Answering a False Attack

I should note at the outset of this post that I do not have very strong feelings one way or the other about Reince Priebus, who is currently seeking to replace Michael Steele as RNC chairman. This post is not really intended to be an argument that Priebus is the best candidate for the job. It is merely intended to set the record straight on a spurious attack on Priebus that is making the rounds in the blogosphere, typified by this post at National Review. The argument goes that since Priebus’ law firm (where Priebus is, unsurprisingly, in the government affairs practice group) advertised that it was willing and able to help clients understand the implications of Obama’s stimulus bill and take advantage of it, this somehow constitutes an endorsement of the stimulus bill itself on Priebus’ part.

Most of the furor in the blosophere today concerns whether or not Priebus actually did any work with clients on the stimulus bill or not; this all completely misses the point and illustrates that the people who are circulating this attack don’t really have the slightest clue what it is that lawyers do or what our obligations to our clients are. Which is certainly acceptable under ordinary circumstances; I would not want to know about a day in the life of a lawyer myself if my paycheck did not require me to do so. But in this case, the record really does need to be set straight.

In the first place, one of the things that is explained very early on in the career of every law school student is that advocacy on behalf of a client does not indicate endorsement of the client’s views or activities. In fact, this principle is even enshrined in binding ethical canons upon lawyers. The reason for this is that lawyers have an ethical duty to diligently represent their clients to the best of their abilities, which sometimes requires making arguments on a client’s behalf that are necessarily not in line with the personal viewpoints of the lawyer. As a lawyer, you are merely the agent of your client, and have a fiduciary and ethical obligation to use their best independent judgment to maximize results on behalf of their clients. If you, as a lawyer, became aware that your client was eligible for millions of dollars in stimulus money from the Federal Government, and you refused to fill out the paperwork for them (or notify them of their eligibility for the benefits) merely because you politically opposed the stimulus, that would almost certainly amount to legal malpractice and a breach of legal ethics.

Similarly, the fact that Priebus’ law firm advertised their ability to help clients navigate the stimulus bill should also not be understood as a personal endorsement of the stimulus bill by Priebus. Law firms (especially firms that have practice groups that specialize in regulatory and legislative compliance, as Priebus’ firm did), frequently advertise their ability to help clients understand and (where applicable) take advantage of laws and regulations, both State and Federal. Helping prospective clients understand, comply with, and take advantage of changes in the law is a major part of the raison d’etre of lawyers. I mean, if Priebus’ firm had advertised their availability to help industrial clients come into compliance with new EPA regulations on carbon emissions (which would presumably involve advising clients of how to receive credits or tax benefits under the regulations), presumably no one would currently be pushing the story that Priebus was in favor of cap and trade.

This is also different from lobbying, or from representatives taking earmarks. So far as I can tell, nobody has claimed that Priebus did anything to help pass the stimulus bill or otherwise make law. His firm was simply holding itself out as helping private entities make the best of what Congress had already passed. No conservative principle requires conservative lawyers to refuse to help their clients benefit from the law. Yes, there are some situations where a lawyer may well have an objection of conscience to assisting a client with a particularly immoral course of action – abortion comes to mind – but I would hope most people can tell the difference between that sort of extreme situation and this kind of ordinary garden-variety business transaction.

I get that this kind of explanation is part of the reason why people hate lawyers, but it really is a genuine reflection of what lawyers do and the entire reason clients are willing to pay the sorts of hourly rates that lawyers charge. The expectation – enshrined in the law – is that the lawyer will not cost the client millions of dollars in lost opportunities because of his political views on the appropriate size of government. In fact, some individuals (who we suspect are working for Priebus’ rivals) shopped this story to us at RedState yesterday, and despite the surface shock value appeal of the story, we took a pass because it simply isn’t an attack that is honest or meritorious.

Priebus may yet be found to be unsuitable for the job for any number of reasons, but this is not one of them.

UPDATE: Literally as I was composing this post, the lawyers at Holland and Knight emailed me this. After reading it, should we conclude that every single lawyer in the firm approves of the tax compromise and everything contained therein?