Professional Responsibility

A well-established law firm in Washington, D.C., Covington & Burling, for many years represented South African Airways. Before Nelson Mandala became President of South Africa and before apartheid was ended, the law firm decide to discontinue its representation of South African Airways. [David E. Sanger, "Law Firm Drops South Africa Client," New York Times, October 4, 1985, p.D1, c.3.]

The news accounts of Covington & Burling's decision resulted in a spate of opinion editorials and letters to the editor in both the New York Times and the Washington Post. [See e.g., Ronald L. Goldfarb, "Lawyers--or Hired Guns?", Washington Post, October 17, 1985, p. A23, c.3; Letters to the Editor, "When a Law Firm Feels Obliged to 'Fire' a Client," New York Times, October 20, 1985, p. 20E, c.3; Letters to the Editor, "Lawyers--or Hired Guns?" Washington Post, October 24, 1985, p. A22, c.3. For other commentary on the firm's decision, see Mark Shuford, "Elkins Speaks on Firm's South Africa Decision," Washington and Lee News, December 5, 1985, p.7, c.4; Steve Nelson, Covington's Decision May Spur Pressure on South Africa Issue, 8 (18) Legal Times, October 7, 1985, p.1, c.3; "Boycott Leaders Buoyed by D.C. Firm's Decision," Legal Times, October 7, 1985.]

Ethical issues concerning the law firm's representation of South African Airways was raised by Mark Green some ten years before the decision of Covington & Burling to terminate its representation of South Airways. [See Mark Green, The Other Government: The Unseen Powers of Washington Lawyers 196-199 (New York: Grossman Publishers, 1975)]. South African Airways was a government-owned, money-making subsidiary of the South African government, a government that maintained, by law (now dismantled), a brutal repressive policy of racial segregation called apartheid.

When students of law consider the Covington & Burling decision, some argue that representing South African Airways is no more an ethical problem than representing any other client. We learn there are arguments can be advanced to support the continued representation of South African Airways as well as an array of arguments to terminate the representation. How care we to wade through these arguments?

Consider for example, Judge Irving Kaufman's observation about the "costs" in refusing to continue to represent a client willing to pursue immoral practices: "[T]he lawyer will then be unable to influence the client's conduct favorably." [Irving R. Kaufman, Law: "No Longer Can the Lawyer Avoid Impropriety by Adherence to Principles of Fairness in the Conduct of Litigation," Saturday Review, November 1, 1975, p. 15; Robert Aronson and Donald Weickstein, Professional Responsibility 11 (St. Paul, Minnesota: West Publishing, 1980)("A lawyer who represents a developer may be in a very good position to influence the client's actions so that they make environmental as well as business sense."). There are, of course, costs for the lawyer who remains with the client solely to insure that the client will do the least harm possible. If there were not costs then staying with a client until the bitter end would become a cardinal rule of professional practice.]

In the world of law and lawyer ethics there are, we sometimes think, and sometimes say, arguments to be found on both sides of an issue. How can we do what we do or know what to do (what is best; what is good) when we hear the arguments so readily advanced to justify the extremes of adversarialism? How is a law firm to decide what to do about its representation of an agency of a (foreign) government that supports by law a reprehensible social policy like apartheid? [One wonders where Jeanne Kirkpatrick, former Ambassador to the UN, who hinted at treason in Abraham Chayes representation of Nicaragua before the World Court, would come out on Covington and Burling's decision to withdraw from its representation of South African Airways.] [On Chayes, see Paul S. Reichler, Holding America to Its Own Best Standards: Abe Chayes and Nicaragua in the World Court, 2 Harv. Int'l L.J. 15 (2001)]

Covington & Burling will, at some point in its deliberations, turn to the ethical rules to determine how these rules might affect their decision. Rules of Professional Conduct, Rule 1.16, speaks directly to the decision of a lawyer (or law firm) to withdraw from representation. But the rule says only that it will not be an ethical violation for the firm to withdraw if they have "good cause" to do so. One "good cause" reason for withdrawal recognized by Rule 1.16 is the firm's belief that the objectives of the client are "repugnant." But the ethical rule doesn't resolve the ethical problem; the rule doesn't command a particular outcome, but leaves to the discretion of lawyer/law firm whether to withdraw when "good cause" is present. The rule doesn't solve the practical problem or the ethical problem (if the two could ever be more than provisionally separated) because the rule doesn't say what an ethical lawyer will do in these situations.

