FASPE, Day 2: Lawyers' Roles

Thursday morning's discussions centered around rival conceptions of the lawyer's role. We began with a discussion of In re Summers, 325 U.S. 561 (1945), a case in which the U.S. Supreme Court upheld the decision of the Illinois bar to deny a license to a young lawyer for having been a conscientious objector during World War II. Seen at a certain level of abstraction, the case invites discussion of whether the bar can zone out of the profession a person who insists that he will, in some instances, follow his individual conscience rather than his client's lawful preferences. Given that Summers was a pacifist and a a believer in passive resistance, the case also allows reflection on the extent to which being an American lawyer entails a commitment to what we might call a “warrior” model of advocacy rather than a model of advocacy geared towards (as Summers explained his preference to the unimpressed Illinois bar committee) “try[ing] to get people to work things out peacefully and nice.” (Incidentally, while the Supreme Court allowed the State of Illinois to deny Summers a license, all was well that ended well: he ended up getting a license from the State of New York, where, as we all know, working things out peacefully and nice is a way of life.)

I found myself struggling with this broad casting of the Summers decision. While I think the Court reached the wrong result, it's for a narrower reason. The problem, it seems to me, was not that the State of Illinois had no valid interest in expecting (even demanding) “warrior”-type behavior from lawyers in some contexts. The problem was that the state jumped the gun: it inferred a blanket disqualification from Summers's placing of individual conscience over military obligation and from his more general pacifist stance. I would have to assume that, had Illinois admitted Summers to practice, it would have been within its rights, in the context of an individual representation, to discipline Summers for breaching an ethical rule out of individual conscience. (Think of a case where a lawyer's individual conscience required him to breach a client confidence—a case where a minor client indicates her desire to get a judicial order authorizing an abortion, and the lawyer, driven by individual conscience and against the client's wishes, informs her parents.) If that's so, then I think it follows that the state has to maintain an ability to articulate and enforce a coherent definition of what a “lawyer” is. The state's error in Summers was to enforce that definition preemptively, by barring the lawyer from the practice entirely rather than waiting to see how he behaved in concrete contexts.

We were then joined by Daniel Markovits of Yale Law School, who expanded on the question in Summers by developing his theory that the role of the lawyer in the American politico-legal system is one that lacks integrity by definition in that it requires the lawyer routinely to say things he doesn't believe and seek outcomes he doesn't think are fair. Obviously, Markovits intends his claims to be provocative, and that's how our group saw them. Markovits's account is probably more complicated than I have the time or patience to summarize here. He argues that in our more-or-less Hobbesian world, where people are locked in ultimately intractable conflict over what's right and who's entitled to stuff, and where the state has the task of achieving and sustaining accommodations of this conflict, lawyers play a sort of “bridging” role between the client and the state, a role that helps people accept the state's resolutions of the conflict. In order to play this role effectively in their clients' eyes, he argues, lawyers must do (and be seen as doing) their clients' bidding without regard to potentially interfering values, including (as with attorney Summers) their own sense of what is right.

Members of our group pushed back on this in a variety of ways that I won't try to summarize. I think I fell away from Markovits's theory pretty early in its structure; I think I lack Markovits's sense that people's worlds are mostly made up of issues and things that they have strong, formed feelings about. Since I don't see all conflict as intractable, I don't think lawyers have to toe the client's line in order to be an advocate, or to assume that clients even know what their line is. In fact, I think a big part of what lawyers can do is to help clients figure out their line – and that a large percentage of lawyer-client interactions has more to do with clients saying, “counselor, help me out here – help me understand the situation I'm in and what my options are,” than with their coming in and saying “lawyer, I want X and your job is to get it for me.” In the world as I see it, lawyers would have many more degrees of freedom in their counsel than in Markovits's.

