Whatever you think of the recent elections, it’s fairly clear that the nation was strongly divided on its preferred Presidential candidate. So it’s not surprising that in closely fought states there are legal challenges to the tally. What is surprising is that there has been a wave of bullying to get the lawyers involved in those challenges to drop their representation.
In order to claim that we are a fair society, we have to react to the prior paragraph with the same scrutiny regardless of which political party is the challenged or the challenger. Lawyers bear the burden of acting on behalf of clients to the best of their ability, regardless of their personal opinions, and sometimes the courage to do so runs against substantial public opinion. And even their own convictions. Any defense lawyer who has represented a person accused of what the public considers a heinous crime–child sexual abuses, brutal murders, financial crimes against the elderly–knows the weight of that undertaking. A similar level of courage and commitment was illustrated in David Boies’ representation of Al Gore in the Florida challenge he made in 2000–a challenge that roughly half of the country was against.
Some wondered whether the principle of representation for all started to erode, however, when a major law firm chose to withdraw from representing a controversial position simply because of the backlash that started to build. In 2011, King & Spalding withdrew from its representation of the U.S. House of Representatives as it sought to uphold the Defense of Marriage Act (DOMA) outlawing same-sex marriages. The chairman of the firm, which has long been an advocate of gay rights, determined that “the process used for vetting this engagement was inadequate,” implying that the intake process should have included the consideration of the firm’s political opinions and/or any potential public backlash. It should be noted that the firm had also over the years determined it could defend terrorist suspects imprisoned at Guantanamo and the NRA in a number of matters regarding the right to bear arms, despite the onslaught of public opinion opposed to those representations. The partner in charge of the DOMA case, a former U.S. solicitor general, resigned from the firm “out of the firmly held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. Defending unpopular positions is what lawyers do.”
And now we have several law firms who were engaged to challenge the Pennsylvania election results withdrawing after “extreme pressure”–“an advertising and public-shaming campaign” that allegedly included not only threats by and to clients, but also threats of bodily harm and death against the individual lawyers and their families.
There are several reasons why a lawyer might legitimately ask to be removed from a lawsuit. His/her own personal opinion of the advisability of the position or even an assessment of the strength of the case is usually not one. Far beyond justification for withdrawal is the assessment of the “public” (pre-trial) that the case is not a defensible one or that a win would go against public opinion. It is the job of the courts to decide what is a legitimate claim and whether or not it succeeds. Which they can’t do if the challengers can’t engage counsel. Once decided by the courts, it is up to the legislature whether to change the law that produced a result a portion of the public doesn’t like.
As one pundit asked: “What is the end game here? When groups pressure a firm into dropping representation for an unpopular client, is the ultimate goal to have only bad lawyers defend an unpopular law, or no lawyers at all? And what kind of legal victory would either of those ends represent?”
The country is divided. Families are divided. Legal positions and court findings could go either way in any given case. These particular lawsuits may well turn out to be losers. What a constitutionally based society can’t do is deny counsel, most particularly through bullying and threats, to those whose rights are eligible to be determined by the courts. And suggesting that a primary consideration in the intake process should be “cultural fit with the firm,” whatever that means, degrades the calling of the legal profession. Forced “group think” becomes a real concern if divergent viewpoints in our society can’t get a full-throttled hearing. Those who are rightfully concerned about promoting diversity should be wary of any person or organization that pressures legal counsel to drop the representation of a client simply because others, even loud and well-organized others–including those inside the firm, don’t support that client’s views.
This is the time when a firm’s values become transparent, to use that overused word. Rather than have opposing attitudes creep up on you and divide your workforce, force the issue of values in the first instance. Firms must consciously, affirmatively choose those that matter above everything else and make clear to everyone their primacy — where necessary, by letting anyone who doesn’t share those values walk out the door. We’re not talking about political stances. The firm value in question is the attitude that they bring to taking on controversial issues. As another pundit said, “No good culture ever developed laissez-faire.” And a house divided…