Accountability, Conscience, and Dissent in the Legal Profession

The below is an excerpt from Canceling Lawyers: Case Studies of Accountability, Toleration, and Regret (Oxford University Press, 2024). Reprinted with permission. A Q&A with the author, Brad Wendel, follows the excerpt.

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Crisis at Cravath

Founded in 1819 in New York City, Cravath, Swaine & Moore is the paradigm of an elite, “white shoe” law firm, with a long history of representing financial institutions, industrialists, publishers, and wealthy individuals. It hires only the highest-ranking graduates of the very top of the American law school hierarchy and then runs them through the rigorous “Cravath system” of professional development and evaluation, inviting only a tiny fraction into the partnership ranks. The hardy few Cravath associates who survive the long hours of work and internal tournament for promotion can look forward to profits per partner on the order of $4.5 million.¹ More of a bastion of power, prestige, and privilege within the American legal profession is difficult to imagine.

In 1997, Cravath was asked by its long-standing client Credit Suisse, a Swiss bank, to provide “strategic advice” related to the bank’s role in laundering gold that had been looted by Nazi Germany from countries it occupied during World War II. Some of the gold had been stolen from Jewish victims of the Holocaust. According to reports by U.S. and British intelligence based on wartime intercepts, Credit Suisse accepted deposits of gold bars by Nazi officials and then provided loans in Swiss francs to Hitler’s government. Other deposits had been made into Swiss banks by Jewish citizens of European countries who were concerned about increasing persecution. After the war the banks steadfastly denied that they had collaborated in Nazi atrocities and stonewalled efforts to trace the ownership of assets. Criticism by the international community grew to the point that, in the mid-1990s, Swiss bankers and government officials began to cooperate with investigations conducted by historians and international lawyers. Then the chairman of Credit Suisse proposed the creation of a $70 million fund to pay reparations to Holocaust victims, financed by itself and two other banks. This is the matter on which Credit Suisse sought the advice of lawyers at Cravath.²

The prospect of the firm advising a Swiss bank on its interests, given the evidence of its culpability in one of the worst moral horrors of the 20th century, was not met with universal approval. Twelve associates wrote a memo to the partnership of the firm, asking whether a concern for justice for the victims of the Holocaust could be squared with a defense of Credit Suisse:

It is our conviction that one cannot represent Credit Suisse in its role as bankers to those who committed genocide and do the justice we are all obliged to do to the victims and survivors of the slaughter. The two are simply incompatible. It seems implausible that Cravath could both serve Credit Suisse and bring about a fair and honorable resolution for those who suffered at the hands of the Nazis and their collaborators. We suspect, even with the best intentions, Credit Suisse’s interest may be too closely connected with containing the financial consequences of scandal for justice to be served by our representation of them.³

The associates’ concern turned out to be prescient. The Swiss banks were indeed interested in minimizing their culpability for laundering Nazi gold. After a historic settlement of the claims of Holocaust victims and the establishment of a fund to pay reparations, according to a federal judge in the United States the banks “filed a series of frivolous and offensive objections to the distribution process” that were “based on an egregious mischaracterization of historical accounts.”⁴ Although Cravath was not representing any of the banks at this stage in the process, at the outset, when Credit Suisse first sought Cravath’s representation, the associates might well have believed that the client would seek the firm’s assistance in minimizing the financial cost of restitution to the families of victims and, in the process, to deny or minimize its complicity in Nazi atrocities. They were concerned that doing so would be in conflict with something deeper and more fundamental—doing the right thing, “the justice we are all obliged to do.”⁵

The controversy over Cravath’s representation of Credit Suisse would have been strictly internal to the firm if the associates’ memo had not been leaked and reported in the press. Even so, the case did not lead to a big public outcry. There was no attempt to organize a boycott or embarrass the firm with other clients. This episode therefore differs from some of the others we will consider, such as the law student-led effort to stigmatize law firms representing fossil fuel companies and the campaign waged on social media to embarrass law firms representing the Trump campaign in challenges to the 2020 presidential election. If one sees criticism of lawyers as something akin to a moral panic or mob rule, the Swiss bank case is not an instance of that.

