Ninety percent of our lawyers serve 10 percent of our people. We are over-lawyered and under-represented . . .
Last year, corporations spent $24 billion on legal services -- 12 times as much as we spent on all federal, state and local courts combined. We must ask whether this is the right way or the best way to conserve our legal resources or to ensure justice.
President Carter, May 4, 1978
The Washington lawyer who shortly will become the White House counsel has represented all of the Big Three auto makers -- General Motors, Ford and Chrysler -- as well as their trade association.
Lloyd N. Cutler and his firm, Wilmer, Cutler & Pickering, also have been retained by the trade associations for the chemicals, paper, pharmeceuticals and uranium industries.
In the 18-month period that ended last June 30, Cutler advised 55 clients -- more than half of his firm's "important" ones -- on antitrust securities, acquisition or other matters. The clients, according to a disclosure report required by the Ethics in Government Act, included:
Bethlehem Steel and Kaiser Steel.
Morgan Guaranty Trust, three bank-holding companies and the National Bank of Georgia.
IBM, American Express, General Telephone & Electronics, Communications Satellite and Northrop.
CBS, Times Mirror (Los Angeles Times), Scripps League Newspapers and The Washington Post.
Crown Zellerbach (paper), Alza (pharmaceuticals), Barton Brands (liquor), Empire Gas, Milliken Chemical, Norton Simon (foods, beverages), Peoples Drug Stores, Schieffelin & Co. (liquors, wines), West Point-Pepperell (apparel, household fabrics), Kaiser Aluminum, Kaiser Industries, Kaiser Resources and three commodities traders (Cal Borschenius, Salvadorena Compania and Wiscope).
Pan American World Airways and Long Island Railroad.
Business Roundtable, the blue chip for Washington lobbying, and U.S. Railway Association, a federal agency.
International Bank for Reconstruction and Development, the Trilateral Commission (which sponsored a June 1975 trip to Tokyo during which Cutler and Jimmy Carter, then governor of Georgia, had their first seious conversations) and World Health Organization.
Common Cause and the Metropolitan Opera Association.
Cutler's clients are not his only ties to the corporate, establishment. For example, he's been a director of Alza, the pharmaceuticals firm; American Cyanamid (chemicals and drugs), Norfolk & Western Railway and Southeast Banking Corp.
The Lloyd Norton Cutler who emerges from such an unadorned compilation of corporate affiliations is a one dimensional figure, a step-up for criticism of the kind voiced by Ralph Nadar, a long-time foe.
"Lloyd Cutler is the archetype big-business and anti consumer advocate." Nader charges. "His appointment as White House counsel tells consumer and environmental groups that Jimmy Carter is bringing the corporate establishment right into the White House -- and right into the Oval Office."
Cutler rejoins that Carter earlier had brought members of the "consumer establishment" into the White House, including former Nader aide Harrison Wellford.
Cutler isn't, however, as one-dimensional as his corporate affiliations alone would indicate. He has done good while doing well with pro bono representation, fund-raising, and government service). Possibly no lawyer has been more versatile on the Washington stage (despite his extensive record in corporate advocacy, for instance, he has taken a strong leadership role in attacking corporate bribery).
But if Cutler is the ultimate Washington lawyer, which many observers believe him to be, it's in good part because he has earned a reputation for doing with utmost skill whatever it is he sets out to do.
That's one reason Chairman Michael Pertschuk of the Federal Trade Commission, who for 15 years has been a key Nader ally on a broad spectrum of issues and whose activism at the FTC has earned him the enmity of the business community, praised the Cutler appointment.
"I think Cutler's a very, very good choice" Pertschuk said in a phone interview from Devon, England. "He's very, very competent, and that's a quality that's very, very much in need."
It was the across-the-board competence of Lloyd Cutler that was emphasized repeatedly in extensive recent interviews. When it was not specifically mentioned as an attribute, it at least was not called into question.
The question of competence in the Carter White House, said columnist Joseph Kraft, is "in such relief that all other [questions] become really subsidiary."
Kraft, who was represented by Cutler without fee in connection with the wiretapping of his home during the Nixon administration, said that in choosing the "extremely competent" Cutler to be White House counsel, the administration did "one of the best things they've done in a long time."
