Wisdom or folly? Talking politics with clients.

Russell G. Pearce in The Irrelevant Lawyer, July 26, 2011

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I had a running debate with another lawyer the other day. It ended the way such ‘debates’ end when an unmovable object meets an irresistible force. You throw up your hands and “agree to disagree.”

It was over the simple question: “Should lawyers discuss their personal political views with their clients?” I answered “No” – - – emphatic expletive precedent. My colleague, a tax, estate and Medicaid planning lawyer said “Yes.”

His views were founded on his conviction that he could not otherwise do a good job for his clients “without involving politics.” As an estate planner and a tax guy, he explained his practice areas were ‘political footballs’ and part of both parties’ political platforms.

For instance, he asserted that when helping elderly clients, he had to be knowledgeably conversant with the political scrutiny attendant benefit programs like Medicaid or Veterans Aid and Assistance. As for taxes, awareness of trends was key, for example, if the government decided to raise capital gains tax rates to fund healthcare reform. He also insisted he wasn’t “partisan.” But unlike my clients who care 2 nickels worth about how I vote, he claimed his clients were eager to talk politics with him. It was “unavoidable.“ And as he lived in a conservative part of the U.S., he maintained his views were “mainstream” with little risk of alienating like-minded clients. And if he did happen to annoy “a couple of clients,” there were plenty others to make up for any lost business.

Ethically consonant.

I had to concede the surface appeal of his argument. Furthermore, I knew it was ethically consonant. The Current Version of ABA Model Ethical Rule 2.1 “Advisor” states, “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”

Comment [2] of the Rule is instructive: “Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.”

Practical considerations for the rest of us.

The estate/tax lawyer’s circumstances, however, may be unique, given his practice areas and geographic location. But what about the rest of us?

In October 2008, ABA Journal ran a “Question of the Week” and asked “Is Talking Politics at the Office Taboo?” The writer didn’t take a stand but solicited comments from readers. And granted the question was directed not at political talk with clients but among coworkers. Still, conceding how opinionated lawyers can be, the reader reactions were generally born of caution and of keeping discourse respectful.

My own views, however, are grounded in relevance “to the client’s situation.” Certainly the political ramifications of a vote in Congress may have bearing on a client’s legal problem. But a lawyer’s personal politics should have no import on solving that client’s problem. (I have a left-leaning lawyer friend who during the last presidential term, spared no one his invective for George W. Bush. Clients, opposing counsel, the deposition recorder – - – it didn’t matter).

Clients engage lawyers for legal services not to hear them wax on about the follies of the last or next election. Nor do clients want to hear the lawyer impart that a current Congressional person or White House occupant is a moron or a genius. And anyway, when it comes down to it there’s not a lot of difference from one to the next. Will Rogers was right about politicians, “The best thing about this group of candidates is that only one of them can win.”

And besides, as someone once said, “Politicians are like diapers. They both need changing regularly and for the same reason.”

And finally, clients aren’t going to welcome being billed for their lawyer’s ponderous political prattle.

Hyper-partisans like my Bush-hating friend should also guard against such passionate proselytizing. It can exploit a counselor’s supposed superior position and cower those perceived as ‘untutored.’

The other basis for my objection is more pragmatic. Not everyone has the ‘benefit’ of living and practicing in an echo chamber where our opinions pleasingly reverberate to reinforce our existing beliefs. So given the rabid partisanship that passes for political discourse and the equally ferocious moralizing that serves as cultural conversation, why would a lawyer dare alienate existing or potential clients?
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Granted, there are lawyers like my estate planning colleague whose political persuasions redound with segments of his community. And such lawyers will happily gather up the like-minded flocks drawn to their shepherd’s call even at the risk of a few lost sheep who may wander off.

The lawyer as political eunuch.

But does feigned disinterest for client political conversations translate into advocacy for lawyers as political eunuchs? And what about the short step from politics to morality? Is there such a thing as the moral practice of law?

And is the public’s criticism justified when lawyers represent clients holding abhorrent moral, religious or political beliefs? At the time of the Civil War, Senator and later governor and jurist Salmon P. Chase believed it was immoral to represent slave owners. Were lawyers who advised slave owners engaged in the amoral practice of law?

But unlike in Chase’s day, today we can have it both ways. We can discriminate in client-selection. Or we can choose instead to hold our noses and represent the politically-noxious or morally-reprehensible. Rule 1.2: Scope of Representation provides an ethical out, “(B) 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.“

In March 2010, Fordham Law School Professor Russell G. Pearce used “the question of why lawyers are more politically liberal than non-lawyers as a way to explore the foundation in political philosophy for the dominant conception of lawyers as amoral partisans and to consider whether engaging in moral conversation with clients is permitted or preferable.” It was a CLE Course based on the 23-minute film, “Red State/Blue State: Lawyers, Politics and Moral Counseling.” See Red State, Blue State – Fordham Law.

But Red State or Blue State? I doubt there are any political eunuchs in the profession. When it comes to politics, lawyers can’t resist haranguing in the manner Clare Booth Luce ascribed to politicians, “The politicians were talking themselves red, white and blue in the face.”