Book Reviews, 20 VTBJ, Fall 2020-#50

PositionVol. 46 3 Pg. 50


Vol. 46 No. 3 Pg. 50

Vermont Bar Journal

Fall, 2020

“America Compromised” by Lawrence Lessig (2018) and “The Chickenshit Club - Why the Justice Department Fails to Prosecute Executives” by Jesse Eisinger (2017)

Reviewed by Rick Hubbard, Esq.

Do our rules of professional conduct that require us to act in our clients’ best interest combine with wage inequality to actually prevent us from achieving justice? Both of these books raise troubling questions about whether the way we attorneys practice law fails to regularly deliver the justice our legal system is supposed to deliver.

As stated in the book jacket description of America Compromised, “through case studies of Congress, finance, the academy, the media, and the law, Lessig shows how institutions are drawn away from higher purposes and toward money, power, quick rewards - the first steps to corruption.” This review is limited to only his thinking about our legal profession.

Lawrence “Larry” Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School with a formidable CV, including clerking for Justice Scalia. He is well prepared to raise ethical questions about how the practice of Law in accordance with our attorney Rules of Professional Conduct interferes at times with achieving justice.

His book begins with a story. While Lessig, an expert on Internet law, was at Stanford Law School, he accepted a side-gig to work “of counsel” at a major San Francisco law firm on issues related to his expertise. Within a week there was a problem.

In a meeting with partners, the managing partner explained that a client had told the firm either the client or Lessig had to go. It seems the client was upset by Lessig’s writing in Wired magazine and other popular and broadly read publications about how aspects of internet law worked against certain public interests. The managing partner proposed a solution, that Lessig restrict his writing to legal publications like the Stanford Law Review. A second partner explained that the firm had an ethical issue since lawyers for the firm had an ethical duty to advance the business interests of their clients, and a third partner added that Lessig had an obligation not to act or write in a way that threatens those interests.

In response to Lessig’s assertion that what he wrote in Wired and other popular magazines was true, the partner stated that truth was not the issue.

Lessig briefly reflected on the nice retainer check he’d just deposited, and how easy this extra money was going to be, before he replied: “I do think there’s an ethical issue here. It is my ethical obligation to myself. I’m sorry this didn’t work out.” With that, the meeting was over and Lessig’s job “of counsel” was ended.1

Lessig comments: “There’s no clear rule that guides the conflict I was alleged to have created. A lawyer has a fiduciary obligation to her clients and from using information acquired in the course of representation to the client’s disadvantage.2 That duty is not unlimited. It does not trump a lawyer’s obligations to her profession. But the rule does create ample opportunity for a firm to bend the independence of the lawyers toward better service toward the clients.”3

“But when an ethical rule tells the lawyer that her views should be at least consistent with the “business interests” of her client, then she’s not free to do what’s right. If her view conflicts with those business interests, then the rule of ethics comprises her obligation as a lawyer to the profession. She can choose to do what’s right, or choose to obey the rule. She can’t do both.”4

Here Lessig turns to Jesse Eisinger’s book “The Chickenshit Club – Why the Justice Department Fails to Prosecute Executives” to incorporate Jesse’s argument of corruption of outcomes within the Justice Department. Eisinger is a Pulitzer Prize winning senior reporter at ProPublica. His work has appeared in the New York Times, the Atlantic, and the Washington Post. In 2009, Eisinger began work on a series of stories, “The Wall Street Money Machine,” that revealed how Wall Street’s morally questionable practices had led to the worst financial crisis since the Great Depression. It was co-authored with Jake Bernstein and was awarded the Pulitzer Prize for National Reporting in 2011.

Eisinger’s book opens with a story about a new U.S. Attorney for the Southern District of Manhattan giving his first speech to staff of the criminal division. These lawyers were the nation’s elite.

The speaker opened with: “We have a saying around here: We do the right things for the right reasons in the right ways.” He then asked the seated prosecutors a question: “Who here has never had an acquittal or a hung jury? Please raise your hand.”

Hands shot up from those in the office who thought themselves to be the best trial lawyers in the country. “Me and my friends have a name for you guys.” the speaker said. “You are members of what we like to call the Chickenshit Club.”5

That speaker was James Comey in 2002. Eisinger then goes on to explain Comey’s subsequent comments to his trial attorneys. “I don’t want any of you to make an argument you don’t believe in.” Prosecutors – unlike other lawyers – are not simply advocates for one side. They are required to bring Justice. They should seek to right the biggest injustices, not go after the easiest targets. Victory in the courtroom should be a secondary concern, meaning that government lawyers should neither seek to win at all costs nor duck a valid case out of fear of losing.6

Lessig then incorporates the argument Jesse makes in his book that white collar prosecution in America has changed in more recent years. Both authors then dig into why this has changed and how these changes work against delivering justice.

In earlier times, our government prosecuted white collar criminals while prosecuting white collar crime. It prosecuted more...

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