It is also important to see that the associates did not suggest that the representation of Credit Suisse would involve any violation of professional norms, such as the prohibition on bringing unfounded claims. While the district judge supervising the class-action litigation subsequently did criticize the banks for raising frivolous objections,⁶ this was not the basis for the associates’ objection to the firm taking on the matter for Credit Suisse. Rather, they were concerned that the bank’s objectives would be to minimize the financial consequences of the revelations of its role in laundering gold looted by the Nazis. It would be wrong, they contended, for the firm to lend its assistance to that objective, not as a matter of professional ethics but as a matter of “real ethics,” that is, moral standards that exist apart from laws and legal procedures. That is the significance of the reference to “the justice we are all obliged to do to the victims and survivors of the slaughter.”

Finally, the associates’ contention was not that the firm would be assisting Credit Suisse in violating the law. Large law firms have many flaws, but they very seldom assist clients in out-and-out lawbreaking. The memo, and the subsequent debate within the firm, were instead motivated by the assertion of accountability to moral standards that apply to decent, conscientious people in their dealings with other individuals and the moral community as a whole. Helping powerful institutions evade responsibility for assisting Nazi Germany in financing its war machine with assets stolen from victims of genocide is not something that ordinarily decent people should do. It is an obligation of background morality to avoid participating in such an injustice. The associates admitted that there is tension here between this obligation, as human beings, and what they take to be the obligations lawyers have to a client they have agreed to represent, that is, “containing the financial consequences of scandal.” This tension between the duties that follow from occupying an institutional role, like that of lawyer, and the importance of remaining connected with universal moral principles even when acting in a professional capacity, is the source of much of the divergence between the permissibility and meaning of lawyers’ actions.

Journalistic accounts of the firm’s decision-making process described a great deal of “soul searching” and a sometimes-angry internal dispute. This is consistent with thoughtful people wrestling over a difficult moral issue, but inconsistent with a position that is believed to be part of the furniture of legal ethics. In response to criticism for the clients they represent, lawyers often reach for some kind of shield or force field—something that will rule out such criticism across the board, as out of bounds or incoherent, and therefore not deserving of a substantive response.⁷ This has been referred to as the Principle of Nonaccountability.⁸ One of the main arguments in this book is that the Principle of Nonaccountability is wrong and should be discarded from our thinking about lawyers’ ethics. Lawyers, in short, are accountable to others for the clients they represent.

Against nonaccountability

The blanket assertion of the Principle of Nonaccountability to block all criticism of lawyers has never sat quite right with me, even though for my entire career I have been a staunch defender of the centrality of the ideal of the rule of law in thinking about legal ethics.⁹ There has always seemed to be a whiff of elitism in many lawyers’ response to public criticism—you unschooled, unsophisticated people simply do not understand the esoteric mysteries of the practice of law. While it is true that some of what lawyers do is not easy for a non-lawyer to understand fully, lawyers are accountable not only to their clients but potentially also to the wider moral community. The organized legal profession tends to proclaim loudly that the practice of law is not a “mere” business (not that there’s anything wrong with business), but that lawyers practice their profession in the public interest. If that is the stance taken by the profession, then lawyers cannot wish away public criticism for the clients they represent.

It is certainly true, and a position I will defend in this book, that lawyers have distinctive obligations to their clients, the courts before which they practice, and the legal system as a whole. However, the standards belonging to a professional role are not a force field protecting lawyers from moral criticism. Instead, the “role-differentiated” morality of the legal profession itself requires a defense. Public criticism of lawyers rightly raises this demand for a justification, in terms that are acceptable to the community as a whole, of the representation of all sorts of clients—the good, the bad, and the ugly—and the things that lawyers do in the course of representing those clients. That justification will turn out not to yield an across-the-board Principle of Nonaccountability for lawyers, but a much more nuanced assessment of the permissibility and meaning of representing unpopular clients. It will also vary to some extent by the context of the representation. Not all lawyers are advocates for clients in litigated disputes, let alone criminal defense lawyers. Lawyers may also be subject to public criticism for representing clients in transactional matters, or for the legal advice they have given to clients.

