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The Obligation to Defend Unpopular Clients.--

Gail Heriot at the RightCoast posts on the appearance that Ropes and Gray may have ceased to represent an unpopular client because of opposition from Harvard law students. The unpopular client was Catholic Charities of Boston:

If yesterday's Boston Globe story is to be believed, the estimable Ropes & Gray attorneys may have been intimidated into abandoning an existing client by a group of (gasp!) unhappy Harvard law students who threatened not to like them anymore.

Up until two weeks ago, Ropes & Gray represented Catholic Charities of Boston, which in addition to its other charitable work, provided adoption services. In particular, it excelled in "hard to adopt cases" in which the child involved was older than the average adopted child, handicapped, or bore the scars of abuse or addiction. Catholic Charities came under fire, because its policy was not to place children with gay couples, and Massachusetts law now prohibits adoption agencies from discriminating on the basis of sexual orientation. Catholic Charities felt it could not abandon Catholic teachings in this area and apparently sought a religious dispensation from the law.

This did not sit well with Harvard's gay and lesbian students, according to the Boston Globe. . . .

Of course, Ropes & Gray does not admit that it was intimidated by a bunch of law students. (Startlingly, however, it does not deny it.) But the ONLY acceptable response to a bunch snot-nosed brats telling it whom to represent is to tell them to take a hike. If Ropes & Gray had been even considering terminating its representation of Catholic Charities for any reason before receiving the student threats (or even a whiff of threats), it should have insisted on continuing once that message was received. And that would be true whether the students were angry because Catholic Charities opposes gay adoptions, angry because it supports them or just plain angry. Even appearing to cave to such tactics is inappropriate. And an attorney who fails to understand this isn't fit to appear before a court of law.

If law students begin lobbying to prevent lawyers from representing unethical or unpopular clients (and I don't pretend to know precisely what happened with Ropes & Gray), I would think that reformist students would start with their own law school criminal clinics, where in most clinics a large number of their clients have done very bad things to innocent people. Or maybe idealistic students can switch their law school criminal clinics to working on the prosecution side to avoid representing the most unpopular clients (though, of course, not all prosecutors are always ethical).

If this "reform" does not strike people as an attractive switch, then perhaps they might take seriously Professor Heriot's admonition to continue to represent unpopular clients.

xx:
It's hard to "take seriously Professor Heriot" when she ends by insisting that Ropes &Gray should have done the opposite of what the law students wanted EVEN IF Ropes &Gray had been considering ending the relationship of its own volition. If the law students are "a bunch of snot-nosed brats" than Ropes &Gray should ignore them, not intentionally do the opposite of what they want, a concept that I thought most people over the age of 6 grasped.
3.16.2006 8:12pm
Cornellian (mail):
Catholic Charities came under fire, because its policy was not to place children with gay couples, and Massachusetts law now prohibits adoption agencies from discriminating on the basis of sexual orientation. Catholic Charities felt it could not abandon Catholic teachings in this area and apparently sought a religious dispensation from the law.

I believe Gail may have her facts wrong on this story. What I've read is that Catholic Charities had in fact been placing children for adoption with same sex couples for years, had never encountered problems with such placements, and had only stopped because the Catholic Church hierarchy suddenly ordered them to stop. The Charity's governing board of lay people voted 42-0 in favor of continuing to consider same sex couples for adoption, but to no avail.

Ropes and Gray shouldn't refrain from representing Catholic Charities because their position is an unpopular one (at least in Massachusetts). However, if the lawyers involved simply found the Charity's new position morally offensive, they have no ethical obligation to represent them. Similarly, if the students of Harvard said in large numbers that they wouldn't consider working at the firm if they represented the Charity's new position, then I wouldn't think it unreasonable for R&G to value its marketability at Harvard more than accepting the Charity as a client. Law firms turn down unpopular clients all the time because of concerns over the image of the firm. The students themselves would be in a more questionable position, but then they hardly have an ethical obligation to accept employment at any firm.
3.16.2006 8:18pm
Cornellian (mail):
I clicked on the link and read Gail's whole post. For a law professor she doesn't seem to have much regard for law students. She never suggests that the students who objected to R&G's representation were somehow acting in bad faith or that they somehow had an obligation to disregard R&G's decisions in making their own plans for employment, yet this makes them "snot nosed brats?" Makes me wonder what her classroom manner is like.
3.16.2006 8:23pm
Thorley Winston (mail) (www):
Of course, Ropes &Gray does not admit that it was intimidated by a bunch of law students. (Startlingly, however, it does not deny it.)


I'm not sure why anyone would try to read anything into Ropes &Grey not disclosing what reasons went into its decision to no longer represent Catholic Charities. Seems to me that since they still have a duty of confidentiality, that their decision not to publicly go into detail about the internal decision-making process that went into deciding to no longer represent a client is part of that duty.
3.16.2006 8:26pm
Kovarsky (mail):
Yeah,

I was with her all the way until this:

If Ropes &Gray had been even considering terminating its representation of Catholic Charities for any reason before receiving the student threats (or even a whiff of threats), it should have insisted on continuing once that message was received. And that would be true whether the students were angry because Catholic Charities opposes gay adoptions, angry because it supports them or just plain angry. Even appearing to cave to such tactics is inappropriate. And an attorney who fails to understand this isn't fit to appear before a court of law.

Sure, if there was some impediment to Catholic Charities securing representation, then R&G has an obligation. But if R&G's decision does not prejudice Catholic Charities and the decision not to represent them was meritorious without the student complaints, I'm not sure that Heriot's post amounts to more than fiery rhetoric.

It is quite a shame that Gay and Lesbian groups would go about their agenda by discouraging political representation for their adversaries (and I say this despite my overwhelming endorsement of the substantive legal positions the Gay and Lesbian groups take). It is equally inappropriate to condemn an independently arrived-upon decision as "bowing to liberal interests" when you find yourself suggesting that this may not actually be the case in the next sentence.
3.16.2006 8:29pm
Andy:
Cornellian is correct in his (or her) understanding of the facts. And, although I'm not a lawyer, it seems to me that there's a difference between having to defend some clients whom you know are guilty of breaking the law, and choosing not to defend a client whose political and/or moral views you disagree with.

