Lawyers Are Responsible For Their Choice Of Clients

To what degree should lawyers be held responsible for their choice of clients? If a lawyer represents Monsanto or ICE or Big Tobacco or the Saudi Arabian government, are they making an unethical choice? If they willingly spend their time coming up with excuses for indefensible conduct, and try to help an evil actor avoid legal accountability, can we blame them? Or are lawyers morally neutral, exempt from judgment?

Ronald Sullivan is a Harvard Law School professor who also practices as an attorney. He has represented a broad range of clients, from NFL star and convicted murderer Aaron Hernandez to the family of Michael Brown. But when Sullivan joined Harvey Weinstein’s legal team, he caused an uproar at the university. Students protested, and Sullivan was ultimately fired from his role as a faculty dean at one of Harvard’s undergraduate residential houses. (Though not his position as a law professor.)

Many people have objected to the protests over Sullivan’s choice. In the New York Times, Sullivan’s colleague Randall Kennedy called Harvard’s decision the greatest embarrassment in Kennedy’s 34-year history as a professor. National Review’s Charles Cooke said the decision was “reprehensible” and we must not “exile [lawyers] for the sins of their clients.” The Atlantic’s Conor Friedersdorf wrote that “ protecting the norms around the right to counsel is orders of magnitude more important than the “unenlightened or misplaced” discomfort of some Harvard undergraduates,” and cautioned that “Harvard’s decision may deter ambitious young lawyers from undertaking the defense of any potentially controversial client, including indigent men who stand accused of rape or sexual assault.”

Some have suggested that the students simply don’t understand the legal profession. The naive students, they say, are unaware that lawyers are not personally justifying their clients’ actions by taking their cases, but fulfilling an important procedural guarantee. Defenders of Sullivan point to a long history of lawyers taking the cases of “unpopular” clients, from John Adams defending the Boston Massacre defendants to civil rights lawyers sticking up for African American men accused of rape in the Jim Crow south to those who defended Guantanamo detainees on terrorism charges. If Harvey Weinstein is legally innocent until proven guilty, and every accused criminal defendant deserves zealous representation, then Sullivan is not “defending a rapist” even if he may quite literally be defending a rapist. If we accept the logic that brands Sullivan a “rape defender” then Guantanamo lawyers are “terrorism defenders” and public defenders are apologists for every conceivable kind of violence. Clearly we don’t want to strictly hold lawyers responsible for their clients’ deeds, because that would make public defenders—some of the most decent, self-sacrificing, and important people in the legal system—somehow bad people.

And yet: Does this mean it doesn’t matter who you choose to represent? The reason we think of civil rights lawyers as doing “good work” is because they chose just causes. It’s true that Harvey Weinstein is “despised” and “unpopular” and the Guantanamo detainees were too, but does that make the two causes comparable? There are some relevant differences, including the fact that Harvey Weinstein is an extremely rich man who can afford any lawyer in the world, while the residents of Guantanamo are poor non-citizens locked in cages in no-man’s-land. Black men accused of rape in the South were facing a rigged system that wanted to murder them. They needed help. Harvey Weinstein is… just not in the same position, even though he, too, falls in the broad category “people who large numbers of people hate.”

Here’s an important aspect of this: Harvey Weinstein is almost certainly paying Ronald Sullivan millions of dollars. (Sullivan, when asked, declined to discuss his fee.) Why does Harvey Weinstein get to have a crack team of Harvard law professors as his defense team, while most indigent defendants in Alabama get lawyers who do not file a single motion? Yes, everyone deserves a defense, but Harvey Weinstein already has a defense, a very good one at that, and there is no plausible future in which he won’t. Many people do not have good defense attorneys, and desperately need them. A Harvard law professor has the broad freedom to take whatever cases they want, to serve whichever causes they think are worth their time. Ronald Sullivan looked out over all of the possible causes in the world, and decided the most worthy client was Harvey Weinstein—a man who has made it clear that he wants lawyers who will discredit and undermine the 80 women who have accused him of sexual misconduct. Weinstein has previously had his lawyers hire Israeli intelligence operatives to find dirt on women who have accused him. Does Weinstein need help? It would seem that, if anything, someone should probably restrict his access to high-priced lawyers. Give him a public defender! Too much money and you can buy a harassment operation that will do its best to make life hell for any woman who goes public with her story of abuse.

Is the question here, then, whether “everyone deserves a defense”? Or is it more like “do rich assholes deserve the best defense money can possibly buy while poor people barely get lawyers at all?” It’s quite clear that the only reason for Sullivan to represent Weinstein is that it’s lucrative. But so is representing tobacco companies. If Weinstein was being persecuted, if there was some reason to think that the deck was stacked against him, a public-spirited law professor might take up his cause. Instead, it’s the other way around, where despite the overwhelming evidence he has committed sex crimes it’s quite plausible that Weinstein will never be criminally convicted.

