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Friday, July 13, 2007

Dean Barnett fouls a pitch off his foot in trying to tag lawyers with their clients' views

Former Soxblogger Dean Barnett is a bright guy. None of us gets a hit with every at-bat, but Dean usually avoids fouling pitches painfully off his own feet — which makes it surprising to read something from him that's as profoundly misinformed or ill-conceived as this (emphasis mine):

This week, Fred’s non-campaign made a seamless transition from smooth to bumpy, and his team has looked decidedly not-ready-for-primetime. The story about who he represented as a lawyer and lobbyist resonates. The dodge that lawyers/lobbyists don’t need to share the views of their clients and shouldn’t be held responsible for them is a pile of hooey. Each lawyer, like every other member of society, is the conservator of his own talent. If a lawyer chooses to use his talents to try to spring Khalid Sheikh Muhammad, perhaps other lawyers will salute him and see nothing wrong with the effort. But I know and you know that said lawyer wouldn’t have much of a political career in front of him.

If I were a general contractor and profited from building a Planned Parenthood facility, I don’t imagine that fact would endear me to America’s conservative community. If I sought office as a conservative Republican, I would expect my primary opponent to make an issue of it. Lawyers want to play by a different set of rules, and in the eyes of their fellow members of the Bar, they do. But the rest of the country won’t buy it, nor should they.

Putting aside his criticisms of the Thompson organization's oblique responses to the underlying criticisms (which may or may not have been politically deft and astute), I hope that Dean's naïveté about the unfairness of painting lawyers with their clients' positions comes from the fact that he's never had legal troubles of his own, nor had to put himself in the position of those who do.

General contractors are honorable tradesmen, and I don't mean to disparage or understate the degree of judgment and skill that can distinguish one from another. Just like every other businessman, they certainly should operate within a framework of general business ethics. To my knowledge, however, they do not operate within a system of fiduciary responsibilities in which they agree to be bound to put their customers' interests ahead of their own. (That's one reason why they have "customers" instead of "clients," in the common vernacular.) When one chooses general contracting as a profession, one does not commit to help ensure that constitutionally adequate buildings are available even to the blackest and most evil members of society. Nor does the contractor appear as the public face of his customer, acting on his behalf, speaking out for him in public at the very time when the customer is under the most intense public scrutiny. And while a general contractor's work may determine whether your home or business falls down when the wind blows or leaks when the rain falls, it generally won't determine whether you spend years in prison or get a lethal injection. Dean's oversimplifications notwithstanding, there are excellent reasons why the rules are, and should be, different for lawyers and contractors.

*******

Early in my career, I spent many hundreds of hours representing a convicted capital murderer — the getaway driver on an intended empty-home burglary gone bad in which, while he waited unknowingly outside, his fellow felons had executed a Montgomery County juvenile officer with his own gun in front of his wife and children. I undertook the case at the specific request of a Fifth Circuit judge who discerned, correctly, that the legal issues involved were very important ones, and that the state of the Fifth Circuit's precedents on them was badly muddled — all of which meant that for the good of the entire judicial system, this man needed a first-rate constitutional lawyer to advocate his position.

The work was entirely pro bono, and the firm with which I was then employed — Houston-based Baker Botts — cheerfully ate all of those lost billable hours, along with thousands of dollars in out-of-pocket expenses. My client wasn't as depraved as his accomplices, but neither was he anything approaching innocent; and under any view of the facts, he was vastly more culpable than someone arguing about what may or may not be discussed during counseling on contraceptives!

When I was done with his representation (after two Fifth Circuit decisions with an intervening evidentiary hearing in federal district court), I was proud of the commendation I received from the court and of the service that I had performed to the Rule of Law. I had done my duty to my client, but not out of love for or identification with my client, and certainly not because I approve of cop-killers. As it happened, he ended up serving something over six years, which I thought was at least roughly appropriate, and which the State agreed to accept in lieu of re-trying him when I succeeded in having his original conviction overturned. (Of my client's two cohorts, one was executed by lethal injection, and the other was slain in the midst of another violent crime.)

So tell me, Dean — does that case disqualify me from being a "good conservative"?