Toward the end of his time with us, Markovits also mentioned something quite important for the purposes of our trip to Germany and Auschwitz: his account is an account of the role of private lawyers, not government lawyers. In a few brief minutes at the end of the session, he sketched a view that would give government lawyers more freedom than private lawyers because, as representatives of the government, they don't have to worry about the state-legitimating function that they do in private representation. This is an important thing that we'll have to dig into further, because much of our concern in Germany and Poland will be the roles played by government lawyers in the Third Reich. And that's also my chief of area of interest in looking at how the system of removal and incarceration of Japanese Americans was developed and sustained.

After this full morning, we were off to Newark's airport for the flight to Germany. That's where I'm writing this from.

I'm happy – relieved, in a certain way – to say that I felt by dinnertime yesterday that a sense of group cohesion was beginning to materialize. This is a welcome thing, because we are about to plunge into some very difficult places together. In the lead-up to the trip, I had grown very apprehensive about the emotional side of the trip, and as I sit here waiting to board the plane, I notice myself feeling a little better about it.

Comments

[Patrick S. O'Donnell]

Re: “In a few brief minutes at the end of the session, he sketched a view that would give government lawyers more freedom than private lawyers because, as representatives of the government, they don’t have to worry about the state-legitimating function that they do in private representation.”

This surely cries out for clarification. The so-called “adversary system excuse” (where ‘system’ is specifically in reference to the structure of adjudication and not the ‘lawyer-client’ relation generally) of adjudication rightly accords more freedom, if you will, to criminal defense lawyers than say, either transactional lawyers or government lawyers, owing to the lawyer’s location between the defendant and the State. Ethically speaking, we can find several compelling arguments for “zealous advocacy” that countenance this freedom in a way not suitable for other kinds of lawyering.

Transactional lawyers are of course constrained by the needs and wishes of their clients. And in her role as an “advisor” she is further constrained by an obligation of “impartiality” different in degree if not king from that found among a lawyer engaged in zealous advocacy (where “don’t ask, don’t tell” is frequently invoked). The obligation of impartiality implicates the transactional lawyer in a “gatekeeper” role when the client desires to do something that is clearly wrong or illegal: in David Luban’s words, this means the advisor’s role “requires moral toughness to maintain independence and candor” (in spite of all the pressures, psychological and otherwise, to completely align the lawyer's views with their client's interests, whatever those may be).

Government lawyers in some respects do (or at least should) have more freedom than transactional lawyers (and less than those engaged in ‘zealous advocacy’) insofar as they are not tailoring their advice simply to fulfill the government’s political or policy objectives, hence, as Luban has well argued, their standards of candor and independence are fairly stringent. Luban uses the Office of Legal Counsel to exemplify these standards, given its “quasi-judicial” character vis-à-vis the Executive branch, including the constitutional obligation “to take care the laws be faithfully executed.” Alas, the “torture lawyers” in the previous Administration crafted legal memos closer in type to those of the transactional model and the lawyer’s brief, egregiously failing to meet the standards of candor and independence and corresponding constitutional obligation.

If this account, which is beholden to David Luban (at least as I’ve understood him), is fairly accurate, government lawyers DO have a part to play in democratic “legitimation” in the widest sense, for their failure to meet the aforementioned standards and constitutional obligation can directly contribute to the de-legitimization of a democratic State and its methods of governance.

As to government lawyers during the Third Reich, I think Luban is on the right track in arguing that we need to re-think our notions of individual moral accountability or responsibility and legal culpability in large organizations generally: the State, corporations, and bureaucracy, for instance. Luban wants to accord prime of place to notions of “complicity”* and “willful ignorance” by way more properly apportioning individual responsibility in such an organizational context. I think he’s on the right track here, and I would complement or supplement his work with that of Larry May and others working on notions of shared intentions and collective responsibility.

*At once place Luban mentions Christopher Kutz’ important book, Complicity: Ethics and Law for a Collective Age (2000), which is a nice place to start.

[Patrick S. O'Donnell]

erratum (third para.): "if not kind..."