It may be that the legal profession as a whole is too comfortable reciting the slogan “everyone deserves a lawyer” in order to exonerate those who willingly choose to spend their time defending the least worthy causes. Duncan Kennedy, also a former Harvard law professor, once gave a commencement address to law students called “The Responsibility Of Lawyers For The Justice Of Their Clients’ Causes,” arguing that legal professionals should not swallow the argument that the choice to represent someone is morally neutral. Kennedy said that:

Law is not coterminous with morality: there is a vast range of behavior that harms people without legal remedy, and when lawyers help people do that harm, they can’t escape responsibility for it if it is immoral. Legality is important. It’s a good starting point for the discussion. But that your client had a legal right to injure and get away with it doesn’t mean that you can have a clear conscience, even if your role was just routinely technical, and it wasn’t you who chose the course of action, if the course of action was immoral. The better your legal skills, the less neutral you become. Lawyers think up new rules, ideas, arrangements and arguments. Which ones win, which ones judges and juries and legislatures adopt, is a function of who has the legal talent on their side, as well as a function of the justice of the position.

Jeffrey Epstein almost certainly raped a large number of underage girls. Because he was a billionaire, he managed to largely escape criminal punishment for these acts. Was it bad for people to agree to help Jeffrey Epstein get far more “justice” than anyone else would have received? At the very least, it is not obvious that it’s morally justified to serve on Jeffrey Epstein’s legal team, knowing that this legal team is gigantic and can use means that nobody else has access to in order to reduce the probability that Epstein will be convicted of a crime he did commit.

We can, of course, come up with lots of important distinctions that affect our judgment about whether it’s good or bad to take on a client. Perhaps the “criminal versus civil” dimension is relevant: It’s different when a corporation is being sued for harming its workers than if a person is being prosecuted for committing rape. Perhaps we think criminal defendants are entitled to special protection while corporations should fend for themselves. But that distinction might not have a principled basis, and it doesn’t answer the core question about inequality: Why, if you’re a lawyer who has plenty of money, should you choose to take cases that exacerbate inequality in the legal system rather than reducing it?

In Ronald Sullivan’s case, we’ve got another question to answer. It’s not just “Should Ronald Sullivan have chosen to serve Harvey Weinstein?” but “What should a university do if one of its faculty deans is defending Harvey Weinstein on the side?” and “What should students think of their dean if he chooses to represent Harvey Weinstein?” Personally, I think it’s quite clear that a dean who has chosen this client, of all the clients he could possibly choose, is not sufficiently concerned by the possibility that rich men get away with rape because they can buy Harvard professors as defense counsel. And I think that entitles students to want a different dean, one who spends their time working for causes that have a little more justice behind them. I’d feel similarly if a faculty dean chose, during the 1980s, to represent the South African government in court. I would even grumble if my faculty dean was also a corporate lawyer. Can’t we expect someone who shows some moral decency and courage, rather than a mercenary who will make any argument so long as the money is good?

Ultimately, there is a difficult tension in the legal profession, one that it’s not clear how to resolve. On the one hand, the principle that “everybody deserves to have a competent advocate” seems sound. On the other hand, if this is the only principle you hold, then it means every kind of lawyer is acting equally in the “public interest.” And that simply isn’t true: Some client choices a lawyer could make will increase the amount of justice in the world, and some will decrease it. Working for Guantanamo detainees will probably increase it, by providing a greater counterweight to the mighty power of the U.S. government. Working for Harvey Weinstein will likely decrease it, by giving another rich guy the tools to make sure that the law applies to everyone except him.

If all lawyering is considered equal, it will worsen the crisis in public interest law. As my colleague Pete Davis points out, at Harvard Law School, “only 17% of their 2018 class went to work for orgs dedicated to serving the bottom 95% of the income bracket.” Indigent defense has long been in crisis, and “80% of civil legal needs of poor Americans go unmet each year because Legal Services Corporation budgets were slashed over the past decades.” Lawyers have a responsibility to serve those who need them, and taking a pile of money to defend Harvey Weinstein means choosing to make the problem worse rather than better. The issue with Sullivan’s choice is less that Harvey Weinstein is accused of rape than with the fact that he is rich. I don’t think students would have objected, or at least far fewer would have, if Sullivan had solely defended poor clients on criminal charges, which suggest that they are not naively presuming that lawyers support everything their client did, but are instead upset that a professor is helping an elite asshole who truly, truly does not need any more assistance in trying to destroy his victims.

Defense lawyering can be ugly—it does involve questioning victims’ narratives, and making arguments in support of some bad people, but most people understand that someone has to do this in order for the system to be fair. But the acknowledgment that some discomforting work will always need to be done does not mean that any person is justified in choosing any work, no matter how unequal the consequences. Lawyers should not so easily content themselves that “everyone deserves an advocate.” Sure they do, but does it need to be you? Isn’t there something slightly more worthy you could be doing with your time?

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