Yes, everyone is entitled to a legal defense, but I don't see how this can be twisted to mean that a lawyer or law firm has to defend (or continue to defend) every client that comes its way, regardless of what one thinks. I'm pretty sure that if Saddam called up Professor Heriot and said,"I want you to represent me," she would have the right to turn him down.

I understand what she means about being seen to have caved to the law students, but, as Cornellian pointed out, she had her facts wrong. This is hardly at the same level as, oh I don't know, news organizations claiming they're not running Danish cartoons because of some lofty ethical position, when the reality is that they're simply caving to Muslim extremists.
3.16.2006 8:30pm
Kovarsky (mail):
And by the way, her post is really manipulative. Of course there's a duty to defend "unpopular clients." But every client is likely to be unpopular with some constituency. In order to avoid interpreting that obligation so that every lawyer has to defend everybody, all the time, there has to be some threshold of unpopularity. I'm not speculating about what that threshold his, but it's almost certainly more than "unpopularity among gay and lesbian groups at harvard." So Heriots vicious invective is about 100 miles off-right. Upon further reflection, her post is a more dramatic example of political pandering than anything R&G did, if R&G did indeed have a neutral reason for abandoning the family.
3.16.2006 8:37pm
Kovarsky (mail):
excuse me... abandoning the Church (I'm Jewish - that was not a Freudian slip; I don't know what it was).
3.16.2006 8:41pm
Kovarsky (mail):
excuse me... abandoning the Catholic Charities (I'm Jewish - that was not a Freudian slip; I don't know what it was).
3.16.2006 8:41pm
The Drill SGT (mail):
The irony here is thick. As I understand it, the vast majority of adoptions in Mass. are done via state agencies. The Catholic charities were helping kids, difficult to place kids. Any gay couple could go to an agency that would help them adopt. So the State law, and the advocacy groups postion really didn't really impact the ability of gay couples to adopt elsewhere. The impact was to prevent some children, (700+ over a period of years) from being adoted into 2 parent traditional homes because the child wasn't potentially being placed to a gay couple.

The losers were the kids and the community.

sad...
3.16.2006 8:44pm
James Lindgren (mail):
Cornellian,

Thanks for your thoughtful, reasoned, and informative comment. It is for sophisticated responses such as yours that the VC is these days generally open to comments.

I consider same-sex placements about the same as inter-racial placements. Given the extreme shortage of adoptive parents, I think it is downright cruel to prevent good parents from adopting, primarily because someone in control has a biased idea of what makes a good parent. Indeed, Peg Brinig and I have talked about doing a project exploring whether the prejudices against the parental attitudes of same-sex parents have any empirical basis.

Anything that restricts good parents from adopting should lead to increased foster care abuse of children who would otherwise have been adopted.

And (in almost all circumstances) Ropes & Gray should not advise any client to break the law, except as a way of openly challenging that law in court.

But lawyers typically continue to represent long-time clients who pursue legal ends and means that they strongly disagree with, so long as their disagreement does not rise to such a level of repulsion that they can no longer adequately represent the client (in which case they are ethically required to withdraw from representation). There would almost certainly be lawyers in the firm who would be able to put aside their (reasonable) disapproval and undertake the representation of Catholic Charities under this standard. Usually that would be the practice, especially if the client were under public pressure.

Yet you are right. The obligation to represent unpopular clients--which is often trumpeted--has often been criticized because (in the absence of court appointment) it does not create an obligation in any one lawyer to represent any particular client. As Professor Mike Spak teaches in his BAR/BRI lecture for the MPRE: "A lawyer is not a streetcar." A lawyer does not have to accept all comers.
3.16.2006 8:49pm
James Lindgren (mail):
The Drill SGT raises new assertions of fact.

If (as he claims) Catholic Charities of Boston were essentially only providing additional services that substantially increased the possibilities that children would be adopted (and did not mainly displace other placement possibilities), then I think that both the Catholic hierarchy and those pressuring it put their own political interests above the best interests of the children to be adopted--which is too bad for the potentially adopted children.
3.16.2006 9:05pm
Sam (mail):
I think that there is also a relevant distinction to be made between the legal profession's aspiration to "represent unpopular clients" in litigation -- and most especially in litigation vs. government interests -- and (on the other hand) whether there is an ethical aspiration to "represent unpopular interests" in organizational or transactional work. I have never heard anyone suggest that it would be a good thing if more lawyers were willing to help incorporate, or draft the bylaws of, groups with whose principles they disagree. Representing a criminal defendant, or a group whose liberties are under attack by government, is a different thing in my view -- and, I think, in the view of most public-spirited lawyers. All in all, this post sounds to me like an opportunistic chance to bash liberal law students, without good justification.
3.16.2006 9:15pm
The Drill SGT (mail):
Jim,

here's a para from a Catholic news source on the types of kids placed;


In addition, most children in foster care are not easy to place. They are not attractive newborns, but are mostly older children from dysfunctional families that have left them emotionally scarred. Or they are handicapped, often severely and from birth. Many, moreover, have been passed from foster home to foster home.
3.16.2006 9:26pm
HLSbertarian (mail):
Prof. Lindgren said "...then I think that both the Catholic hierarchy and those pressuring it put their own political interests above the best interests of the children to be adopted--which is too bad for the potentially adopted children."

I generally agree with you that, to those of us who believe that children won't fare any worse in a gay household than in straighht one, both stances seem stupid. But I think we should leave room for a distinction.

The state's position is more easily classified as a political stance taken at the expense of children.

However, the possibility exists that the Catholic hierarchy's stance originates from a good-faith (no pun intended) belief that a gay household is harmful to an adopted child. I don't know the precise nature of the adoption process, and how closely agencies are tied with the state, but if in the preexisting scheme potential gay parents were not generally being shut out of the process I think CCB's position is more defensible than the state's.
3.16.2006 9:26pm
Gene Vilensky (mail) (www):
Sam --

This case doesn't merely involve transactional work. The state of Mass. licenses organizations to perform adoptions. And, the legislature has voted to deny licenses to organizations that do not place children with gay couples. So, the government _is_ restricting the liberty of Catholic Charities. There was a good op-ed by the dean of the BC Law School in, I believe, the Boston Globe recently on this issue.

