Biglaw

Is Biglaw Really Depraved?

Or is it just a victim of its own mythology.

By  
on

Aiding and abetting child slavery is bad. One would hope that’s a fairly uncontroversial statement. Last week, the Supreme Court heard argument on a case about possible liability for Nestle and Cargill for human rights violations that occurred in Africa as part of the food giants’ supply chains. The case generated harsh criticism as a defense of child slavery — which it wasn’t technically. It also inspired some high-minded defenses about separating attorneys from the stances they take on behalf of clients — which is dumb.

But this chasm between scorched earth criticism and uncritical dismissiveness, highlights some festering issues with the profession, all based upon the fictions upon fictions we’re asked to swallow when we champion this messy system.

The New Republic has an article from Alex Pareene titled Neal Katyal and the Depravity of Big Law charting the historical development of the status quo “right to counsel” mythology. What was once understood specifically as the constitutional bulwark against the awesome power of the state in criminal cases slowly morphed over the course of the 20th century into a catch-all defense of lawyers taking on unpopular corporate clients. And while I’d argue that the evolution of the right to counsel to cover civil litigation — which can devastate people these days as surely as a prosecution — is a positive development that should be pushed even further, that’s properly a reason to provide civil legal services to the downtrodden, not a teflon shield for attorneys taking money from deep-pocketed pariahs to perform work exacerbating their advantages over the rest of us.

That’s a shield that we’re always quick to puncture at Above the Law. When Jones Day goes out and tries to disenfranchise the American electorate and then weasels around that it doesn’t represent “Trump,” just the sock puppet organizations that Trump controls, and pleads with everyone to respect their efforts because everyone deserves a lawyer, they get rightly scorched. As we’ve said before, lawyers shouldn’t be punished “as lawyers” for their clients, but they can be punished as businesspeople for their clients. If you want to defend Nazis based on general First Amendment grounds, go ahead. Some folks will accept that high-minded justification, but if other clients or potential co-workers judge you negatively for it, that’s the natural and logical consequence of this decision. Don’t whine about these things and certainly don’t pretend some superficial Schoolhouse Rock vision of the judicial system shields Jones Day as if they have some divine right for mainstream clients to overlook the firm’s wingnut advocacy.

As for the recent Supreme Court argument, the facts of the case are certainly horrific, but the position that the Alien Tort Statute doesn’t cover Nestle or Cargill here isn’t outlandish on its face. Katyal even notes that other avenues exist for bringing claims against the companies on this set of allegations. If the statute is wrong, it’s not up to the courts to rewrite it to fit the case. That’s the lawyerly answer anyway.

Except even if it’s true — and Justice Kagan seemed very convinced that it isn’t — that the ATS doesn’t go this far, this argument requires believing that America is still a functional Republic at this point. Congress is struggling to pass a bipartisan bill about a raging pandemic, they aren’t about to have a serious conversation about the scope of a 1789 law. And the childish yet prevailing worldview that courts need to play linguistic games to hew to the narrowest read possible isn’t sparking new and more detail-oriented lawmaking, it just locks in the status quo, usually to the detriment of the marginalized. On the other hand, are we better off asking the courts to usurp the role of the legislature out of necessity? That’s… ominous. But if that is where we are, doesn’t that redouble the need for lawyers to be more than mere advocates and function with the accountability of true policymakers?

The push and pull of these forces are how we end up in this hellscape because the cabined role of every actor — lawyer, judge, lawmaker, executive, international body — just results in no one being in a position to take responsibility.

Sponsored

Ultimately, the profession is as messy as it is important. The only solution is to keep clear-eyed about it and reject the nonsensical “Love Your Lawyer Day” platitudes. No, Biglaw isn’t depraved, at least not any more than any other node in this headless structure, but Pareene is right that it’s not helping anyone to assume law firms can hermetically seal themselves off from the practical impact of their arguments. It’s important to engage, question, and push lawyers, but also to contextualize the arguments and spread the responsibility accordingly.

Or to put it more simply, when aiding and abetting child slavery amounts to a colorable question of law, the problem runs way deeper than the moment any law firm got involved.

Neal Katyal and the Depravity of Big Law [The New Republic]

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Sponsored

Topics

, ,