Canceling Lawyers : Case Studies of Accountability, Toleration, and Regret

Lawyers who are criticized for representing unpopular clients - in today''s political climate these may include firearms manufacturers, fossil fuel companies, and powerful men accused of sexual misconduct - explain that the long tradition of representing everyone is an essential ingredient in the defense of the rule of law. They may see contemporary episodes of criticism as the threat of mob rule. Like much of the controversy nowadays over “cancel culture,” the two sides seem to be talking past each other. This book explains that both sides are onto something. The rule of law is a valuable political ideal but lawyers are people too, and others care about the attitudes and motivations that underlie the representation of controversial clients.

Lawyers take pride in a professional tradition of representing unpopular clients, understanding it as a contribution to the rule of law and the practice of toleration in a polarized society. This does not mean that lawyers are fully insulated from criticism for the clients they represent. The seemingly intractable debate over accountability for representing nasty clients is in part the result of a deep, structural tension between the institutions and procedures of the legal system, and the underlying issues and controversies about which people disagree. We also care about the attitudes and motives of lawyers, which play an important role in evaluating the actions of others. Much of the frustration experienced by lawyers who are criticized for representing unpopular clients arises from what lawyers see as the public''s inability to understand the rule of law and the function of the legal system in resolving conflicts over rights and justice. Using a series of case studies, this book explores the possibility that both lawyers and their critics are right. There is genuine value in a system of formal law that aims at settling social disagreement, but that is not the whole story. Public criticism of lawyers may reflect the sense that the legal system has fallen short of ideals of fairness and inclusiveness. Many of the lawyer shaming or “canceling” episodes discussed in this book arise out of the representation of clients in matters involving issues where it appears that the official process of establishing and interpreting formal law has been captured by powerful interests. Accepting a certain amount of public criticism is necessary to avoid a dangerous isolation of the legal profession from accountability to the broader political community, or from the humanity of lawyers being submerged by their professional role.