Kraft told a reporter Cutler will be "a nexus between policy and politics."
"He's smart as hell," said David T. Austern, a lawyer here who sometimes has disagreed with Cutler. "Super-bright."
Requesting anonymity, a former high administration official who has dealt with Cutler over the years termed him "far better qualified, intellectually and as a skilled attorney, than Carter could expect to get with only 16 months remaining in his term."
Many sources drew sharp, even cruel contrasts between Cutler and the man he will replace, Robert J. Lipshutz who, as far as counseling a president on great issues is concerned, has been in way over his head.
"A disaster," Kraft said in an interview.
Praise of Cutler's competence and criticism of Lipshutz's don't dispel the suspicions that, justly or not, seem always to hover over "the Washington lawyer" as a breed and certainly over Cutler as the exemplar.
To a large extent, the suspicions are inevitable concomitant of the revolving door between federal agencies and law firms, of lawyers' government "contacts" and possibly most importantly of the process by which legislation is written, amended and passed or defeated.
In courtrooms, almost everything is out in the open, and the adversary process brings together and tests opposing views.But on Capitol Hill and in federal agencies around town, Washington lawyers, retained by those who can afford their fees, often lobby behind the scenes, making their pitches to legislators, staff members and officials ex parte, that is, without opposing views being heard.
No one has been more quotably offended by such lobbying than John Kenneth Galbraith, who was soured on the "filthy business" of trade association and corporate lobbying while serving as an official of the World War II Office of Price Administration.
Galbraith cited the lobbying of Cutler and his law firm in connection with what became the 1966 auto safety law in a review of Mark J. Green's "The Other Government: The Unseen Power of Washington Lawyers."
"This is not law, it is lobbying," Galbraith wrote. "Its relation to the law consists of frustrating good legislative process and hindering proper enforcement of the law, all on behalf of affluent corporate clients. That the public interest suffers is . . . a matter of high professional indifference.
The auto safety episode was viewed from the White House by a key advocate of tough legislation, Joseph A. Califano Mr., then an assistant to President Johnson, later an affluent Washington lawyer and still later, until deposed by Carter, secretary of health, education and welfare.
How did he see Cutler's role? "First he tried to kill the bill, and when it couldn't be killed . . . he tried to gut the bill," Califano told a reporter.
FTC Chairman Pertschuk saw the episode from an even closer vantage point, having played, as general counsel of the Senate Commerce Committee, a vital role in shepherding the legislation. At one critical moment he had Cutler in one room and Nader in another so that he could iron out last-minute disputes.
In Green's 1974 book, Pertschuk said of Cutler: "He is clearly a very skilled advocate and a real technician at drafting amendment after amendment. He's a genius, but an evil genius.The role Lloyd Cutler plays reflects poorly on the legal profession since it is ex parte practice."
Today Pertschuk says that he was "unduly harsh," particularly in using the word "evil," that he had not meant to imply that Cutler had been deceptive, and that "I have never known Cutler to misrepresent or to over-reach in terms of pressure."
Joseph L. Rauh Jr. is a Washington lawyer, to be sure, but one who believes that "a lawyer should not do anything for a client that he would not do in a tennis match, at the bridge table or in any other walk of his own life."
In a recent speech, Rauh denounced what he termed "the 'hired gun' philosophy of advocacy: 'I will represent any client on anything, I will represent him in any way he wants and the public be damned.'"
Rauh named no names, but his examples of "hired gun" advocacy included, among others, Edward Bennett Williams and Cutler.
The Williams example arose from an episode involving a client, W. A. (Tony) Boyle, who, while president of the United Mineworkers, was suspected of murders for which he since has been convicted. The Cutler case arose from his efforts, in behalf of the drug industry, to allow the sale of pharmaceuticals even though, he said, "a preponderance of evidence . . . might still be on the side that the drug is not effective or not proven effective."
In similar vein, other lawyers denounce Cutler as "brilliant -- and an opportunist." or as a"a wheeler-dealer -- and I mean this in the pejorative, not the friendly, sense."