*******

Just as we have ethical obligations to attempt to put personal feelings about a client aside, both for the good of that client and for the good of the system, lawyers also have ethical obligations to recognize that we are fallible human beings who sometimes will be unable to succeed in those attempts. If, through chance, I'd been personally acquainted with the slain juvenile officer or his family from the case I just described, then when the Fifth Circuit asked me to represent someone complicit in his execution, I'd very likely have had to decline — not because I lacked faith in the system, nor because I lacked the willingness to support it even at the cost of doing things unpleasant to me, but because I would have such a disabling conflict of interest that I could not expect myself to genuinely represent that particularly client diligently and ably. As it happened, I had no personal connection to his case; but I could still only take it because I was satisfied that I could control my personal reactions to his conduct and therefore I was satisfied that I would not unintentionally throw his case.

Drawing those lines requires a deep look by each lawyer into his own soul and character. I have colleagues whose personal histories or deeply held views are so intense that they could not, despite their best efforts, render diligent service to any defendant accused of a violent crime. Or maybe they hold such rabidly anti-abortion views that they also couldn't defend a general contractor in unrelated commercial litigation simply because that contractor had once built a building to house a Planned Parenthood clinic. I'm equally as loathe to second-guess those self-recusals as I am to second-guess someone for failing to self-recuse.

*******

Most people as smart as Dean grasp all this without much trouble. You don't have to be a lawyer to understand it, and it's frankly disingenuous to suggest that this is all some lawyer game or professional conspiracy. If you think you can't understand these principles, then try to imagine yourself in the hot seat — falsely accused, say, of being a child molester — and then decide whether you want your field of potential legal advocates reduced to those who positively approve of child molestation. What Dean refers to as Fred's "much-discussed essay on PowerLine" includes Sen. Thompson's reference to past political opponents who've badly stubbed their toes by underestimating the voting public, or overestimating their own abilities to fool the public using this kind of argument.

If you genuinely believe in the system, then you must accept that it depends on both sides in any given dispute having the benefit of capable advocates who are representing their respective clients diligently within the bounds of the law and the canons of legal ethics. You cannot dispute that principle without endorsing mob justice — which is, all too often, injustice, and which is never justice under the Rule of Law.

Does Dean realize that his argument about Khalid Sheikh Muhammad would put him right at the front of any mob opposing the Rule of Law? Is that really where he wants to make his stand? Because that's also a popular position to take in the sharia "justice system"— at least in the version favored by Khalid Sheikh Muhammad and practiced in some parts of the Islamic world.

Quite frankly, Dean should know better than this, and I suspect that he actually does (and would so acknowledge were he to give it further thought). I'm absolutely certain that his blogging host for this particular post, Hugh Hewitt, not only fully understands these principles, but has lived them and (as an accomplished legal educator) could more vividly and concisely explain them to Dean than I have.

-----------------------

UPDATE (Fri Jul 13 @ 10:35pm): I'm disappointed to read that Ramesh Ponnuru thinks the argument that a lawyer ought not be tarred with his clients' views is a "very weak argument." I'm genuinely baffled how such smart, principled pundits can have such a poor grasp of the legal system's fundamental precepts, and I genuinely do believe the rank-and-file public aren't so likely to be confused.

If your legal career has been as the general counsel of the A.C.L.U., or if you chose to devote most of your private practice to representing accused Mafia mobsters, that would be one thing. But one client, on one representation? That's so unfair as to be silly.

Posted by Beldar at 03:18 PM in 2008 Election, Law (2007), Politics (2007) | Permalink

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Tracked on Jul 19, 2007 11:02:28 AM

Comments

(1) Xrlq made the following comment | Jul 13, 2007 7:24:29 PM | Permalink

Nice take-down, but I'll go one better: even if Barnett's analogy were valid, his argument would still be pretty lame. General contractors are supposed to build buildings for whoever hires them on commercially reasonable terms. Refusing a job just because the customer happens to be Planned Parenthood makes no more sense to me than refusing to build a private home just because the paying customer happens to be a registered Democrat. Businessmen are not in the business of seeking out ideologically pure customers; or at least, they shouldn't be.

(2) Gregory Koster made the following comment | Jul 14, 2007 4:35:26 AM | Permalink

