Ethics

Lanny Davis is a prominent lawyer and lobbyist who served in the Clinton White House and as an appointee of President George W. Bush on the Privacy and Civil Liberties Oversight Board.  Davis is the author of a highly acclaimed book Scandal:  How ?Gotcha? Politics Is Destroying America (2006).

Now it appears that Mr. Davis is getting his own dose of ?gotcha? politics.  This article appeared in last Friday?s New York Times repeating criticisms of Mr. Davis for taking on unsavory clients: 

http://www.nytimes.com/2010/12/31/world/31davis.html?_r=1&ref=gingerthompson

The clients referred to in the article include the dictator of the Ivory Coast, governments and coup supporters in several other nations, a company that makes additives to infant formula, and for-profit colleges seeking to avoid new regulations under the Obama Administration.

Are these clients entitled to representation just as are criminal defendants, Guantanamo detainees and other persons?  Is there something different about the fact that a lawyer?s services as a lobbyist are involved?   Is Davis?s work for these clients one of those situations where there is an exception to the general principle that ?[a] lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities??   ABA Model Rule 1.2(b).

Lawyer responsibility for client conduct is a fact specific inquiry.  One consideration is whether the lawyer is an important factor in the client engaging in socially harmful conduct prospectively (after the start of the representation).  Another consideration is whether the lawyer intended to assist in the harmful conduct.  The client merely doing something harmful is not enough to equate the client?s actions with those of the lawyer; the fact that the lawyer helped the client make the best argument possible to justify conduct usually is also not enough to blame the lawyer (if the argument is dishonest, that is the fault of the lawyer).  In sum, one should not generalize about lawyer responsibility for client conduct.  Facts matter.

What surprises me is the absence in the press accounts, including that which appeared in the New York Times, of facts about what Lanny Davis did for his clients, as well as facts about how what Davis did made a difference in outcomes   Is the public any worse off because of something that Davis did?  So far his critics have pointed to very few if any specific facts that suggest an affirmative answer. 

Davis is one of the most highly regarded lawyers in Washington.  He is known to be scrupulously honest.   A credible attack on his reputation requires more than selective recitation of some less reputable names from his lengthy client list.

Many of Davis?s most controversial clients are foreign governments, some run by dictators (Davis apparently dropped the government of the Ivory Coast as a client when there was no realistic hope that he could help work things out).  Lawyers sometimes make problems worse, but they sometimes make things better.  The alternative of the United States either ignoring a troublesome country, or invading it, can create problems that are even more difficult. 

Perhaps Davis should have played it safe and represented the clients that many other Washington lawyers and lobbyists represent:  defense contractors, financial services firms, oil companies, health insurance firms and others.   There are few scathing news articles about what lawyers and lobbyists do for these clients and fewer still that mention the lawyers and lobbyists by name. 

There must be more detail ? a lot more detail ? provided by Davis?s critics before a fair and reasonable observer can conclude that any of the criticism of Davis is justified.