As you might have guessed, the word “nuanced” means it will not always be as clear and simple as lawyers would like it to be. We in the legal profession do a job that sits at the intersection of competing interests and values about which people feel very strongly. Any compromise worked out by a political and legal system is bound to be imperfect and unsatisfying. Yet I do not believe being a lawyer is equivalent to doing other necessary but unglamorous jobs, like being a garbage collector.¹⁰ Lawyers rightly feel proud to work in an admittedly flawed system but one that aims at fairness, equality, and protecting human dignity. At the same time, however, critics of the system or of particular types of clients (fossil fuel companies, gun manufacturers, private prison corporations, suspected terrorists—insert your own prototypical “bad guy” here) understandably experience resentment or indignation as a result of, among other things, the ability of powerful individuals and corporations to employ legal procedures for their own benefit. These reactions by others, which are an essential part of living together in a society, are not so easily waved off by lawyers’ invocations of legal values such as due process of law and loyal client service. A justification premised on the social value of the legal system—which I believe is the one lawyers should offer—is bound to be incomplete and unsatisfying. Any decent society will recognize some extralegal avenues, such as civil disobedience, conscientious objection, protests, boycotts, and public shaming campaigns, as a way of acknowledging moral objections to unjust laws. Public criticism of lawyers functions in this way, as a way of recognizing the gap between a legal system that necessarily reflects compromise and values that citizens do not believe should be compromised.

In a society in which people seem to disagree about everything, morally based criticism of lawyers is likely to come from all sides. As I see it, one of the most important justifications for the legal system is rooted in the capacity of law to enable us to get along with each other despite all the things we disagree about. This means, by the way, that the justification for representing unpopular clients applies not only to criminal defendants, or to parties in litigated disputes, but also to clients who seek legal advice or the assistance of lawyers in transactions, such as entering into contracts or issuing securities. In a liberal society—and by “liberal” I mean one that regards individual liberty as central—the law provides a means by which people can deal with others having beliefs or engaging in actions they believe to be wrong. Law embodies the value of toleration, which is necessary only against a background of suspicion and the desire to repress the beliefs and practices with which one disagrees.¹¹ Toleration coexists uneasily with the moral sentiments of resentment and indignation that are essential to the community’s practices of holding others accountable. Not surprisingly, the tension between toleration and accountability often surfaces in the intense debates over lawyers who represent unpopular clients.

I want to be as clear as possible up front because this is a point that may be lost or misconstrued in the context of the discussion of some of the cases. To say that lawyers are accountable to others for the clients they represent and what they do in the course of that representation is not to say they are wrongdoers. It is, instead, to observe that lawyers must give an account for themselves, that is, offer a justification in terms that others can accept. It is possible to overlook the necessity of giving a justification because it is already well understood that there are good reasons for representing a particular client. When it comes to advocating on behalf of accused persons in criminal matters—even those defendants accused of doing terrible things—lawyers have a powerful moral justification for their actions. There are also many compelling reasons why criminal defense lawyers believe a full-on, zealous defense is warranted for clients accused of even the worst crimes. These include resisting the carcereal state, with its overcriminalization and excessively punitive sentences;¹² the brutal conditions behind bars awaiting anyone sentenced for a serious crime, including shocking indifference to basic human rights of prisoners;¹³ understanding and sympathy for the poverty, racism, lack of educational and employment opportunities, and other social factors underlying many crimes;¹⁴ commitment to the ideals of due process and fairness in the treatment of persons accused of crimes and the importance of checking the power of the state;¹⁵ preventing a rush to judgment, particularly in highly emotion-laden cases;¹⁶ ensuring that the government plays fair and complies with obligations of truthfulness in pleading and representations to the court, and disclosure of evidence favorable to the defense;¹⁷ and an appreciation for the inherent dignity of all human beings.¹⁸

These are general values and commitments; lawyers are prohibited by rules of confidentiality from divulging information about their specific clients’ cases. By giving an account, I do not mean here that lawyers should throw their clients under the bus or reveal confidential information.¹⁹ Lawyers also need not actually provide a justification in any given case but should think through what that justification would be and be prepared to offer it. The cases discussed in this book can serve as what law professors refer to as “hypos”—hypothetical examples illustrating difficult cases for the application of competing principles. Observers and commentators on these cases are not restricted by duties of confidentiality, even though the actual lawyers involved may not have been able to actually provide the justification we attribute to them. I mention this point about the professional duty of confidentiality because it is important to understand the idea of accountability in terms of reasons that could be offered in justification, not as an obligation that lawyers actively representing a client give those reasons in violation of confidentiality obligations.

