King & Spaulding and Legal Ethics vs. Morality

I've been admitted to practice law in three states for over thirty years and the self-inflicted controversy that has engulfed King & Spaulding after its short lived representation of the House Republicans in defending DOMA underscores to me yet again the fact that much of what is "ethical" under the rules of the legal profession is not what I consider equal to what is morally right. Frankly, I do not handle criminal law matters for the simple reason that in some circumstances I could not represent someone I believed to be guilt - especially in violent crimes such as murder or say rape. Yet it's "ethical" for attorneys to represent such defendants and to endeavor to get them the best deal possible, perhaps even putting the victims on trial in the process. Is it morally right? Then there are gay bashing divorce attorneys who seek to destroy the gay spouse and prejudice the court against the gay litigant so as to get the maximum for their client. Many deem it ethical, but is it moral? In my view, it is not. The same goes for defending a law that has as it only real purpose the stigmatizing and denigration of a group of citizens because they fail to conform to the toxic Christianist version of Christianity. HRC and others have been lambasted for pressuring King & Spaulding to withdraw from defending DOMA. I believe that HRC did the right thing - and often all too critical of HRC as long time readers know. Kerry Eleveld has a post at America Blog Gay that looks at the controversy. Here are some highlights:
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The firm took an immediate hit from most legal observers who viewed dropping the case as tantamount to legal blasphemy. LGBT advocacy groups, ours included, found themselves playing defense after being criticized for blasting the law firm for taking the case. And House Republicans suffered a two-fer: First for the hypocrisy of retaining an outside law firm for $520 an hour (up to $500,000) while they preach fiscal discipline; then enduring the embarrassment of watching that firm breach the contract likely due to the backlash of defending a discriminatory law that many, including President Barack Obama, deem unconstitutional.
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Untangling the rights and wrongs in this situation is impossibly confounding, and reasonable people can and have disagreed to be sure. But let’s start where most legal eagles concur: King & Spalding did not have to accept the case, and DOMA, which is notably a law and not a person, does not have a right to representation.
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And here already, comes a point of divergence. Monroe Freedman, a leading legal ethics scholar and professor at Hofstra Law School, believes that both the firm and Clement came down on the wrong side of morality when they accepted the case.
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Outside of certain criminal proceedings, Freedman says, “There’s absolutely no doubt that a lawyer has complete discretion to take or not to take any particular client. For that reason, it’s my view that, that decision -- whether to take a client -- is the most important point of moral decision making for the lawyer.
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“And therefore, in my view, it was immoral for Clement and for King & Spalding to agree to defend DOMA. That is my personal moral judgment,” Freedman says, adding, “others would disagree. But I feel very strongly that defending DOMA is itself an immoral act.
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However, having agreed to represent their client, Freedman adds, “It was at that point unethical for them to pull out. I’m not talking about immoral – it may have been the moral thing to do – but ethically speaking, it was wrong to embarrass the client that way publicly.” Clement, a former U.S. solicitor general under President George W. Bush, resigned from King & Spalding over his firm’s decision to drop the case.
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I believe it would have been a mistake for advocates to forfeit the opportunity to make known their views about King & Spalding’s representation. Letting the moment pass without objection would have been a missed opportunity to send a political message, and advocates shouldn’t be expected to approach the legal system the way a lawyer would. We quite simply have different interests at stake – theirs is to preserve the sanctity of the legal system, and ours is to advance the cause of freedom for lesbian, gay, bisexual, and transgender Americans.
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[I]t’s particularly problematic for the government to contractually restrict the First Amendment rights of every employee -- from the person working in the mail room all the way to the lead counsel of the case.
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If there’s one truth that can be gleaned from the DOMA fallout this week, it’s that judging the tenor of issues related to the fair and equal treatment of LGBT Americans is a particularly precarious endeavor at the moment. Though no one has established the exact the reasoning behind King & Spalding’s 180, many believe they simply underestimated the backlash of taking the case.
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“There is speculation -- and it’s where I would put my money if I had to -- that they were surprised to find that one or more of their major clients disapproved of them taking on this retainer,” says Freedman, referring to clients such as General Electric and Coke.
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I will always try to error on the side of what is moral versus what is "ethical" in terms of legal ethics. I want to be able to look at myself in the mirror in the morning. For far too many attorneys, in my view, that is never a factor.

