Why good lawyers who are also good people must sometimes take on very bad clients (a reply to Mark A.R. Kleiman)

On a broader question than that of the particular ethical position of Ms. Gorelick and Wilmer, Cutler & Pickering (about which I've already blogged until I'm blue in the face), Blogger Mark A.R. Kleiman has a couple of interesting posts from last Thursday and Friday that criticize the firms who're representing the House of Saud against families of 9/11 victims.  They're followed by a post from Monday discussing whether universities that accept Saudi money are equally blameworthy, and they're all superbly written and argued, but my particular interest is with the law firms.   

As in one of my prior posts regarding Ms. Gorelick, full disclosure — and indeed, considerable residual pride — oblige me to point out again that from 1981-1987 I was an associate at Baker Botts, the firm that was the main subject of the Michael Isakoff & Mark Hosenball piece in Newsweek/MSNBC last April 16th regarding the representation of the Saudis in the 9/11 litigation.  I freely confess a strong continuing bias in favor of that firm and its lawyers; it was there I acquired the practical foundations for almost all that I now know about my profession.

Mr. Kleiman writes:

The decision to take a client shouldn't be, and isn't in fact, automatic. It's an exercise of judgment, for which lawyers ought to be held morally accountable. I'm virtually certain that none of the white-shoe firms defending the Saudis would have taken a case, civil or criminal, for one of the Mafia families. And I'm quite certain that the strong need, under the adversary system, for everyone to be represented in court does not keep those same firms from refusing clients who can't pay their bills.

I agree with your first two sentences, Mr. Kleiman, and I also agree that the firms listed in the Isakoff & Hosenball article, including Baker Botts and Wilmer Cutler, are indeed profit-making enterprises whose services are consistently of a quality that allows them to bill at the high end of the hourly rate spectra in the various cities where they practice.  They are also, however, among the firms that most actively encourage — and effectively subsidize out of their partners' profits — pro bono representation of clients who can't pay their bills. 

When I was at Baker Botts, for instance, because I had just come out of a judicial clerkship for a judge on the U.S. Court of Appeals for the Fifth Circuit, I volunteered to oversee a program under which that firm's trial lawyers accepted assignments to represent indigent criminal defendants in their Fifth Circuit appeals.  The firm's partners not only willingly, but enthusiastically wrote off millions of dollars in attorney-time on those cases — real money in opportunity costs, for we were turning away paying business.  The arrangement was also a public service inasmuch as the Fifth Circuit judges generally asked us to take especially challenging cases that raised difficult or novel legal issues, rather than run-of-the-mill ones, specifically so that the court would have the benefit of top-flight briefing to match that done by the state attorneys general who were on the other side. 

... [T]here must be some times when a lawyer shouldn't take a legally meritorious case. Perhaps defending the financiers of mass murder — the operators of a system of finance that is still educating the mass murderers of tomorrow in Wahhabbist madrassas — against a tort action by the relatives of the victims is different in some relevant way, but I'd like to hear someone explain precisely how, rather than just reciting mantras about how the adversary system magically leads to justice being done.

You assume here, of course, that the Saudis — all Saudis, in fact — are guilty.  I'm don't know enough about the particular individual defendants in these lawsuits to assess their comparative responsibility for the educational system you describe, but in general, I'm no friend of the Saudis either.  In fact, my personal biases against them are probably such that I'd be struck "for cause" from a panel of prospective jurors in one of these cases.  If it eventually turns out, however, that you and I are wrong in our biases and beliefs — neither of us having yet heard a speck of judge-validated evidence, mind you — then we should be ashamed, especially if we somehow discouraged or interfered in (or even just belittled and snickered at) the acquisition of competent counsel for persons later proved innocent.

Let's leave that possibility aside, though, for purposes of argument, and engage in the entirely bigoted presumption that all the Saudi defendants who've been sued are equally as culpable, legally and morally, as the 9/11 highjackers themselves and those who masterminded and directed their operations.  Even so, you're missing something, Mr. Kleiman, that is vitally important about the way the adversary system is supposed to function — and in my personal experience, actually does function with surprising regularity.