The case made by lawyers is often persuasive. For example, I have found, in spending more time on Twitter than is probably good for one’s sanity, that people tend to get why criminal defense lawyers represent accused murderers.²⁰ The ideals of fairness and treating the accused with dignity make sense to people outside the legal profession, even if they do not always act consistently on those values. Lawyers seem to come in for the most severe and sustained criticism where there is some larger injustice that a powerful individual or corporation appears to be exploiting, with the assistance of high-priced legal counsel. Robust criticism for this kind of representation is healthy in a democracy. It helps remind lawyers that the legal system may be deserving of respect, but it is not the only source of guidance that matters to people. Background moral considerations such as equality, fairness, human dignity, and respect for differences are often more important than the requirements of formal law in how people think about what they owe to each other. The persistence of these ordinary moral considerations may lead to a sense of regret or reluctance, which may have the effect of mitigating or avoiding unnecessary harms to others.

 

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Q&A with W. Bradley Wendel, author of Canceling Lawyers

What motivated you to write this book? What were you trying to accomplish?

There has been debate forever about lawyers representing unpopular, controversial, or repugnant clients. I kept seeing this debate going round and round and round, and I never quite figured out how to resolve it. I always figure there’s something interesting going on when a debate just cycles like that and doesn’t reach resolution. A couple of things caused me to go back and think more about this. I had been reading Moral Dimensions by T. M. Scanlon, which talks about blame and the meaning of actions and accountability. The light bulb went on. I thought, Oh, this is the key—to think about multiple moral dimensions of analysis and not just stick with the standard debate about how can you represent nasty clients. The response is always, “Well, the rule of law and everyone deserves a lawyer.” Look, we know that, right? Somehow there seems to still be this cycling.

Your subtitle for this book is “case studies on accountability, toleration, and regret.” Why these three words? Why should those ideas matter to lawyers?

Accountability really derives from Scanlon where we see morality as fundamentally about relationships with others. It’s not about answering to the tribunal of the universe or pure practical reasoning or the principle of utility—it’s really about relationships. It’s about, to quote Scanlon again, what we owe to each other and how we can justify what we do to one another. The insight from P. F. Strawson is that a lot of the relational quality of morality gets mediated through people’s reactive attitudes of resentment, anger, blame, and positive things like praise.

The reason I chose that word—accountability—is there’s this idea that’s called the standard conception of legal ethics that has three principles: partisanship, neutrality, and nonaccountability. The idea is you represent clients effectively, notwithstanding any disagreement you may have with their position or objectives, and if you do that, you’re not accountable. Basically it gives you a defense that you can assert to people who say, “You’re representing this terrible person.” I don’t like that way of understanding the principle of nonaccountability because it sounds like a lawyer can sort of ignore the demand for accountability. You can say, “I’m not listening to you and I don’t owe you anything. I’m not giving you an explanation.” I don’t think that’s right. I think we do owe others an account for our actions.

I am endlessly interested in the uneasy fit between what we’re required to do as lawyers or permitted to do as lawyers versus what ordinarily decent human beings would do.

W. Bradley Wendel, Edwin H. Woodruff Professor of Law, Cornell Law School

Toleration is important because the justification that we give is likely to have something to do with pluralistic liberal political principles. I believe that we inevitably disagree about rights and goods and justice. In a pluralistic society, one of the virtues that one should cultivate, and certainly a profession should be dedicated to it, is toleration—letting opposing viewpoints flourish. I see the legal profession and the legal system as a technology for fostering toleration, for allowing people to live alongside one another who disagree intensely about justice and rights but nevertheless think it’s a good thing not to kill each other and [who] want to cooperate and coexist.

