July 19, 2007

Lawyering v. Lobbying

by PG

Fred Thompson can add "attorney-client privilege" to "federalism" in his stock of responses to why he isn't marching in step with conservatives on some issues. Federalism was his reason not to support a constitutional amendment to ban abortion. (Presumably he is not among those who believe that abortion is murder of a person who deserves legal protection and that Roe is a travesty on the order of Dred Scott, as otherwise "federalism" would seem to justify not passing the 13th and 14th Amendments either). Now "attorney-client privilege" is why he can't talk about lobbying on behalf of a pro-choice organization. As Thompson made his stand on the conservative blog Powerline, let's trace this story through Powerline posts:

July 6 - John Hindraker considers the first allegations about Thompson's lobbying, and says

There is a broader point here that I find troubling. It appears that Thompson's opponents will use his career as a lobbyist as one of their significant avenues of attack. But a lobbyist, like lawyers in general, represents clients. To assume that a lawyer always agrees with the clients he represents is not only juvenile, it tends to undercut the premises on which our legal system is based. A lawyer needs to be able to represent, for example, a man accused of homicide without being labeled pro-murder.
Based on Thompson's disclosures of his earnings as a lobbyist, I take it that some of his income from approximately 1975 until around 1993 came from lobbying, and the rest from other kinds of legal work. For someone who knows how things are done in Washington, lobbying may well be the most valuable use of his time. Lobbying is an honorable profession: legislators and regulators can't possibly research, ab initio, all of the myriad issues they are called on to address. Of necessity, they rely in part on parties who have the expertise, and, equally important, the interest to lay out facts, make arguments, and try to sway them to their point of view. This is an essential part of the democratic process, and a good lobbyist makes a valuable contribution to our legislative system, just as a good lawyer makes a valuable contribution to our judicial system, no matter what clients he represents.
The idea that attorneys should not be attacked for representing dubious clients in litigation is an old one; because of our adversarial system, each side should be able to get the best lawyers it can obtain, and especially in criminal matters, a decent defense is imperative. The defense attorney may not believe that his client is innocent, but he still needs to present his case and attack the government's.

Expanding this axiom to lobbyists is a somewhat novel move on Hindraker's part. It is not quite analogous, because Hindraker posits that the lobbyist works to inform the "judges" of the dispute, i.e. the legislators and regulators, rather than to defeat the arguments of the other side. This makes it sound more like the Continental system, particularly in arbitration rather than litigation, where the supposed goal is to uncover the truth. Nonetheless, an underlying premise of Hindraker's comparison is that like all parties to litigation, all who seek to change government policy should be able to obtain representation, and that those who represent them should not be faulted for the content of the positions they advocate.

I find incredible that Hindraker really believes this. If I lobbied on behalf of NAMBLA to inform state legislators of the developmental needs of LGBT adolescents that would make lowering the age of consent a good idea, I doubt that Hindraker would consider me an essential part of the democratic process who ought not be tarred with my client's pedophilic brush when I ran for office. However, if I were defending a Catholic priest against accusations of child molestation that everyone believed were true, a zealous advocacy on his behalf would be required by professional ethics.

July 11 - Powerline publishes Fred Thompson's response. I quote the part that appears to be making an argument:

Likewise during the Roberts confirmation, the New York Times reported on August 5, 2005 that as an appellate lawyer in the mid-1990s, Roberts gave advice to a gay-rights group that helped them win a 1996 anti-discrimination suit. Chief Justice Roberts had no direct hand in the suit. Rather, colleagues at his firm were handling the case and sought advice from a number of partners, him included. The group said that Chief Justice Roberts provided “invaluable strategic guidance” formulating legal theories.

I’ve experienced another gambit of those schooled in the creative uses of law and politics: dredging up clients – or another lawyer’s clients – that I may have represented or consulted with, and then using the media to get me into a public debate as to what I may have done for them or said to them 15 or 20 years ago. Even if my memory serves me correctly, it would not be appropriate for a lawyer to make such comments.

This situation does however bring to mind my many years in the law, and the nature of law practice in a country such as ours that prizes independence and individual rights. Of course, these values could not be protected without lawyer-client confidentiality or if lawyers were identified with the positions of their clients.

As an idealistic teen-ager I could think of nothing more inspiring than the notion of representing a just cause against the most powerful forces in the country, including the government. I’ve had a chance to do some of that. It’s fair to say that not all of my clients have been so praiseworthy. Some were, indeed, accused of crimes. Some were convicted against my best efforts.

The practice of law is a business as well as a profession. It’s the way you support your family. And if a client has a legal and ethical right to take a position, then you may appropriately represent him as long as he does not lie or otherwise conduct himself improperly while you are representing him. In almost 30 years of practicing law I must have had hundreds of clients and thousands of conversations about legal matters. Like any good lawyer, I would always try to give my best, objective, and professional opinion on any legal question presented to me.

Thompson does not mention lobbying in this passage, only lawyering. The sole mention of lobbying is buried in one sentence: "I’ve had the opportunity to help small farmers in Tennessee, the Chief Justice of the United States, previously mentioned, and several folks in between, as well as a half dozen or so lobbying clients."

Certainly lobbying would complicate the statement that "if a client has a legal and ethical right to take a position, then you may appropriately represent him." Legally, under the First Amendment, we all can take whatever political position we want as long as it doesn't advocate the violent overthrow of the U.S. government. Hindraker might counter my example by saying that NAMBLA lacks the ethical right to take the position it does, but I don't understand how this is different, in the eyes of someone who thinks abortion is murder and should be illegal, from Thompson's client's position that clinics counseling people toward abortion should be eligible for federal funds. Statutory rape generally gets a shorter prison term than murder, which would seem to indicate that we find the latter more immoral.

