In this issue, we examine the tension between the personal morality and professional responsibility, a subject often debated in legal ethics and profession classes. In an excerpt from Canceling Lawyers: Case Studies on Accountability, Toleration, and Regret, W. Bradley Wendel explores what it means for lawyers to represent “unpopular” clients. What are the multiple moral dimensions that surround the lawyer in this scenario? What about the public? For the lead, we focus on a case study around Cravath in the 1990s, when a group of associates objected to the firm taking on the client Credit Suisse in a case involving the bank’s work with the Nazis during World War II. Wendel uses this case study to talk about the “principal of nonaccountability,” or the idea that lawyers are not accountable to the public for the clients they take on. Wendel disagrees with this view. Instead, he writes:
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. 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 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.
We expand on these themes with two other supporting stories. In “Navigating Ethics as a Government Lawyer,” we profile Brad Weinsheimer, former associate deputy attorney general and senior career official for the Department of Justice, where he was tasked with overseeing the most difficult ethics decisions that might come to the department. Weinsheimer spent over three decades as a public servant, first in the U.S. Attorney’s Office in Washington, D.C. and then later in the Office of Professional Responsibility and in the National Security division before ascending to this final role. In all of these positions, process, norms, and institutional knowledge were crucial to helping Weinsheimer and his colleagues uphold the integrity of their offices. “There’s a general philosophy that on ethics decisions, we don’t want to be close to the line,” says Weinsheimer. “Our integrity is one of the most important things we have.”
In “Fighting the Corporate Capture of the Law from Inside,” we profile the People’s Parity Project (PPP), an organization that began in 2018 with four dedicated Harvard Law School first years in the wake of the #MeToo movement. “Law students are great at debating moral philosophy and ethics and that’s wonderful, but they’re not always good about taking those morals out of the classroom,” says Emma Janger, one of the co-founders who is now on the board of People’s Parity Action, the organization’s 501(c)4. Nine years after the four students first protested forced arbitration clauses in employee contracts, the organization still stands with expanded issue areas from worker power to democracy defense. Reflecting on where they started, PPP executive director Molly Coleman says: “A lot of the national conversation was focused on individual bad actors. But as law students, we started to ask, what are the systems that are enabling this? … And when you’re talking about stories about systems, you’re often talking about the role of lawyers.”
Finally, we conclude with an interview with T. M. Scanlon, the Alford Professor of Natural Religion, Moral Philosophy, and Civil Polity, Emeritus at Harvard University, who says as a lawyer or a philosopher would, on the topic of objecting to or representing unpopular clients, it’s complicated: “While I do believe we need more tolerance, I also think we should recognize that not all protest or criticism is a violation of free speech or open debate,” Scanlon says. “It’s important to protect the space for disagreement while also drawing the line at behaviors that genuinely threaten the inclusive character of our communities.”