Regret is trying to pick up what I think is my favorite part of the book—the first personal experience of doing something that within a professional role is justified but nevertheless, from the point of view of being a human being, just an ordinary person, makes one feel a sense of shame, regret, reluctance, sorrow.

A central tenet of the book is role morality. What is it, and why is it important for this project?

Role morality is the fundamental question in legal ethics that I’ve always been interested in—we have permission to do things we might not do as human beings when we’re inhabiting certain professional roles. For instance, soldiers have permission to kill. As lawyers, we do things that inflict costs on others and cause them great anxiety and unhappiness, and we believe we’re justified in doing that.

I am endlessly interested in the uneasy fit between what we’re required to do as lawyers or permitted to do as lawyers versus what ordinarily decent human beings would do. Gerry Postema wrote a paper called “Moral Responsibility in Professional Ethics” in 1980 where he talks through different strategies for adaptation for dealing with this tension. You can either identify with the role or detach. You can step back from it to the point that it’s not your problem—you’re  offloading all of the justification onto the institution and not investing enough of yourself in it, and your moral agency becomes detached from the role. I find that to be troubling and scary, and that’s one of the things I want to try to build in the right relationship between moral agency and the obligations of the role.

One of the tensions you present in the book is that a lawyer should recognize and be accountable to the public when there is public approbation over their representation over an unpopular client and that the lawyer may also have defensible reasons for representing that client. Can you unpack this? Why does it matter?

I want to admit right up front, public criticism can be misguided or misinformed or in bad faith or performative or trolling. But let’s assume that this is not that—let’s assume the criticism is sincere, well motivated, well thought out. The reason I led off with the example of the Swiss banks and Cravath in the book is that you can’t just wave off the criticism of associates in this law firm as trolling or in bad faith. These are people in your firm. They’ve already signed onto this project of working in a big law firm and they’re troubled. When Ron Sullivan was asked why he was presenting Harvey Weinstein, he simply missed the force of the question. Yes, we know that in general everyone deserves a lawyer, and the fairness of our justice system depends on that, and due process of law requires a lawyer. We get all that. We just want to know what is it about this case that attracts you? How does this fit in with your own personal narrative as a civil rights lawyer, as a champion of the underdog? It’s a role morality question. How does the narrative unity or integrity of the person fit in with the professional role?

Toward the end of the book, you explore Bernard Williams’s idea of moral remainders. What is a moral remainder, and how might it help lawyers experiencing professional and personal tension?

A moral remainder is what we call a non-action-guiding evaluation. It doesn’t tell you to do something differently. It prescribes or explains how you should feel after you made a difficult decision. It may be the case that the right thing to do is to represent this client vigorously, use whatever tactics are required, but then the decent human reaction, acknowledging our own moral agency, should be to feel qualms, to feel reluctance, to feel sorrow. If you go home and sleep well at night, there’s kind of something wrong with you.

A lot of mistakes in professional ethics come from seeking a false zone of comfort.

W. Bradley Wendel

To me, the interesting question is what is the right way to handle moral remainders? Just feeling bad doesn’t seem to accomplish much. Sometimes moral remainders can motivate you to try to reform the institution. It should help you find the instances of injustice and rectify them in some way. Barack Obama was once asked, “Does it bother you that you get criticized from the left for drone strikes?” And he said, “No. And I hope the criticism never stops because that criticism makes me slow down and makes me internalize these costs. And I think harder about it, and I think I make better decisions.” So sometimes moral remainders can help you, even though they’re non-action-guiding in the moment. They might help you slow down, take the costs into account, and be more deliberate.

What do you hope law students and practicing lawyers take away from this book?

Don’t be so caught up in looking for a simple answer. There may not be a simple answer. A lot of mistakes in professional ethics come from seeking a false zone of comfort. We as lawyers sit at the intersection of conflict and disagreement and the need for resolution. But the law is about bringing together these disparate perspectives from which to view things. Lawyers are right in the middle of all of that. It’s going to be uncomfortable; it’s going to be complicated. There’s no way around that.