Consider for a moment the possibility that those who place themselves in the position of lawyers with Covington and Burling are trying to decide what to do without an understanding of apartheid. When we inform ourselves about the details and workings of apartheid and consider apartheid as a modern day manifestation of evil, the arguments for continued representation of South African Airways become more subdued. Subdued yes, but surprisingly, the argument is made that an adversarial ethic extends to South African Airways so long as their legal interests in the United States do not depend on the practice of apartheid in this country. So long as we can keep the evil of apartheid in South Africa, we can continue to represent South Africa's airlines business interests in the United States. If you are of the mind to think adversarialism limited only by law then the ethics of representing South African Airways may not be so problematic.

Lawyers don't come easily to the notion that they make the continued existence of injustice possible. The image of lawyers free to represent ALL clients, whatever their morals, whatever their avowed objectives, assume that acting on this freedom is a way to promote justice. This assumption is not dislodged even when evil lurks in our midst. Adversarialism lingers in our heads (ultimately, in our hearts). The disposition to ignore the consequences of the legal representation of South African Airways is not overcome by knowledge of apartheid as evil, or the role that South African Airways plays in government apartheid policies, or whether withdrawal from representation is a "effective" way to bring change to South Africa, or even whether withdrawal is a worthwhile symbolical protest of apartheid.

When we come this far in the conversation we begin to look at each other, quizzically, and with a small measure of loathing. Who are we? What have we become? What do we stand for as lawyers? What do we stand against? Are there limits--call them ethical, call hem by another name--on what lawyers will do in the name of an adversarial ethic? Can we expect lawyers and law firms like Covington & Burling to take a stance against apartheid? How can we not see what the public, and our lawyer colleagues, will see that when we claim principle (and ethics) as the basis for continued representation of South African Airways, we continue to make money and enrich ourselves in the process? Is it possible that to continue representation of a client like South African Airways means that we are more interested in money than in upholding the principal of client autonomy? It is with these questions about the adversarial ethic that we enter the lawyer's heart of darkness.

The defenders of the lawyer as amoral technician--the lawyer as amoralist--are not going to concede (and some will never see) the moral limits of their stance. They turn to philosophical arguments, to political theory, to sociological changes in mega-firm culture, and to prescribed "ethical" rules of the profession to support their stance. [The paradox of ethics is that for each philosophical argument, political theory, sociological description of the Real World, and ethical rule there is a contrary (or complementary) philosophy, theory, description, or rule that pulls in another direction. There is, at the heart of our moral stances, a series of contradictions that can be resolved only by a truthful leap of faith.]

They argue that lawyers cannot and should not be saddled with the clients' social, political, and moral views. [This argument is given explicit support in the profession's prescribed ethical rules. E.g., Rule 1.1 (b) states that: "A lawyer's representation of a client, including representation by appoint, does not constitute an endorsement of the client's political, economic, social or moral views or activities." American Bar Association, Model Rules of Professional Conduct.]

It would be a simple bit of saving grace if argument could make it so, make it stick, and give it moral weight. The claims of adversarialists are just true enough to make them viable.]

If you assume Covington & Burling does not confront a moral problem in its continued representation of South African Airways then you will be prepared for yet another argument: "I would argue for the firm to continue representation of South African Airways because if the firm drops South African Airways as a client someone else will represent them. This means that we will accomplish nothing by withdrawing our representation because South African Airways will simply find a new firm to represent it. If we don't do it, someone else will." Before we see how loose and morally troubling this argument is, we must hear it argued and supported. If Covington & Burling doesn't continue its representation of South African Airways the "system of justice" will be adversely affected. We now get the speech about the virtues of the adversary system of justice: "Even with all its faults no one has found a better system." But how strange it is to make use of the word "justice" when it is apartheid that is central to the "system" of South African politics and jurisprudence. To make these arguments and this kind of talk about lawyer ethics work we must deny that it is we (the lawyers) who work the "system" and make the "system" work the way it does. When we talk so aggressively about representing a client like South African Airways (and indirectly the South African government) to preserve a "system of justice" we are confronted with the kind of loose talk that makes lawyers the victim of their own rhetoric.

In our talk of what we would do and would not do, what we should do, and what Necessity (as a law firm partner) demands of us, one begins to get the sense that something has gone wrong.

[One thing that has gone wrong is that when we focus on the kind of moral and ethical problem that confronts the lawyers at Covington & Burling we get the cart before the horse.

