by Neil Gorsuch
Even after three decades on the Supreme Court, Justice White worked as hard—and often harder—than his young law clerks. I can attest. When I clerked for him in his “retirement,” he was continuing to work on the Tenth Circuit. When he’d get an opinion to write, he would race me to see who could finish a draft first. If I lost, he would toss my hard work straight into the trash can and we’d start editing his draft. About halfway through each race, he would come into my office and jokingly ask, “The Great Justice Gorsuch, how goes the opinion?” At first, I thought these playful questions were just small talk, but later I realized that they were his way of sizing up the competition. And so I quickly learned that I’d have to hold my cards a little closer if I was ever to have a chance. Once, when he was asked what he had learned from his time on the playing field, he said, “When the whistle blows you have only a limited amount of time to do what you have to do. You either do it then, or you don’t do it at all.” I think that this is how he viewed each day as a lawyer and a judge.
Beyond Justice White’s hard work ethic and his sterling résumé, what clerks and colleagues most remember about him was his humility. Justice White’s office at the Supreme Court provided no hint of the occupant’s fame. There were no certificates of accomplishment hanging on the walls, simply photos of his family and paintings of his beloved Colorado. On a mantel in his office, there was a well-worn football, but no plaque proclaiming its significance or celebrating his past athletic accomplishments. One former clerk once shared the story of when he and the justice joined a tour of the then new Hart Senate Office Building. Justice White began asking a uniformed guard questions about the building—How high was the ceiling? How long had it taken to construct the building? The guard answered question after question, enjoying the opportunity to display his knowledge. At the end of the conversation, Justice White asked whether he could go up and see the gym, and the guard responded that the area was not open to the general public. Rather than identify himself, Justice White assured the guard that he understood and thanked him for taking the time to answer his questions. As this former clerk noted, Justice White was not one to use the prestige of his position to gain favors, even small ones. More important, he wasn’t a person who would pull rank on a hardworking guard just to prove he could.
Like Justice White, Judge Murrah was known for his tireless work ethic. As his colleague Judge Holloway once recounted, Judge Murrah “was always encouraging us to do our best, to re-dedicate ourselves to the increasing tasks ahead, to deal with the mounting case load with innovation, and still to keep the quality of justice up to the standard worthy of the rich traditions of this court.” And like Justice White, Judge Murrah loved his job. One day, Judge Murrah was attending a conference where he met David Lewis, then a state judge. Lewis told Murrah that he was not planning to run for reelection because the salary was too low for him to provide for his family as he wanted. To this, Judge Murrah responded, “Don’t give it up. If you love to be a judge, you will always be good.” Judge Lewis was inspired to reconsider his decision and ran for reelection. Years later, Lewis himself was appointed to the Tenth Circuit, ultimately succeeding Murrah as chief judge.
Judge Murrah was also famous for emphasizing that our system of justice—the best system in the world, he believed—is only as good as the people who work in it. Not just the judges and the lawyers, but the clerks and the employees. One of his former clerks once noted that Judge Murrah “would be entirely uncomfortable at the suggestion that his professional efforts were devoted to something as impersonal as the [justice] system.” Rather, “the whole of his living was directed to people—to the individual people with whom he lived, and not an abstract system.” Judge Murrah’s career and beliefs remind me of Abraham Lincoln’s exhortation that the nation’s continued success depends on good men who toil quietly in the service of the common good, not those who ambitiously seek the throne; it is these good men who support and maintain the edifice erected by those who came before.
What I find most compelling about White and Murrah, though, is how these two great lawyers achieved professional success without ever abandoning the humility and integrity and simple hard work that made them great men. In fact, I’d venture to say that they achieved what they did precisely because they never distinguished between their lives as lawyers and their lives as people. They viewed the practice of law as a profession, as a calling to work for the benefit of others. Being a lawyer, to them, was not some instrumental means toward wealth or fame. Both gave up profitable careers and considerable riches to serve for decades as public servants. To them, being a lawyer meant pursuing and cultivating an ideal of hard work, humility, and good judgment in the service of others—whether litigants, clients, family and friends, their communities, or the nation.
This, I think, is a worthy model for you to consider as you start your own careers. It’s a model with a very distinct and, yes, demanding view on ethics. Just as these men never distinguished between who they were as lawyers and who they were as people, I suggest that you cannot distinguish between professional ethics and personal ethics. As Judge Schiltz has thoughtfully explained, “Practicing law ethically will depend primarily on the hundreds of little things that you will do almost unthinkingly every day….You are going to have to act almost instinctively. What this means, then, is that you will not practice law ethically—you cannot practice law ethically—unless acting ethically is habitual for you.” If you find yourself lying to opposing counsel, you might soon find yourself lying to your friends and family. You can pretend there’s a line between the office and the home, but you are the same person in both places, and ethical behavior is not something you can turn on only sometimes in some places. Good habits formed in your personal life will influence the split-second judgments you make every day as an attorney; bad habits will follow you too. Your habits will influence your character and, ultimately, form your own life’s story. As White and Murrah teach us, too, these habits take hard work and if you fail today, you have to try again tomorrow; never tire and never give up. We only have a limited amount of time once the whistle blows. Make it count.
