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.