The distinction between lawyering and lobbying that Thompson collapses is noticeable when one compares Roberts's work for a pro-equality group with Thompson's for the pro-choice group. Roberts gave advice about the law and how it could be applied for a cause in which he may not have believed. Thompson, by contrast, met with administration officials to convince them that the abortion-advising clinics should get the government's money. Moreover, litigation is clearly part of the practice of law and thus communications, matters, or acts of an attorney engaged in litigation obviously require attorney-client confidentiality. Lobbying, on the other hand, is not the practice of law.

July 18 - Hindraker posts in response to a New York Times article:

But the bottom line is that there is nothing here: a lawyer represents all kinds of clients. This particular representation, on Thompson's part, amounted to very little.
What's interesting, I think, is that the news outlets that are pushing this story are not conservative. They seem to think that the story will somehow discredit Thompson among conservatives, presumably because conservatives are too dumb to understand how law firms and the legal process work. The appropriate response from the right would be, I think, a yawn. So far, that's what we've seen.
I realize that unconstrained campaign contributions and massive lobbying corps enjoy a better reputation among Republicans (except for McCain) than they do among many Democrats, but I still am surprised that conservatives are so role-specific that as long as I tell them I am a lawyer, whatever I'm doing for someone I call a client will be OK'ed as "how law firms and the legal process work." Of course, one can register on Capitol Hill as a lobbyist without ever having been a lawyer -- I would be unsurprised if Tom DeLay, former exterminator, resurfaced as a lobbyist -- so perhaps only lawyer-lobbyists receive a pass for advocating policies that are opposed by those whose votes they later seek. I don't know whether lawyer-lobbyists get to invoke attorney-client privilege against testimony for their lobbying clients, while non-lawyer lobbyists would have to testify.

Personally, I thought conservatives weren't so dumb as to believe that law firms only engage in work that requires a JD. But I expect Hindraker knows the breed better than I. Incidentally, somehow none of the three Powerline posts I read -- neither Thompson's nor Hindraker's -- about the nobility of the legal and lobbying professions mentioned John Edwards and the attacks from the right on his career as a plaintiff's attorney.

July 19, 2007 01:04 AM | TrackBack
Comments

To the extent that the purpose of lobbying is to change existing law, it makes some sense that one would want to hire a lawyer to carry it out, although obviously the First Amendment prevents lobbying from being exclusively the province of lawyers.

Edwards' work as a civil plaintiff's attorney would fall somewhere in the middle of your analysis, right? There's no right to counsel in a civil case like there is in a criminal case, so there's much less of an ethical imperative and more of a wholly voluntary aspect, and yet civil litigation is restricted to lawyers in a way that lobbying is not, so the ethical notion of taking even clients with whom one does not self-identify does have some resonance.

Posted by: Tom T. at July 19, 2007 05:22 PM

I'm not sure why lawyers qua lawyers necessarily are the best people to carry out the job of lobbying. Has anyone done an empirical study of whether statutes drafted by legislators who are attorneys have been better in any formal sense (i.e. clearer, fitting better with existing law, more likely to state whether intended to override prior statute, regulation or caselaw) than statutes drafted by non-lawyers? From what I have seen, we get some real crap in legislation, including legislation essentially written by lobbyists. So I'm not sure why one would favor a lawyer except for lawyers' being more likely to have a gift for bamboozling people into doing what they want. I would put DeLay and many other non-lawyer politicians up against most lawyers for that. I suppose there is the attorney-client privilege that Thompson invokes. If I'm doing wide-ranging discovery during litigation with a tobacco company and I want to know what they were lobbying Congress about, a lawyer-lobbyist might be able to cry privilege where an exterminator-lobbyist could not.

I don't think conservatives' problem with Edwards is that his clients were somehow distasteful people. There's a reason why the tort deformers generally attack trial lawyers instead of their clients, and it's similar to why the anti-legal abortion lobby generally attacks abortion providers rather than recipients: picking on the vulnerable makes one look bad. So instead of recognizing that neither doctors nor lawyers are dragging people into procedures or lawsuits, the critics ignore the clients' culpability for wanting to abort/ sue in the first place.

Edwards's clients included families whose children were dead or severely disabled. Sympathetic people, surely. The trouble came with the families' desire to punish the physicians for the children's problems, when the physicians had not been clearly negligent and the theories given to the juries rested on unsettled scientific claims. I don't think anyone has plausibly claimed that Edwards consciously lied to a jury, but some of the theories have since been decisively discredited, and Edwards's opponents believe that he should not have advanced uncertain theories, nor used emotional tactics.

I agree with the professional ethics codes that if an attorney agrees to take someone's case, she must advocate zealously. If she doesn't believe she can do that, she shouldn't take the case. (Obviously public defenders and court-assigned attorneys are a little different, because they don't have much choice in individual clients, but that wasn't the situation for Edwards, Thompson or Roberts.) And the same is true for a lobbyist.

But not every political position ought to get zealous advocacy. Some positions are bad and immoral; some things are not legal for good reason and a decent person should know that and not attempt to make them legal. Roberts can say, "Well, a constitutional argument for the anti-discrimination law is..." Lobbyists don't use just dispassionate written arguments; they get on the phone, they go to the Hill, they use their contacts and their ability to get facetime with important people. Lawyers' arguments are equal before a judge; lobbyists' lobbying is not equal before a government official. I think that using those highly personal tools to advance a political cause one finds abhorrent is strange.

Posted by: PG at July 19, 2007 11:59 PM
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