I do think the institutional justification of the rule of law and due process is serious and weighty and important and something worth defending and lawyers should stick up for it. But I also think that in doing so, one should not be blind to the way in which the law can enable injustice. Moral remainders remind us not to over-valorize the legal system or to put more normative weight on it than it deserves. We should not wish away the messiness and the complexity or try to sweep it under the rug. We should build it into our way of thinking about the role of lawyer and not run away from it.

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W. Bradley Wendell is the Edwin H. Woodruff Professor of Law at Cornell Law School.

1. The $4.5 million number represents profits per equity partner (PEP) in 2021, as reported by the National Law Journal. The Cravath system is described in a privately printed book, The Cravath Firm and Its Predecessors, 1819–1948, an excerpt of which is included as Appendix 2 in James B. Stewart, The Partners: Inside America’s Most Powerful Law Firms (New York: Simon & Schuster 1983). This approach proved to be extremely influential, and most large American law firms adopted some version of it. See Thomas D. Morgan, The Vanishing American Lawyer 100–102 (Oxford: Oxford University Press 2010); Milton C. Regan, Jr., Eat What You Kill: The Fall of a Wall Street Lawyer (Ann Arbor: University of Michigan Press 2004). [↩]
2. The internal controversy at Cravath was reported in a number of newspaper articles. See John J. Goldman, “Venerable Firm in Spotlight for Holocaust Assets Case Role,” L.A. Times(Apr. 3, 1997); Blaine Harden & Saundra Torry, “N.Y. Law Firm to Advise Swiss Bank Accused of Laundering Nazi Loot, Wash. Post (Feb. 28, 1997). For a summary of the background on the conduct of Swiss banks during World War II, see Alan Cowell, “Swiss Acknowledge Profiting from Nazi Gold,” N.Y. Times (Dec. 14, 1996). For book-length accounts, see, for example, Jean Ziegler, The Swiss, the Gold, and the Dead: How Swiss Bankers Helped Finance the Nazi War Machine (New York: Harcourt 1998); Tom Bower, Nazi Gold: The Full Story of the Fifty-Year Swiss-Nazi Conspiracy to Steal Billions from Europe’s Jews and Holocaust Survivors (New York: HarperCollins 1997). [↩]
3. Quoted in Blaine Harden, When Client, Justice, Are “Incompatible,” Wash. Post (Mar. 13, 1997). A similar associates’ protest led the Washington, D.C., law firm of Covington & Burling to reconsider its representation of South African Airways during the apartheid era. See William H. Simon, “Ethical Discretion in Lawyering,” 101 Harv. L. Rev. 1083, 1094–96 (1988). [↩]
4. See the opinion of U.S. District Judge Edward Korman, in In re Holocaust Victims Assets Litigation, 319 F. Supp. 2d 301, 303 (E.D.N.Y. 2004). [↩]
5. I don’t know if it was intentional, but I hear in the associates’ memo the invocation of the declaration from the Torah, also central to the Christian tradition of public ethics: “Justice, justice thou shalt pursue.” Deuteronomy 16:20. Notably the Hebrew word tzedek, translated as “justice,” also means righteousness, or doing the right thing. It is not limited to legal justice. [↩]
6. In re Holocaust Victims Assets Litigation, 319 F. Supp. 2d 301, 303 (E.D.N.Y. 2004). [↩]
7. Journalist Matthew Yglesias, writing about the representation of Harvey Weinstein by Harvard Law School Professor Ronald Sullivan, which will be the principal case study in Chapter 3, says “[t]he legal profession itself has a strong belief that there is an important principle by which it is wrong to subject lawyers to social sanction or strong moral criticism for working on behalf of bad people.” Matthew Yglesias, “The Raging Controversy Over Ronald Sullivan, Harvey Weinstein, and Harvard, Explained,” Vox (May 17, 2019). Similarly, a progressive critic of elite litigator Neal Katyal objects to the Principle of Nonaccountability “as a kind of force field preventing lawyers from facing any social or professional repercussions for their actions on behalf of their clients.” Alex Pareen, “Neal Katyal and the Depravity of Big Law,” New Republic (Dec. 8, 2020). This is what I mean by the magic shield or force field claim or, more formally, the Principle of Nonaccountability. [↩]
8. The prominence of the Principle of Nonaccountability in theoretical legal ethics scholarship can be traced back to an important early article. See Murray L. Schwartz, “The Professionalism and Accountability of Lawyers,” 66 Cal. L. Rev. 669 (1978). Schwartz’s Principle of Nonaccountability became one of three principles that comprised what came to be known as the Standard Conception of legal ethics—partisanship, neutrality, and nonaccountability. An alternative term for the Standard Conception is Neutral Partisanship. See W. Bradley Wendel, “Legal Ethics as Political Moralism or the Morality of Politics,” 93 Cornell L. Rev. 1413 (2008), citing David Luban’s use of both terms. Bill Simon uses the term “Dominant View,” although ironically that label is the least frequently used. See William H. Simon, The Practice of Justice (Cambridge, Mass: Harvard University Press 1998). All three of these terms are defined in the same way, with substantially identical sub-principles of partisanship, neutrality, and nonaccountability.
   
