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Let's talk about #nealkatyal and what we should think about lawyers who represent moneyed interests in court.
First, take a look at Tom Goldstein's defense of him:
https://www.scotusblog.com/2020/12/confusing-supreme-court-counsel-with-their-clients/
And @pareene 's response:
https://newrepublic.com/article/160481/neal-katyal-depravity-big-law
Both are excellent pieces. 1/
First, take a look at Tom Goldstein's defense of him:
https://www.scotusblog.com/2020/12/confusing-supreme-court-counsel-with-their-clients/
And @pareene 's response:
https://newrepublic.com/article/160481/neal-katyal-depravity-big-law
Both are excellent pieces. 1/
I think the problem here is that there are two separate questions that are being conflated and which yield very different answers. One is whether the professional standards of law practice should have anything to say about representing corporate clients who seek bad stuff. 2/
The second is how folks staffing administrations and generally handing out political jobs should feel about people who do it.
My general answers to these questions are (1) professional standards of law practice should not be changed because people advocate for bad stuff... 3/
My general answers to these questions are (1) professional standards of law practice should not be changed because people advocate for bad stuff... 3/
for corporations; and (2) we are asking the wrong question in terms of employing Neal Katyal. The real problem is that our system is rigged so that we only end up employing Neal Katyal types and not skilled folks from other backgrounds who represent other types of clients. 4/
So why do I think there's nothing about the professional standards of the profession that need to be changed? Well, basically for all the reasons you have been hearing. The adversary system really does work best if everyone gets the best argumentation of their positions. 5/
And zealous advocacy just has to include the ability to advocate bad stuff that is in the interests of your client. Everyone is tired of hearing about criminal defense lawyers, but it really is true and people need to come to grips with this: our criminal justice system... 6/
really does say that if there had been some technical screw up by the LAPD or the DA's office and as a result Charles Manson would have been able to walk free and murder additional people, his defense lawyers not only would have been allowed to make it, but would be... 7/
ethically required to make it.
Let that sink in. It's not simply a matter of "well, criminal defense clients face the almighty state" or "criminal defense lawyers make arguments that protect people's rights". They truly do those things.
But they also help guilty... 8/
Let that sink in. It's not simply a matter of "well, criminal defense clients face the almighty state" or "criminal defense lawyers make arguments that protect people's rights". They truly do those things.
But they also help guilty... 8/
dangerous people get out of prison where they can victimize more people. That's part of the job. Indeed, many a lawyer decided they couldn't be a defense lawyer because of this ethical duty. Famously, for instance, @thatmarciaclark quit criminal defense because she wasn't... 9/
comfortable defending rapists and getting them out of prison.
And yet, at least some people making the argument against Katyal would very much concede that it's OK for a lawyer to make arguments that spring rapists from prison. (I say "some" because there were definitely... 10/
And yet, at least some people making the argument against Katyal would very much concede that it's OK for a lawyer to make arguments that spring rapists from prison. (I say "some" because there were definitely... 10/
people who rejected that argument when it came to Harvey Weinstein's lawyers.)
But there's a second, important objection to my position. And that is, there's a difference between doing that on behalf of poor people and doing it on behalf of rich people and corporations. 11/
But there's a second, important objection to my position. And that is, there's a difference between doing that on behalf of poor people and doing it on behalf of rich people and corporations. 11/
That argument has a surface plausibility. Indeed, there is very much a difference between a public defender who works to get an unlucky, poor violent criminal off and the lawyers who defend rich rapists, polluters, and corporate criminals who use slave labor! 12/
But, give this some thought for a second. Do you treat any other profession this way? Do you think that doctors who treat rich patients are immoral? That highly skilled heart surgeon who is saving the life of some craven rich guy could be saving the lives of ordinary... 13/
workers. The tour guide who ferries rich people around to the various wonders of the world could be providing services to middle class or even working class travelers instead.
Heck, since lawyers are often called "whores", it's worth noting this isn't even a standard... 14/
Heck, since lawyers are often called "whores", it's worth noting this isn't even a standard... 14/
people apply to sex workers! Does anyone EVER say to a sex worker "you are giving sexual pleasure to rich people who don't deserve it, you should lower your fees and take poor clients instead"? Of course not!
We live in a capitalist system. The way you make money in... 15/
We live in a capitalist system. The way you make money in... 15/
most specialized professions is by serving the demands of rich people. There are a very few lines of business- e.g., Walmart, the mass music industry (Taylor Swift sells plenty of music to non-rich people), etc., where this is not true. But in most of the American economy... 16/
it is true.