"The world is a complicated place in which confusing moral situations inevitably arise. Instead of being preoccupied with moral decisions appropriate to such complex situations, we may do better to shift our attention from the situations themselves to the people acting in them. In particular, we should attend to the personal traits needed to cope with moral situations. . . ." [Moline, Classical Ideas About Moral Education, 2(8) Character 1 (1981)]

William May explores the mistake we make when we put our moral problems up front:

Moralists make a mistake when they concentrate solely on the quandaries that practitioners face, or on the defects of the structures in which they operate. Inquiry into these matters already assumes specific dispositions of character, which themselves need to be clarified and criticized. The quandary-oriented professional tends to assume and prize the virtue of conscientiousness. The critic of structures often brings to the inquiry a specifically aroused moral indignation. Important to professional ethics is the moral disposition the professional brings to the structure in which he operates, and that shapes his or her approach to problems. The practitioner's perception of role, character, virtues and style can affect the problems he sees, the level at which he tackles them, the personal presence and bearing he brings to them, and the resources with which he survives moral crises to function another day. At the same time, his moral commitments, or lack of them, the general ethos in which he and his colleagues function, can frustrate the most well-intentioned structural reforms. [William May, "Professional Ethics: Setting, Terrain & Teacher," in Daniel Callahan & Sisela Bok (eds.), Ethics Teaching in Higher Education 205, 230 (New York: Plenum Press, 1980)]

For an account of the effect on people who do Covington & Burling kind of legal work, see Charles Reich, The Sorcerer of Bolinas Reef 19-83 (New York: Bantam, 1977).

In fact, there seems to be something seriously wrong. Walker Percy, one of our more engaging philosophical novelists observed: "I am perfectly willing to believe Flannery O'Conner when she said, and she wasn't kidding, that the modern world is a territory largely occupied by the devil. No one doubts the malevolence abroad in the world." [Walker Percy, Sign-Posts in a Strange Land (New York: Farrar, Strauss and Giroux, 1991)] Percy was, as a writer, he tells us, less interested in the malevolence of the world and more in what he calls "looniness." "The looniness, that is to say, of the 'normal' denizen of the Western world who, I think it is fair to say, doesn't know who he is, what he believes, or what he is doing." [Id. at 380-81]

[See e.g., Courtland Milloy, "Opening Eyes," Washington Post, November 26, 1986, p.C3, c.4; Christopher S. Wren, Apartheid Frays at the Edges, But Its Core is Unchanged, New York Times, March 12, 1989, p.2E, c.1; Anthony Lewis, "Luxury of Apartheid," New York Times, May 14, 1989, p.E23, c. 5; Christopher S. Wren, "Mandela, Freed, Urges Rise in Pressure on White Rule," New York Times, February 12, 1990, p.1, c.3; David B. Ottaway, "Afrikaners Feel Betrayed by de Kelerk: Descendants of Dutch Settlers Believe God Ordained Them to Form White Nation," Washington Post, February 24, 1990, p. A26, c. 1.]

[On the problem of racism closer to home, see Derrick Bell, The Dilemma of the Responsible Law Reform Lawyer in the Post-Free Enterprise Era, 4 Law and Inequality 231 (1986); "A Class Sends Message to Harvard Law School," New York Times, November 21, 1990, p.B7, c.3]

If you know anything about apartheid, know anything about how apartheid is practiced, you will be troubled by the fact that many lawyers are not only willing to represent the South African government and its money-making subsidiaries but more troubling, cannot see that it is a reflection on their ethics when they choose to do so. Lawyers do what they do for money (South Africa pays its bills), they do it for status, do it for promotion in the firm, and to complicate matters, they do it in the language of principles, craft, and ethics.

[There are craft skills involved in finding a legal way to do what the most devious and immoral client wants done. First, there are, if the old adage holds, always arguments to be made on both sides of an issue. Second, to make an argument, even a weak one, can be justified if one sees value in being the Devil's Advocate. Third, the government does get sloppy in its heavy-handed ways, and it is possible to identity with the immoral client, and the client with the immoral cause, as a victim of the legal system.]

Whatever concerns you may have about South Africa's people, there is a voice that reassures us that "everyone has a right to a lawyer, even the government of South Africa." When we say this, it sounds right, we've heard it said before, and we know that it stands, in some convoluted way, for something worthwhile in our profession. We have heard it said so often it must be true about this client. It is a way to say something about the "system", and to express an ideal, and an understanding of the lawyer role. The rhetoric of adversarialism reflects our inability to sort-out the ideal of zealousness from the self-interest and the arrogance of willed self-deception about how the adversarial system works. It points to our inability to distinguish between ethics and the excuses we rehearse in the name of ethics. Even as we talk ethics we bring ourselves and others to doubt the moral sensibilities we most desperately need.