Friday, September 17, 2021

Speech and Role Morality

 by Michael C. Dorf

On Monday, Professor Colb reported on a recent discussion hosted by Cornell Law School featuring Professors Cornel West and Robbie George. In answering some comments by one reader, I offered some further support for the main essay's criticism of the analogy Professor George drew between private attorney general statutes in the environmental and other contexts, on one hand, and the deputizing of private parties by SB8, the Texas abortion statute. In a future essay, I might elaborate further on my somewhat cryptic comments and also dive deeper into the legitimate and illegitimate grounds that lawmakers have for enlisting private parties in enforcing public (and other) obligations. In today's essay, however, I want to turn to another issue that arose during the course of the discussion, which ended up as a missed opportunity.

My colleague Sheri Johnson as moderator asked the panelists--who celebrated one another as icons of intellectual freedom--whether they thought Harvard had acted improperly when it failed to renew Ronald Sullivan as Head of Winthrop House (one of the undergraduate residential colleges) in light of complaints by students, especially women, about Sullivan's work at the time as a criminal defense lawyer representing Harvey Weinstein. Professors West and George both condemned Harvard College for the action, while praising Harvard Law School, where Sullivan is a clinical law professor, for subjecting him to no penalty.

I agree that the law school had no ground for subjecting Professor Sullivan to any sort of penalty, but despite Professor George's introductory remarks about the importance of understanding the position of those with whom you disagree, I was struck his failure and the failure of Professor West to grasp, much less persuasively refute the objection.

In response to Professor Johnson's prompt, Professors West and George talked at considerable length about the importance of the right to counsel, which, of course, was not the issue. I can't speak for undergraduates living in Winthrop House at the time, but I doubt more than a handful of them thought that Sullivan acted wrongly as a lawyer by representing Weinstein. The complaint--as I understood it at the time and as I understood Professor Johnson to be characterizing it--was about the resulting conflict of interest. I imagine that many of the complaining students were thinking something like the following:

We grant that every criminal defendant in our adversary system is legally entitled to a competent defense. We also grant that if every lawyer who finds an accused's alleged conduct repugnant refuses to represent the accused, the system could be in jeopardy. Thus, it is morally acceptable, perhaps even laudable, for a defense attorney to represent unpopular clients accused of heinous acts. We do not regard Professor Sullivan's representation of Weinstein as immoral, unprofessional, or improper in any way. That said, however, we think that Sullivan cannot simultaneously discharge his lawyerly duties to Weinstein and his pastoral duties to the residents of Winthrop as Head of house.

Is that a valid complaint? Maybe not, but it was disappointing that neither Professor George nor Professor West addressed it. To be fair, West at least gestured in the direction of the real question by asking rhetorically why Sullivan had to be the one to represent Weinstein, but it became clear that he meant that only in the way one would ask the question of any lawyer representing a distasteful client. Professor West was not focused on the potential conflict in the role-morality of being a lawyer and the role-morality of heading an undergraduate residential college.

During the Q&A, one audience member tried to re-focus Professors George and West on the potential conflict, but his question was a bit muddled, so George took him to be asking whether it was legitimate for Winthrop House to decline to renew Professor Sullivan if his work as a lawyer left too little time to attend to his Head of House duties. Of course it would be, George answered, but only if that were not a pretext for discharging him for an illicit reason.

That's fair so far as it goes, but it doesn't go nearly far enough. The question to be answered rather than begged is whether Sullivan's representation of Weinstein counts as an illicit reason. George assumed without arguing for the conclusion that because it would be impermissible for Harvard Law School to discharge Sullivan from his law teaching position because of client representation, it was equally impermissible for Winthrop House not to renew him for that reason. George either tried but failed to understand the question, didn't try to understand the question, or deliberately chose to answer the wrong question. Whatever the cause of his failing, because George took the only objection to Sullivan's Weinstein representation to be an objection to anyone representing a bad guy, George never confronted the conflict in role morality.

Let's fill the gap. Was the conflict in role morality a legitimate basis for non-renewal? I think that's a potentially difficult question.