Dear Mr. Dyer: “There you go again.” I now understand how soul satisfying it was for Ronald Reagan to say that phrase to Jimmy Carter. Your arguments are cogent, to a point, and laid out splendidly. But as with all advocacy, they are loaded to one side. That’s a harsh judgment, but sincerely felt. Truly, we are on different sides. You are an advocate, a splendid one who has mastered his craft. But the price of such mastery is a lack of comprehension to what the legal system looks like (and to some degree, actually is) to the outsiders who most of the time eye it warily, thinking Ambrose Bierce spoke for us all when he defined a lawsuit as a machine that takes you in as a pig, and spits you out as sausage. Take two cases: a) Johnnie Cochran all but singing to the jury “If the glove doesn’t fit, you must acquit.” Just doing his job as an advocate was he? He succeeded, and his success looks worse and worse as time goes on. His success did a tremendous amount of damage outside the courtroom, and this nation is still paying a price for it. I do not dispute that Cochran, under the professional model, had to do what he did. What I do wonder is if you will be baffled when I say that others had to pay a price for what he did. b) We’re all behind in our reading, but sometime, read ASHES TO ASHES by Richard Kluger. This is a history of the American tobacco industry, told from the point of view of Philip Morris(PM). In the 1950s-1960s PM’s research staff was beginning to conclude that cigarette smoking causes cancer, and not much that could be done to make a safe cigarette. The Feds are beginning to make rumbling noises about regulation. Problem: what to do if any branch of the government demands to see this research? Easy, say PM's lawyers: have the research staff report to company counsel. That way we can use attorney client privilege to shield it from any investigation. It worked for years. Were the lawyers right to do this? Sure, says the professional model. But the world paid, and still pays a severe price for this action.
Here’s another point: A long time ago (I don’t have the exact date) you wrote a post on choosing juries. You mentioned that you did not want a lawyer on any jury you were trying a case before. Why? Because your method of trying case involves telling a jury a narrative,(I think you used the word “story” instead of narrative) and you didn’t want anyone on the jury who might have a competing narrative. To this layman, that strategy makes sense, and seems to be a great way to win a case. But this layman also has to serve on juries, and is quite upset at your strategy. What you call a narrative, sounds all too much like a con being spun by a pitchman. Jury service pays little enough without being made to feel like a cats-paw so counsel can fill their professional duties. On request, I have a war story that would illustrate this point.
I am not impressed by this statement either:

“The work was entirely pro bono, and the firm with which I was then employed — Houston-based Baker Botts — cheerfully ate all of those lost billable hours, along with thousands of dollars in out-of-pocket expenses.”

a) Baker Botts (BB) could have refused the assignment. It’s true, a judge could have forced it on them, but judges generally know better than to force cases on unwilling counsel.
b) You could have declined the case from BB for the same reason.

Neither a) nor b) happened. Why? Both you and BB know that while you can get away with refusing individual cases, if you do it too often, black marks will start appearing on your records. Refuse all pro bono work, and BB will likely never make you a partner. BB refuses all pro bono work and they will suffer in the courts. So far as the billable hours goes, I snort. The managing partners at BB have a sophisticated understanding of what they sell, billable hours, and as more pro bono work is taken on, BB's hourly rate goes up. If you dispute this, I will gladly have Daniel Drezner, or other reputable economist blogger arbitrate. The work you did for this client was enormously valuable, but it was paid. Just not by the client you were working for.

Dean is bothered by Fred’s lobbying efforts. Me too. Fred is not running for a Superior Court judgeship, where outlining your positions can lead you to prejudging a case. Candidates for judges, whether elected or confirmed are limited in what they say, and there's sense to this custom. Fred is running for an executive office of some consequence that will affect all of us. Nor will this office have cases to try in the way a judge will. There are those who will want to know Fred’s position on abortion (not me. I think abortion takes up more than its share of political attention.) Fred can stand on the professional model, just as Chief Justice Roberts did, saying he can't talk about his views he had as an advocate, and besides they are separate from what he really thinks. But if he does, he’ll lose my vote. Dean Barnett is absolutely right:

“Lawyers want to play by a different set of rules, and in the eyes of their fellow members of the Bar, they do. But the rest of the country won’t buy it, nor should they.”

You have enumerated the strengths of the professional model. But Dean is more interested in the costs that the professional model dumps outside the Bar for the lay folks to pick up. He’s right to focus on those. Imagine what would happen if membership in any Bar became a disqualification for public office. It would allow lawyers to concentrate on their craft, without having to explain any of their positions to the public. Such a proposal would be, hmm, unpopular, with lawyers.
Once again this post has grown to enormous length. I apologize for the irascible tone as well.

Sincerely yours,
Gregory Koster

(3) Carl made the following comment | Jul 14, 2007 11:46:20 AM | Permalink

Seems to me you're conflating two tasks lawyers perform: defending clients and lobbying for clients' causes. Since I'm not a lawyer, maybe I'm missing something, but I see a world of difference between offering a defendant the best defense possible, versus voluntarily helping a political group push its message.

(4) Patterico made the following comment | Jul 14, 2007 2:38:47 PM | Permalink

If I didn't know better, I might think Barnett has something against lawyers.

