Tag Archives: rage
MY LAWYER MADE ME DO IT
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: firstname.lastname@example.org.
he didn’t know he would die on december 19, 1979. a beautiful letter, regardless. my daddy. i loved him.
Thurs. 9-27 (1979)
Hello my beautiful daughter,
I haven’t checked my mail at Steve & Etta’s in a couple days, so I don’t know if you’ve written or not. When I wrote you last and asked to hear whether you’d gotten it, that seemed important. When I’ve thought about it since, it hasn’t. That is, if you’re supposed to get my letters, you will; and if I’m supposed to/need to hear from you, I will. I love you, and one of the things that means is that I enjoy expressing myself to you. Don’t get me wrong: I also really like hearing from you, hearing you/listening to you expressing yourself to me. That’s what I want, and what I get will be what I need.
I hope you’re enjoying yourself and learning and growing. I know you’re doing the latter two; the first is the only thing I’m unsure about.
Things are really interesting & exciting for me: seeing some patterns in my life, some big ones, for the first time ever. They are really far out: mostly they have to do with my history of relationships with women (including your mother & going back further than her) and how I use/have used those relationships to work out my feelings about my mother & her inability to give me love, affection, respect, hugs, kisses, TLC… that kind of stuff. (I’m unclear about how much of this I “should” be sharing with you… when, if ever, should I relate to you like a peer? Or: when a father tells his child about his own emotional/psychological struggle/growth/insights/development, is that OK? I guess I should go with my feelings and it feels OK to go this far; I’ll go as far as it feels OK to. Part of my desire is for you to maybe learn a little something about your own psyche, and to know me as well as you can… given our… the way our relationship has gone (off the main point: I want you to know that I am not threatened or bothered at all, any more, by your relationship with your stepfather. I accept that he was your father, is your father, in many ways. And I think it’s beautiful that you have two of us. How many young women have a straight dad and an unconventional dad?) At any rate, the genesis of this recent big insight was George Oliver, from whose apartment I called you the other week. I was talking to Geo. about my feelings of longing for Barbara & he told me that what I was saying sounded just like what I’d said & been feeling right after separating the last time from your mom. That blew me away, because it was real true. In essence, my largely unconscious/subconscious need/wanting to “get back at” my mother for what some part of me sees as her deliberate refusal to give me what I wanted, love, has led me over the years to play the game with women (who I’ve viewed as mother-surrogates) of “when I’ve got you, I don’t want you; when I haven’t got you, then I want you back.”
All this realization is so new I’m still trying to get my mind around it. I’m pretty sure I want to stop playing it: it sure doesn’t feel good for those involved, myself included. (I realize that, at some level, it had to be satisfying some real deep need in me; otherwise why go on doing it for 30 plus years?)
Exciting and scary times. The prospect of opting out of the game is exciting. And scary: the game-playing part of me says, “gee, what will I do if I don=t play that game?” or “But that’s all I know how to do!”
Incidentally, I have no regrets about having come down to Florida & having been there 3 & 1/2 months. It all needed to happen, I’m sure of that. And our time together was beautiful.
And something else that needs to happen is going to the first part of next week: I’m heading south again. I’ll be driving in the van down Baja California to La Paz & taking the ferry across to mainland Mexico again. I’m going to revisit some of the places I raced through (e.g. 3 hours in Oaxaca) and visit some of the places I chose not to make side trips to. And drink in that delicious tropical sun & sea for a while. I guess I’m feeling that I’d rather go to Europe in the spring, warmer weather. (Sat.) A feeling that’s really been reinforced by the last couple days in LA, real cool here, rainy & overcast on the beach today.
My current thinking about my travelling is that I’ll do Mexico again until Dec. or Jan. then go to the Caribbean. I’d love to visit Jamaica, St. Martin, Puerto Rico, etc. And then in summer go to Europe. Rather than going to London now, then immediately to warm weather in Africa then going back to Europe next summer. But, it’s real hard to stay definite.. I don’t know what this does to our talking about travelling together, but if we’re supposed to, we will. And I would love to see the Caribbean with you.
I don’t know whether I’ve told you or not: when I came out here in Aug., my first stop was San Diego, where I talked to my Aunt Cecelia (who also was my godmother) & the lawyer that drew up my mother’s will. Cecelia, after hearing that I felt humiliated, hurt and angry about Mom’s will, said that Mom had felt all those same things & ways about what I’d done in living my life. Which is no doubt true. And sad, that my efforts to live & be happy were taken so personally by her, and that she chose to be so upset about them. There’s a lesson there, for sure.
I will write you from Mexico and I’ve decided to assume you will get my letters & stop worrying about whether Gail might intercept them.
My thoughts are with you a lot. Know that I love you. (The thunder outside seems to punctuate my writing with an exclamation point after that sentence!!) Allow yourself to be who you are; remember that if you were supposed to be different, you would be.
Incidentally, I asked Sheila’s lawyer how long before I get my money from the estate & he said he couldn’t be definite (you know how lawyers are) but he thought it’s be sooner than 6 mos.!
(You can write me in Mexico if you want. I’ll be stopping in La Paz, in the state of Baja Calif. Sur and mail will be held for me if you send it c/o Lista de Correos, for that city & state. La Paz is 1000 miles or so south of San Diego so I shouldn’t be there until at least a week or so, more like 2 weeks, after you get this.) I’ll let you know other cities later. The next one after La Paz will be Puerto Vallarta, but I forget the state name, but you can just check an atlas.