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Election 2020 Lawyers Facing Dueling Duties of Responsibility: To Their Client and Society

By Pat Wilson

At the risk of wading into a partisan political dispute and appearing to take sides, we feel compelled to reflect on the controversy surrounding the international law firm Jones Day. According to the New York Times, some senior Jones Day lawyers are raising concerns about the firm’s representation of Donald Trump in his challenges to presidential election. They are concerned that the firm may be pressing arguments that lack evidence and tend to undermine the integrity of the election. Employees of the firm Porter Wright Morris & Arthur, also representing Trump in his election challenges, have expressed similar concerns.

We take no position on either firms’™ representation of the President. That said, it is worth considering and remembering the duty that lawyers owe not only to their clients, but the larger community. The preamble to the Model Rules of Professional Conduct states,

The lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.

An attorney’s first duty is to her client. We owe our clients zealous representation; our work should always be guided by our clients’™ goals, using our knowledge and skills to get them as close to those goals and the law and facts will allow. Our duty, however, is not an unqualified duty. Indeed, the sanctions that courts may impose on attorneys who file frivolous claims or make specious arguments give proof to the obligation attorneys owe beyond their clients. My client made me do it is not a defense in these cases.

Moreover, lawyers can never lose sight of the full obligation owed to clients. A good lawyer is not simply a hired gun, retained to do whatever a client demands without question. Rather, good lawyers are also wise counselors, helping their clients to consider the implications of their goals. As we wrote in our upcoming book Fundamentals of Lawyer Leadership,

The lawyer must move beyond the theoretical question posed to the [lawyer as a] technical expert and provide realistic guidance on what the client can and should do.

Embarking upon a strategy that lacks evidence or support in the law may in fact cause harm to a client beyond the immediate case. And if our clients wish to continue on their preferred path notwithstanding our wise counsel, perhaps withdrawal from representation is the next consideration.

These cases do not present easy answers. No lawyer should ever shrink from representing controversial clients, taking hard cases, or offering novel theories. However, lawyers must always remember that as officers of the court, our duty is to the pursuit of justice.