Professional
Responsibility
A Law Firm's Withdrawal from Representation
Readings:
David Sanger, "Law Firm Drops South Africa Client," New York
Times, October 4, 1985, p. D1, c. 3; Letters to the Editor, "Lawyers--or
Hired Guns?" Washington Post, October 24, 1985, p. A22, 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.
(1) David Sanger reports that lawyers in the Washington, D.C. legal community familiar with the Covington & Burling decision "said the debate over representing the airline raised complicated ethical issues for the firm." The President of the DC Bar Association was quoted as saying, "it is hardly an easy issue." A partner in Covington & Burling privy to the debate confirmed that the firm's discussion was "spirited."
What made the ethical issue for Covington and Burling so complicated?
(2) Was the issue for Covington & Burling (and for you) an ethical one? What significance, if any, follows when you identify a question, issue, or decision as being ethical in nature?
In a discussion of the Covington and Burling problem one law student argued (rather vigorously) that the issue would more accurately be described as economic rather than ethical. Is the problem more accurately described as an economic one? What purpose does this "description" of the problem serve?
(3) Covington & Burling was willing to tell the New York Times only that it had dropped state-owned South African Airways as a client. The firm gave no reason for its decision. How do you explain the firm's failure to provide reasons for its decision? Firm partners were reported to be "reluctant . . . to describe the firm's internal debate." How do you explain their reticence?
(4) Some Washington lawyers (including the President of the local Bar Association) thought the issue was complicated because the client was "unpopular." Lawyers sometimes represent "unpopular" clients and we applaud them for doing so. For example, in To Kill a Mockingbird, Atticus Finch is asked by the judge to represent Tom Robinson, a black man falsely charged with the rape of a white woman in Alabama in the 1930s. The judge knows that representing Tom Robinson is going to be a hardship on any lawyer that he might appoint to case. And we assume, knowing what the judge must know, that he has picked Atticus Finch because he knows that Atticus has the strength of character to represent Tom Robinson and deal with the community in doing so. It is, we may assume, this kind of situation that we have in mind when we talk about a lawyer representing an unpopular client.
(5) The Covington & Burling decision to terminate its representation of South African Airways followed law students' boycotts of the firm's recruitment activities.
(6) Ronald Goldfarb, in his Washington Post op-ed piece commenting on the Covington & Burling decision, argues that the decision has nothing to do with the Constitutional guarantee of a right to counsel which applies in criminal cases and that "lawyer ethics does not require any lawyer to take any case."
Mr. Goldfarb was referring to the Code of Professional Responsibility. Do the Rules of Professional Conduct support Mr. Goldfarb's proposition? [See Rule 1.16, Declining or Terminating Representation; Rule 6.1, Pro Bono Publico Service; Rule 6.2, Accepting Appointments]
(7) How are lawyers to take account of the moral stance of the clients who seek their services? Mr. Goldfarb poses the following "touchy questions":
- "What if a segregationist South African company wanted legal
help providing aid to the blind?"
- "What if a reputable Swedish company wanted legal help in its
dispensation of a questionable drug?"
- "What if an American company with a reputation for charity wanted legally to delay controls over its dumping sewage in a river?"
(8) Would Covington & Burling have had a stronger case for maintaining their relationship with South Africa Airways if they had announced that there was nothing unethical in their continued representation of the client and were hiring two additional lawyers to work full-time in the firm's pro bono litigation section on international human rights cases?
Mr. Goldfarb suggests in his letter that he would consider such a move "hypocrisy." Is it?
(9) Goldfarb sets out a conventional defense of lawyers' efforts to dissociate themselves from the morals of their clients: "[I]t is not their role to judge their clients' virtues, that virtue at best is subjective, and that the adversary system allows--indeed, requires--fighting for all sides. They claim that not only is it not unethical but also that it is in the highest tradition of the bar to represent clients in a nonjudgmental way." Richard Wasserstrom has described this approach to lawyer ethics as "role differentiated" behavior. He contends that it arises from an effort to make law practice into a "simplified amoral universe." [Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 Human Rights 1 (1975)]
The dictionary defines repugnance as a "deep-rooted antagonism, aversion, antipathy. Distasteful, repellent. Synonyms of repugnance include: repellent, abhorrent, distasteful, obnoxious, invidious. Repugnant implies a nature alien to one's ideas, principles, or tastes, and a stirring up of resistance or loathing. Obnoxious: An objectionableness so great that one cannot tolerate it. Invidious: A character such that it cannot be used, undertaken, etc., without creating ill will, odium, or the like."
(10) Robert Bauer, in a letter to the editor chided Mr. Goldfarb for urging a position that damages the "rule of law." If one takes note of the fact that South African apartheid was established pursuant to the rule of law, one wonders what Mr. Bauer has in mind by his comment.