It would be an easy question if one thought that representing a set of clients necessarily associates the lawyer with those clients, even if technically legal. For example, consider the fact that Alan Dershowitz has of late gone out of his way to represent Donald Trump in his efforts to destroy democracy and before that seemed to take special pleasure in representing men accused of harming women. There's enough there that a reasonable person could infer that Dershowitz doesn't simply take on unpopular clients because he thinks everyone deserves a defense but that he especially enjoys defending men accused of harming women.

I say "enough there" because it's not a slam dunk. After all, Dershowitz did represent Mia Farrow against Woody Allen, and he certainly talks the everyone-deserves-a-defense game, so reasonable minds can differ on whether Dershowitz is like Rudy Giuliani--someone who at this point is indistinguishable from his clients. If either Dershowitz or Giuliani were otherwise qualified for the pastoral role of being a Head of a residential college, their client representation would be a legitimate basis for not hiring or not renewing them--clearly so in Giuliani's case and at least arguably so in Dershowitz's.

What about Professor Sullivan? I don't know whether Sullivan really was in the Weinstein defense game as a professionally detached lawyer--someone who is representing a man credibly accused of rape and other crimes of sexual violence on this occasion but who does not specialize in such defenses nor in slut-shaming victims. According to a 2019 op-ed in the Harvard Crimson, Sullivan took positions on other matters that suggested at least an insensitivity to victims of sexual harassment and assault. But it's also possible that these are cherry-picked examples from a much larger portfolio. I am simply not well positioned to say whether the residents of Winthrop House would have been drawing a reasonable inference in concluding that Sullivan's defense of Weinstein reflected a general attitude.

Nonetheless, even if we assume Sullivan is generally suited by character, attitude, and temperament to do the job of Head of House, the perception and reality of a certain kind of role incompatibility was undoubtedly there--at least during the period of his active representation of Weinstein. I served as a tutor in a residential college at Harvard for a couple of years when I was a law student over thirty years ago. Most of my duties were academic or social, but occasionally there were conflicts, including one violent one. I did not encounter any students who complained of sexual violence, but that was simply luck of the draw. I was responsible for only about two dozen students. A Head of House for an entire residential college will likely encounter such complaints on a regular if not constant basis.

So long as Professor Sullivan was quite publicly representing Weinstein by day, he was literally siding against complainants. That doesn't mean as a matter of strict logic that he would be unempathic to students lodging their own complaints. It does mean he would have a much harder time projecting warmth and acceptance than someone with a different day job.

During their non-discussion of the real issues in the Sullivan case, Professors George and West decried student demands for safe spaces. The point of a serious education, George praised West for saying, was to expose students to novel ideas that take them out of their comfort zones. Like so much else that went on during last week's festival of mutual congratulations, that was true but irrelevant. Of course classrooms shouldn't be safe spaces in the sense of places where no one confronts unfamiliar or challenging ideas. From that proposition, however, it hardly follows that students (or anyone) should have their ideas--including their ideas about what has been done to victimize them--challenged wherever they go.

To Professor George's credit, his defense of intellectual freedom was not complete hackery. For example, he condemned the assault on critical race theory no less than he condemned what he considered progressive efforts to shut down rather than rebut distasteful ideas. That's to the good.

But it should be possible to engage in bipartisan support for intellectual freedom without condemning everything that gets thrown into the broad and ill-defined category of "cancel culture." Celebrating our shared cross-ideological commitments to protecting free speech is consistent with recognizing that there are hard cases, that even self-proclaimed absolutists have lines they will not cross, and that where exactly those lines should be drawn is itself often a matter of legitimate contestation.


Hashim said...

What if Sullivan was a *prosecutor* of sex crimes? Would anyone seriously be complaining that because he "specializes" in "siding (with) complainants," he couldn't "project warmth and acceptance" to students who are *accused* of sexual misconduct, at least sometimes erroneously? I doubt it, or that anyone would take such complaints from students seriously. And if not, then this doesn't seem like a "role-morality" issue, but rather just disagreeing with those who have the temerity to defend those credibly charged with sex assault.

