A Senator or editorial or public personality or group of protestors expresses outrage that a lawyer or law firm undertakes to represent bad people or corporations pursuing bad ends. Bradley Wendel, the eminent legal-ethics scholar and legal philosopher, notes that “lawyers patiently…respond that representing apparently-evil or distasteful clients is what lawyers do” and should do. He adds: “This [response] happens every. single. time.” (P. vi.) The response expresses what legal ethics scholars call the “nonaccountability principle.” So long as lawyers represent their clients competently and within the boundaries of the law and legal ethics rules, they should be beyond criticism and reproach. The principle usually is accompanied by an instrumental rationale: If lawyers are tainted by their clients’ apparent moral failings, they will be less willing to take on unpopular clients and causes, and justice and the common good will suffer. In Canceling Lawyers, Wendel brings a sharp analytic intelligence, a clear and engaging prose style, and a repertoire of hundreds of examples and case studies to bear on the standard response. He finds the response severely wanting, yet ends up at a pretty similar bottom line.
Readers will find all the familiar cases here: The Cravath firm lawyers who represented Credit Suisse in litigation against heirs of Jews who claimed the bank had laundered treasures looted from their families by Nazis. The Harvard housemaster who volunteered to help defend Harvey Weinstein from rape charges. The Black ACLU attorney who defended the KKK against compelled disclosure of its membership list. The Gibson Dunn firm that represented an oil company alleged to be polluting indigenous land and peoples in Ecuador. The Kirkland & Ellis firm that gave up representing gun manufacturers in the face of pressure from other clients, against the objections of a partner who left the firm in protest. The law student boycott of the Paul Weiss firm for its representation of ExxonMobil. The government lawyers who justified torturing suspected terrorists in the Bush (Jr.) Administration. And many, many more.
Wendel’s treatment of this problem is complex and nuanced. To begin with, he rejects any categorical principle of nonaccountability. He is skeptical of lawyers’ standard claim that they must be unaccountable to ensure that unpopular clients are represented. That didn’t help Black criminal defendants or plaintiffs suing whites in the Jim Crow South, or people accused of being Communists during the Red Scare, few of whom could find counsel. Wendel acknowledges these lapses by the bar, but thinks them exceptional, since really notorious pariah clients can usually find a lawyer attracted by the attending publicity.
His major claim is that it is fair to ask anyone apparently helping bad people do bad things why they are doing that and to insist on an adequate response. He insists, however, that demanding accountability is not the same thing as concluding that the lawyer has done something wrong. Sometimes a fully adequate explanation for taking on apparently-horrible clients is relatively easy, as in the case of criminal defense: lawyers who protect defendants’ rights to immunity from unlawful searches-and-seizures and coercive interrogations and put prosecutors to the burden of proving guilt beyond a reasonable doubt are protecting us all from an abusive police state, and anyway, even moral reprobates have rights and dignity worth protecting.
More generally, Wendel discerns defensible grounds for taking on a client or cause simply in the fact that the asserted bad behavior is arguably legal. His major thesis emerges in Chapter 5, “Boycotts of Law Firms and the Ethics of Informal Social Sanctions,” where he discusses law students’ attempts to organize boycotts of law firms that represent fossil fuel companies. Readers familiar with Wendel’s legal ethics work will recognize this argument from his Lawyers and Fidelity to Law (2010). The core of the argument is that the positive law of a polity (anyway a plausibly democratic polity such as the USA) expresses a provisional social settlement of many controverted public policy issues, on which different groups have contending views and interests. If the existing law gives ExxonMobil a plausible license to engage in activities that accelerate climate change, or at colorable arguments that it has such license, lawyers have a mostly adequate reason to press its claims and further its interests.
Wendel has always recognized serious problems with this argument. Positive law is heavily tilted in favor of powerful interests, which have their thumbs on the scale of pluralist-democratic lawmaking. Boycotts are weapons of the relatively weak, hoping (usually futilely) to offset such power. Furthermore, conventional legal ethics require only that lawyers’ advice be plausibly legal under current or creatively imaginable revisions of positive law, which means that a good deal of such advice can enable clients to skate around regulations of their conduct. (See, among innumerable other examples, the arguments that Donald Trump’s lawyers were willing to make to try to nullify the results of the 2020 election.)
Wendel’s argument is serious and well-made. But I can’t help thinking that it understates the gravity of the case that inequalities in representation pose to conventional legal ethics. The adversary-system ideology that justifies lawyers in aggressively representing any clients who can hire them presupposes that people who are harmed by the actions of such interests can hire their own lawyers. But they can’t afford to, as demonstrated by the fact that about 80% of parties to civil ligation (mostly debtors facing collection, or tenants facing eviction) are unrepresented.
Nonetheless, I welcome Wendel’s insistence that lawyers’ decisions about what clients to represent are not immune from moral questioning and critique, but rather require justification. Even Monroe Freedman, a stalwart defender of aggressive adversary lawyering, agrees that the most important choices lawyers make are choices about whom they will represent and what they will help those clients do. Some distinctions I think Wendel might have explored in more detail are distinctions between a (1) one-off one-time representation of a socially destructive client and (2) a continuous representation, involving the construction of elaborate schemes to conceal wrongdoing, foil regulators, and run up costs and obstacles to adversaries, to immunize that client from legal accountability. That is the difference between representing John Gotti defending against a murder charge or a tobacco company defending a civil suit for damages, on the one hand; and acting as consigliere for the Gotti family or general counsel for the tobacco industry, on the other. There are surely also useful distinctions to be made between an entire career devoted to making the rich and powerful wealthier and stronger and a career with intervals (penances or indulgences) for pro bono practice, government service, law reforms increasing access to justice, and aid to legal-services organizations.
Anyone who teaches legal ethics or thinks seriously about this subject should look at this book. Its wonderful store of case studies—each of them lucidly and helpfully analyzed from different points of view—is alone worth the price of admission.