By the way, I am not making any claim about the legal or ethical obligations of CC or the legal or ethical merits of CC's argument. But I do think that it's pretty bad what the firm has done. And even worse what the Harvard Law Students have demanded. They want tolerance for being gay. But they should also have tolerance for people who think that their lifestyle is sinful.
3.16.2006 9:35pm
saddam (mail):
The law itself was discriminatory because it did not respect the Catholic faith, and it sought to impose its own personal views of morality upon an entity which identified itself as Catholic. But that's ok, since its the Catholic Church that is being discriminated against, and not some Harvard liberals.
3.16.2006 9:39pm
Sam (mail):
Gene, given what you say I certainly think it would be reasonable for Ropes &Gray to say, "we are representing this client in a declaratory judgment action against the State, seeking to obtain the right to continue placing children, whether or not we agree with their stance on who they will place a child with" -- especially if (a big if) the client is otherwise unable to find good counsel to represent it in that fight. And I would hope that law students would agree with that. Quite different, in my view, from an ongoing relationship with the client more generally, which is what I assume/assumed is was what is at stake.
3.16.2006 9:47pm
David Finberg (mail):
The reason the state licenses adoption agencies is of course to make sure among other things that they are acting in the interests of the child. If there was an otherwise acceptable (but gay) couple, that wanted to care for a child, and there was no one else, the state reasonably believes that the best interests of the child is to be adopted. Catholic Charities disagrees. I have no clue why the state is supposed to defer the interests of the child to Catholic Charities.

Really, would we be having this discussion if it was the world church of the creator and black/mixed race couples?
3.16.2006 9:59pm
The Original TS (mail):
If law students begin lobbying to prevent lawyers from representing unethical or unpopular clients (and I don't pretend to know precisely what happened with Ropes &Gray), I would think that reformist students would start with their own law school criminal clinics, where in most clinics a large number of their clients have done very bad things to innocent people.

Jim, Andy, who is not a lawyer, is 100% correct.

And, although I'm not a lawyer, it seems to me that there's a difference between having to defend some clients whom you know are guilty of breaking the law, and choosing not to defend a client whose political and/or moral views you disagree with.

A lawyer is not a bus.

There's a world of ethical difference between defending someone charged with a crime, even if they are very guilty and very nasty, and acting for someone in a civil capacity. It is ethically meritorious to be a vigorous advocate for a criminal client, no matter how repulsed you may be by the client and what he or she has been accused of doing. It is NOT ethically meritorious to act civilly for a client if you think the client is a rat bastard who is trying to do something you completely disagree with.

I express no opinion one way or the other on whether Ropes &Gray acted properly, but there is nothing inherently unethical in withdrawing from a civil client(or even a criminal client, for that matter) with whom you have become uncomfortable, for whatever reason.
3.16.2006 10:06pm
Bob Loblaw (www):

But I do think that it's pretty bad what the firm has done. And even worse what the Harvard Law Students have demanded. They want tolerance for being gay. But they should also have tolerance for people who think that their lifestyle is sinful.

Gene - Would you be fine if the state licensed an adoption agency that refused to allow interracial couples to adopt because they thought that interracial marriage was sinful (or immoral, or repugnant, or whatever)? Must we have "tolerance" (as you describe it) for such an agency?

What about an agency that refused to place children with Jewish families, because they thought the failure to accept Jesus as Messiah was sinful? Is it okay for the state to license such an agency?

What about one that refused to place children with mathematician couples (too nerdy)? Or Libras (too indecisive)? Or Pet Shop Boys fans (bad taste)?
3.16.2006 10:08pm
Hattio (mail):
I have to add to, and go further than, the previous commentator who noted the distinction between litigation representation and transactional work. I think there's a big distinction between criminal work and most other litigation (especially non-governmental civil work, though I understand the government was involved here). The notion that everyone deserves good representation in criminal work is, in my opinion, the bedrock of our criminal justice system. I don't think attorneys really have much of a duty to represent unpopular clients in other arenas (continuing to represent is a whole nother ball game).
I guess that's a long-winded way of saying I think Professor Lindgren's analogy only works for those who draw the line of when you should represent unpopular clients exactly where he does, and for the same reasons. As every attorney has different ideas, I would guess that encompasses a set of 1 or not much more.
3.16.2006 10:09pm
Kovarsky (mail):
By the way, before people get on their First Amendment high horse (Saddam), this is a neutrally applicable law. It's nowhere near being a First Amendment violation. Otherwise neutrally applicable laws that disproportionately but incidentally burden religious organizations or outlooks are constitutional, except educating Amish children (really - that's the exception).
3.16.2006 10:19pm
Kovarsky (mail):
Bob Loblaw,

Take back what you said about the Pet Shop Boys.

Lee
3.16.2006 10:27pm
Houston Lawyer:
I guess it won't be long before the Catholic church is prosecuted for the hate crime of disapproving of homosexual conduct. That gay priest thing worked out so well for them.

I see little evidence of tolerance from those advocating that homosexual conduct must be treated the same as heterosexual conduct. Resistance is futile, you will be assimilated.
3.16.2006 10:36pm
Guest speaker (mail):
"Neutrally applicable" seems a bit of semantics (Kovarsky) especially when it is applied to Catholic or Muslim charities in ways that violate their respective tenets. For instance, San Francisco's "neutrally applicable" (which is just a way of saying it applies to everybody without regard to their religious beliefs) laws seek to force the Church to provide insurance to same-sex partners, when sexual activity between same-sex partners violates the tenets of the Catholic faith. Hence from a religious charities' perspective "neutrally applicable" is seen for what it is, semantics which covers up religious discrimination.
3.16.2006 10:36pm
JosephSlater (mail):
I too am with Bob Loblaw on everything except the Pet Shop Boys (solidarity, Kovarsky).

