by the HEW loyalty board because anonymous informers claimed that he was a communist. The HEW board initially cleared Dr. Peters of these charges, but the Loyalty Review Board reopened his case. After a hearing, the HEW board once again exonerated Dr. Peters. Unsatisfied with this result, the Review Board decided to investigate the case itself. Dr. Peters was labeled disloyal and barred from federal employment on statements "given by confidential informants not disclosed to him." Dr. Peters brought suit claiming that the Government had violated his due process rights. The federal district court and court of appeals both held that the government had not acted improperly, and the Supreme Court agreed to review the case.
At this time, Simon Sobeloff was Solicitor General of the United States, and was widely believed to be in line for an early appointment to the Supreme Court.16 The Solicitor General argues the most important Government cases before the Supreme Court. But, because he was convinced that the government's position against Peters was unjust, unconstitutional and against the public interest, Mr. Sobeloff refused to sign the government's brief or argue the case before the Court.
Here is an example of a government lawyer applying the subjective rule. Despite political pressures and almost certain repercussions on his own career, Mr. Sobeloff refused to advocate a position which he felt was unjust and contrary to the public interest. This is the type of ethical action which commends itself as a model of an attorney's individual moral responsibility.
Not to leave anybody dangling, Dr. Peters was successful before the Supreme Court -- not because of the faceless informer point, but because Justice Frankfurter reached for the proposition that the Review Board had no power to review Peters' "acquittal" before the lower Board.17
Another footnote is even more fascinating. Simon Sobeloff was never appointed to the Supreme Court, he did late become a federal court of appeals judge. But the Justice Department lawyer who came forward, agreed to sign the Peters brief, and argued that loyalty trials by faceless informers do not unconstitutionally abridge individual rights, is now the Chief Justice of the United States, Warren Burger.
Dedicated adherence to the subjective rule of holding to the public interest is not without its costs, but a conscientious lawyer will likely find those costs outweighed by other factors. As Simon Sobeloff himself noted when he took his principled actions, "I do it because I have to be able to live with myself."18
An interesting variation of the "who-is-the-client" syndrome arises when a lawyer is asked to represent a disreputable organization whose constitutional rights are in jeopardy. There the application of the subjective rule ought not turn on the question whether the organization operates in the public interest, but on whether the favorable resolution of its constitutional claims will further the public interest.
One obvious example is the Civil Liberties Union lawyer asked to represent the American Nazi Party in its efforts to march in Skokie, Illinois. An evaluation of the public interest in such a case depends not on whether Nazis are nice people who further the public interest, but whether the protection of their speech and association rights strengthens or weakens our democratic system. In that situation it seems wholly unfair for the dirt of Nazism to rub off on the lawyer whose view of the public interest favors the rights of all to march.
So, too, during the McCarthy period it was wholly unfair to accuse those defending the constitutional rights of Communists or their sympathizers of being "soft on Communism." It was the Bill of Rights that lawyers were defending before loyalty/security boards, Congressional Committees, and the courts, not the pro-Soviet actions, positions or associations taken by the accused. Guilt by association is a particularly repugnant concept when applied to a lawyer who represents unpopular clients or causes for principled reasons.
The answer may not always be so simple. Take, for example, the situation of house counsel for a corporation engaged in illegal price-fixing -- can one seriously contend that a lawyer who is aware of price-fixing by his client and condones it through silence has the right to escape his guilty association with those who did the actual price-fixing? And, more generally, under the "hired gun" theory where a lawyer believes that his or her successful representation of a client will contravene the public interest, is the public so far wrong when it condemns both lawyer and client?
Turning from client selection to the tactics and arguments a lawyer should employ, there are highly respected members of the Bar who believe that a lawyer has the obligation to lie to the court if the interests of his client so require. A vigorous advocate of this position is Professor Monroe Freedman,19 whom I represented when then Judge Warren Burger and others were attempting to have him disciplined for taking this position publicly. Needless to say the charges against Monroe were promptly thrown out under the First Amendment. But I heartily disagree with Monroe's conclusion. The free speech right to argue the "pro-lying" position publicly is one thing; but deliberately deceiving a court on some basis of "hired-gun" neutered morality is quite another.
Professor Freedman also argues that a lawyer confronted with a client who is planning to lie on the witness stand should advise the client not to, but if this advice fails, proceed as if the testimony was truthful.20 Because an individual on trial has the right to counsel, to a confidential relationship with his lawyer, and to tell his story in court, Professor Freedman argues that a lawyer must cast aside personal ethics and rely upon institutionalized devices in the legal system to ensure that justice is served.