Actually, I don't know better. I remember a screed he wrote against prosecutors. He doesn't like us much.

Carl,

Lobbying is just another job for a lawyer.

(5) Kevin R.C. 'Hognose' O'Brien made the following comment | Jul 14, 2007 8:35:11 PM | Permalink

Interesting matter, but I think there are degrees. It is one thing when a lawyer is sought out to defend an unpopular client -- the classic example being John Adams, of course. Beldar's service to the getaway driver seems to be in much the same vein. The important thing in these cases, as I see it, is that the attorney's decision to take the case was an impersonal, arms'-length one. John Adams did not take his case out of fondness for Captain Preston or his cause, but out of interest in justice.

What cheeses the non-attorney public is when an attorney makes a career or a hobby out of defending the reprehensible, out of identification with and love of the reprehensible, and then tries to hide behind John Adams. Examples? Ramsey Clark. Lynne Stewart. Any number of Mafia lawyers. Sorry, if your whole life and career is defending dictators, terrorists, or mobsters, don't call John when people see the shadow of the dictator, the terrorist, or the mobster behind you.

I realize that this is not Dean's point. But I suspect that it is the emotional framework that supports his point.

(6) Kevin R.C. 'Hognose' O'Brien made the following comment | Jul 14, 2007 8:38:36 PM | Permalink

Oh rats. I notice that the professor already made my brilliant (?) point above, in his reaction to Ramesh Ponnuru. In even fewer words, and HE the lawprof. Go figure.

(7) Xrlq made the following comment | Jul 15, 2007 11:00:08 AM | Permalink

Gregory Koster:

So far as the billable hours goes, I snort. The managing partners at BB have a sophisticated understanding of what they sell, billable hours, and as more pro bono work is taken on, BB's hourly rate goes up. If you dispute this, I will gladly have Daniel Drezner, or other reputable economist blogger arbitrate.

Please do. While the old "businesses never pay taxes, they just pass them on to customers" canard is a popular article of faith among those on the right, I have yet to hear anyone defend it credibly. Like any other business, Baker Botts isn't in business to obtain a certain, fixed profit margin, which they can then manipulate at will by increasing or decreasing their rates willy-nilly. They're in business to maximize profits, which is accomplished by charging the highest rate they can before they lose more by chasing business away than they gain by the higher rate. Pro bono work doesn't enter into the equation, except in the sense that it raises the minimum possible gross profit for it to make sense to be in business at all. Either with or without pro bono expenses, if BB can raise its rates without chasing away too much business to make the increase worthwhile, they will do it. If they can't, they won't. Period.

Thus, for your theory to hold water, it's up to you to show how pro bono work somehow increases BB's ability, and not merely its desire, to charge higher rates without losing too much business to make it worthwhile. If you can do that, great. If you can't, you can go on snorting to your heart's content, but Beldar's point still stands: BB (or, more specifically, its partners) did indeed eat the costs.

(8) Gregory Koster made the following comment | Jul 15, 2007 2:14:30 PM | Permalink

Dear Xrlq: You write:

"They're in business to maximize profits, which is accomplished by charging the highest rate they can before they lose more by chasing business away than they gain by the higher rate"

This implicitly asserts that law practice is what the economists call "purely competitive" business. For an environment to qualify as "purely competitive" there are a number of requirements:

1. Free entry and exit into the field. That is not true of the law, thanks to bar exams and ownership requirements of law firms. I, a non-lawyer could not own a piece of a law firm, for example.

2. "Atomistic size" that is, each firm is small enough so that its actions do not affect its market. BB has 700 lawyers. I will bet that not only is it the largest firm in Houston, but in all of Texas. Maybe even the western half of the US.

3. All participants have the same knowledge of the market, no one having inside knowledge. BB is a big firm, which can afford a great deal of research and has a sizable "old-boy" network. They have the inside track far more than, say, a solo practitioner lawyer.

These three factors all by themselves prove that BB is not working under a "purely competitive" model. At best they are "monopolistically competitive" and more likely they are an oligopoly. So let me restate, more precisely this time,: who paid for Mr. Dyer's efforts in his capital penalty case for the 5th Circuit? BB gave up some revenues, and the rest of BB's clients paid higher fees than they would have.