Beyond that, the article really pumps up the rage by saying "words like picket and boycott were thrown around." But what did the students actually do?

"Instead of an actual boycott, a representative of the students met with Ropes &Gray's managing partner. That seems to have been enough to send Ropes &Gray running for cover."

Oh no, one student representative met with a managing partner to express the group's concerns! The term "snot-nosed punks" seems far too kind for such dangerous radicals. Laywers not only have a duty to represent everybody in any kind of case that walks in the door, law students can never even say that they might not want to do certain kind of work to a prospective employer!
3.16.2006 10:39pm
The Original TS (mail):
What about one that refused to place children with mathematician couples (too nerdy)? Or Libras (too indecisive)? Or Pet Shop Boys fans (bad taste)?

The first two would be reprehensible, but I'm totally down with the Pet Shop Boys thing.

There ought to be limits to freedom.
3.16.2006 10:50pm
Jutblogger:
For anyone who felt that Gail was wrong once she said that the firm, if considering firing the client before the threat, should have continued representing after the threat, I must disagree with you, and agree wholeheartedly with Gail.

The practice hinges on reputation. Obviously, the firm knew at the beginning of the representation what the possible consequences of such would entail, including to its reputation. it's not like the students informed the firm about what the client was looking to resolve. so, if you had some unrelated objection to representing the client, but then got some "snot nose" threat to not represent them, i think it would behoove any firm to make sure it didn't appear that some "snot nose" law students bullied a law firm into not representing someone.

at the end of the day, clients pay your bills, not law students, so if clients start learning that law students can tell when to represent people (most importantly, even AFTER YOU HAVE AGREED TO REPRESENT THEM IN THE FIRST PLACE), well then, they'll say, if i have a controversial issue, i'm not bringing it to that firm. it's called legal marketing, and it matters.

you don't like doing controversial cases, don't slide the retainer across the table. once they agreed to represent the client for the reasons it did, it could not reasonably or in good faith fire the client for the substance of that representation without losing face, as i strongly believe most practicing lawyers (and not "snot nose" law students) in the region believe it did, including Gail.
3.16.2006 10:57pm
Kovarsky (mail):
Fellas,

"Neutrally applicable" is not my term; it's the Supreme Court's. There's also an exception for laws that although neutrally applicable on their face, appear motivated to hinder a particular faith. Unfortunately, this law is nowhere near the planet of the laws the Supreme Court might consider unconstitutional on these grounds.

Are laws that dont' stop math class for Muslims to pray 5 times a day invalid? How about laws permitting electricity between sunset on Friday and sunset on Saturday? Or those permitting slaughtering of cows for food? Or those prohibiting the use of peyote?

So no, not only is the "neutrallly applicable" idea one that is thoroughly encoded in the DNA of First Amendment Religious Liberty jurisprudence, but it also makes sense. Massachussetts doesn't give a shit about the fact that the adoption service is Catholic (it's Massachussetts!!); it does care about the fact that there are potentially viable homes that would be excluded from consideration on the basis of sexual orientation. Now the legislature made a judgment that such discrimination, at least with respect to child placement, is not such a good idea. The law targets conduct, not religion. There may be a view or assumption implicit in that law that YOU disagree with, but that is not the same as the law being unconstitutional, or even illegitimate in any way. Whatever the concerns about "sinful" living, those concerns lost in the Mass. legislature. Unless you can find some meaningful constitutional objection (and there doesn't appear to be a First Amendment one), it's just tough luck for those of you or us that think gays live in sin.
3.16.2006 11:00pm
Jutblogger:
funny thing is, some of you think this was posted on the VC to discuss the underlying controversy, as opposed to the fact that it appears a law firm was bullied by law students to end representation of a client, and the ethical and professional issues that it entails.
3.16.2006 11:03pm
Guest Speaker:
The law firm issue was not as interesting as the fact that, as Kovarsky pointed out, the U.S. Supreme Court has discovered "neutral applicability" somewhere in the penumbras and emanations of the Constitution, right over there next to Roe v. Wade and the "constitutional" right to dismember your living child.
3.16.2006 11:23pm
Jutblogger:
Guest Speaker,
considering the inanity of judges i see every day, the law firm issue was way more interesting than the shock (!) that judges could create such reasoning.

i'm guessing you've never seen a judge say something wasn't hearsay because the witness was present to testify about it in court.

different perspectives i guess.
3.16.2006 11:31pm
Nobody (mail):
Ropes and Gray has at least one openly gay partner--and perhaps more. Maybe the firm just didn't want to represent homophobes. Particularly on a pro bono basis (assuming this was a pro bono representation.)
3.16.2006 11:55pm
Kovarsky (mail):
Guest Speaker,

You might be suprised to learn that most constitutional rules do not restate the plain text of the constitution. You might, for example, find such rules embedded in equal protection, privileges and immunities, due process, and unreasonable search and seizure doctrine. It's a "motif" in the newfangled constitutional interpretation.

In fact, most of what we think of as constitutional law can't be immediately gleaned from the text of the constitution. I'm inferring at this point that you are not really seeking to engage this topic substantively, but are instead using it as a vehicle to convey your embittered impression of constitutional interpretation.

You might be surpised to know that the law of "neutral applicability" of which you speak so derisively is a rule crafted to prevent judges from striking down laws on constitutional grounds. So, we appreciate that you disagree with viewpoint apparently favoured by the Mass legislature, but that does automatically qualify "it" (whatever "it" is) as a Roe type rule. Please feel free to expound on your specific view of how the government is supposed to reconcile its authority to enact a variety of laws with the fact that those laws will invariably and incidentally disadvantage certain social groups. When you are so expounding, please explain why your rule is less made up and more rooted in the meaning of the First Amendment than whatever those silly people on the Supreme Court have come up with.
3.17.2006 12:25am
Kovarsky (mail):
Jutblogger,

funny thing is, some of you think this was posted on the VC to discuss the underlying controversy, as opposed to the fact that it appears a law firm was bullied by law students to end representation of a client, and the ethical and professional issues that it entails.