Mr. Bauer, in his letter, contends that lawyers "are not better positioned than other responsible citizens to make broad social or political judgments about their clients' goals or behavior." Consequently, if lawyers were asked to take an ethical stance they would, argue Mr. Bauer, "simply heed prevailing public opinion about what is a 'good' client and what is a 'bad' client." How would you respond to Mr. Bauer on this point that lawyers are no better positioned than other citizens to judge their clients goals?
(11) Another letter to the Washington Post in response to Mr. Goldfarb's op-ed piece (from Joseph J. Levin, Jr.) saw Mr. Goldfarb's argument as asking lawyers to "condemn large categories of client conduct to the trash heap as if there were one correct ethical or moral judgment to be rendered." What error do you find in Mr. Levin argument? When Mr. Levin argues that "[o]ne person's 'extortionate lawsuit' is another's action to redress serious injury," what kind of ethical argument is he making?
(12) Mr. Levin implies that Mr. Goldfarb presented a "simplistic view" of a "complex issue." How can we talk about the Covington & Burling decision so as to keep its complexity in view and avoid being simplistic? Or is Mr. Levin simply trying to use the idea of complexity to disguise a rather simple question? Does Mr. Levin's way of talking about the complexity of ethical matters create the possibility that we will reach a better or a more confused result?
(13) Under what circumstances do lawyers and law firms actually terminate relations with long-standing clients?
(14) Sylvia Law, one of the few law teachers to receive the prestigious MacArthur Award, observed some years ago that "In deciding whom you are going to work for, particularly in a period of history in which there are real and sharp divisions of values in society, you must make a personal moral choice." [Sylvia Law, "Afterword: The Purpose of Professional Education," in Stephen Gillers (ed.), Looking at Law School 205, 212 (1977).] Do you agree with Professor Law that when you sign up to work for a law firm that represents clients like South Africa Airways you have made "a personal moral choice"?
Commentary by Professor Elkins
The legal representation of South Africa's airline has provoked
commentary from various sources. Consider the following excerpt from Mark
Green, The Other Government: The Unseen Powers of Washington Lawyers
196-199 (New York: Grossman Publishers, 1975):
In 1968 and 1973, Covington helped SAA obtain two route certificates from the CAB. The 1968 proceeding was very routine. SAA (South African Airways)--owned by the government of the Republic of South Africa, and operated as a governmental department--wanted a route for passengers, mail, and property between Johannesburg and New York City through Rio de Janeiro. Brice Clagett, Peter Nickles, and Cary Dickinson of Covington presented SAA's case to the board, their brief concluding: "Nor can there be any doubt that the proposed service is in the public interest." The CAB agreed 5--0, and President Lyndon Johnson--Presidents having final say over the granting of international routes--approved of the award on November 7, 1968, a mere four months after the application had been filed.
South Africa's 1973 application was anything but routine. The airline wanted a Johannesburg-to-New-York-City route via Sol Island and Las Palmas. But intervening in this proceeding was the fifteen-member Black Congressional Caucus. They complained that South Africa was a racist country discriminating against black passengers and whose airline, as a result, did not deserve this route award. Clagett strongly objected to this intervention. He argued that "the alleged interest of the petitioners is based on political opposition towards the Government of the Republic of South Africa rather than is founded on such matters as . . .'the perpetration of colonialism and racism in Africa.'" Clagett especially protested providing any evidence concerning the internal affairs of the South Africa government. Yet, the administrative law judge in the case, Ross I. Newmann, allowed the Black Caucus to intervene in the proceeding and allowed the introduction of some evidence on the issue of SAA's alleged racial discrimination.
During the April 9, 1973, CAB hearing, it came out over Clagett's objections that the cafeterias and toilets at SAA terminals were segregated by race, but the restrictions only applied to local blacks, not foreign blacks. Also, of fifty-three SAA American employees, only two were black, and both were clerical workers. Undaunted, the Covington brief insisted that "the record is completely clear and no discrimination or segregation is applied to United States citizens traveling in foreign air transportation or, indeed, in domestic air travel in South Africa." (But black Americans should be able to quickly produce their passports to distinguish themselves from local blacks, for local policemen are neither color-blind nor genealogists.)
The case troubled the CAB commissioners, but they ultimately took the safe course by dismissing considerations of race as irrelevant. Their task was to assay an applicant's transportation capacity, not "the full range of facilities which may be used by U.S. citizens visiting a foreign country." The board added: "Such evaluation would necessarily inject the Board into the complex and delicate diplomatic questions affecting relations between the United States and a friendly route request in early September 1973. On September 28 President Richard Nixon ratified their decision.
