Letter: ‘Woke:’ Justice for all?
I once aspired to becoming a lawyer. Not that I actually knew any attorneys. Rather, my mind was filled with images of an Atticus Finch, braving community backlash while resolutely pursuing justice for Tom Robinson in To Kill A Mockingbird, a young John Adams, placing both career and family at risk in representing the eight British soldiers charged with murder in the Boston Massacre trial, or Clarence Darrow, investing nearly all of his life representing unpopular people and causes. So many images of noble souls who eschewed the praise of the masses for the sake of justice. They captured both my imagination and my heart. They were, in my mind, the best of us.
As with many other childish notions, life managed to remove most of the gleam from my view of the legal profession. Encounters with men whose passion for fees appeared to have eclipsed their passion for justice. Nineteen years of employment as the Corporate Tax Director and Corporate Controller of a multinational corporation, frequently confronted with frivolous lawsuits proffered by lawyers who had never met a tort claim they didn’t like. Nine years working for the Office of Associate Chief Counsel, International, of the Internal Revenue Service, serving in a position traditionally staffed by attorneys, of which I was not one, listening to the representations of men who were lawyers but appeared to have only the most tenuous of relationships with the truth.
But life also exposed me to some extraordinary lawyers worthy of the admiration I had once bestowed upon the profession. An attorney with Miller & Chevalier who would quickly rebuff frivolous positions his client wished to pursue, whose face would redden and veins bulge when he witnessed acts of injustice. Another at Sidley & Austin whose reverence for the law and meticulously crafted briefs restored my respect for the law. And a few others along the way. Perhaps not men who had been provided the privilege of battling grand causes like Atticus Finch, John Adams, and Clarence Darrow, but men who appeared ready to stand in the gap for the cause of justice if presented the opportunity. While the years had tarnished my opinion of the legal profession, such men reminded me that the practice of law, when rightly pursued by men of good character, can be among the noblest of life’s callings.
And then along came wokeness, the religion of the American Left, whose adherents believe that truth resides within a very narrow circle, and that those who dare step out of that circle deserve no hearing in the public square. Truths which were deemed to be immutable for the three and a half millennia of recorded history, such as the notion that God created only two sexes, were now considered to be so outlandish as to require the silencing of those who dared speak them. And it took little time for this newly birthed religion to infect the legal profession. It began with a consensus that all positions were not worthy of a place in public discourse, and quickly morphed into the belief that not all men were entitled to the best available legal defense. After all, were there not men who presented such an extreme threat to society that the rights accorded to most men should not be extended to them?
The general public has always believed that there are those to whom the extension of rights embedded in our founding documents and embodied in the ethics code of the legal profession was problematic. Why worry about the rights of a Charles Manson, Richard Ramirez, or Ted Bundy? But the ethical standards of the legal profession stood guard between such men and popular sentiment. But, in the age of Donald Trump, that sentiment is far from accepted orthodoxy in the legal profession. Does the former President not stand so far outside the pale of normal human decency as to deserve less than the best available legal defense? And, in any event, wouldn’t representing the now-former President expose any firm so bold as to associate itself with him to such public shaming as to risk the firm’s ability to attract and retain clients? Sadly enough, the answer to those two questions has been a resounding yes to the most prestigious and well-resourced legal firms in the United States. While the principle of each man’s right to adequate representation remains intact for murderers, rapists, and white-collar criminals, the former President appears to be entitled to less.
The refusal of some of the nation’s most venerated law firms to represent Donald Trump, and in some instances to withdraw from cases in which they were already representing the former President, has been well documented. On Nov. 13, 2020, the firm of Porter Wright withdrew from its representation of the President’s action challenging election results in Pennsylvania after receiving attacks from The Lincoln Project, the now discredited assemblage of anti-Trump Republicans, and Democrats. The New York Times reported that the firm’s withdrawal was the product of tensions within the firm over representing the President. Days later, Philadelphia attorney Linda Kerns filed a brief with the Court stating that she had been harassed and threatened as a result of her work for the President by a lawyer working for the blue-chip law firm of Kirkland & Ellis, writing:
“Since this case was filed, undersigned counsel has been subjected to continuous harassment in the form of abuse e-mails, phone calls, physical and economic threats, and even accusations of treason — all for representing the President of the United States’ campaign in this litigation.”
“On Nov. 14, 2020, at 8:43 am, an attorney at Kirkland & Ellis left a one-minute voicemail for undersigned counsel. The voicemail, which has been provided to counsel of record from Kirkland & Ellis in this case and will be provided to the Court via email upon request, speaks for itself and by any measure falls afoul of standards of professional conduct.”
Lest one think that the reluctance of the profession to represent the President stems from his unwillingness to accept the 2020 election results and its aftermath, it predates that by several years, extending nearly as far back as to his inauguration in January of 2017. On June 16, 2017, Michael Isikoff, the Chief Investigative Correspondent for Yahoo News, reported that lawyers from four of the nation’s most prestigious law firms — Brendan Sullivan of Williams & Connolly, Ted Olson of Gibson, Dunn & Crutcher, Paul Clement and Mark Filip of Kirkland & Ellis, and Robert Giuffra of Sullivan & Cromwell — had all turned down requests to represent President Trump in the Russian Investigation. While representing the President of the United States had once been considered a plum assignment for any law firm, President Trump quickly became persona non grata to a profession which had once placed the provision of adequate representation at the very pinnacle on its list of professional virtues.
Once attorneys, officers of the court, decide that public acclaim and acceptance among one’s peers should be pursued at all costs, where does justice find a home? Unless this wholehearted embrace of wokeness comes to a swift and well-deserved end, I doubt it will have one. I never thought such a day would come. Atticus Finch, John Adams, and Clarence Darrow would all be appalled.
— Victor E. Thayer,