I think much of this thread has actually demonstrated that this is not what happened.

Lee
3.17.2006 1:34am
Gail Heriot:
I've tried to respond to your comments (or at least many of them!) here.



3.17.2006 3:16am
Kovarsky (mail):
Gail,

Thanks for responding, but the hyperlink is not working!

[MODERATOR: Now it is in the comment above.]
3.17.2006 3:31am
SLS 1L:
I don't think Catholic Charities is an "unpopular" client in any meaningful sense of the term of the word "unpopular." As Kovarsky points out above, everyone is unpopular among some sufficiently small population. Did I miss the memo that said Harvard's gay and lesbian groups are the new popular kids, so all of us have to dislike what they dislike in order to remain cool?
3.17.2006 3:59am
raj (mail):
Heriot's position is ridiculous. Harvard Law School students have a right to free speech, just like everyone else. They were exercising their free speech rights in protesting Ropes &Gray's representation of Catholic Charities. If R&G declined to represent CC after the HLS students exercised their free speech rights, that is R&G's business.

Of course, R&G does have an ethical obligation to continue representation of CC in connection with matters that it has undertaken in court, unless and until it obtains the permission of the court to withdraw. But otherwise there is no obligation for R&G to continue representation of CC.
3.17.2006 4:56am
Public_Defender:
There is a difference between after-the-fact representation (like we criminal defense lawyers do) and work that helps a client do evil things (like keeping qualified parents away from kids lost in the foster care system just because of the client's institutional bigotry against gay people).

For a criminal defense lawyer's work to be comparable to R&G's former work, we would have to be advising our clients about how to commit a rape so that they wouldn't face legal consequences.

In this case, there may have been some other reason R&G withdrew, even as mundane as a disagreement over fees. If that other reason reflects poorly on the firm's client, then the firm is doing the right thing by keeping quiet. Even if the firm withdrew because it was repulsed by its client's bigotry, keeping quiet is a way to minimize damage to the client. That's exactly what a lawyer is supposed to do when withdrawing.
3.17.2006 5:38am
Cornellian (mail):
Whatever the concerns about "sinful" living, those concerns lost in the Mass. legislature. Unless you can find some meaningful constitutional objection (and there doesn't appear to be a First Amendment one), it's just tough luck for those of you or us that think gays live in sin.

To borrow a phrase popular in conservative circles, "elections have consequences", yes even state elections. Considering the adoption agency's own governing board of lay people voted 42-0 to continue placing children with same-sex couples, I wouldn't be on the Catholic Church's being able to persuade anything like a majority of the Massachusetts electorate anytime soon.
3.17.2006 6:33am
Cornellian (mail):
The law firm issue was not as interesting as the fact that, as Kovarsky pointed out, the U.S. Supreme Court has discovered "neutral applicability" somewhere in the penumbras and emanations of the Constitution, right over there next to Roe v. Wade and the "constitutional" right to dismember your living child.

Ah, those darn liberal judges ignoring the plain text of the Constitution. So tell me, where did you invent the principle that the First Amendment applies to the state of Massachusetts at all, since the text of the First Amendment refers only to Congress and not to the states?
3.17.2006 6:36am
o' connuh j.:
Raj's position is ridiculous. Gail Heriot has a right to free speech, just like everyone else. She was exercising her free speech rights in protesting Harvard students' protestations of Ropes &Gray's representation of Catholic Charities. If GH decided to criticize HLS students after the HLS students exercised their free speech rights, that is GH's business.

Of course, Raj does have an ethical obligation to continue bloviating on GH in connection with matters that GH has undertaken on the Coast, unless and until he obtains the permission of himself to withdraw. But otherwise there is no obligation for Raj to continue missing the point.
3.17.2006 6:51am
Josh_Jasper (mail):

Really, would we be having this discussion if it was the world church of the creator and black/mixed race couples?


If it were 50 to 60 years ago, we probably would.

How many years ago was it that Mormons didn't allow black people as clergy? The policy as in place until the 1970's I have no idea wha the policy they had on mixed race adoption was, but really, it's not too much of a stretch to guess that they were against it.
3.17.2006 6:59am
nobody_you_know:
Sorry if this has been commented on already, but what exactly is the definition of unpopular? Unpopular with one small segment of law students? Could a Catholic organization in Boston seriously be called unpopular?
3.17.2006 8:02am
Jutblogger:
"I think much of this thread has actually demonstrated that this is not what happened.

Lee"

the fact that most people here do want to discuss this in terms of what the underlying controversy was bodes ill for the future of clients who do need representation on an otherwise controversial issue. it shouldn't matter whether they were asked to do research on any particular subject, except a future criminal activity. most corporate law firms specialize in giving advice on how a corporation should proceed with, say, a termination, in regards to whether it would violate Title VII. is that reprehensible? perhaps morally for some, but the fact is, they signed the retainer, and they can't at some later point, in good faith, say they just realized how bad the idea really is and fire the client. of course you have the right to do it, the students have the right to complain, but your future clients have a right to go across the street.
3.17.2006 8:02am
Public_Defender:
With some rare exceptions, a lawyer has the right to demand that clients treat him with respect. The church has a legal right to spew its anti-gay garbage, but just as a black lawyer doesn't have to tolerate a client who calls him "nigger," a gay lawyer doesn't have to tolerate a client who calls him "inherently disordered."

Yes, there are admirable examples of Jewish lawyers representing Nazis, but nothing compels a lawyer to work for a client who spews bigotry toward him.

One factor in deciding whether withdrawal is ethicical is the availability of other counsel. Since there are many, many lawyers willing to represent the church, I see nothing wrong with one law firm declining to help further the church's bigotry.
3.17.2006 8:07am
Jutblogger:
Public_Defender,
sure, but don't contract then with them and pretend that you just learned how "evil" their position is. Yes, you have a right to do it, but it's bad practice and is bad for your reputation. You can't stick it out with someone you committed to represent, under the pressure of law students, no less. that's not a very good thing on the "streets," so to speak.
3.17.2006 8:15am
Public_Defender:
Jutblogger,

Fair point. But even though the modern church has always been suspicious of gays, the heat of its rhetoric and its actions on the ground have escalated dramatically over the last ten or twenty years.

