Conflict of what?

A story is told — a canonical one, I believe — of an insurance agent who served as the chair of the Insurance Committee of the Maryland House of Delegates. When a reporter dared to inquire about possible conflicts of interest, the legislator replied: “Whaddaya mean? It don’t conflict with my interest at all.”

Dwitght Meredith notes * that one could easily staff a blue-ribbon commission on relations with Saudi Arabia with members of law firms that are defending Saudi Arabia against the 9-11 victims’ families. He’s especially upset that Jamie Gorelick, who serves on the actual 9-11 Commission, is a partner in a firm that represents one of the Saudi defendants in the families’ suit. Dwight asserts that, as a matter of legal ethics, Gorelick must resign.*

I agree, but I wouldn’t advise Dwight to hold his breath.

My earlier post * does not seem to have convinced many of my lawyer friends. They are taught in law school that the ethics of an adversary legal system trumps the ethics of common sense, which holds that:

–doing a skilled job for someone constitutes helping that person;

–helping people do evil things is wrong; and

–helping the enemies of one’s country is disloyal.

I refer them to the chapter called “Professional Detachment” in Arthur Applebaum’s masterful Ethics for Adversaries *.

The decision to take a client shouldn’t be, and isn’t in fact, automatic. It’s an exercise of judgment, for which lawyers ought to be held morally accountable. I’m virtually certain that none of the white-shoe firms defending the Saudis would have taken a case, civil or criminal, for one of the Mafia families. And I’m quite certain that the strong need, under the adversary system, for everyone to be represented in court does not keep those same firms from refusing clients who can’t pay their bills.

Here’s a hypothetical for the advocates of adversary ethics to ponder: would you have represented a slaveholder in an action under the Fugitive Slave Act, given a good-faith belief that the person in question was, in fact, the lawful property of your potential client? If so, then I’ll have to agree that you really believe in the adversary system.

If not, there must be some times when a lawyer shouldn’t take a legally meritorious case. Perhaps defending the financiers of mass murder — the operators of a system of finance that is still educating the mass murderers of tomorrow in Wahhabbist madrassas — against a tort action by the relatives of the victims is different in some relevant way, but I’d like to hear someone explain precisely how, rather than just reciting mantras about how the adversary system magically leads to justice being done.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: