W. Bradley Wendel (Cornell; Google Scholar), The Good Lawyers of January 6:
Much of the response by the community of legal ethics and professional responsibility scholars to the 2020 presidential election has been focused on the wrongs committed by lawyers like John Eastman, Jeffrey Clark, and Kenneth Chesebro, who created the alternate elector scheme to throw the decision regarding the election to the House of Representatives. Yet there was a group of lawyers, that I will refer to as the good lawyers of January 6, who forcefully and unequivocally opposed this plan, refused to cooperate in its execution, advised Vice President Mike Pence that it was not legally supportable, and in some cases threatened to resign in protest if President Trump went forward with it. These lawyers are, almost without exception, card-carrying movement conservatives, with pedigrees including clerkships for conservative Supreme Court Justices, membership in the Federalist Society, and service in prior Republican administrations. They include Greg Jacob, counsel to Vice President Pence; White House Counsel Pat Cipollone; White House Senior Advisor Eric Hershmann; retired federal judge J. Michael Luttig; Acting Attorney General Jeffrey Rosen; and Deputy Attorney General Richard Donoghue.
As a normative legal ethics theorist I am interested in whether there a coherent and attractive ideal or set of principles of ethical conduct by lawyers that would align with the refusal of these lawyers to advice or assist in the overthrow of the election.
The answer to this question may inform the way we regulate lawyers and seek to educate and inspire law students to promote the highest ideals of the profession.
Granting that this is somewhat speculative, my hypothesis is that a commitment to the rule of law is central to the professional identity of the lawyers who refused to lend their assistance to Trump’s “Stop the Steal” efforts. Of course, each of these lawyers may have acted for his own unique reasons, but the normative commitment shared by all of them is fidelity to the rule of law. The concept of the rule of law is, of course, a contested one in legal philosophy. Debates continue over matters such as formal or substantive definitions of the rule of law, the relationship between democracy and the rule of law, the problem of legal injustice, and whether a state that purports to respect the ideal of the rule of law must also respect certain substantive human rights. However, there may be sufficient agreement on key features of the rule of law as it bears on the ethical obligations and professional identity of lawyers. The actions of the good lawyers of January 6 serve as a kind of ostensive definition of the ideal of the rule of law as a principle of ethical lawyering. The basis for these lawyers’ advice to Vice President Pence was a judgment that the constitution and federal election law, properly interpreted, simply did not support the position urged by Eastman, Clark, and Chesebro. …
I am … not suggesting for a moment that legal education has the capacity to turn out only good lawyers. Law teachers have a limited capacity to teach, model, and inspire values and commitments. To a significant extent, formation of professional identity depends on background social and cultural factors beyond the control of legal educators. The conclusion here is not that a program of professional identity formation centered on the rule of law is a panacea, but that it is a normatively coherent and attractive identity, as well as one that explains the actions of the good lawyers of January 6.
See also W. Bradley Wendel (Cornell; Google Scholar), Lawyer Shaming, 2022 U. Ill. L. Rev. 175:
The Lincoln Project’s effort to shame law firms working on behalf of the Trump campaign is only the most recent example of the public criticism, even vilification, directed against lawyers who represent unpopular clients. The legal profession is mostly unified in its response, which appeals to values such as due process, fairness, and the right to counsel. On the other hand, many scholars contend that lawyers should be morally accountable for actions they take as professionals, since everyone remains a moral agent, even when acting in an institutional role. This Article argues that, contrary to the near-unanimous view of lawyers, lawyers are subject to accountability for the clients they represent. In many cases, they have a complete normative defense. The social value of legality is a weighty, but not conclusive justification for providing zealous representation to even the worst clients. However, these role-based considerations do not displace ordinary morality from the field altogether. Ordinary morality persists, and in some cases can produce justified self-evaluations, or ascriptions to others, of regret, guilt, or shame. Building these “moral remainders” into professional ethics can help resist cynicism, amoralism, and alienation of professionals from the resources of morality.
Editor's Note: If you would like to receive a daily email with links to legal education posts on TaxProf Blog, email me here.
