At a recent debate, New York’s U. S. Senate candidate Joseph J. DioGuardi repeated his charge that Democratic incumbent Kirsten E. Gillibrand spent her early professional career at a prestigious New York City law firm (Davis, Polk & Wardwell) where she represented the world’s largest cigarette company. Gillibrand countered that DioGuardi cast pro-tobacco votes as a congressman. She also explained that, as a young lawyer, she had no choice in her assigned cases. (http://www.nytimes.com/2010/10/16/nyregion/16debate.html)
Gillibrand’s response was intriguing for two reasons. First, she fought tobacco taint with tobacco taint, rather than citing the foundational principle of our adversary system: However distasteful it sometimes seems, everyone is entitled to representation. Second, her law firm supposedly had a policy that allowed attorneys to decline work for its tobacco client. (http://www.nytimes.com/2009/04/10/opinion/10observer.html). If she didn’t avail herself of the firm’s policy, what does that mean?
Maybe nothing. Although she didn’t mention the principle that everyone deserves a lawyer, it still applies. That’s why even Liz Cheney’s most conservative colleagues with law degrees lambasted her for publicly listing current Department of Justice attorneys who represented Gitmo detainees pro bono — as if there was something wrong with providing a defense to those individuals.
To be sure, Cheney has the personal freedom to decline such representations. My former law school professor, Alan Dershowitz, defended notorious criminal defendants, but as he told my fellow classmates more than 30 years ago, “Everyone has a right to representation, but no one has a right to me.”
Every lawyer has that power to exercise a final veto. If used, someone else will certainly take up the cause. But Gillbrand’s defensive response concerning her tobacco client suggests at least a retrospective queasiness with her earlier work. If the firm gave her the right to say no, what’s the significance of her failure to do so?
Every young associate in a big firm could answer that question. Regardless of a firms’s official position, practical considerations define the limits of an associate’s willingness to say no.
Large clients’ biggest and often unpopular problems have become central to Biglaw profits. The prevailing law firm business model has reduced the number of available equity partnership slots and concentrated internal power in the relatively few who control clients and billings. For an associate, it’s only natural that a firm’s official “freedom to choose” policy would sometimes yield to the pressures accompanying a request from a senior partner who can single-handedly make or break a subordinate’s career. Partners themselves sometimes confront analogous difficulties when clients push uncomfortably close to the outer edges of what their lawyers deem permissible.
Some consequences are subtle. The resulting erosion of individual attorney autonomy has probably contributed to growing career dissatisfaction, especially in large firms where unhappiness is greatest. In today’s tight labor markets, young lawyers desperately need their jobs to repay enormous student debt and sustain themselves. Few would risk unemployment to assuage their consciences or to avoid an abusive superior. In fact, most don’t allow such rebellious thoughts to enter their heads, but maybe they should.
One of my adult children recently encountered a high school classmate who is now working in a big firm after graduating from a top law school. While contemplating the many challenges confronting the next generation, consider that young lawyer’s lament and career plan:
“I’m working too hard for clients I don’t like pursuing I causes I can’t stand and making the world worse. But I have to do it long enough to repay student loans and get experience that I can use to do something worthwhile with my law degree.”
It may not be that simple. Those wrestling with situations that burden them with genuine moral havoc — whatever its nature or origins — might be well advised to extricate themselves sooner rather than later. Life’s decisions tend to be cumulative and the consequences of earlier choices that seem inconsequential at the time can endure far beyond their originally anticipated life expectancies. Just ask Kirsten Gillibrand.