For heaven's sake: the very idea of "pro bono" implies that legal fees are too high, which they would not be ini a "purely competitive" environment. In a purely competitive environment, the demand for Mr. Dyer's work on the 5th Circuit would be high enough to drive prices down to the point where every death row inmate could choose from dozens of lawyers. Does this picture I've drawn look realistic? Of course not. That's because law is not a "Purely competitive" environment. At best, it is "monopolistically competitive" and in BB's case, I think the oligopoly model would fit.
No. BB partners ate a portion of the costs in Mr. Dyer's work. But BB's clients paid higher rates than they otherwise would have. What was the split? I can't tell you. But I can tell you that BB did not gain its great success by indiscriminately picking up tabs in tens of thousands of expensive cases.

If you are wondering where I got the terms I used, go here:

http://facweb.furman.edu/~dstanford/mecon/d1.htm

Sincerely yours,
Gregory Koster
no longer snorting, but laughing out loud

(9) Xrlq made the following comment | Jul 15, 2007 3:50:53 PM | Permalink

Gregory, I didn't ask you to restate your premise. I asked you to prove it. Big difference. Contrary to your most recent comment, mine didn't say anything about competition, "pure" or otherwise. The degree of competition within an industry will certainly tell you something about what any particular company's profit-maximizing price will be, but it has no bearing on whether or not there is one. So unless you have evidence that performing pro bono work causes the industry to become less competitive than it otherwise would be, your reference to competition is a red herring.

I asked before, and I'll ask again: do you have evidence that pro bono work causes Baker Botts to be able to charge a higher hourly rate among paying clients than it otherwise could? Or are you just snorting and laughing because you're a clueless boob who doesn't know any better?

(10) Beldar made the following comment | Jul 16, 2007 7:53:34 AM | Permalink

On the subject of Baker Botts eating the time for my pro bono work:

I feel reasonably competent to speak on this subject since, in addition to the cases I handled personally, I also coordinated assignments for several other Fifth Circuit appointed appeal assignments during the six years I was there, and supervised (lightly) the younger associates who worked on them.

No Baker Botts partner has ever been reported to have missed a meal due to inability to buy one. The firm has always been among the most profitable in Texas. That said, its partners were genuinely glad not only to permit, but to actively encourage, this sort of pro bono work, and other pro bono work as well.

There were many benefits reaped by the firm, some less noble than others, and some arguably economic, if very indirect. Compared to anonymous service at a legal-aid hotline, this was comparatively high-profile work. It was appreciated by the Fifth Circuit judges involved (although they also tapped many other major Texas firms for those appointments, with Vinson & Elkins partner Scott Atlas serving as liaison for the overall program). Having first-chair writing responsibility for a Fifth Circuit brief, and perhaps an opportunity to do a first-chair oral argument, within ones first two or three years of practice was an excellent training opportunity for our lawyers, even though the criminal law issues they addressed weren't likely ever to arise in the firm's paying practice (and that training also indirectly benefited the firm's clients). And frankly, some of the partners probably looked at these lost revenues as expiation for their own failure to be as active in pro bono causes as they genuinely aspired to be. (Although many of the firm's partners were, and are, very active and prominent in other pro bono capacities.)

It was not the case then (back in the 1980s), nor do I think it's likely the case now, that the firm's revenue goals or expectations for its associates' billable hours were so inflexible that it ever raised its rates to paying clients as a direct result of billable revenues lost to pro bono activities. It was not, and is not, a zero sum game; and most lawyers who invested lots of time on pro bono matters also tried to eek out a few extra billables, not because anyone was particularly demanding that we do so, but as an informal way to express some gratitude to the firm for its support of our pro bono activities.

It was mostly a win-win activity for everyone involved, and it was, on the whole and overall, genuinely idealistic on the part of our lawyers.

(11) Sam made the following comment | Jul 16, 2007 4:19:45 PM | Permalink

Mr. Barnett's column is overbroad. Representing someone on legal issues does not endorse their public positions.

However --

"Lobbying is just another job for a lawyer."

I'm not a lawyer, but I don't see how that can be true.

Mr. Thompson claims to oppose legal abortion. How could such a person lobby for an abortion provider's agenda with integrity? He would be promoting something he views as an evil cause.

Of course, he might have been retained to lobby about something other than abortion itself, such as better protection from violence against abortion providers. That would be reasonable. However, the "whistleblowers" haven't said what he supposedly lobbied Mr. Sununu about.

Or he might have provided some kind of legal advice, and they mis-remembered that he was hired to lobby. This would not be problematic for most of us right-wingers; everyone deserves the guidance needed to stay on the right side of the law.

In the absence of any real info, it's all speculative, and pretty pointless.

However, I'd be interested to hear how someone could lobby for an abortion provider while opposing legal abortion.

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