The Culture Of Changing Sides
As a neophyte lawyer, I would pester my father -- a files-piled-to-the-ceiling practitioner -- with anecdotes of my own nascent, incipient and meager, law practice. I was inexperienced, unassertive and with few cases. With time, I would begin to come into my own, aggressively defending -- as I would reflexively say -- “the victims of prosecutor overreaching in the extreme.” When you can’t successfully pound on the facts or pound on the law, you pound on the table.
I enjoyed it. But without the ability to build a name for myself, there was no future in it. Or maybe I was drawn in by the allure of prosecuting big time corruption cases. No matter the reason, I “changed sides,” and became a prosecutor in a brand new -- in retrospect, inordinately zealous -- corruption prosecution office. My father, although not displeased by the career change, seemed to despair over how easily I could abandon my supposed principles and morph from “Paul” into “Saul” -- almost a reverse conversion along the Damascus Road.
No longer, for me, did the Fourth, Fifth and Sixth Amendments weigh so heavily -- they were now, it seemed, small-font codicils, if you will, to the U. S. Constitution. My change of sides was seamless, and no one challenged my conversion as character-flawed, given that I had really brought nothing at all to the prosecution table from the defense table. No one questioned my disloyalty or ethics. Nor could they. Lawyers represent clients, not sides. And, frankly, isn’t it the hallmark of our profession that a lawyer’s truest obligation is to zealously represent the client he’s representing now – with blinders on to ensure it!
I can recall that my father branded my “flexible” passion in advocating my views du jour in the courthouse and at dinner conversation during my consecutive careers “Cowboys and Indians” -- a name, incidentally, then still politically correct. One kid would start as the Indian, with headdress and rubber tomahawk -- only to change horses fifteen minutes later with his friend, dressed in a cowboy hat with a toy pistol holster. Children easily change sides when only a game is at stake!
But can adults – should adults – easily switch sides when it is more than a game? There’s nothing wrong with an insurance executive switching to become a broker, a football player becoming a referee, a labor leader becoming management. Yes, an individual may learn much from his prior life, career or incarnation and use it successfully in his second, with no one being heard to complain. Life and business are about individuals benefitting from skills procured earlier in life and using them in their next chapter.
But what about the culture -- perhaps call it the “ethics” or even “morals” -- of changing sides as a lawyer when one gains a particularly enhanced skillset (and ardor) from having been a combatant on “the other side”? Put aside those particularized rules that enjoin a lawyer from representing an individual if he previously litigated the other side of that case. Or rules that prohibit a lawyer, for a statutory time period, from appearing before an agency for which he previously worked.
Specific, focused rules preclude this particular form of side switching -- but nothing precludes the generic shift over. Not even when young litigators today unabashedly change from litigating on behalf of Wall Street law firm clients and then go on to prosecute, or enforce, securities laws to – frankly - make themselves more (let’s call it) marketable when they are ready to again change sides. It reminds me of President Kennedy’s famous response in another context -- when detractors challenged his choice of his inexperienced brother Robert F. Kennedy to be U.S. Attorney General, the President explained: “I can’t see that it’s wrong to give him a little legal experience before he goes out to practice law.”
Nonetheless, this discussion is not about one using a previously obtained skillset to advance legal positions the exact opposite of those he pursued before -- a subject for another day. Addressed here, instead, is the phenomenon of (even subliminally) invoking the prestige and status of one’s previously-held position on the “other side,” but not necessarily benefitting from the legal and strategic positions he used while occupying that office. When one serves and then leaves his employment as a United States Attorney, an SEC Enforcement Attorney or even a Federal judge - some identify this phenomenon, the “revolving door” of government service – there may be a perceived lack of sincerity in his consequent advocacy after the switch. Or was the lack of sincerity there before, or present in both positions?
When the revolving door metaphor is used pejoratively, it’s not really about lawyers gaining expertise in government service only to later cash in, employing it in private practice (or in-house) based on having obtained an insider’s knowledge of “how things get done.” It’s about communicating, typically with words unspoken, precisely who is making the legal argument or entreaty based on who he was in his prior life, and who he remains, given the exclusive “fraternity” in which he will likely always belong. Are they basically saying, “We didn’t take this needlessly aggressive stance in ‘my day’”? Or, “Knowing who I am (having previously been appointed to office by the President of the United States), be confident of what I tell you, as will the judge.” Do those words – spoken or implied -- invoke the prestige in which the advocate still wraps himself?
Is it unethical for a lawyer to switch sides and advocate for a current client merely because he previously litigated the other side of the issue (as long as he doesn’t disclose a confidence he obtained during the prior representation)? No. Lawyers, at the end of the day, are supposed to advocate zealously on behalf of their immediate client, even if in so doing they abandon the position they previously advocated successfully or unsuccessfully for another client. That’s what lawyers do, and should do – Louis D. Brandeis, one of the greatest lawyers of the 20th Century, was actually famous for it, although conservative members of the U.S. Senate sought to kill his U.S. Supreme Court confirmation because of it.