Relatedly, why should it matter whether or not one "specializes" in sex-assault defense, so long as all agree that those defenses are provided in an appropriate manner? Indeed, imagine he specializes in it because he only takes cases where the victim has been wrongfully accused, every one of his clients has been acquitted, and the Me-Too groups agree that his defenses have been appropriately handled. It seems bizarre to think that that nevertheless would *increase rather than decrease* the role-morality concern.

tjchiang said...

By this logic, the lawyers who represented Guantanamo detainees were literally siding against the United States. The concept that we can’t infer a lawyer’s personal views from his representation of clients is mostly fiction, but it is a really important fiction, and one that benefits liberals as much as conservatives.

Joe said...

In a way, you are "siding against the United States," since it is U.S. v. your client.

Now, you have people who work for the government with the job of defending people in such suits. Consider this from the headnotes of Ex Parte Quirin, involving enemy agents during WWII:

In response to an inquiry by the Chief Justice, the Attorney General stated that the Chief Justice's son, Major Lauson H. Stone, U.S.A. had, under orders, assisted defense counsel before the Military Commission, in the case relative to which the Special Term of the Court was called; but that Major Stone had had no connection with this proceeding before this Court. Therefore, said the Attorney General, counsel for all the respective parties in this proceeding joined in urging the Chief Justice to participate in the consideration and decision of the matters to be presented. Colonel Kenneth C. Royall, of counselor the petitioners, concurred in the statement and request of the Attorney General.

The ultimate question is if we can completely compartmentalize here.

Let's take a somewhat artificial case. A person voluntarily signs up as part of a defense of an accused rapist of many girls. The person in their regular life is a social counselor of some sort. Some organization that provides a half-way house with many domestic violence victims says "well, we know you have a right to do that, but you being on our staff will trigger the victims, we are sorry, we can't hire you."

Another blog discussed the house counselor or whatever issue some time back and there was a lot of debate in the comments. I think the specialized nature of the job makes it sensible to consider the needs of the people who live there.

I think it's harder than doing something like not hiring the person as a professor or something. The "safe space" issue is a lot harder at home/in a residence. It is at least reasonable to be concerned, even if the residents are being "unreasonable." A victim of domestic violence will have emotional reactions.

kotodama said...

Hashim, if it were up to me, which it's not of course, I'd probably prefer that nobody doing active, ongoing work on either sex assault defense or prosecution be signed up as one of this residential house heads. On the latter front though, is that even a realistic possibility? I'm not aware of many law professors who moonlight as sex assault prosecutors, but maybe I missed that trend. And if the trend does exist, then I'm fine with disqualifying them. One would hope that even excluding such folks doesn't impact the candidate pool all that much.

tjchiang, if you're going to bring up that counterexample—which is so predictable, and one that folks have already debated to death—without at least paying lip service to the myriad obvious differences between that and this situation, then it's hard to see you as being interested in serious discussion.

CEP said...

I think the point has been largely missed: That Professor Sullivan as head of Winthrop House is not Professor Sullivan at the law school. Even though they share the same body, etc. The role of the head of Winthrop House is substantially different from that of a professor at the law school. It's not just that undergraduates are purportedly younger or less mature than law students; it's that one position is overtly that of a role model, and one position is not.

One of my favorite examples is that blasted statue of He-Who-Shall-Not-Be-Named at the main gate at West Point. That Individual (the one who was fired by President Truman for, in essence, saying "I'm the theatre commander here, so I make all foreign policy and set all priorities in the theatre, and to hell with the Constitution and the concept of 'civilian control of the military'") had some good qualities as a commander subordinate to more-senior commanders. As a role model, though, one must consider his role in the Bonus Riots and many other indications (from decades before Korea) that — for a population of teenagers prospectively to be entrusted as commissioned officers of the United States — he was and is not an appropriate role model. So go ahead: Teach his intensive preparation in understanding the "mind of the enemy," and his demonstrated loyalty to subordinates, and his cantankerousness in the face of setbacks, as things that those teenagers need to hear and consider. Just don't set him up as a role model with unquestioned judgment, and for all aspects of their lives and future roles as leaders, for those teenagers; that way lies Iran-Contra.

