OR PHONE (866) 635-1838 for Bankruptcy Help, (866) 635-6190 for Divorce,
(866) 635-2689 for Personal Injury or (866) 635-9402 for Criminal Defense

Find a Local Lawyer

Close This Box!

I agree with Sandy on one thing: Senator Gillibrand's response to the story is weak.  In the story, she says through her people that she had "little control over the cases she was handed," and says focusing on her work for Philip Morris "would not reflect the range of her work as a lawyer, which also included representing pro bono clients."  There are two problems with this.  The first is that her firm apparently allowed associates to decline work on the tobacco cases.  I admit to having problems with this rule, which other firms have had.  The ethical rules already require lawyers, most certainly including junior associates, to decline representation in cases in which they have a serious conflict of interest brought on by personal views.  Carving out a specific "permission" with respect to the tobacco cases alone, as some big firms did, is thus both redundant and a fig-leaf, a public relations gambit that helps them recruit young associates with a somewhat glorified and untutored sense of moral self, allowing them to feel good about declining these few cases while taking on work that might be every bit as disturbing.  These firms ought to have had a blanket rule or none at all.  But in any event, it strips Gillibrand of her excuse that she "worked for the clients that were assigned to her."  (Nor would it be an excuse if she felt pressured to take the case; working at a big firm is not worth one's sense of integrity, and she could always have quit.)  Second, the story suggests she spent a good deal of time on this case, so I don't see what's unrepresentative about it; did she really spend an equal amount of time on pro bono cases?  (I might add that this also shows the ways in which big-firm pro bono work, whatever other value it may have, also serves as a fig leaf, and a vehicle by which top students with a tendency toward high moral dudgeon can be recruited to top firms without having to face up to whatever cognitive dissonance they ought, by rights, to be experiencing.)

Beyond that, though, I think Levinson is at least intemperate, and more likely simply wrong.  There is no doubt that some specific actions undertaken in the legal representation of the tobacco companies was troubling.  But it seems to me that most of that work came earlier, both in the temporal sense and in the sense that it came at the counsel stage rather than the litigation stage.  Defending companies against high-stakes class action litigation, even the tobacco companies, does not seem to me to be morally reprehensible as such.  Certainly that representation need not be carried out in a morally reprehensible fashion -- and none of the evidence in the story suggests that Gillibrand did so; only that she was heavily involved in the work.  Levinson treats her as nothing more than an opportunist.  He has no evidence for this charge.  Gillibrand could as easily have believed that the class actions were legally faulty, or that these were valuable cases in which to serve the process of justice on either side of the bench.  If, on the other hand, she was motivated by nothing more than the desire to do well on the cases she took on and succeed as a big-firm litigator, I still do not think this says very much, unless Levinson is saying that any big-firm litigator who fulfills his or her role in a perfectly honorable fashion should not serve in the Senate.  Perhaps he thinks only public-interest lawyers should serve as candidates; if so, he could fairly ask whether none of them ever operate for opportunistic reasons at times -- say, the desire for future political office.  His argument that any votes she cast against the tobacco companies in Congress should be discounted unless she experienced a "conversion" assumes that she must have loved the tobacco companies in the first place.  But this mistakes the usual nature of the relationship between lawyer and client, or at least mislays the possibility that she served her client for reasons having nothing to do with personal sympathy; maybe her votes in Congress are a more telling indicator of her policy views on these issues now that she is freed from her role as an advocate.

Finally, the comparison with John Yoo, which is largely a rhetorical point, strikes me as unsuccessful.  Most people, including me but also including some of Yoo's thoughtful conservative former colleagues, were troubled by the quality of Yoo's work and the question whether he provided the sort of analysis he was obliged to give or whether he instead offered questionable advocacy when he should have provided careful counsel.  His motives, in this sense, are less important than the work he did; if he wrote shoddy memos out of "patriotism," or love of torture, or love of the administration, they would still be shoddy.  On the other hand, a person could well have worked on these sensitive issues in the Bush administration, and taken positions I might not share, but still do so in a thoroughly honorable fashion.  Unless Levinson is saying that there is never a distinction between the lawyer and the client he or she represents, I just don't see the comparison between the two; if he is saying that, on the other hand, I tremble for the criminal defense bar, among other sectors of the legal profession.