BUT MY CLIENT MADE ME DO IT
The Struggle of Being a Good Lawyer and Living a Good Life
While I was a Tenth Circuit judge, Oklahoma City University asked me to visit, teach classes, and give a speech to the law school community. By that point, I had been teaching legal ethics at the University of Colorado for some time and in my speech I decided to offer a few reflections on the subject.
Maybe the issue my ethics students struggle with most concerns how far they should go to pursue a client’s interest. The Model Rules of Professional Conduct tell us that a lawyer has a duty to represent the client’s interests “diligent[ly].” But that doesn’t really answer my students’ question. They know they have to be diligent. But what does that mean? The comments to the rules offer a little more guidance, exhorting members of the profession to act with zeal for their clients. But what the comments giveth, they also taketh away. Immediately after telling us to act zealously, the comments add that lawyers may choose not to employ what they call “offensive tactics.” The comments likewise tell us that lawyers don’t have to “press for every advantage” for their clients.
Note how the comments are worded. We are told lawyers may choose not to use offensive tactics. Now…that’s not exactly a ringing endorsement of taking the high road, is it? Doesn’t it intimate that a lawyer may also choose to use offensive tactics? In fact, could it even subtly suggest that most lawyers will employ such offensive tactics, and you’re a bit of a coward if you don’t?
These are questions my students struggle with.
As it happens, many students seem to come to my class with the conviction that they have an obligation to use zealously every lawful means available to vindicate their client’s interests, whether offensive or not. They view litigation as a somewhat more dignified (or at least better-gr
oomed) version of a Rambo movie. How is it that so many law students, so early in their professional lives, already harbor this view about our profession? My law clerks suggest that popular culture is a contributing, though not exclusive, cause. And it’s easy to see their point.
When I was growing up, the leading TV lawyer was Perry Mason, and no doubt he inspired a lot of future lawyers to high professional standards. Today, who is modeling the profession for our future lawyers? Maybe Denny Crane of Boston Legal? Or Lionel Hutz of The Simpsons? I confess I enjoy watching them, but they’re not quite Perry Mason, are they? Denny Crane tells us that the first rule of thumb in practicing law is this: “Always, always promise the client millions…and millions of dollars—It’s good business.” Meanwhile, Lionel Hutz’s ads read: “Lionel Hutz, Attorney at Law, as Seen on TV…Your Case Won in 30 Minutes, or Your Pizza’s Free.”
If you think I’m picking on lawyers, consider how we judges are viewed. In addition to Lionel Hutz, The Simpsons features Judge Constance Harm. What a name. And she’s so tough that, when she sentences a defendant, she likes to tell them that they will be in jail “ ’til frogs can do fractions.” And that’s a step up from the judge on Boston Legal who’s so senile he seems close to drooling while issuing erratic orders. In a dispirited moment, one might worry that the term “legal ethics” has, at least as it is viewed in popular culture, become something close to a contradiction in terms.
Of course, we can’t blame the media for our professional image. The media holds the mirror. The reflection is our own. So, where does this lawyer-as-land-shark view of legal ethics come from? Dean Lawrence Hellman wrote an influential and thoughtful article in the Georgetown Journal of Legal Ethics in which he documented a couple possible answers. He pointed to evidence suggesting that many law students get their ethical cues during internships, summer associate work, or their early years in practice. What the student learns about ethics in the workplace tends to overshadow whatever is taught in the classroom. At the same time, Dean Hellman also pointed to evidence suggesting that law school itself tends to have a corrosive effect on students’ values—in some ways, law school seems to be leaving students with lower standards than those they arrived with. But wherever students get the idea from, it does seem as if today we enjoy a superabundance of lawyers—both in practice and in the academy—who defend the view that a client’s immoral command should be followed.
I hope to persuade you to think again about this and about what kind of lawyer and person you might wish to become in the practice of law. Though we lawyers are fiduciary agents generally bound to assist our principals, we are also people too (popular mythology and many jokes notwithstanding). Saying “but my client made me do it” doesn’t mean we always escape moral culpability for our actions. Yes, it is possible to be both a good lawyer and a good person, but it takes work. And I want to suggest that it’s work well worth your attention.
When my students raise their “my client made me do it” hired-gun view of the lawyer’s role, I ask them about the aftermath of World War II when certain Nazi war criminals sought to defend their actions on the basis that their superiors made them do it. The Nuremberg principles and charter governing the conduct of the Nazi war trials rejected this defense, explaining that “[t]he fact that the Defendant acted pursuant to order of his Government or of a superior” would not, categorically at least, “free [the defendant] from responsibility.” So Nazi generals couldn’t escape culpability for their actions just because some superior officer “told them to do it.” And that’s in the military, where chain of command principles are very strong, maybe even stronger than the fiduciary duty lawyers owe their clients. And in light of that, I ask my students: Where does that leave you? By the end of my ethics class, I hope I have convinced at least a few students that there are some circumstances when a good lawyer should not blindly follow a client’s orders.