This was not Covington's only effort to ward off SAA's critics. During and after the first route proceeding, the New York State Division of Human Rights charged that "the Government of the Republic of South Africa, of which SAA is an instrumentality, has pursued a policy of racial discrimination in the disposition of applications for visas to such persons because of their race or color." The agency claimed jurisdiction over this foreign carrier because it flew in and out of New York's Kennedy Airport. South African Airways, with Brice Clagett as counsel, subsequently hauled the Human Rights Division into court to argue that New York State law did not apply to a foreign air carrier. And in 1970 the New York Supreme Court agreed.
SAA and C&B had prevailed, though at a price. Some associates refused to work for SAA, complaining intrafirm about Covington representing, on an ongoing basis, a racist client. Five associates met with the management committee to explain their concern. "They were very vague about it," reports one of the associates about the committee. "They said it was up to each individual lawyer, although they did draw a line and say it would be difficult for the firm to represent Nazis." At one firm meeting partner Robert Owen also objected to this client, which did not sit well with Dean Acheson, occasional defender of similar colonial interests. At a dinner in his house, Acheson "disapproved rather strongly to Owen's objecting to the case," recalled a C&B member there.
The problem is more difficult than for a Chase Manhattan Bank or a Polaroid that merely invest in South Africa. Since SAA is part of the South African government, Covington gets paid by, works directly for, and helps promote the interests of South Africa's apartheid regime. This does not upset Brice Clagett, an aristocratic Tory who has made it obvious to fellow lawyers that he does not particularly like black people. But Peter Nickles is a different story. He was one of the five associates to petition the management committee on SAA. He is a serious liberal sincerely dedicated to pro bono work as well as to his corporate clients. In 1968 Nickles represented the interests of a government which oppressed black people. In 1969 he became the chairman of the Neighborhood Legal Services Program (NLSP), a legal-aid society that combats the oppression of black people.
A contradiction? There are two polar views. On the one hand, lawyers, both corporate and American Civil Liberties Union lawyers, argue that a client is a client is a client, that Nickles was just doing his job as a professional. "Hell, I'm a lawyer, not a reformer," Covington partner John Laylin stressed to Joseph Goulden when discussing this case. SAA "got a little choosey about who[m] it would issue visas [to], as is its right. . . . But that isn't our business. I don't give a second thought to the matter." On the other hand, some see the issue not so much legally as politically and personally. Politically, what would NLSP's black clientele think if they realized that their defenders of today had toiled for their oppressors yesterday? One former C&B lawyer said, "There are certain fundamental principles to which this nation is committed, morally and legally, and here we were, trying to uphold an abominable violation of them." And personally, is there any canon of ethics that mandates that someone must devote part of his professional time helping those who live on the backs of black people?
The following excerpt is from Joseph Goulden, The Super Lawyers
51-52 (New York, Weybright and Talley, 1972):
When the airline faced loss of its landing rights at Kennedy International Airport in New York, Covington and Burling defended it, first before the New York State Commission on Human Rights, then in United States District Court. [The airline had lost its landing rights because of a policy of not accepting black passengers on flights from New York.] Then one of these lawyers asked me several months after leaving Covington. "There are certain fundamental principles to which this nation is committed, morally and legally, and here we were, trying to uphold an abominable violation of them." The group took its protest to the firm's management committee and argued that Covington and Burling should drop the case. "It was all very friendly, and very polite, but the management committee wouldn't budge."
This incident, and others, convinced the young lawyer he wasn't "partner material," and he left the firm several months later. He notes, however, that the internal dispute did not adversely affect the group of Protestants. "As a matter of fact," he said later, "one of them was made partner in 1971, so I suppose things worked out okay." Covington and Burling also won the airline case.
Laylin bridled--politely, I admit, but I know a bridle when I see one -- when I asked him about the South African case. "Hell," he snapped, "I'm a lawyer, not a reformer. We are lawyers. We act as counsel. We are not presumptuous enough to pass judgment on the form of government of a client which happens to be a foreign nation, no more than we would ask a domestic client whether he is a Democrat or a Republican."
In the airline case, according to Laylin's version, South Africa "got a little choosy about who it would issue visas, as is its right. All airlines require visas before you can fly overseas, and the policies are set by the government. So why single out South African Airways?"
Well, I asked Laylin, isn't the visa requirement aimed at blacks, as alleged by the firm's dissident associates? And does Covington and Burling feel comfortable helping a foreign government enforce a racist policy?
Yes, Laylin conceded, the policy is directed against blacks. "Blacks and agitators. South Africa doesn't want them; it decided as a matter of national policy to keep them out. But that isn't our business. I don't give a second thought to the matter."
