The Ethicist Steps in It

This week the New York Times’ Ethicist Published a column entitled “Is It OK to Take a Law-Firm Job Defending Climate Villains?” in which Kwame Anthony Appiah answers a letter from a third-year law student who is trying to decide whether to go work at a big law firm after law school even though the student came into law school planning on becoming a public interest lawyer. Appiah’s answer-that it’s totally fine and ethical-leaves much to be desired. His basic point is that because everyone is entitled to legal representation, it can never be unethical to represent a person or corporation because that’s how the system works:

“[F]or an adversarial legal system to function justly, there have to be lawyers who are willing to serve clients they disapprove of. If that’s a demerit, it has to appear on somebody’s moral scorecard.”

There are certainly some cases where this is true. For instance, every criminal defendant is entitled to legal representation regardless of what they are accused of doing. We understand in this case that the constitutional role played by the attorney is a moral good regardless of the particulars of the representation.

But if you extend this reasoning much beyond the criminal defense context, you start to see problems with it. Let’s take the example of the climate villain. It is clearly the case that big corporations have the right to legal advice about how to comply with environmental laws. But many law firms are not in the business of helping corporations comply with the law. Instead, they are in the business of helping corporations avoid the law in ways that are detrimental to the climate. Does a corporation have a right to a lawyer who will help them pollute more under the current law? I don’t think so.

Let’s take another example. Suppose a corporation wants to pay its employees less overtime and so it goes to a law firm looking for help skirting the overtime laws. The law firm says, “well, you could reclassify your employees in such and such a way to avoid paying overtime. It’s not entirely clear that it’s legal but it’s not clear that it’s not legal and nobody will probably be the wiser.” Is that corporation entitled to that legal advice? Sure, they are entitled to seek it, but are they entitled to receive it? No, they are not.

Or let’s take an example from the criminal defense context: Jeffrey Epstein. He clearly was entitled to a criminal defense attorney. But let’s say that he decided to sue every one of his alleged victims for defamation and the lawyer he hired subjected the victims to humiliating and degrading discovery requests. Would Epstein be entitled to such legal representation? Of course not. Those lawsuits do not need to be brought. The world and the adversarial legal system will be just fine.

Or take an example from politics. Was Donald Trump entitled to legal representation to file frivolous lawsuits challenging the 2020 election? Of course not. The lawyers who took on those cases have been rightly pilloried. Some of them have been sanctioned or disbarred. No one says “well, he was entitled to a lawyer so I guess the lawyers had no choice but to file frivolous lawsuits alleging election fraud in an attempt to overturn a democratic election.” No. Just no.

The mistake that Appiah makes is that he jumps from an obviously true statement (there are circumstances in which people are entitled to legal representation) to a far more controversial one (everyone is entitled to lawyer who will take whatever legal action the client demands, regardless of the morality of such action, in every circumstance) without justifying it. In real life, figuring out whether you are behaving ethically requires more than just repeating platitudes like “everyone deserves a lawyer.” It requires actually looking at the work you are doing, figuring out why you are doing it, and deciding whether it is morally good, bad, or neutral. In this case, the letter writer knows already that the work he will be asked to do will go against his values. That is why he is writing the letter!

Appiah makes two other arguments, both of which fail. He first argues that turning down the law firm job is pointless because “[r]efusing to take the corporate-law job . .. wouldn’t deprive them of legal assistance. After all, the firm isn’t going to stop serving them if you decline to join it.” This is, simply put, poppycock. Our moral decisions do not cease to have meaning simply because they will not prevent bad things from happening. To illustrate this point, think about how you feel about the following justifications for immoral behavior:

  • My friends were going to rob that woman whether I helped or not, so it wasn’t a big deal that I was the one that put the gun to her head.
  • If I had refused to join the SS, I wouldn’t have been able to stop the Holocaust, so it was not morally wrong to join.
  • I think it’s morally wrong to eat meat, but someone is going to eat that hamburger so it might as well be me.

Are any of these statements convincing as moral arguments? No, they are not, and neither is Appiah’s.

Finally, Appiah argues that “on the bright side, not all of your clients are likely to be evildoers; your company will also be doing some pro bono work for people you may actively enjoy working for.” First of all, the percentage of time that young associates spend doing pro bono work is extremely low. But more importantly, you cannot justify an immoral action by pointing out all of the good things you have done. If you steal someone’s car, you don’t get off because you donated to charity once. I can’t believe that I even have to explain this.

This law student is in a position that many students find themselves in. They have lots of loans and an option to go make a lot of money. A decision to go work for “climate villains” may be understandable in these circumstances, but that doesn’t make it right and I think the letter writer knows it. Instead of giving the letter writer some tough love, the Ethicist has let him off the hook.