The approach Professor Freedman advocates seems to me just one more aspect, albeit an extreme one, of the "hired gun" philosophy -- do anything and everything for your client's success, even unethical things you would not do in any other walk of life. Interestingly enough, the ABA Ethics Code permits a lawyer to disclose a client's secrets in order to collect his fee.21 If the attorney-client privilege can be set aside for the purely financial concerns of the attorney, certainly it should not preclude a lawyer from refusing to assist a client in lying.
The right to be represented by a lawyer is not the right to compel that lawyer to commit unethical actions.22 While the right to representation is an important one, it is a crime, not a constitutional right, to lie in court, even in one's own defense. An individual's right to tell his story in court with the help of a lawyer is not a license to concoct a purely fictitious tale in the hope of avoiding legal sanctions for personal wrongdoing. A client's claims on his lawyer do not run this deep.
Time has run out and the speech I was going to give on the public interest Bar will have to await another occasion. But to me the best thing that has happened in our profession in my lifetime has been the development of the public interest Bar. Public interest law has been formalized to the extent that many opportunities are available for lawyers entering the profession today.
From its roots in the NAACP Legal Defense Fund and the American Civil Liberties Union, the public interest Bar has expanded to include consumer concerns represented by Ralph Nader's organizations, children's concerns represented by Marion Edelman's Children Defense Fund, environmental issues litigated by groups like the Sierra Club and more generalized law firms that take only cases they deem in the public interest. These public interest lawyers have been greatly assisted by recent statutes and court decisions providing for attorneys' fees to lawyers who produce a benefit to a class of persons or to the public generally. Prepaid legal services, legal clinics and the Legal Services Corporation also provide opportunities for countless young lawyers to serve people heretofore unrepresented.
Whether public interest lawyers can and will one day redeem the honor of the legal profession will be determined by your generation. For, if enough young lawyers choose that route, there is still hope for a legal profession that places public interest above private gain, that puts the use of legal tools for progress and equality above the defense of the status guo, that treats legal services for the have-nots on a par with those for the haves, that utilizes law as an instrument for helping the powerless not for protecting the powerful, and, above all, that makes the law a vehicle for righting social wrongs not perpetuating them.
In the final analysis, I guess the greatest advantage of being a public interest lawyer is the fun one gets from meaningful legal battles. Maybe you, too, will decide to line up with the public interest Bar. If you do, I hope you end up as I end up today, "don't say it hasn't been fun."
*
I am indebted to James C. Turner, a third-year student at Columbus School
of Law, The Catholic University of America, for invaluable assistance in the
preparation of this lecture.
1 When this matter was called to
the attention of the Court hearing the suit to overturn the Boyle election,
Federal District Judge Bryant peremptorily directed that the payments be
stopped immediately.
2
L. Brandeis, Business -- a Profession 2 (1914), quoted in
F. Marks, The Lawyer, The Public and Professional Responsibility
30 (1972).
3
Letter to Mr. Justice Cardozo, December 15, 1928.
4
Los Angeles Bar Association Speech, May 4, 1978.
5
N. Y. Times, December 4, 1977, Section 4 at 11, Col. l.
6
M. Green, Bringing the Bar to Justice iv (1977).
7
The Washington Post, April 2, 1979, (at C-l, col. 1).
8
M. Green, The Other Government 107 (1975)
9
Id. at 155.
10
I. Younger, "Professional Responsibility," 43 Brooklyn L.R. 863 (1977).
11
In 1977, the ABA House of Delegates refused to amend the
recommended oath of admission to the Bar to require a
lawyer to refuse to proceed with a case that he believes to be unjust.
ABA, Summary of Action of the House of Delegates 6 (February, 1977).
12
M. Freedman, Lawyers Ethics in an Adversary System 17-22 (1975).
13
D. Pollitt, "Timid Lawyers and Neglected Clients," Harper's
Magazine 83 (August 1964).
14
NAACP v. Button, 371 U.S. 415 (1963);
15
Yablonski v. United Mine Workers of America, 448 F. 2d 1175, 1182
(D.C.Cir. 1971).
16
D. Bazelon, Tribute to Simon Sobeloff, 34 Md. L.R. 486, 487-88
(1974).
17
Peters v. Hobby, 349 U.S. 331 (1955).
18
D Bazelon, supra, at 488.
19
See, e.g., M. Freedman, Lawyers Ethics in an Adversary System (1975).
20
Id. at 27-42.
21
ABA Code of Professional Responsibility, Disciplinary Rule 4-101 (c) (4).
Brotherhood of Railroad Trainmen v. Virginia, 377 U.S. 1 (1964);
United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217 (1967);
United Transportation Union v. State Bar of Michigan, 401 U. S.576 (1971);
Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975);
Bates v. Arizona State Bar, 433 U.S. 350 (1977).