In both criminal and civil court proceedings, a defense lawyer has two related but distinct roles.  You've focused only on the more obvious one, that of courtroom advocate.  Yes indeed, in fulfilling that obligation to one's client and to the adversary system, one is expected to exert oneself vigorously and energetically within the bounds of the law, and equally so for clients both odious and beloved. 

But there is a separate, less obvious function — indeed, one that's of necessity almost entirely hidden — which is to serve as the client's private counselor.  In this role, the lawyer assesses the evidence for and against his client, and provides the client with his best, unvarnished opinion as to the range of risks involved.  And very, very often — in both criminal and civil law — it is the most guilty, most odious client who most desperately needs that advice so that he can make an informed decision:  Do I pay to settle?  Do I take this plea bargain that's being offered?

If the question is, "What is the best and most efficient way for justice to be done for all involved in this lawsuit?" — and if your prejudice and mine about the Saudis is, in fact, well founded — then the best thing, believe it or not, is for the Saudis to have lawyers like Baker Botts or Wilmer Cutler representing them.  In their public role as advocates, they'll do whatever can be done to get their clients in the best possible posture, whether they're guilty/liable or not.  But in their private role as counselors, they'll be saying, "Here's what is going to happen in a trial.  Here is how a jury in Bexar County, Texas, is likely to react to these facts.  Here's what we estimate your odds are of getting a reverse-and-render on appeal."  And if the news is bad, these lawyers ought to have sufficient credibility with their clients that their clients will actually believe them, making them far more likely to act reasonably in order to avoid the consequences.

You don't want mullets from Dewey Cheatum & Howe representing the Saudis if they're guilty/liable, because that is going to prolong matters unnecessarily and probably make less likely a fair settlement short of trial. 

I am as jaded about my profession and about the American criminal and civil justice systems as anyone you'll find, Mr. Kleiman.  I am indeed a curmudgeon.

But two things I still genuinely believe in, 23 years into my practice, are the adversary system and the jury system.  Neither system is "magic" — I've seen and participated in specific cases where either or both have failed badly, shockingly, tragically — but my belief in them does indeed still constitute one of my "mantras."

I think that's probably true, too, of the lawyers your posts criticize.  You paint with an awfully broad brush, sir.  Again, I admit my bias in favor of some of those lawyers you've pilloried because I know them personally.  But subject as it is to my own biases, my opinion is that you've taken an easy, populist viewpoint that's given them far too little credit here for their ethics and integrity.

Having said all this, I come back, finally, to your original point:  Yes, judgment and discretion are indeed involved, the system is not automatic or self-executing, and one can indeed believe in and participate in the system while still turning away some clients on grounds of repugnancy.  I say again that I have a strong, personal bias toward believing in the complicity to some degree of the House of Saud in the events of 9/11; if offered their representation, I probably would turn it down. 

But the reason I would do so is because after an honest self-appraisal, I would likely conclude that I could not transcend my biases, and I could not do my best for them.  Apparently there are lawyers at Baker Botts — and at Wilmer Cutler; Jones Day; Ropes & Grey; White & Case; King & Spalding; Akin Gump; and Fulbright & Jaworski, fine firms all in my own first-hand experience! — who either lack my prejudices or else can transcend them.  As a supporter of "the system," I'm grateful for that.  Their efforts will be opposed and counterbalanced by capable lawyers on the other side — who also are serving both as public advocates and private counselors.  Now let justice be done.

UPDATE (Tues Aug 12):  Mr. (actually, it's probably "Professor," but his bio link on his website is broken and I can only go by his .edu email extension) Kleiman graciously posted a comment to one of my posts about Ms. Gorelick, and a more extensive reply on his own website.  He argues eloquently — but I continue to think, unrealistically — for an absolute standard that permits of no "informed waivers" of conflicts in organizations like the 9/11 Commission.  I'm disappointed, however, that he chose to not respond at all to this post  regarding his criticisms of the law firms representing the Saudis.