   In a nutshell the Standard Conception maintains that lawyers should be (1) partisan, in zealously pursuing their client’s objectives regardless of costs to third parties, whether in litigation, transactional, counseling, compliance, or any other type of legal representation; (2) neutral, in not refraining from pursuing their client’s objectives out of concern for the impact on others or as a result of moral qualms about the justice of the objectives; and (3) nonaccountable, which is to say not subject to criticism in moral terms for having complied with the first two principles. The name of this position and its three component parts coalesced in two highly influential articles published around the same time as Schwartz’s. Gerald J. Postema, “Moral Responsibility in Professional Ethics,” 55 NYU L. Rev. 63 (1980); William H. Simon, “The Ideology of Advocacy: Procedural Justice and Professional Ethics,” 1978 Wis. L. Rev. 29. Other foundational articles in theoretical legal ethics emphasizing the Principle of Nonaccountability include Charles Fried, “The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation,” 85 Yale L.J. 1060 (1976); and Stephen L. Pepper, “The Lawyer’s Amoral Ethical Role: A Defense, a Problem, and Some Possibilities,” 1986 Am. B. Found. Res. J. 613. For this history of the field, see David Luban & W. Bradley Wendel, “Philosophical Legal Ethics: An Affectionate History,” 30 Geo. J. Legal Ethics 337, 343 (2017). A couple of articles by scholars who were primarily lawyers, but also trained in other disciplines, questioned whether philosophers had the lawyer’s model of ethics right. See Ted Schneyer, “Moral Philosophy’s Standard Misconception of Legal Ethics,” 1984 Wis. L. Rev. 1529; M.B.E. Smith, “Should Lawyers Listen to Philosophers About Legal Ethics,” 9 Law & Phil. 67 (1990). More recently Kate Kruse has argued that philosophers tend to overemphasize or artificially sharpen the conflict between role obligations and ordinary morality by imputing to clients the nastiest objectives, regardless of whether a flesh-and-blood client would actually want to do the antisocial thing. Katherine R. Kruse, “Beyond Cardboard Clients in Legal Ethics,” 23 Geo. J. Legal Ethics 103 (2010).
   