Also, in a firm, every lawyer doesn't pay much attention to what other lawyers are doing. It's possible that the law students brought this issue to the attention of other partners. It's also possible that the firm had previously done work for the church, but that this was the first time the firm was asked to advance the church's anti-gay position.

I understand that lawyers must sometimes stick it out with difficult clients. That's part of my job. I've been the fifth lawyer on a case more than once (meaning my client has fired four lawyers before me). I've even had to stick it out on cases after the client "fired" me but the judge denied my motion to withdraw.

That said, I would never help a client to injure someone else. That's what the church asked R&G to do.

If the church had no other options for legal counsel, I would probably take a different position. But here, the church has plenty of other lawyers to choose from.
3.17.2006 8:36am
Erik H.:
I'll just point out that while I personally find the CC's stance personally distasteful, the calculus posited by some here is wrong. You are simply not analyzing the "for the child" part correctly.

Some seem to think the correct question involves looking at a child in CC care, and evaluating whether it is appropriate to place him only with hetero couples. The answer is obvious: increasing potential adoptors can only benefit adoptees. But the question poses a false dichotomy; it incorrectly assumes that the CC stance is malleable: that a "no" would result in a change in CC behavior. This is surely not the case.

Rather, the question is this: "Is a child in CC care, who is limited solely to adoption by hetero couples, better off than a child in non-CC (state) care?" And while I fully support gay rights, I believe the answer may be "yes". Nonetheless it may be necessary to avoid CC for Constitutional or state law reasons, but I think the best interests of the children involved might weigh on the other side.
3.17.2006 8:52am
Hovsep Joseph (mail) (www):
As an entity with more than a billion voluntary members, the Catholic Church cannot reasonably be considered an "unpopular client" in the mold of a serial murderer or a vigilante white supremacist. On the contrary, there are few organizations with greater access to legal representation.

The better analogy is to a client like the Boy Scouts, a large, mainstream, rich organization that becomes higher profile due to its decision to step up enforcement of its preexisting ban on gays or atheists. When rich and powerful organizations like the Boy Scouts or Catholic Church take outspoken political positions on controversial issues, these political positions are legitimately attributed to the lawyers representing them because the public knows that the lawyers are getting paid for their representation and they have a choice as to whether they want to represent them. On the other hand, a firm's potential employees and clients do not necessarily make the same kind of attribution to a lawyer representing someone who would have difficulty finding other representation.

So, at the end of the day, I'm sure this was a rational decision based on weighing the costs and benefits of continuing to represent a client that would affect the firm's reputation in the mind of people who would consider working for or hiring a firm like Ropes &Gray. Some firms might come out the other way based on their employee/client base or their reliance on the income from the particular client. But I don't think any maxim of legal ethics should condemn a firm's economically rational decision to forego work for a client who has taken on a high-profile political position that many of its clients and associates object to.
3.17.2006 10:14am
Hovsep Joseph (mail) (www):
Regarding comments on the potential harm done to adoptees by the R&G's departure, that should only enter the calculus of firm's decisionmaking if the firm's decision to drop the work deprives CC of the ability to find other counsel. Whether the laws or constitution of Massachusetts regarding gay adoption benefit or harm adoptees is a separate question that is not within R&G's duty or ability to resolve by representing CC.
3.17.2006 10:32am
pct:
It may be useful to read the actual Globe article, here, rather than only Heriot's colorful summary. Lambda, the school's group for gay, lesbian, bisexual, and transgender students, was apparently threatening to disrupt Ropes and Gray's recruiting at Harvard Law, not merely refusing to take jobs there themselves. "Lambda members discussed staging protest rallies when Ropes arrived on campus this fall to recruit new associates, stationing themselves outside interview rooms to tell entering students about the firm's work for Catholic Charities, or signing up for interview slots and using the time to voice their dismay"

Although Ropes had "...done pro bono work for Gay and Lesbian Advocates and Defenders and filed a friend of the court brief in Goodridge v. Department of Public Health, the case that legalized same-sex marriage in Massachusetts in 2003," this action did not immunize them against Lambda, which is apparently not interested in diversity of viewpoints.
3.17.2006 10:47am
Cornellian (mail):
Lambda members discussed staging protest rallies when Ropes arrived on campus this fall to recruit new associates, stationing themselves outside interview rooms to tell entering students about the firm's work for Catholic Charities, or signing up for interview slots and using the time to voice their dismay

Other than signing up for R&G's interview slots, how is any of that something other than ordinary free speech?

this action did not immunize them against Lambda, which is apparently not interested in diversity of viewpoints.

Given the earlier part of your quote, it would seem that Lambda is intensely interested in other viewpoints. They don't agree with CC's viewpoint, but that's hardly the same as not being interested. Given that CC is effectively telling them they're not fit to be parents, I can hardly blame them for strongly disagreeing.
3.17.2006 11:11am
Hovsep Joseph (mail) (www):
pct,

I can't speak for the HLS gay student group, but I would guess they are as interested in "diversity of viewpoints" on an adoption agency's determination that gay couples are unfit to adopt as much as the Jewish student group is interested in "diversity of viewpoints" on an agency's refusal to let Jewish couples adopt.

I'm sure there are people who genuinely think that letting gay or Jewish couples adopt from a Christian adoption agency is endangering the adoptees' souls. They are entitled to their point of view, but they should expect to find some hesitancy among law firms when they seek representation. And they certainly should expect that gay and Jewish lawyers and law students will not want to work for them (and that's what the gay law students would have been expected to do if they work for R&G).
3.17.2006 11:33am
CJColucci (mail):
I think the following would be useful to know before commenting:
1. What kind of work R&G had been retained to do for CC
2. Whether CC wanted to retain R&G for other kinds of work in addition to or instead of past work
3. Why R&G and CC split up as lawyer and client
4. Whose ideas it was
3.17.2006 11:50am
Blue:
There is a difference between after-the-fact representation (like we criminal defense lawyers do) and work that helps a client do evil things (like keeping qualified parents away from kids lost in the foster care system just because of the client's institutional bigotry against gay people)."