Actually, Laylin continued, Covington and Burling once had an even more intense internal dispute over representation of a nation at the other end of the political spectrum. "We were attorneys for Poland before it went Communist. On that occasion, we resigned at the insistence of one or two partners. . . . We were right after the war. The State Department was most upset at our decision, for Americans in Poland were having trouble obtaining counsel. I argued, but I lost, and we had to drop Poland."
Laylin was silent a minute. "You know," he finally continued, "some of these younger people don't seem to understand the proper role of a lawyer. We're not here to save the world, or to force our own ideas on someone else, but to represent clients."
Can an American lawyer represent the Nicaraguan government in an
action against the United States before the International World Court
and claim to be acting in the best moral traditions of the legal profession?
Jeane J. Kirkpatrick, in a 1985 opinion piece in the Washington Post,
implied that Abram Chayes, the American lawyer who represented Nicaragua,
was cooperating with a foreign government to undermine United States policy
and that it was wrong for him to use his advocacy skills on behalf of
Nicaragua. [Jeane J. Kirkpatrick, "Nicaragua's U.S. Lawyers,"
Washington Post, September 30, 1985, p. A15, c.1]. Ms. Kirkpatrick's
concern was voiced when Nicaragua was in the hands of the Sandanista government,
a government so vehemently opposed by the Reagan administration that Colonel
Oliver North was allowed to use the National Security Council as a front
for the illegal diversion of funds to Contras fighting the Sandanistas.
Abram Chayes, in his response, noted that Kirkpatrick's concern about United States foreign policy ignores the "bedrock proposition" that even our government is "subject to and accountable before the law." [Abram Chayes, "What Kirkpatrick Ignores," Washington Post, October 4, 1985, p. A23, c.1]
The issue raised by the Kirkpatrick-Chayes debate is whether the representation of Nicaragua before the World Court is a political or legal matter. The issue could be reframed as a moral one. Chayes may have taken on the representation of Nicaragua because he found United States foreign policy, not only illegitimate and a violation of international law, but immoral as well. Roger Wilkins, a Washington D.C. lawyer commenting on Kirkpatrick's blast at Chayes, pointed out that "[t]he attempt by one sovereign state [the United States] to instigate the overthrow of another [Nicaragua] by means, among others, of murder, rape and theft would seem to me to present quintessential questions of international law, even though the decision to follow such a course may have been a political one. It is clear that illegal acts may flow from political decisions." [Roger Wilkins, letter to the editor, Washington Post, October 6, 1985, p. D6, c.3]
Lloyd N. Cutler, a widely known, and politically powerful, Washington, D.C. lawyer, argued that so long as Mr. Chayes "believes there are reasonable jurisdictional and substantive arguments to be made in Nicaragua's behalf, he has every ethical right to present its case to the court." [Lloyd N. Cutler, letter to the editor, Washington Post, October 6, 1985, p. D6, c.3]
Another commentator observed that: "What Mrs. Kirkpatrick should remember is that patriotism sometimes requires taking a hard look at our own actions, in the tradition of a John Adams." [Pierre M. Hartman, letter to the editor, Washington Post, October 10, 1985, p. A26, c. 3]
George C. Smith, associate general counsel to the conservative Washington Legal Foundation, argued that the problem was not that Nicaragua had a U.S. lawyer but that Chayes had been legal advisor to the State Department during the Kennedy administration and in that capacity was privy to sensitive and confidential information. Smith charged Chayes with violating the rule of ethical conduct that posits a conflict of interest when a lawyer has gained confidential information in the representation of one client (Chayes work as a government lawyer) that may be used to benefit a later client (Nicaragua). Smith contends that the Washington legal establishment, including Lloyd Cutler, do not condemn Chayes's movement through the "revolving door" (representing first the government and then then using the knowledge gained in government service to represent non-government interest) because the "American bar establishment is so completely dominated by a combination of mercenary and liberal-internationalist mentalities" that no one sees the harm in Chayes's "peculiar version of the 'revolving door.'" [George C. Smith, "Nicaragua's Lawyer is Not Just Any Lawyer" (Letter to the Editor), Washington Post, October 26, 1985, p. A19, c.2]
On October 7, 1985, the Reagan administration, fearful of an adverse decision by the International Court of Justice on claims by Nicaragua that the United States had violated international law, ended a thirty-nine year policy under which the United States had agreed to abide by the International Court's decisions. [John M. Goshko, "U.S. Limits Recognition of World Court Rulings," Washington Post, October 8, 1985. For a defense of the United States decision, see Editorial, "Opting Out of the Court," Richmond Times-Dispatch, October 11, 1985, p. A2, c.1]