Becoming a Public Interest Lawyer now available

Great news! My book, Becoming a Public Interest Lawyer, is now for sale. Here is the book description:

Becoming a Public Interest Lawyer is a comprehensive guide for prospective, current, and recently-graduated law students who want a career in public interest law. It helps students decide which kind of public interest job is right for them and then gives them the tools and information they need to land their dream job. It provides candid, practical advice on how to choose a law school, survive the first year, develop a resume, search for a job, and manage student debt. Extended sections cover summer internships, public interest fellowships, law school extracurricular activities, and life after law school as a public interest lawyer. It is written for those who want to use their law degree to do good in the world but who need help charting their path. Anyone can have a meaningful, successful public interest legal career. This book lights the way.

You can order it directly from West Academic or from Amazon. As always, I welcome feedback on my contact page.

Public Interest Lawyers Deserve Debt Relief

Joe Biden announced his student loan forgiveness plan and there is some good news for public interest students and lawyers. Earlier reporting suggested that Biden might exclude law school and medical school debt, which possibly made sense from a politics standpoint but would have been terrible policy. Because of the $125K income cap, the people with law school debt most likely to qualify under the program are those who went to law school but are not practicing law and public interest lawyers, both of which deserve debt relief.

The first group is undeniably in need of help. Not everyone who goes to law school becomes a lawyer. In 2020, only 72% of law graduates were able to secure a job that required a law degree ten months after graduation. One study found that twenty percent of 2010 law school graduates were still working in non-legal jobs five years later. At some schools, the percentage of graduates who snag legal jobs is lower still. Some of the lowest ranked law schools have bar passage rates below sixty percent.

Moreover, certain groups are disproportionately likely to fail the bar examination. Only 79% of black bar applicants have passed the bar examination two years after graduation, as opposed to 93% of white applicants. These statistics do not even take into account students who drop-out before getting their degree. More than 9 in 10 law students at unaccredited California schools drop out before graduation. Nationwide, the attrition rate is seven percent. In other words, many people with law school debt are not lawyers and never will be.

Public interest lawyers also deserve debt relief. Lawyers working at public interest organizations have an average starting salary of $63,000 and it is rare for them to make more than $125,000. Yet they often have the same debt burden as firm lawyers making upwards of $200,000 their first year out of law school. Despite that salary differential, many law students would prefer to take public interest jobs. High student loan payments can make that choice untenable.

We should reward people who choose lower-paid, socially-valuable jobs, not penalize them. Excluding public interest lawyers from debt relief would have sent a signal that they chose wrong and that they should have either taken a corporate job or forgone law school altogether. There was no suggestion that Biden exclude other people who chose poorly-compensated but important occupations such as social work or teaching. The same logic applies to public interest lawyers.

At the end of the day, $10K is unlikely to be transformative for most public interest lawyers given that the average law school debt is in the six digits, but it is something.

How Much Debt Is Too Much Debt?

If you follow law twitter, you may have seen the recent news: Columbia recently became the first law school to pass the $110,000 mark for tuition and living expenses per year. That means that a student who does not get any financial aid could leave law school with almost $400,000 in loans (when you take into account interest accrued during law school). Most students won’t pay the sticker price, but even so this is a ridiculous amount of money, especially for students wanting to do public interest law. Unless your school has an excellent loan forgiveness program, you will be paying back your loans for a very long time. Or you will abandon your public interest dreams and become a corporate lawyer because you are forced to. These are not good outcomes.

That is not to say that public interest students should never take out loans. There are many circumstances in which it makes sense. But you should not take out loans until you calculate what your monthly payment will be, what loan repayment options you will have, and how much you are likely to earn. If the numbers don’t add up, you need another plan. That plan might be waiting another admission cycle and retaking the LSAT so that you can compete for merit scholarships, going to a lower-ranked school that offers you financial aid, or avoiding law school altogether. The time to consider these options is before you enroll, not when your first bill arrives six months after you graduate.

There needs to be a revolution in law school financing. The current system is broken. The average debt burden has doubled in the last 20 years and is still growing. It is unsustainable, particularly for public interest students who could never count on high salaries. Your job as a law school applicant is not to get crushed by the system. I think that being a public interest lawyer is one of the best jobs in the world, but no job is worth $400,000 in debt. If that’s your only option, you should think seriously about whether law school is right for you.

Announcing “Becoming a Public Interest Lawyer”

You may have noticed that I have not published a post in awhile. The reason is that I have been working on book based on this blog. It’s called Becoming a Public Interest Lawyer and it will be published soon. Unless there are supply chain issues, it will be out in September 2022. It is a comprehensive guide for aspiring public interest lawyers and is particularly geared towards pre-law and law students. I hope it will be useful and I will need your help getting it in the hands of people who could benefit from it. As soon as I have an order link, I will post it here. Once you read it, please drop me a note with your thoughts.

I will continue to write on this blog, but it will transition to a space where I can invite other public interest lawyers and law students to share their wisdom and where I can provide more topical information about public interesting lawyering. I hope you remain a reader!