Applying these principles to "head of Winthrop House" is left as an exercise for the student. Which is precisely what it should be.

Greg said...

As a layperson, I feel there are limits to the "everyone deserves a defense" argument that come from client expectations, especially in these high-profile cases. I'll admit this comes from my chosen profession (engineering) explicitly rejecting role-morality in its code of ethics. In engineering, if your client wants you to behave in a way against the public interest, your are ethically obligated to say NO.

For most clients, receiving a competent defense means ensuring that they are treated fairly by the system, and receive roughly equal treatment to others who are similarly situated. In essence, defense lawyers serve as protection from overzealous prosecutors. Lawyers serving as defense attorneys in this role represent no ethical issues.

In particular, odious individuals who are actually being mistreated (such as victims of torture) deserve a strong defense against that mistreatment.

However, in high-profile cases like Weinstein's, the client expectation is generally different. It is not just that they will be treated fairly, but that they will be treated significantly better than similarly situated individuals. In essence, due to the structure of the adversarial system, the role and expectation of the defense attorney in these cases is to produce a gross injustice, in their client's favor.

This is a complicated issue, but it would seem to me that in situations where the client expectation is a gross injustice, and producing such an injustice is the only way to fulfill your obligation to your client, the only way to avoid unethical behavior is to choose not to take that client.

In that sense, I could see how simply choosing to take a client like Weinstein and trying to get them acquitted potentially does reflect a moral view that could be a problem for serving as a head of a residential house.

Unknown said...

Stop fighting the hypo. Yes, prosecutors offices don’t generally impress at-large lawyers into service as assistant prosecutors.

Imagine Sullivan had been engaged in *private litigation* against accused/alleged rapists

kotodama said...

Unknown, take a deep breath. I bothered to answer your hypo, didn't I? So you ought to be thanking me for volunteering!

And then you went ahead and changed it anyway. If you're unhappy with how you formulated it originally—and that I pointed out how unrealistic it is—that's nobody's fault but yours. Next time do better!

That said, I think my answer's probably still about the same. Of course, there are many qualifiers—and that's my bad for not mentioning them originally. For one, I'm not really clear on what the Faculty Dean's level of participation is with sex assault cases and whether it involves more of an investigative/prosecutorial role or something closer to a neutral arbiter. If it's along the lines of the former, then maybe it's not much of a conflict to be actively doing plaintiff/prosecution work on the side. Another qualifier is that it's not just plaintiff/prosecution vs. defense being compared in a vacuum. Sullivan as I take it had an existing negative track record before he signed up for Weinstein, whereas your hypo doesn't include that. It's hard to even imagine what you could add to the hypo to get a similar effect. Finally, the hypo's still extremely unrealistic. Who's going to be protesting over someone like that in the first place? Male students and faculty who identify with accused rapists? Yeah, somehow I don't see that happening.

Anyhow, I know you're not being serious as usual and no thanks will ever materialize for indulging your bad faith games, but here I am on Friday night with not much better to do!

Michael C. Dorf said...

Thanks for the engagement. Perhaps needless to say, I agree with the comments that side with me. I'll simply add further that I find it something between amusing and dispiriting that when I wrote that it's possible for a lawyer, through the pattern of choice of clients and the conduct of their defense, to be reasonably perceived as associated with the misdeeds of those clients--at least when it comes to fitness for other positions--my main critics responded with a non sequitur by arguing that lawyers often should not be associated with their clients. That's a non sequitur because I positively affirmed that point in my original post. It's as though I argued "although people of all political views often write thoughtful good-faith comments on my blog, some of the right-wing commentators engage in a pattern of right-wing trolling," and a commenter wrote "hey Dorf's wrong because some right-wing commentators aren't trolls."

kotodama said...

Prof. D., thanks for keeping me company in burning the pre-midnight oil!

