from my folder: defense lawyer’s greed: my lawyer made me do it, by steven lubet

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MY LAWYER MADE ME DO IT

Steven Lubet

05‑01‑2003

Sooner or later, nearly every lawyer has to confront some variant on the dilemma of zealous representation. How do we justify representing clients whose goals are morally questionable or even flatly offensive? The standard answer is that lawyers serve society by facilitating client autonomy, allowing individuals and corporations to make informed decisions about their legal rights. As Samuel Johnson explained nearly 250 years ago, “A lawyer is to do for his client all that his client might fairly do for himself.” Thus, corporate counsel (following each new accounting fraud) and public defenders (in almost every case) deliver the same ready reply to a relentlessly familiar question: How can you defend those people? Well, it isn’t always easy, but we are just doing our job.

Lawyers have come to expect skepticism, if not outright scorn, when representing, say, polluters or criminals. But until recently, it was a safe bet that no one had to be embarrassed about a client like the Catholic Archdiocese of Boston. In recent months, however, the litigation over clergy abuse has become so acrimonious that many parishioners are openly questioning the basic decency of the church’s legal strategy, going so far as to accuse the defense of inflicting new trauma on the abuse victims. Representatives of the archdiocese responded by blaming it all on their counsel ‑‑ “Our lawyers made us do it” ‑‑ as though the church has no control over the tactics employed in its name.

 More than 500 civil cases have been filed against the Boston archdiocese, alleging sexual abuse by priests and a decades‑long cover‑up by the local hierarchy. Last December, amid charges of stonewalling and complicity, Cardinal Bernard Law was forced to resign, replaced temporarily by an apostolic administrator, Bishop Richard Lennon. From the beginning, Bishop Lennon promised a new tone of reconciliation and healing. He announced his intention to settle the outstanding litigation, and promised to make therapy available to every victim who comes forward.

In the meantime, however, the church continued to mount a forceful defense in court, engaging in a level of trench warfare that would make Johnnie Cochran proud. For example, defense lawyers filed a breathtaking motion to dismiss all 500 cases on First Amendment grounds, arguing that the civil authorities could not interfere with the “bishop‑priest relationship.” It was claimed that the constant reassignment of known child molesters was beyond the reach of the law, because the supervision of priests was exclusively an ecclesiastical matter.

Predictably, the motion was denied, but not before Bishop Lennon explained that his attorneys had insisted on the hardball tactic because “failure to do this could very well result in the insurance companies walking away from us, saying that we have not exercised all of our avenues of defense.”

It was barely noticed at the time, but Bishop Lennon had actually adopted the classic lawyer’s excuse. Absolving himself of any moral responsibility for the maneuver ‑‑ much less the cost and anxiety it imposed on the injured plaintiffs ‑‑ he invoked the nature of the legal process as justification for an outrageous ploy. Attorneys routinely seek to escape the consequences of their actions by deferring to their clients’ instructions, but this was an entirely new twist on an old theme. The apostolic administrator washed his hands of his own decision, blaming the insurers and lawyers instead.

It gets much worse.

In January 2003 the church’s defense team began serving deposition subpoenas on plaintiffs’ psychotherapists, including some who had actually been hired by the archdiocese itself to provide treatment to abuse survivors. From a legal perspective, of course, this was not particularly out of the ordinary. The psychotherapist privilege is waived when a plaintiff claims damages for emotional trauma.

From a moral perspective, however, it was a disaster. The church had encouraged victims to come forward and had even set up a special Office of Healing and Assistance to facilitate therapy, as part of Bishop Lennon’s announced preference for settlement over litigation. Then the archdiocese turned around and insisted on invading the patient‑therapist relationship in a way that many victims regarded as jeopardizing their recovery.

The reaction was furious. A coalition of psychologists and victims’ rights activists denounced the depositions as “revictimization” and “reabuse” of patients who were “already broken members” of the church’s flock. Without disputing the church’s legal right to take the depositions, the group complained that the tactic was inconsistent with Lennon’s professed commitment to justice and healing. The victims’ therapy, they said, would be “permanently harmed by the intrusion of the legal system.”

One prominent psychotherapist, who had previously been invited to address the United States Conference of Catholic Bishops, put it even more bluntly: “I think that this is very despicable and deceitful. To say [that] ‘the church loves you’ and ‘we want to help you’ and then to invade your treatment is really just wrong. It may be legally okay, but it’s wrong.”

In response, an archdiocesan spokeswoman declared that the depositions were lawful and necessary: “If the victims choose to sue … we feel that we’re obligated to defend ourselves.”

Maintaining that the archdiocese still supported therapy for survivors, she insisted that the support stood “separate and distinct from the litigation process.” And lest there be any mistake, another church official remarked, “It’s a very tragic set of circumstances, but when you get to the litigation stage, there are certain things lawyers insist on doing to protect their clients.”

Thus, the Boston archdiocese inverted the very premise of the attorney‑client relationship, relying on the purported demands of counsel to justify its own moral blundering. Lawyers naturally recommend strategies that enhance the likelihood of success in litigation. To those who see themselves as legal technicians, the human toll is irrelevant so long as the tactic is lawful. The autonomous client is entitled to zealous representation, and the attorney is helpless to refuse.

But that same stricture never applies to the clients themselves. There is no conception of litigation in which a client can decline to be an independent moral actor. In fact, the American Bar Association’s Model Rules of Professional Conduct specifically call upon lawyers to “defer to the client” in regard to other “persons who might be adversely affected” by litigation. While any good lawyer would urge the archdiocese to authorize the depositions of victims’ therapists, no lawyer could compel it. That is why we call it “advice of counsel.”

The basic purpose of taking a therapist’s deposition, after all, is to undermine the plaintiff’s monetary claim for emotional distress. A good transcript ‑‑ filled with artfully extracted admissions and potential impeachment ‑‑ becomes a useful weapon in negotiation or at trial. An early deposition in the midst of settlement talks is an unmistakably aggressive move, especially in the case of a vulnerable plaintiff who has suffered clergy abuse. (In several hundred cases, all discovery has been stayed for 90 days pursuant to a “stand‑down” order intended to facilitate settlement; in other cases, however, the contentious litigation continues unabated, as the archdiocese recently moved for the entry of a gag order against a lead attorney for plaintiffs.)

The leaders of the Boston archdiocese may opt for compromise and settlement, or they may choose to litigate to the bitter end. As an outsider, I would defend their legal right to make either choice. But no client has the moral right to raise the flag of reconciliation while instructing counsel to scorch the earth.

Steven Lubet is a professor of law at Northwestern University. His most recent book is “Nothing but the Truth: Why Trial Lawyers Don’t, Can’t and Shouldn’t Have to Tell the Whole Truth.” E‑mail: slubet@law.northwestern.edu.

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