On Advocacy

It is very easy for people to make fun of, look down upon, and pass judgment upon lawyers. As I have often said to friends, lawyers have the reputational issue they do because generally people only need one of us at the worst points in life: you have been injured, you have been accused of a crime, you have been sued, you are getting a divorce, you need to declare bankruptcy, or someone has died. As a result, it often feels to people who suddenly need to interact with lawyers that we are profiting from your misfortune, because we get paid for the work we do on some of the worst days of your life.

But on the worst days of your life, when your property, your liberty, or your rights are at risk, I assure you that you will want the most vigorous advocate you can find. You will want the person who will leave no stone unturned in trying to find the evidence of your innocence or the police misconduct that will keep you out of jail. You will want the person who persuades the judge not to give your ex sole custody of your children. You will want the person who makes sure your company is not run out of business by a massive punitive damages award simply because you made a great product that was involved in an isolated and unforeseeable injury. You will want the strongest advocate you can find and afford, and you will want that person to agree to represent you even if you are not 100% pure. Because frankly, nobody is.

When we sign up to go to law school, we know we will someday take an oath to vigorously advocate on behalf of our clients. We will agree to keep their secrets in virtually all circumstances (except when telling them can prevent death or serious injury to someone else). We will agree to take on representation we may later be ethically prohibited from withdrawing from even if we never get paid. We will agree to take positions that we may not personally agree with, because they are the best position for our client. And we will agree to put our own self-interest behind the interests of our clients virtually all the time. This is part and parcel of becoming a lawyer.

We agree to all of these things because we believe that vigorous advocacy is a necessary part of our criminal and civil justice system, which for all of its faults is the best one in the world. We recognize that we hold tremendous responsibility within that system as “officers of the court” to bring injustice to light, to prevent the entry of falsehood into the record whenever we can, and to ensure that every litigant’s rights are protected whenever possible. Thought it is fashionable to assume we walk into court and lie every day, throw out the bad documents if we don’t feel like turning them over to the other side, and train our witnesses how to wriggle out of responsibility for their actions, the truth down in the trenches is not even remotely close to this. In 9 years of practice, I can count on one hand, not using all of the fingers even, the number of lawyers I have worked with or battled against who I truly felt pushed the bounds of legal ethics. These people are usually treated as pariahs by the rest of us who are, by and large, passionate about upholding what we have sworn to do.

Some people can’t fathom the commitments our profession requires, and for those people it is easy to announce moral absolutes about how they would rather get fired than represent this type of criminal defendant or that corporate behemoth with sketchy accusations against them. Perhaps they are incapable of compartmentalizing, and cannot understand that preventing police and prosecutorial excess is important even when doing so in defense of someone who committed armed robbery or rape. Perhaps they are incapable of anything but strict adherence to a particular ideology, and prefer not to examine it too closely to see if it should be revised from time to time. Whatever the reason, for people who recognize their own unsuitability for this profession to criticize the way in which others have performed it is ludicrous.

Kasim Reed defended large corporations accused of discrimination and other violations of employees’ statutory rights. Not every case in which discrimination is alleged is meritorious, and not every corporate defendant accused of discrimination is branded an evildoer for all time.

Some plaintiffs’ employment cases are bogus, and those should be weeded out and dismissed so that the meritorious cases can be resolved faster and more amicably. If a county has 20 rape allegations in one month and half of them are proven to be false accusations, then it makes it harder for the other 10 to obtain justice. The same is true with frivolous plaintiffs’ litigation–it makes it harder for the meritorious cases to obtain justice more quickly.

In addition, corporations are not immutable objects incapable of change. A person may be a rapist for all time if convicted of (and actually guilty of rape.) But corporations are different–boards fire CEOs and hire new ones, company policies change, and the corporation that paid women less than men in 1979 shouldn’t have that hanging over their heads thirty years later if it’s no longer the case. To take Reed to task for representing Cracker Barrel in 1999 based upon cases that occurred years earlier completely ignores the potential for change within an organization. Perhaps this is by design–all large corporations are inherently evil, to some. But once we get to that point, we’re demanding the sort of ideological purity that will disqualify virtually every candidate.

But even if I were retained to represent Cracker Barrel in a race discrimination case today–why shouldn’t I? I am not going to lie, cheat or steal to win the case, I am only going to use the facts and evidence, legal defenses and procedural maneuvers legitimately available to me. If the company has really engaged in systemic discrimination, then that should usually result in either a verdict at trial or a settlement in the event the company’s lawyers decide a trial win is unlikely. This is exactly how the free market is supposed to work–if someone is indefensibly injured or damaged by a corporation, the corporation pays. And if I am able to obtain dismissal of the case or keep the verdict/settlement low, then the case probably wasn’t as meritorious is plaintiffs first believed.

What bothers me most about Cardinale’s position is that he presumes all of the defendants Reed represented had violated the rights of employees, and that Reed was therefore working against workers’ rights by advocating on behalf of those companies. Again, should we presume that simply because corporations are always evil and hurting people however they can? Do we really believe that? I have worked on hundreds of cases at this point in my career, and I have seen very few true slam dunks of liability. I have seen many, many cases that fall in the grey areas, and many cases that are obviously frivolous. To completely ignore the possibility that some of these companies were not liable for discrimination or statutory violations, and simply assume Reed was defending bad companies, is simplistic and unsupported by the evidence.

I’ve glossed over many of the points I wanted to make but struggled with, because they are difficult to wrestle with in one post. For example, the notion that a junior or midlevel associate in a large law firm gets to pick and choose what clients he wants to do work for is, frankly, ludicrous. Even now with 9 years of experience and some decent seniority, if I said “no, I can’t represent Cracker Barrel because I disagree with things they’ve done in the past,” I would expect it to potentially get me fired, and certainly lead to negative comments in performance reviews, etc. Earlier this year an associate at the law firm of Quinn Emmanuel was fired just a few days after sending an email in which he questioned whether the firm should be defending the Washington Redskins against constitutional claims brought by Native Americans. Law firms do not provide the freedom to pick and choose your clients as an associate, and I would never presume to demand that anyone to turn down

an assignment when it could get them fired (and potentially blackballed within their industry to boot.)

Every single candidate for political office who is an attorney has probably represented an individual or entity who was guilty or liable of something bad. If we are going to start holding candidates to the standard that they can’t have represented any client who ever committed a bad act, then we might as well just disqualify all lawyers from political office. Considering that our President, Vice President, Secretary of State, and more than half of Congress are lawyers…have fun picking from what’s leftover after the disqualifications are complete.

I am not the slightest bit ashamed of my profession, or of having represented corporations accused of injuring people. They deserved a strong defense, and I provided it. I will not apologize for that simply because some people are incapable of understanding that I am fulfilling a necessary role in our justice system. Kasim Reed should not have to apologize for it either.

(Cross-posted from Going Through the Motions)