I would just add that lurking in the background of this discussion is that all the Team Kraken, TP impeachment, and shady 1/6 insurrectionist lawyers (just some examples) are being identified—rightly—with their clients. And they're being ostracized accordingly. That must make Unknown, tjchiang, and their reactionary pals pretty uncomfortable, which just warms my heart to no end.

Greg's points are well taken too. Maybe a pithy formulation of that would be, you have a "right to counsel" but not a "right to counsel who can still get you acquitted when you're 500% guilty." Similarly, everyone gets counsel as a matter of course, but whether a specific person has any viable, non-frivolous defenses will turn on that individual's particular circumstances, and sometimes there may be none.

Hashim said...

Mike, for what it's worth, I of course agree that in some contexts "the pattern of choice of clients and the conduct of their defense" would be relevant to role-morality, and in some contexts it wouldn't. But it seemed to me, and perhaps I was mistaken based on your response, that your post was suggesting that the mere fact of "specializing" on sex-assault defense would be sufficient to reasonably trigger role-morality concerns for students, regardless of how the defenses were conducted, simply because consistently "siding against" accusers would create "warmth and acceptance" problems. And I didn't understand why that would be if it wasn't equally true for prosecutors, holding all else equal, which seemed implausible. If you are in fact drawing that distinction, I'd still be curious why. If you're not, and you think that specialization in sex assault defense isn't sufficient if the defenses are conducted appropriately, then I guess I misunderstood your post, so sorry about that. In all events, I was trying to better understand the factors you deemed relevant to identifying role-morality concerns, not disputing that some factors are relevant.

tjchiang said...

The response wasn't only that lawyers should not always be imputed with their client's views (the only thing you expressly rejected). It is that there is currently a strong norm that we should almost never consider representation as probative evidence (unless it rises to the Giuliani level where he is not acting like a lawyer anymore), even when as a factual matter it is probative of the lawyer's views. It would be a non-sequitur to argue that your argument necessarily implies that the lawyers representing Guantanamo detainees were terrorist sympathizers. It is not a non-sequitur to say that your argument implies that others are entitled to raise the question of those lawyers' patriotism and then have a long debate about whether they represented detainees because they believed everyone is entitled to a defense or because they don't believe in American Greatness or . . . etc etc.

To use your analogy, it is not "Dorf's wrong because some right-wing commentators aren't trolls." It is "you might be right factually, but there is a strong norm against calling someone a troll unless their behavior is really extreme, and we should stick to that norm because there are good policy reasons for it."

Michael C. Dorf said...

We can agree to disagree about whether my analogy about the arguments made by Hash and TJ mischaracterized their points and about whether their arguments misunderstood mine. To be clear about one thing, though, in my analogy, I meant for them to be the people making arguments in good faith and for Unknown to be the troll. I thought the double analogy was clever but it was perhaps more opaque than subtle.

FWIW, my colleague Brad Wendel, whose specialty is Professional Responsibility, wrote on FB (where I promoted this post) that while the strong norm TJ identifies is indeed the prevailing view in the profession, there is a growing body of work pushing back on it in the way I suggest here. And finally, I would add, as I said in the post, that I'm not even sure I disagree with the norm. I was merely arguing that it ought to be open for discussion.

Greg said...

Hashim, I can say that coming from a family that has both prosecutors and defense attorneys, and their chosen specialties do affect their views on other events. Most often this shows up in trust in law enforcement, but I have to believe that a lawyer who specializes in sexual assault defense would probably have a harder time empathizing with sexual assault victims, in that they would at least view them with more skepticism than the average person. Similarly, a prosecutor who specializes in sexual assault prosecution would probably have less empathy than the average person towards someone accused of sexual assault.

One important difference is that we as a society see less need for empathy towards those accused of sexual assault than for its victims. As Prof. Colb has indicated many times, those accused of sexual assault are, as a whole, likely guilty, and those who claim to have been sexually assaulted, likely have been. As such, a potential lack of empathy toward sexual assault victims is more likely to be considered disqualifying than a lack of empathy towards those accused of sexual assault.