2024 Ron Rotunda Memorial Webinar: Profiles in Courage in the Legal Profession

A discussion with Erin Murphy.

I had Professor Ron Rotunda for Constitutional Law in 2007. But for Ron, I doubt I would have become a constitutional law professor. He inspired me in ways I still think about to this day. In 2018, Ron suddenly passed away, far too young. The following year, I wrote a remembrance about Ron in the Chapman Law Review.

The Federalist Society has created a new annual webinar in Ron's memory. Last year, I interviewed Greg Jacob, who served as a counselor to Vice President Pence on January 6, 2021. This year, I interviewed Erin Murphy. The theme was "Profiles in Courage in the Legal Profession." Erin and I spoke about the two occasions in which she left a firm, that was unwilling to stand up for a client. Erin's story is an important one that all aspiring lawyers should learn.

Comments

[Please, Daivd, Seek Help]

Courage here seems defined as the willingness to uphold principles even at the cost of one's reputation and livelihood. But firms who reject clients are also upholding principles while jeopardizing their reputation and turning away money. And in both cases the actor is actually betting the long-term reputational benefits of doing the courageous thing short-term will make the choice the right one anyway.

This to me speaks to the challenge of defining legal courage and maybe one of the reasons why so many people have pushed back against you when you (repeatedly) return to the well to write about it. I have never really seen you have enough self-awareness to grapple with any of that criticism.

[CommentMonkey]

I think you're confusing two different things. Blackman's previous posts about "judicial courage" are problematic because he presumes to know (1) the correct result in the case; and (2) that a judge's failure to reach that result is the product of cowardice rather than good faith disagreement. This sort of thing doesn't foster useful debate about the underlying legal/political issues. Instead, it tends to trigger an endless loop of tribalists questioning each other's motives. And it rests on the premise that appellate judges are foot soldiers in some broader ideological war rather than experts chosen to decide complex legal questions.

The kind of courage Erin Murphy is discussing is different. Twice in her career, she faced the problem of a BigLaw employer demanding that she (and her colleagues) drop existing clients due to the firm's fear that those clients' unpopularity would hurt the firm's bottom line. There are serious ethical problems with doing this. She exhibited courage by refusing to go along despite financial and reputational costs and risks to such refusal. (Had it merely been a question of not taking on certain clients in the first place, there'd be no problem - any firm is entitled to establish a practice along ideological lines.)

Murphy's courage is in standing up for the standards and ethical norms of the profession against institutions willing to sacrifice those standards/norms.

[Please, Daivd, Seek Help]

As you say, and as I said, the reason leaving a firm that asks you to drop a client is courageous is because you: (1) stick to your principles (of providing effective representation to your client) but (2) face financial (loss of money) and reputational (seen as a quitter / not a team player) costs, and it is courageous to elevate (1) over (2). But in addition to being the "right thing to do", there are also reputational perks for doing the right thing, and those lead to financial perks. Those benefits are longer term than the costs. The extent to which you are weighing principle over cost-benefits depends on the payoff structure you imagine over the medium term.

It seems to me like the firm can basically articulate its actions in the same way, and characterize itself as courageous. For any given fact pattern, you might say, well, she was the courageous one. If it's fact-specific, then you also run the risk of thinking that courageous people are just the ones who take the side you agree with in a given issue.

It sounds like the way in which we disagree is that either you think it really does come down to the fact pattern and the fact pattern in this case is XYZ, she wins --- or alternatively that you think some set of articulable professional norms are a priori privileged and objective. I don't think you're exactly wrong but I'm also not really convinced by those norms.

Starting with dropping a client. I suspect there are a pretty wide set of circumstances where it's not unethical to drop a client: say a client makes it explicitly clear that although they have the means to pay, they will not do so. Or say a client undermines their representation consistently in ways that go beyond, say, articulating a vision for their own defence -- say they keep making outbursts in court or lying to their representation in ways that expose the representation to liability. Or say the client abuses their representation. I think probably you'd say "we can enumerate those exceptions, but net of those, there's still a broad norm". But then I think we need to establish whether or not on some level particular kinds of personal odiousness might be one of those exceptions.

I appreciate there's a difference between taking a client and not dropping them once you take them, but this strikes me as a type of contractualism common to a lot of discussions -- similarly to "venues shouldn't have to book controversial speakers, but once they do, dropping them is cancel culture". The client has some kind of reliance interest, and if the firm cuts them off at key stages without a postponement, that reliance interest is harmed. This seems primarily to be a contractual issue rather than a deeper ethical issue, especially with the availability of continuances for change of counsel. If a firm can establish a practice on ideological grounds then they can update those ideological grounds, so it seems like the only thing special about doing so mid-representation is the reliance. And of course if no counsel will take a client then for practical purposes, dropping versus not taking is the same thing.

Obviously a client's own indigence or resources plays a role -- it seems like dropping someone who is well and truly fucked without you is closer to unethical than dropping someone who merely needs to spend a little more of the money they have available to get new counsel. But all this to say that to me it doesn't seem obvious that we can define courage in a way that avoids these thorny definitional debates. (And BTW I have basically the same perspective on Kennedy's book referred to in the title of this webinar, which I think in a lot of ways doesn't really do a good job of addressing the same problem)

All of this with due respect, I don't think we actually disagree as much as we sound like we do.

[Frank Drackman]

Never met the guy but what an awesome name, and if laid in state at the Capitol it’d have been “Rotunda in the Rotunda”