MAY 2019 | ETHICS IN VIEW

Lawyer bashing – the latest twist

Dennis Rendleman, ABA Center for Professional Responsibility

“First thing we do, let’s kill all the lawyers” – Dick the Butcher from Shakespeare’s Henry VI, Part 2, Act IV, Scene 2.

The long history of lawyer bashing both precedes and exceeds the traitor Jack Cade’s henchman, Dick the Butcher, and his cry to eliminate those who may prevent Cade from overthrowing the king and assuming the throne. Just after the line is spoken, Dick and his allies kick off their plan by murdering the county clerk. Most scholars agree that Shakespeare’s actual intent was “to portray lawyers as the guardians of the rule of law who stand in the way of a fanatical mob.”

Now, simply out-of-context quoting of Dick the Butcher is insufficient for lawyer bashing.  Two of the latest trends are attacking lawyers for who their clients are and for the bar associations to which they belong.

ABA Model Rules of Professional Conduct, Rule 1.2(b) states: “A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” One must question the ethics of lawyers who ignore the rule – particularly for personal or political advantage.

Over the course of the last two decades, it has become common for judicial candidates for election to be disingenuously attacked for court rulings in which they may or may not have been involved. 

A more recent manifestation is attack ads against lawyers running for judge or other public office based upon the clients those lawyers have represented. For example, in 2014 then-ABA President James R. Silkenat sent a letter to the Republican Governors Conference condemning a political attack ad they ran against the Democratic gubernatorial candidate in South Carolina. The ad attacked the candidate because he “defended violent criminals who abused women and went to work setting them free.” 

During the 2016 presidential campaign, the Republican National Committee ran an internet ad attacking vice presidential candidate, Sen. Tim Kaine, for his legal representation of individuals in capital offenses.

Unfortunately, we have become accustomed to such fraudulent political advertisements. 

The latest expansion of lawyer-bashing focuses on the lawyer’s membership in a bar association.  The Model Rules encourage participation in legal organizations. ABA Model Rule of Professional Conduct 6.4 speaks to law reform organizations: 

A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration notwithstanding that the reform may affect the interests of a client of the lawyer….   

Additionally, ABA Model Rule 6.3 encourages lawyers “to support and participate in legal service organizations.” In both rules, while the primary issue is potential conflict of interest between the legal service or law reform entity and a private client of the lawyer or the lawyer’s firm, the implicit understanding is that a lawyer may and should participate in bar associations.  The preamble to the Model Rules explicitly states: “As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession.”

Most recently, the nomination of a lawyer to the Department of Justice was the subject of attack in the U.S. Senate because the lawyer was a member of a bar association that had taken a position to which a particular senator objected. The senator opposed the nominee because she had been an officer in the National Association of Women Lawyers when the organization opposed the nomination of Samuel Alito to the Supreme Court. The nominee had not taken part in the organization’s deliberations and even signed a separate letter of support for Justice Alito’s nomination. Nevertheless, her membership in the bar association was used as a cudgel.

This unwarranted “guilt by association” is akin to the treatment the last two Republican administrations have given to ABA Standing Committee on the Federal Judiciary judicial evaluations. Only Presidents George W. Bush and the current one have refused cooperation with the ABA process first begun under President Dwight Eisenhower. And under both presidents it has been a partisan political act, rather than one identifying flaws in the process of the ABA Standing Committee on the Federal Judiciary. Such attacks could discourage lawyers who may aspire to political or judicial office from joining general or special-focus bar associations or participating in committees or law reform activities, as there is always some way to spin actions negatively.

At present, as membership in the Federalist Society is de rigueur for nomination to the federal judiciary, one wonders whether that worm will turn in the future. But then, as the late Ron Rotunda once succinctly stated in The Legal Profession and the Public Image of Lawyers, 23 J. Legal Prof. 51 (1999):

People dislike us because we are guns for hire who manipulate the legal system, but they like us because we fight for our clients, protect their rights, and cut through bureaucratic red tape. When we fight zealously for our client, file lawsuits, and cut through red tape we do good, but when we fight zealously for our client, file lawsuits, and manipulate the legal system, we do bad. We receive accolades and denunciations for doing the same thing.

ABA Center for Professional Responsibility is a national leader in developing and interpreting standards and scholarly resources in legal and judicial ethics, professional regulation, professionalism and client protection mechanisms.