Notice And Comment: Can A Progressive Work In Biglaw?
And are the attitudes of law students and young lawyers evolving on this issue?
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Most students at top law schools are progressives. And many students at top law schools, including a fair number of progressives, go on to work for Biglaw—firms that defend fossil-fuel companies, opioid manufacturers, and corporations that are similarly unsavory, at least from a progressive perspective. Is this unethical?
That’s the question tackled by Professor Kwame Anthony Appiah in a recent edition of his Ethicist column for the New York Times. A law student from a working-class family, saddled with lots of law-school loans, wrote to Professor Appiah in pertinent part:
While I entered law school hoping to work in the public interest, I now face the reality of paying back my loans. I took an internship at a big law firm where I am paid very well, and I’ve been invited to work for them once I graduate. The salary would be enough for me to pay off my loans, help my family, and establish a basic standard of living for myself—plus maybe own a house or even save for retirement, which would be impossible for me on a public-interest or government salary.
But the firm’s work entails defending large corporations that I’m ethically opposed to, including many polluters and companies that I feel are making the apocalyptic climate situation even worse. Even if I stay at the firm only for a short time to pay off my loans, I would be helping in these efforts for some time….
I know it is selfish to take this corporate job. But is it unforgivable?
You can read the complete question, as well as Professor Appiah’s full response, over at the Times. Here are his main points:
“[R]epresenting a malefactor isn’t, ipso facto, an act of malefaction…. Is a corporation really going to behave better if it doesn’t know what the law is? More than that, the world would most likely be made worse if corporations could only find lawyers who were indifferent to the wrongs their clients were doing.”
“[Your Biglaw job] does not include helping [corporations] to break the law or lie to the authorities. Indeed, you have a duty, as an officer of the court, to tell them they can’t do these things and to refuse to assist them in doing so.”
“[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. But surely it can’t be both good that somebody does it and a demerit for the person who has done it.”
“Some analysts, notably those associated with the effective-altruism movement, might even suggest that the high-paying track could be the morally best one for you to take…. [So] pay off those loans, help your family, and then, as a richly remunerated partner, give a big chunk of your earnings to [worthy causes]. You’ll have passed up the low-paying job at the public-interest center, but your generous donations will fund three such positions.”
I’m persuaded by Professor Appiah’s thoughtful response, and I know that many liberal and progressive law students and lawyers from years past would agree with him as well. But my anecdotal sense, from interviewing and writing about progressive law students today, is that views have shifted. I tried to channel one such student in my fictional open letter from the Dobbs leaker, justifying the leak:
No decent progressive—or human being—can work, for a summer or for a minute, for law firms that defend fossil-fuel companies and opioid manufacturers. The fact that these firms give people off on Juneteenth does not excuse their fundamental evilness—just as being nice to their dogs doesn’t make Republicans less evil, or giving out free SunChips doesn’t make FedSoc members less evil. If you are working on the side of injustice—or remaining silent in the face of injustice, which is not a neutral stance—I really don’t care how much pro-bono work you do, how you brake for small animals, or how courteous you are to store clerks. You are evil, full stop.
Okay, maybe that’s over the top, but imagine a more modest version of the argument: yes, corporations are entitled to lawyers, but they aren’t entitled to you. Let someone else defend the polluters and predatory lenders. No matter what Biglaw attorneys tell themselves so they can sleep at night, they are, at the end of the day, perpetuating and protecting a social and economic order that’s fundamentally unjust. As a progressive, you should want no part of that.
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One point I thought about including in the post (but omitted for length reasons): why not work for a plaintiff-side firm? Why do so many progressive law students troop off to Biglaw after graduation?
In a recent episode of my podcast with Zach Sandberg, "Movers, Shakers, and Rainmakers," we interviewed Kelsey McCann, chief of staff at Edelson PC. She argued that at plaintiffs' firms like Edelson, you can do good AND do well (financially). She added that Edelson and other plaintiff-side firms are getting increasing interest from students at top law schools. Episode here:
The notion that large corporations are inherently evil or are presumptively harming people or the environment intentionally is totally detached from reality, which I suppose is par for the course for progressives.
In my 12 years of BigLaw practice as a litigator and regulatory attorney, I have never once represented a public corporation that had knowingly or intentionally violated the law or had any intention of violating the law, nor have I ever talked to any colleague that has ever had that experience. In fact, of the hundreds, maybe thousands, of claims I've defended on behalf of large companies, a small handful, less than 5, actually had merit.
Legal departments in the Fortune 500 are almost entirely dominated by left-leaning lawyers who were trained at left-leaning firms, though many come to appreciate how astonishingly asinine blue state laws are. Regardless of political affiliation, attorneys at public companies are all uniformly risk adverse. Even large, closely-held businesses in the US, with very few exceptions, are extremely risk adverse . . . to a fault. The idea that they would tolerate even borderline illegal behavior is fanciful.
The reality is that US corporations operate in a legal system that is virtually always stacked against them. Tort laws in the US overwhelming serve only to transfer wealth from businesses to plaintiff's attorneys. Vanishingly few lawsuits filed in the large US jurisdictions against big businesses have merit and even those that do typically present trivial claims.
When I discuss such topics with lefty friends, I always come back to the same question: why is it that it's only you and your progressive friends that know these deep, dark secrets about society and "the system?" The answer is that it's because they're eyes are open, they're not greedy, they care, they are SPECIAL, which is what this is really all about: them.