It never fails to amaze me that a person like Public_Defender who is willing to defend the most heinous deeds done by the worst members of society can turn on a dime and denounce others for being "evil" over a difference of opinion on moral issues.
3.17.2006 12:17pm
what you are missing:
What you missed is that Ropes &Gray markets itself to law students as very gay friendly. They spend a lot of recruiting (had a CD-ROM, special website, etc) and one of their pushes is diversity (including LGBT issues). It is not like Harvard Lambda was attacking Gibson Dunn or Kirkland &Ellis for taking on something like this -- it was just noting that if a group wants to be seen as gay friendly (R&G had worked on the marriage case) that it needed to not do this with Catholic Charities. Incidentally, the group only objected to this aspect of R&G work with CC.

As an analogy, imagine a law firm that wrote amicus briefs for pro-life groups. Then one day it is helping out Planned Parenthood with a lawsuit to strike down an abortion restriction. I am sure conservative/pro-life students would be mad at that law firm.
3.17.2006 12:26pm
Per Son:
what you are missing:

To piggyback on your comment, many conservatives are opposed to Maurren Mahoney being a Justice because she argued on behalf of the University of Michigan in Grutter v. Bollinger. Thus, chastising her for representing a particular client (and quite well, I might add!).
3.17.2006 1:07pm
The Original TS (mail):
It never fails to amaze me that a person like Public_Defender who is willing to defend the most heinous deeds done by the worst members of society can turn on a dime and denounce others for being "evil" over a difference of opinion on moral issues.

Blue,

Sigh

You don't get it. When Public Defender steps into court to defend someone accused of being a child-molesting ax-murderer, he's not so much defending a child-molesting ax-murderer as he is defending you.

If history teaches us anything it is that it is unwise to rely on the benevolence of the government, any government. People like Public Defender keep the government honest.

People like Public Defender also work to keep the system fair. The way the system works, the prosecution pushes as hard as it can in one direction and it is up to the defendant and his lawyer to push back. Even a guilty person is entitled to a fair sentence and a fair procedure. Not every guilty defendant ought to automatically get the maximum possible sentence.

Finally, just once in a while, people being accused by the system aren't guilty. This is where you come in. Ever hear of the McMartin preschool case? This could have happened to you. It could have happened to anybody. There are also, unfortunately, many, many instances of prosecutors or prosecution witnesses cutting corners because they "know" someone is guilty.

The system isn't perfect but people like Public Defender fight every day to make it better. They do their best to make sure that zealous prosecutors don't go over the line, that witnesses tell the truth, that the system only convicts those who really are guilty. Sadly, they're not always successful and it is often a thankless and demoralizing job. Nobody will ever make a TV series about the glamorous and thrilling life of a public defender. It's not something you brag about at cocktail parties.

But it's absolutely necessary work. Public Defender and those like Public Defender don't defend individual clients to much as they defend the integrity of the system. I wouldn't do it. I couldn't do it. But those who are willing to do it have my respect and my thanks.
3.17.2006 1:07pm
Hovsep Joseph (mail) (www):
Blue,

I think you missed Public_Defender's point, which was that there is a big difference between doing criminal defense work for a client who is accused of having done something reprehesible before the lawyer was involved and a lawyer helping a client continue to do things that the lawyer considers reprehensible. The comparison is not between the relative "evils" of the crime a defendant may have committed and the anti-gay policies of an adoption agency. The comparison is between the lawyer's role resolving an "evil" from the past versus the lawyer's role in perpetuating an "evil" that is still occuring.

The issue in this post isn't about whether it is moral/ethical for a law firm to do work for CC. That's up to each lawyer's personal convictions. No one is saying that R&G <i>must</i> cease representation because representing CC violates legal ethics. I believe the issue is whether R&G <i>may</i> ethically cease representation. And the answer to that clearly is yes.
3.17.2006 1:08pm
Public_Defender:
It never fails to amaze me that a person like Public_Defender who is willing to defend the most heinous deeds done by the worst members of society can turn on a dime and denounce others for being "evil" over a difference of opinion on moral issues.
Sometimes a difference is really a difference. I argued that the following two actions are morally different:
1) defending someone after they have committed a wrong to make sure they don't get punished more than the law allows;
2) helping someone to commit the wrong in the first place.
That seems like a fair distinction to me.

For example, I think the lawyers defending tobacco companies against liability suits are just doing their job. But the lawyers who helped tobacco companies to lie about the dangers of the product were scum.

What-you-are-missing has a good point--firms should be allowed to pick a side in a fight. The example he or she provided is great. Would it be unethical for a firm that files anti-abortion amicus briefs to turn down pro-choice work? I would hope not.

Also, if R&G regularly represents gay rights positions, arguing for the Catholic Church in this case would likely create a conflict of interest.
3.17.2006 1:14pm
Andy:
In her response (which can be found at ), Professor Heriot says, "One commentator on the Volokh Conspiracy thought that I might not respect law students, because I referred to the Harvard students involved in this case as "snot-nosed brats." No, I don't call all law students "snot-nosed brats," just those who plan to boycott law firms for representing clients they don't happen to like."

So, unless I'm grossly misreading this, the good Professor believes that gay law students shouldn't have any problem with a law firm that represents a client whom they (the students) believe discriminates against people like them. As I said in an earlier post, I'm not a lawyer, but I find this utterly unpersuasive.

The law students weren't calling for the law offices to be burned to the ground, they weren't calling for it to be illegal to represent Catholic Charities. They were simply saying, "If you choose to represent clients whom we believe are anti-gay, we will not work for you, and we will try to convince others not to work for you."

I generally have little patience with student protesters, but in this case I have to say: is there anything more American than what the Hahvahd students are saying?

Whether or not the law firm is wrong for caving in the face of a potential boycott is a separate question, and I can see both sides of that argument. But I can't see what the kids are doing wrong.
3.17.2006 1:17pm
Andy:
Oops. Here's Herriot's respone.

GET OUT OF MY HEAD, "West End Girls!"
3.17.2006 1:27pm
Kovarsky (mail):
Would those of you treating the actions of LAMBDA as though they were government action kindly stop. You might disagree with their tactics - I certainly do (you should want your adversary to have the best representation possible) - but what LAMBDA is doing is constitutionally protected advocacy. It isn't Public_Defender changing his viewpoint, it's the people attacking him.

The Code of Conduct that Heriot invokes is simply not implicated given the un-unpopularity of the Catholic Church. Her fiery rhetoric aside, there's simply no rule that you can point to that says a client like this - with plenty of potential legal representation - is entitled to be representation by R&G. And in response to Jutblogger, this is a point that has been made over and over again, and is directly germane to the original post. Nobody is trying to use this as a forum to debate the "merits" (whatever you mean by that), but you betray your own biases that you complain that the subject matter being explored is not that "R&G dumped an unpopular client because of its politics." Actually, that has been explored ad nauseum. You just seem to resent the answer.
3.17.2006 1:44pm
Another Andy (mail):
Or maybe idealistic students can switch their law school criminal clinics to working on the prosecution side

Jim, I don't know about idealistic students at other schools, but Harvard Law students do both prosecution and defense work through their clinics.
3.17.2006 1:53pm
Sydney Carton (www):
"The law students weren't calling for the law offices to be burned to the ground, they weren't calling for it to be illegal to represent Catholic Charities."

Not yet, anyway.
3.17.2006 1:55pm
Public_Defender:
The Original TS,
Thanks.
-PD
3.17.2006 1:58pm
Kovarsky (mail):
"The law students weren't calling for the law offices to be burned to the ground, they weren't calling for it to be illegal to represent Catholic Charities."

Not yet, anyway.


Damned fire-breathing hippies.
3.17.2006 2:11pm
James Lindgren (mail):
Another Andy,

Thanks for the info.

Harvard is a huge school, so it is not surprising that it has a wider range of clinics. Most law school clinics that do criminal trial work represent only the defense side.
3.17.2006 3:21pm
Another Andy:
Most law school clinics that do criminal trial work represent only the defense side.

Have you seen any numbers, or is that just your assumption? A Google search for the words prosecution clinic turns up a lot of schools a lot smaller than Harvard. Of course, a search for the words defense clinic does too, with a lot more hits. These searches aren't much of a study. But it's not obvious that your statement is accurate.

I recognize, of course, that this little detail is far from the point of your intial post or of the discussion it prompted.
3.17.2006 3:58pm
Blue:
Public_Defender-

You look in the eyes of evil every day of your working life and try to get that evil released into society. However, I understand the importance of your role to the system

What I was getting at was not that role, not directly. I was commenting on your ability to overlook the true evil in your clients and condemn as "evil" what really amounts to a difference of opinion on the appropriateness of same-sex parents adopting children.
3.17.2006 4:23pm
Paul Johnson (mail):
Nobody seems to be concerned with the ethics of the law students in interfering with the attorney-client relationship between Ropes &Gray and Catholic Charities. If they were members of the bar, they could be sanctioned for it.
3.17.2006 4:38pm
Cornellian (mail):
Nobody seems to be concerned with the ethics of the law students in interfering with the attorney-client relationship between Ropes &Gray and Catholic Charities. If they were members of the bar, they could be sanctioned for it.

Exactly what canon of ethics is being violated by a Harvard law student saying to Ropes &Gray "I will not be interested in working for you if you take up this cause, and I will take the opportunity to inform my classmates of my decision, and why." I see no ethical violation.

I remember talking to a classmate of mine once who got back from an interview with a large firm where the interviewer bragged about representing a client who had been very much in the news recently in connection with alleged use (and abuse) of sweatshop labor in the third world. The classmate was very much disinclined to work for that kind of client and accordingly disinclined to work for that firm. Maybe she shouldn't care about that sort of thing, but it's hardly unethical to do so or to make employment decisions on that basis, or to tell others why you will or won't work at a firm.
3.17.2006 4:53pm
Kovarsky (mail):
Paul,

Sure, if they were lawyers, they can't tamper with another attorney-client relationship. So what? Not only does this not apply formally (as you concede), but that formalistic distinction is there for a reason - there is no reason to believe the student's "tampering" is being done either (1) to secure that client for themselves or (2) to promote the interests of one of their clients - the two animating principles of the client tampering rule.
3.17.2006 5:08pm
Cornellian (mail):
Harvard is a huge school, so it is not surprising that it has a wider range of clinics. Most law school clinics that do criminal trial work represent only the defense side.

Cornell is not a large law school and it has a prosecution clinic.
3.17.2006 8:12pm
Kovarsky (mail):
Yeah, not to beat a dead horse, but every law school I've come into contact with has had prosecution clinics, and at the one I attended I noticed more friends in prosecution than in defense clinics.

For instance, my buddy kept locking up kids for copping a dime bag next to the 2am burger joint, which was profoundly ironic.
3.17.2006 8:26pm
markm (mail):
"there is a big difference between doing criminal defense work for a client who is accused of having done something reprehesible before the lawyer was involved and a lawyer helping a client continue to do things that the lawyer considers reprehensible." When a lawyer gets a criminal released, he enables him to continue committing crimes. You might argue that you don't know for sure that your client committed murder and that he will do it again if given enough opportunity - but how many people would be certain that CC is "evil" merely for not placing adoptees with gay couples? And if a defense lawyer is quite certain that his client is guilty, it is still his job to try to get a lower sentence, that is to shorten the time before the client will be released and able to repeat the crime.

I am not criticizing defense lawyers. As The Original TS said, they defend all of us by trying to keep the system honest. I just do not see why the same consideration should not be extended to lawyers representing allegedly "evil" clients in civil suits.
3.18.2006 9:20am
EricK:
While the law firm had the right to end their representation of CC. It did act in bad faith (no pun intended) by accepting the CC as a client and then dropping them after a small amount of pressure from some law students. Of course that statement is predicated on the fact that is why R&G dropped CC.
3.18.2006 2:10pm