Legal Commentary

Were I still teaching courses on the legal profession and professional responsibility, as I did over a period of twenty years, I would be tempted to use this for a final exam and ask students whether the analogy between John Adams and Kirsten Gillibrand is really cogent. I obviously think it is not, beginning with the fact that John Adams was genuinely putting his career at stake in doing the right thing by representing Major Preston. Ditto for Atticus Finch and other models of lawyers who stand up to represent vulnerable people against the potential loss of liberty. But what in the world does this have to do with a young, ambitious lawyer who self-consciously decides to cast her lot with the tobacco industry and to make lots of money and prepare herself for a fast-track partnership, should she have wanted to remain in private practice, by using her skills to help it continue to induce addiction and death in millions of people around the world?

I am curious whether Mr. Goldman or other defenders of Ms. Gillibrand would wish to "laud" her by presenting her the (hypothetical) "John Adams Award" given to those lawyers who provide exemplary models of lawyering. Should we invite her to our law schools and parade her before our students as an example of a well-lived life in the law? Indeed, should we admire Carl Schmitt for using his formidable legal talents to defend the Nazi takeover of the Prussian government in 1933 because, after all, we can never judge lawyers on the basis of the causes they commit themselves to in their role as lawyers?

Note that I certainly believe that all of the alleged war crminals at Nuremberg deserved vigorous defenses, and this would have applied to Hitler as well, had he lived. I also have no objection to Bernard Madoff receiving first-rate representation in defending himself against the criminal charges. But is that really the issue we're discussing? Would we be as eager to defend a Madoff lawyer who energentically did everything he/she could to sidetrack any SEC inquiries and the like, precisely in order to prevent discovery of the Ponzi scheme, especially if the lawyer, like Gillibrand, was fully aware of the "questionable" activities engaged in by the client? Are we to applaud the "Rambo litigator" so long as he/she doesn't move on to killing witnesses and the like? And so on.

Incidentally, should we be as reluctant to engage in any evaluation of lobbyists as Mr. Goldman would have us be of lawyers? After all, lobbyists do fulfill an important First Amendment function by effectively "petitioning" legislators for "redress of grievances." This is one of the reasons I am generally reluctant to support some of the restrictions on lobbying and oppose aspects of the McCain-Feingold bill. But does this mean that I must admire equally the lobbyists for the tobacco industry and those who work for the American Cancer Society?

Frankly, I hope that Mr. Goldman was a better lawyer when defending his allegedly-criminal clients than when defending Sen. Gillibrand. It will be interesting to see if a future edition of the Times will include letters from other criminal defense attorneys disassociating themselves from the "defense" offered of Sen. Gillibrand.

Full post as published by Balkinization on April 02, 2009 (boomark / email).