Date: Tue, 03 Oct 1995 16:41:31 -0400 (EDT)
From: dfernand@HULAW1.HARVARD.EDU
Subject: Sidley and Austin Continued...

The following article appeared in the Harvard Law Record last week.  I 
think that it is a very good response to those questioning why a boycott 
of Sidley & Austin is an appropriate response to their representation of 
Colorado. The article was written by Michelle Lerner a 2L.

			CHOOSING OUR BATTLES

	I am writing this article in response to comments that have been 
made about LAMBDA's boycott of Sidley and Austin. The most common 
criticisms of the boycott reflect what seems to be a pervasive feeling at 
HLS-- that lawyers should not be held accountable for the choices that we 
make or the social consequences of our actions, that we are neutral 
representatives of non-neutral clients, that our loyalties should lie 
only with our clients whomever these may be, and that it should be 
unimportant which clients we represent or how we decide to represent 
them. Here, at HLS, we learn the art of legal argument and 
justification-- an art viewed as something beautiful and worthwhile even 
in the abstract, an art performed for art's sake (or for money's sake), 
which we can choose to separate from the ramifications of such un-artly 
things as people's real lives and welfare. We do learn in our classes 
that law does have something to do with justice and the shaping of social 
policy, but we learn that the important decisions to be made in this 
regard are those faced by judges, justices, and legislators. Almost never 
do we discuss the impact that we make on the world as lawyers, how our 
decisions to represent particular clients and our choice of arguments 
made on their behalf might affect the justice of a situation or the 
well-being of people's lives. We are trained to see ourselves as arguers, 
mouthpieces, scholars, advocates-- but not as actors in any real social 
sense.
	 Many students here work on the assumption articulated by Orin 
Kerr in Vicki Kuohung's article last week: that everyone has the right to 
zealous advocacy, no matter what their claim or desire happens to be, and 
that it therefore does not matter who we as lawyers decide to represent 
and whose actions and desires we personally choose to justify. According 
to Orin Kerr, holding lawyers accountable for their decisions to 
represent particular clients or justify particular actions 
inappropriately "punish[es] lawyers for the sins of their clients." 
	But it is untrue in reality that everyone has a right to zealous 
legal advocacy. Even with the supposed "glut" of lawyers in this country, 
millions of recognizable legal claims go unrepresented every year.When a 
lawyer decides to take a particular case or client, or to work for a firm 
or organization with a particular client base, she is therefore always 
choosing, in effect, to support some kinds of claims over others. It is 
unclear why lawyers should not be held ethically responsible, like 
members of every other profession, for the choices that we have to make 
and for the  consequences of our actions. The fact that some lawyers pick 
their firms, their clients, and their positions for purely monetary 
reasons, and could not care less who their clients really are or what 
they are trying to do, does not erase the political impact of these 
lawyers' choices or the social consequences of their actions. In saying 
this, I am reminded of a comment made by a woman from the Federalist 
Society at last year's Dialogue Across Differences: "Some people come to 
law school because they want to change the world. I am not at law school 
because I want to change the world. I just want to be a tax attorney and 
make some money and have a family." My reaction is that we cannot, in 
reality, escape our impact on the world simply by claiming apathy; in 
lawyering we cannot step outside of the social framework in which we and 
our clients live simply by stating our desire to do so. There are no easy 
ways out; our actions always have consequences.
	So in answer to the incredulous question posed by an editorial 
writer criticizing LAMBDA's boycott in last week's Record-- "Must we then 
check the client base of every firm we apply to?"-- I would say that this 
does not seem to pose an unreasonable or unrealistic burden for us as 
professionals or as people. It simply imposes upon us the responsibility 
of knowing the consequences of our own actions and taking responsibility 
for them in whatever way we see fit. The alternative is a life lived as 
mercenaries. Is it really inappropriate to ask questions? Is it really 
inappropriate to take a side? Must we blindly justify any proposed social 
policy regardlesss of the harm it may bring, simply because we are asked 
to do so?
     Some people also say that boycotts and voicings of disapproval 
inappropriately intimidate lawyers working on "unpopular" positions and 
undermine the "free market" of ideas. But boycotters and disapprovers are 
not preventing other lawyers from taking particular positions; we are 
simply stating that we are personally not interested in working with them 
if they adopt these positions. In the "free market" we are supposed to do 
this; we are supposed to choose whom we do and do not want to support, 
what we do and do not want to make or buy. If we do not want to work for 
states' rights to allow persecution of gay, lesbian, and bisexual people, 
we can show that we are unwilling to do so. This is not a means of 
shutting down the market; it is, rather, the way that markets work.
	 Moreover, not everyone has access to this supposedly "free" 
market of ideas discussed in the courts, as anyone who works at a public 
interest organization can testify. With millions of people in this 
country unable to get legal representation for recognizable claims, it is 
ironic to say that people voicing their opinions as to which claims 
should and should not be represented are somehow "injuring" a market. 
Even if there were no private lawyers willing to work for Colorado on the 
Amendment 2 issue, Colorado would still have its day in court as long as 
its Attorney General felt that the issue was worth pressing; Colorado is 
not and never was in danger of being muted. Meanwhile, the gay and 
bisexual people who called the office where I worked this summer often 
had trouble finding  lawyers to help them retain their jobs, their homes, 
or their children, especially if they were poor or came from states 
without relevant anti-discrimination law. None of the critics of the 
boycott seem to miss their contribution to the "free market" of ideas, 
and none are suggesting that the lawyers who regularly decline to 
represent them are undermining such a "free market."  It's time for us to 
recognize that as lawyers in this country we necessarily make choices 
about whom to represent, and it's time that we evaluate what these 
choices really mean.