Cynics who think legal ethics is an oxymoron must be thinking about the action taken last week by one of Washington's prestige law firms. I refer to Covington and Burling's decision to drop South Africa Airways as a client because of that country's position on apartheid. The firm's action raises intriguing questions about the relation between lawyers and their clients, and for this alone the public should be grateful.
Does Covington's act herald a new attitude about lawyer's decisions in representing clients? I hope so. When I was graduated from law school over a quarter century ago, my view was the old-fashioned one that every lawyer has the obligation to represent reprehensible clients: no identification was made, no question asked about propriety. Now I think differently: every client may have the right to a lawyer, but not to me. One has to assume responsibility for what one does.
The Code of Professional Responsibility governing lawyers' ethics does not require any lawyer to take any case. The Sixth Amendment to the U.S. Constitution guarantees every person accused of a crime "the Assistance of Counsel for his defense." At that, the bar often left indigent defendants on their own until 1963 when the Supreme Court belatedly held that that was unconstitutional. Still, every day in countless situations poor people never get a shot at "justice" in court or even help in their everyday affairs because they cannot afford lawyers.
But that is a different story. The Covington episode underscores another, related situation: not who does not get legal representation, but who does. This issue raises many touchy questions. What is the proper standard (other than ability to pay) for lawyers to judge their clients? What if a segregationist South African company wanted legal help providing aid to the blind? What if a reputable Swedish company wanted legal help in its dispensation of a questionable drug? What if an American company with a reputation for charity wanted legally to delay controls over its dumping sewage in a river?
One would think that the richer the firm the easier it would be to decline clients because their causes and claims are considered noxious. Virtue comes easier to those who can afford it. But with law firms, it usully works the other way. The big rich firms get richer doing high-paying commercial work, though some of it has questionable social value, to put it mildy. Then they do a lot of what we lawyers call pro bono work, a noblesse oblige term that means charity as an extra-curricular activity. If that system has a ring of hypocrisy, at least it helps some clients -- those whose cases were picked up by firms because they salved some lawyers' consciences, helped in recruiting young trainees, or fit some senior partner's notion of civic obligations.
There are two reasons that lawyers represent wealthy clients whom they may dislike or whose practices they may dislike. Some candidly admit they are in it for the money. Others argue that it is not their role to judge their clients' virtues, that virtue at best is subjective, and that the adversary system allows -- indeed, requires -- fighting for all sides. They claim that not only is it not unethical but also that it is in the highest tradition of the bar to represent clients in a nonjudgmental way.
Taking cases one finds obnoxious on the rationale that it is a professional obligation is phony. It is the hired-gun syndrome, pure and simple, and one of the reasons the public hates lawyers. The public sees us doing and saying things it despises, getting rich doing so, and claiming it is something noble, at that. Keeping hurtful products on the market, bringing extortionate lawsuits, defending corporate shenanigans is not public service or the high calling of professionals. It is money grubbing at least, sometimes ripening into confederation with wrongdoing. It cannot be compared with some distinguished lawyer's defending an accused spy on assignment from a court, or offering one's services to an unpopular claimant who wants to raise an important constitutional point.
I hope the Covington action will suggest to all lawyers and law firms that they reconsider the ethical standards of their work. Lawyers should be seen publicly to be doing what we are doing daily, and we should not shroud our business with pseudo-ethical platitudes about public service. In fact, it would be a public service if a lot of lawyers stopped working for a lot of clients, not because of who the clients are but because of what they are prepared to pay us to do.