Now, to be clear, I don’t mean to suggest a lawyer should lightly disregard a client’s orders and simply do whatever the lawyer thinks best. Some, to be sure, have advocated for such a view of the lawyer’s role. In Soviet systems, for example, it was often said there was to be “no division of duty between the judge, prosecutor, and defense counsel” because defense counsel was required “to assist the prosecution” in a purported search for the “truth” to promote overall social welfare. According to this vision, the lawyer owes his or her client’s wishes no particular deference because the society’s collective interests outweigh the individual’s. But such a regime can work serious injustices. A just legal order seeks, among other things, to assure equal treatment for individuals and to ensure that an individual receives due process. Lawyers serve a critical instrumental function in our adversarial legal system by ensuring that their clients’ positions are presented and heard. To usurp the client’s voice, to become not just the client’s advocate but also the judge and jury of the client’s cause, is to do serious damage to the integrity of our adversarial legal order and, with it, to the dignity of the individual.
Nor is there anything immoral in preferring the interests of one’s client to the interests of others. We do just this all the time in our daily lives. Your choice to spend this weekend with your children may preclude you from spending time volunteering. But that doesn’t make it immoral. We live in a world where there are many upright ways to live life, and choosing one good often unavoidably means you will do incidental, if not intentional, harm to other goods. So I agree that we can and should generally prefer our clients’ interests to other interests. But, just as with the case of the Nazis at Nuremberg, we shouldn’t always do so.
In an effort to capture this balance of duties, Professor Charles Fried once famously offered this comparison. He suggested that a lawyer should act as a sort of friend. A friend generally prefers his friend’s interests to the wider population’s. In all sorts of ways, we give our friends loyalty and preference that we would not give a stranger. This is natural, human, and appropriate. At the same time, this doesn’t mean that we will or should do anything for a friend. A line must be and is drawn somewhere. So, for example, we often say we won’t kill or tell hurtful lies for friends. Respect for ourselves and others normally precludes us from following friendship to the point that we do intentional wrongs to ourselves or others. Fried argues that the lawyer-client relationship works in much the same way. We generally prefer our clients’ interests to those of nonclients, but there are some things we just won’t, and shouldn’t, do.
Some have argued that the lawyer-as-friend metaphor has its problems. On close inspection, they say, the lawyer-client relationship doesn’t compare well to a true friendship. Lawyers and clients premise their relationship on money, not true affinities. Also, there is often an inequality in power in the lawyer-client relationship, one that is not typical of true friendships based on mutual admiration. Lawyers and clients sometimes might not like each other and still have a professionally satisfactory relationship. All these and similar criticisms may well have something to them. But even if the lawyer-as-friend metaphor is imperfect, I wonder whether it at least captures the one important truth—namely, while lawyers generally should prefer their clients’ interests, sometimes they should not do so.
Of course, the question remains when a lawyer should say no to a client. Professor Fried has sought to answer this question by distinguishing between what he calls institutional and personal harms. If in helping a client you happen to harm another person through the use of a legally approved rule, Fried would say you bear no moral culpability for the harm that follows. This permissible type of harm he calls an institutional harm because it is the legal institution, not the lawyer personally, that he believes is accountable for the harm that results. As an example, Fried points to statutes of limitations. Asserting a statute of limitations defense might extinguish a meritorious legal claim, but it is a defense the law allows. And Fried would say that it is the statute of limitations, not you
, that is harming the plaintiff, so you may feel free to assert it. By contrast, Fried condemns what he terms personal harms—wrongs a lawyer does by his person to the person of another that are beyond what is sanctioned by the legal institution. These are things a lawyer should not do even if a client demands it. By way of example, Fried points to a client’s request that you lie to opposing counsel. This, he says, is a moral act aimed at an individual, so the lawyer bears culpability for it and should refrain from doing it.
I confess I am not sure whether this account is totally satisfying. Consider, first, the claim that a lawyer bears no moral culpability for institutional harms. What if the law says, as it did in antebellum America, that you can use legal process to compel a person hiding a runaway slave to return that slave to your client? That’s a claim or defense permitted by the legal institution and so at least arguably permissible according to Fried. Yet are we really confident a lawyer would bear no moral culpability for intentionally invoking such an obviously unjust law?
Next, let’s take Fried’s claim about personal harms. Here, consider a vigorous cross-examination that you know will undermine the witness’s character and general credibility. This undoubtedly will benefit your client, but it will also upset the witness and cause emotional harm. Fried suggests that such questioning may be a personal harm to the extent it implies that the witness “is unworthy of respect.” But it isn’t clear why this harm is properly characterized as a personal rather than an institutional one. Isn’t the very institutional purpose of cross-examination to test the worthiness of a witness’s testimony? The same question can be asked about Fried’s example of lying to counsel. He characterizes that as a personal harm. But such lies are also often forbidden by institutional rules because they impose a wrong on the justice system itself by misleading the tribunal and interfering with its truth-finding functions.