Heck, even the writers who write these criticisms of Neal Katyal are employed by publications which have a very wealthy subscriber base. Even they couldn't make their livings without rich clients. And again, nobody EVER tells them "you are violating the... 17/
Heck, even the writers who write these criticisms of Neal Katyal are employed by publications which have a very wealthy subscriber base. Even they couldn't make their livings without rich clients. And again, nobody EVER tells them "you are violating the... 17/
ethics of your profession by writing for rich people".
Lawyers are no better, or worse, than the society which employs us. We are simply its agents. And like any service industry, we serve a lot of rich people with the means to employ us. So do housemaid services, yoga... 18/
Lawyers are no better, or worse, than the society which employs us. We are simply its agents. And like any service industry, we serve a lot of rich people with the means to employ us. So do housemaid services, yoga... 18/
studios, tax accountants, gardeners, and a bevy of other service providers, rich, middle class, and working class.
And when we make a living by working for rich people and corporations, we further the interests of rich people and corporations. It's true. It's also true... 19/
And when we make a living by working for rich people and corporations, we further the interests of rich people and corporations. It's true. It's also true... 19/
that unlike other professions, we are encouraged to give away our time to the underprivileged, and we have financing mechanisms like Gideon, Section 1988, contingency fees, and class actions that make it possible for poor people to get good lawyers. So in that sense... 20/
we are better than other professions.
But, to be clear, we can, and should do more.
But what we should not do is change the norm that says that with rare exceptions, once you take on a representation, your job is to advance that client's interests. 21/
But, to be clear, we can, and should do more.
But what we should not do is change the norm that says that with rare exceptions, once you take on a representation, your job is to advance that client's interests. 21/
And the reason is that if we did change that norm, it wouldn't be corporate clients who suffered. It would be unpopular causes. Which might in some cases be corporate, but would often be things like criminal defendants, divorcees, and other areas where people look bad in... 22/
the eyes of the public.
And remember as well that sometimes people are innocent, or the legal rules they adopt benefit others as well. Obviously, Katyal's position in the Section 1350 case doesn't qualify here- it's just odious. But not everything corporations argue is... 23/
And remember as well that sometimes people are innocent, or the legal rules they adopt benefit others as well. Obviously, Katyal's position in the Section 1350 case doesn't qualify here- it's just odious. But not everything corporations argue is... 23/
odious. For instance, the same rules that Google and Facebook advocate in court also benefit individuals with no power who speak on their platforms. Google and Facebook have more money to advocate their positions.
Robert Kraft's taking on the Vice Squad in Florida... 24/
Robert Kraft's taking on the Vice Squad in Florida... 24/
resulted in a bunch of other men whose names you have never heard having their prosecutions halted as a result of the illegal search of the parlor.
The point is, we don't want rules that say "you can decide as a lawyer not to make this argument because it will make... 25/
The point is, we don't want rules that say "you can decide as a lawyer not to make this argument because it will make... 25/
you look bad". That's not going to lead to a better legal profession. Just one that is afraid to do things that are unpopular.
So what, then, about the second point- should Katyal pay a professional price for this? I think in that instance, the real problem is a failure... 26/
So what, then, about the second point- should Katyal pay a professional price for this? I think in that instance, the real problem is a failure... 26/
of imagination.
You see, the ultimate problem isn't solved by picking some other Ivy League grad-SCOTUS clerk-big firm litigator in Katyal's place, which is exactly what both parties seem to always do. This is how you end up with a revolving door of corporate lawyers in DOJ. 27/
You see, the ultimate problem isn't solved by picking some other Ivy League grad-SCOTUS clerk-big firm litigator in Katyal's place, which is exactly what both parties seem to always do. This is how you end up with a revolving door of corporate lawyers in DOJ. 27/
We wouldn't have a Neal Katyal problem if we broadened our horizons. Instead of saying "Katyal's work is too controversial", how about instead looking for MORE lawyers who have done MORE controversial work? Bring in some criminal defense lawyers and public defenders. 28/
Bring in some people who sue corporations for a living.
You want to know why those people never get these jobs? Because (1) they didn't go to Harvard or Yale and (2) they really ARE seen as too controversial. Appointing big law types is "safe", because that's considered... 29/
You want to know why those people never get these jobs? Because (1) they didn't go to Harvard or Yale and (2) they really ARE seen as too controversial. Appointing big law types is "safe", because that's considered... 29/
the acceptable "elite" way of doing things, including by politicians, who, after all, are often sending their kids to Ivy League colleges and love how the revolving door system benefits them and their own families. Nobody wants to let outsiders into the tent.
But if we did, 30/
But if we did, 30/