   My take on all of this is that the Standard Conception is alive and well; it accurately describes the approach taken by lawyers to morally troubling cases (many of which will be considered in this book). Tim Dare and I have both defended a moderate version of the Standard Conception, in which the legal rights and duties of clients, not mere client interests, inform the Principle of Partisanship. W. Bradley Wendel, Lawyers and Fidelity to Law (Princeton: Princeton University Press 2010); Tim Dare, The Counsel of Rogues? A Defence of the Standard Conception of the Lawyer’s Role (London: Ashgate 2009); see also Alice Woolley, “The Lawyer as Advisor and the Practice of the Rule of Law,” 47 U.B.C. L. Rev. 743 (2014); Christine Parker & Adrian Evans, Inside Lawyers’ Ethics (Cambridge: Cambridge University Press, 3d ed. 2018); Donald Nicolson & Julian Webb, Professional Legal Ethics: Critical Interrogations (Oxford: Oxford University Press 1999)(using the term Neutral Partisanship). The latter two books are critical of the Standard Conception. However, the point of the citations to Dare, Woolley, Parker and Evans, Nicolson and Webb is to indicate that the Standard Conception is accepted broadly by lawyers in other common law jurisdictions (New Zealand, Canada, Australia, and the United Kingdom, respectively) as the theoretical foundation of their role, even if it comes in for academic criticism. [↩]
9. W. Bradley Wendel, Lawyers and Fidelity to Law (Princeton: Princeton University Press 2010); W. Bradley Wendel, “Legal Ethics Is About the Law, Not Morality or Justice: A Reply to Critics,” 90 Tex. L. Rev. 727 (2012); W. Bradley Wendel, “Legal Advising and the Rule of Law,” in Kieran Tranter et al., eds., Reaffirming Legal Ethics: Taking Stock and New Ideas(Abingdon: Routledge 2010); W. Bradley Wendel, “Legal Ethics and the Separation of Law and Morals,” 91 Cornell L. Rev. 67 (2005); W. Bradley Wendel, “Civil Obedience,” 104 Colum. L. Rev. 363 (2004). [↩]
10. In a justly famous article, law professor Barbara Babcock reviewed the reasons that could be given by criminal defense lawyers for representing clients they know, or at least strongly suspect, are guilty of the charged offense. One of the reasons she calls the “Garbage Collector’s Reason”—that is, “yes, it’s a dirty job, but someone must to do it.” Barbara Allen Babcock, “Defending the Guilty,” 32 Clev. St. L. Rev. 175, 177 (1983–84). We will return to Babcock’s article in Chapter 3 on the defense of Harvey Weinstein. [↩]
11. The concept of toleration applies to beliefs, actions, or practices that one regards as wrong; a state tolerates a minority religion, or a citizen of a liberal democracy tolerates hateful expression or a practice one believes to be immoral. Rainer Forst, “Toleration,” Stanford Encyclopedia of Philosophy (rev’d 2017); Rainer Forst, Toleration in Conflict: Past and Present (Cambridge: Cambridge University Press: Ciaran Cronin, trans., 2013); David Heyd, ed., Toleration: An Elusive Virtue (Princeton: Princeton University Press 1996). [↩]
12. Abbe Smith, “Representing Rapists: The Cruelty of Cross Examination and Other Challenges for a Feminist Criminal Defense Lawyer,” 53 Am. Crim. L. Rev. 255, 257–59 (2016). [↩]
13. See, e.g., Ken White, “Thirty-Two Short Stories About Death in Prison,” Atlantic (Aug. 13, 2019). [↩]
14. Barbara Allen Babcock, “Defending the Guilty,” 32 Clev. St. L. Rev. 175, 178 (1983–84); Abbe Smith, “Defending Defending: The Case for Unmitigated Zeal on Behalf of People Who Do Terrible Things,” 28 Hofstra L. Rev. 925, 951–52 (2000). [↩]
15. Charles J. Ogletree, Jr., “Beyond Justification: Seeking Motivations to Sustain Public Defenders,” 106 Harv. L. Rev. 1239, 1246–58 (1993); David Luban, Lawyer and Justice(Princeton: Princeton University Press 1988), pp. 58–66. [↩]
16. Smith, “Representing Rapists,” p. 289. [↩]
17. Smith, “Representing Rapists,” pp. 289–90. As Smith rightly observes: “The Government’s constitutional and ethical obligations are the same, whether or not my client is guilty.” [↩]
18. David Luban, “Lawyers as Upholders of Human Dignity (When They Aren’t Busy Assaulting It),” in Legal Ethics and Human Dignity (Cambridge: Cambridge University Press 2007), p. 65; Smith, pp. 295–97. [↩]
19. I am grateful to Lonnie Brown for pressing me on this point. [↩]
20. For a counterpoint, see Barry Sullivan, “Private Practice, Public Profession: Convictions, Commitments, and the Availability of Counsel,” 108 W. Va. L. Rev. 1, 3–4 (2005), recounting a story of a lunch with a former president of the American Bar Association at which the author, then in practice at Jenner & Block, discussed handling, on behalf of the defendant, an appeal of a death sentence imposed for killing two police officers. The facts and constitutional issues involved were compelling, but all the former ABA president could say was “Well, I suppose someone has to represent people like that.” [↩]