The Honourable Profession of Law

by Simon Chester   November 27, 2009

Three unrelated thoughts on law and honour.

Professor Stephen Gillers, who teaches legal ethics at NYU spoke at Central Synagogue’s 2009 Jethro Shabbat Program and Dinner on February 13, 2009.

The entire speech is worthy of consideration. But let me extract what he says about transaction lawyers. All too often, those writing on the subject use the paradigm of the litigator, fearless advocate fighting for justice. But that doesn’t capture the role of most business lawyers, or indeed litigators as counsellors, when they’re not in court.

Honour is more than acting lawfully… It is also how you behave even when you can do as you please, especially then. Honor, at the least, means not exploiting the trust of vulnerable others for your own advantage—including strangers—who are relying on certain basic standards of human decency.

Honor shares the stage with two other civilizing qualities. One is shame. To value honor is to be capable of shame. For the shameless, honor does not exist. They don’t prize it and they don’t miss it. The other quality is empathy even for those you do not know. Empathy is compassion for the plight of others, because you understand that they are tied to you and you to them.

Honor, shame, and empathy, then, make up the glue of civilization. Without them, things will fall apart. And as bad: when the public sees a loss of honor in how institutions and professionals behave, we have a loss of trust.

Which takes me back to lawyers. In our regulated economy, lawyers are deeply embedded in all sophisticated commercial and financial transactions. So, often, the conduct would not have been possible at all or for long without the assistance of lawyers. Or if not the assistance, than with the knowledge and acquiescence.

Let me be clear: It is more than honorable to help clients achieve their goals under law. And it is more than honorable to be devoted to a client’s goals. In a civilized society, it is necessary. Lawyers say, with justification, that it is not their job to judge the worthiness of the clients’ goals, only if those goals are legal. A lawyer is but an advisor on the law, they say. The client calls the shots.

And almost always, this is true. But it is not always true. Sometimes, this defense undermines the rule of law itself. Our popular model for the work of lawyers—the way lawyers are portrayed in popular culture—envisions a trial lawyer, usually a criminal defense lawyer, whose arguments can be challenged by an opposing lawyer and will be exposed to the ruling of a judge.

This is a misleading model. Most American lawyers are not trial lawyers. They are counselors or advisers, operating where there is no judge and no adversary. No one is watching. And there may never be. Then, the temptation is to push the limits, sift the language of the law, find hidden meanings. Now, our social understanding is that law is not endlessly pliable in this way. But the problem is this: It can be made to be because law, after all, is only a language and language is pretty pliable. In the hands of a creative, motivated lawyer, with a demanding client, the language of the law can have astonishing elasticity. Through interpretation, the rule of law can be turned into what it is not.

Aric Press added some useful thoughts on loyalty in his leader in last month’s American Lawyer

Then to the New York Review for a letter to the editor entitled How Lawyers ‘Lose Their Souls’ by Burt Neuborne commenting on the torture memos and the lawyers who drafted those justifications.

In response to The Torture Memos: The Case Against the Lawyers

Once upon a time, lawyers recognized two categories of legal services—pre-event counseling and post-event defense. After a client acted, the duty of a lawyer was to marshal all nonfrivolous arguments that might protect the client. Before a client acted, the lawyer’s job was to provide the client with the lawyer’s best understanding of what the law required. David Cole’s essay [“The Torture Memos: The Case Against the Lawyers,” demonstrates the collapse of that distinction inside the Bush Justice Department. Faced with the duty to counsel the President and the CIA about what the law required in connection with the future interrogation of high-ranking al-Qaeda detainees, the lawyers behaved as if the torture had already taken place. Instead of counseling, they simply marshaled arguments that might save future torturers from a criminal conviction. Counterarguments were ignored.

There would have been nothing ethically wrong with the legal memos if they had been presented in support of a motion to dismiss an indictment. As exercises in pre-event counseling, however, the memos border on fraud. They seem more intent on creating legal cover than in analyzing governing law. Sadly, the erosion of the lawyer’s counseling role is not confined to the Bush Justice Department. In today’s legal climate, too many lawyers tell clients exactly what the clients want to hear. Lawyers fear that if they do not produce justifying legal opinions on demand, they’ll lose the client. Instead, like the Justice Department lawyers, they lose their souls.

It’s time to revitalize the distinction between a lawyer’s duty to defend a client who has already acted and a lawyer’s duty to counsel clients who have not yet broken the law. The place to begin is not in a criminal court. It is within the legal profession itself, in the form of an ethical inquiry into whether the distinction was violated by the authors of the torture memos, and what to do about it if such a violation took place.

Burt Neuborne
Inez Milholland Professor of Civil Liberties
Legal Director Brennan Center for Justice
New York University
New York City

Finally a note on the retirement of an old friend, David Baker who I first recall meeting in Chicago planning ABA Techshow 1993. What is remarkable is what David is going to be doing. – bolded below

Baker Robbins to lose Baker

Baker Robbins & Company (BRCO) has just announced that co-founder and chairman David Baker will retire on January 1, 2010. Baker has worked in the legal technology sector for over 30 years, founding BRCO in 1984.

Baker is leaving the legal industry to accept a role with the University of Wisconsin in an initiative involving best practice development in small and mid size farm operations management. The effort is funded by the USDA’s Risk Management Agency and comes at a critical time in which local, sustainable food sources must be more heavily emphasized across the country in light of growing challenges such as global warming and carbon footprint, water supply, food transportation costs, and food quality.

Honour and lawyers.