Having the Courage to Speak Out and Act Even When It's Unpopular

I have written a number of times about the phenomenon of basically good people failing to act when morality and decency argue for action and speaking out against injustice and prejudice. Too often it is easier - and safer - to do and say nothing. The fact that inaction may even be popular doesn't make it right. The bigotry that needs to be confronted may be racial bigotry such as what Atticus Finch confronted in To Kill A Mockingbird, anti-Semitic bigotry, anti-gay religious based bigotry and hate so widely disseminated by self-congratulatory "godly Christians, or the fear and prejudice of a strange and frightening disease. The truly brave and morally strong will act regardless of the potential negative personal consequences that may be entailed. A post at America Blog Gay looks at one such amazing individual: Elizabeth Taylor. Here are some post highlights:
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In 1986 and again in 1988, hundreds of thousands of Californians signed petitions to place initiatives on the ballot that would have mandated the quarantine of AIDS patients. Such was the homophobic hysteria surrounding AIDS when Elizabeth Taylor began planning her first AIDS fundraiser. Taylor remembered the reactions:
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People … slammed doors in my face and hung up on me . . . [P]eople would say, 'No, I'm not getting mixed up in that!' And, 'You have to get out of this, Elizabeth. It's going to ruin your career.' These reactions only seemed to strengthen Taylor’s resolve. Indeed, the vitriolic homophobia surrounding AIDS motivated her to become involved in the first place. She was quoted as saying:
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"Worse than the virus there was the terrible discrimination and prejudice it left in its wake. Suddenly it made gay people stop being human beings and start becoming the enemy. I knew somebody had to do something. For God's sake, our president didn't even utter the word for years into the epidemic."
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And
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"If it weren't for homosexuals there would be no culture. We can trace that back thousands of years. So many of the great musicians, the great painters were homosexual. Without their input it would be an entirely different, flat world. To see their heritage, what they had given the world, be desecrated with people saying, 'Oh, AIDS is probably what they deserve' or 'it's probably God's way of weeding the dreadful people out,' made me so irate."
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Taylor made AIDS her life’s cause. At a time when the disease was called "the gay plague" and others were afraid to even touch people with HIV, Taylor employed her star power to help humanize those living with the disease. She made headlines throughout the world when she was photographed shaking hands with HIV/AIDS patients in a Thai hospital. She helped found the American Foundation for AIDS Research (amFAR) in 1985, and later, in 1991, the Elizabeth Taylor AIDS Foundation (ETAF).
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An impassioned lobbyist, Taylor was not afraid of taking a swipe at leaders for their inaction. At an international AIDS conference, she criticized the first president Bush, remarking, “I don't think [he] is doing anything at all about AIDS. In fact I'm not even sure if he knows how to spell AIDS.” She testified before Congress in 1986 in support of the Ryan White Act, and then again in 1990, when it finally passed. She also spoke at the United Nations, imploring its members to join in the fight against the disease.
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The Christianists may mock Taylor for her many marriages, but in my view it is she, not the self-anointed pious ones, who understood the real Gospel message and acted when others would not. She was one brave woman.

Hillary's Not So Wonderful Experience

Playing dirty in politics can sometimes backfire. Hillary ought to know this, but perhaps not. She tries to depict herself as the more experienced candidate and also as a feminist champion, yet she has stooped pretty low at times and not always acted as I suspect most women would applaud – particularly in the case described in this article (http://www.newsday.com/news/nationworld/ny-usark245589997feb24,0,2670956.story?page=1). I for one hope this story gets some wide spread circulation. While it is true that “ethically” under the rules of the Arkansas State Bar she probably did nothing wrong, whether it was morally right is another matter entirely. Suffice it to say, the Bar’s rules of ethics do not always parallel what, in my opinion, is morally right. When that occurs, an attorney always has the option of not taking the case if they feel that they cannot in good conscience represent the client properly. That Hillary would do this to a 6th grade girl for a $250.00 fee is rather telling. I find it disgusting - I would have NOT taken the case. Here are some story highlights:

Hillary Rodham Clinton often invokes her "35 years of experience making change" on the campaign trail, recounting her work in the 1970s on behalf of battered and neglected children and impoverished legal-aid clients.But there is a little-known episode Clinton doesn't mention in her standard campaign speech in which those two principles collided. In 1975, a 27-year-old Hillary Rodham, acting as a court-appointed attorney, attacked the credibility of a 12-year-old girl in mounting an aggressive defense for an indigent client accused of rape in Arkansas - using her child development background to help the defendant.

Rodham, records show, questioned the sixth grader's honesty and claimed she had made false accusations in the past. She implied that the girl often fantasized and sought out "older men" like Taylor, according to a July 1975 affidavit signed "Hillary D. Rodham" in compact cursive.

Seen as an aggressive defense Rodham, legal and child welfare experts say, did nothing unethical by attacking the child's credibility - although they consider her defense of Taylor to be aggressive."She was vigorously advocating for her client. What she did was appropriate," said Andrew Schepard, director of Hofstra Law School's Center for Children, Families and the Law. "He was lucky to have her as a lawyer ... In terms of what's good for the little girl? It would have been hell on the victim. But that wasn't Hillary's problem." The victim, now 46, told Newsday that she was raped by Taylor, denied that she wanted any relationship with him and blamed him for contributing to three decades of severe depression and other personal problems.

"It's not true, I never sought out older men - I was raped," the woman said in an interview in the fall. Newsday is withholding her name as the victim of a sex crime.With all the anguish she'd felt over the case in the years since, there was one thing she never realized - that the lawyer for the man she reviles was none other than Hillary Rodham Clinton.

[T]he record shows that Rodham was also intent on questioning the girl's credibility. That line of defense crystallized in a July 28, 1975, affidavit requesting the girl undergo a psychiatric examination at the university's clinic."I have been informed that the complainant is emotionally unstable with a tendency to seek out older men and to engage in fantasizing," wrote Rodham, without referring to the source of that allegation. "I have also been informed that she has in the past made false accusations about persons, claiming they had attacked her body."Dale Gibson, the investigator, doesn't recall seeing evidence that the girl had fabricated previous attacks. Rodham was paid a $250 retainer for her services, minus 10 percent for court costs, records show.