But in interviews, as in his writings, Cutler has articulated a defense that not only survives such attacks but that, along with his good works, helps to win admirers. "I know him to be a man of splendid character," says Clark M. Clifford, a former White House counsel who became one of the most prestigious of Washington lawyers.
Cutler's defense runs like this:
". . . a lawyer ought to accept from any paying or nonpaying client any matter as to which a reasoned and responsible argument can be made."
(In opposing criminal penalties for violators of the auto safety law, Pertschuk recalls, Cutler argued that such penalties would not be in the public interest. In the drug-efficacy matter, he held that government "should not impose a medical orthodoxy based on a majority vote . . . when there was substantial evidence the other way." Penicillin, he pointed out, was thought at first to be ineffective.)
At the same time, a lawyer "should not engage, even for his most important client, in the advocacy for which he believes no reasoned, responsible argument can be made."
(Cutler said his firm not only has no cigarette clients, but refused to represent one because he could find no "reasoned, responsible argument" to back up its quest for government approval of a billboard health warning in letters only two inches high. Cutler, in a personal test, found that even at 30 miles an hour such a warning would be nearly invisible.)
"I take a dim view of the idea that any right-minded lawyer can immediately detect which side of a legislative, regulatory or litigation issue is the public interest side and that right-minded lawyers should decline to represent anyone representing a different side," Cutler said.
"Cancer and radiation, alcoholism, highway and workplace accidents, commercial fraud and unreasonable restraints on competition are certainly against the public interest. But that does not begin to answer the question of whether a particular legislative or regulatory remedy, or one side of a particular litigation, is against the public interest. My favorite example is Prohibition . . . "
In the context of conflict of interest, the Cutler appointment is, as Nader says, one that brings "the corporate establishment . . . into the Oval Office."
This may reach beyond direct corporate affiliations to, for example, Cutler's highly controversial proposal, recently endorsed by the American Bar Association, to empower a president to direct regulatory agencies to take up, reconsider or modify most "critical" regulations.
The crucial question, however, may be not whether the corporate establishment will be in the White House, but what Carter and Cutler will do about the conflicts arising from Cutler's appointment.
Put it in soap opera terms: At the pinnacle of a career that has brought fame and fortune to a highly respected 61-year-old lawyer, will he go into the White House -- possibly for only a year or so -- as an unadmitted agent of, say, GM, IBM and CBS? If he will, what will be his reputation when he leaves? Will he care?
For now, there are no certain answers -- only a seedbed of facts that produce conflicting interpretations and, depending upon who's talking, trust, mistrust or noncommittal caution. And there'll be no pretesting on Capitol Hill because the White House counsel isn't subject to Senate confirmation.
Cutler said he had laid out the conflict-of-interest problems, and his approach to them, to Carter, to Girffin B. Bell, then attorney general, and to Bell's successor, Benjamin R. Civiletti.
He said he told Carter that, even if it brings criticism to either or both of them -- "even if it raises eyebrowns" -- he intends to involve himself in a host of major national policy issues, such as those concerning energy and the environment. "If I did not do that, the job would not be worth taking," he said.
He said he was referring to issues in which he had no "client involvement," even one unrelated to the specific issue, and in which his participation wouldn't violate federal rules, the Code of Professional Responsibility of the American Bar Association or his own "taste standards."
He said, for example, that he will not participate in White House consideration of financial aid to Chrysler, in matters such as air bags, in telecommunications legislation as it may affect CBS, in presidential decision-making on a possible merger of a domestic airline with Pan Am, in Carter's problems with his peanut warehouse or in the planning of a Carter reelection campaign.
He hasn't yet decided if he would disqualify himself on pending drug safety legislation ("because we have not been retained at all by the Pharmaceutical Manufacturers Association to advise on that bill"), or whether he would stay out of the selection of federal judges (including those in the District of Columbia, who get the bulk of his clients' regulatory cases).
"The job is highly unstructured," Cutler said. "It's different with every president. What you do depends very much on the habits of the particular president . . . and on the qualifications of the individual." It happens, he said, that he and Carter both want the job to be a "substantive" one, one in which he will be making "policy judgments."