In the confirmation hearings concerning Louis Brandeis before the United States Senate almost a century ago — hearings evaluating whether Brandeis was fit to be a Justice of the United States Supreme Court — Brandeis was challenged concerning his professional ethics as a lawyer. It was charged that he had involved himself in conflicts of interest, trying to assist conflicting parties in working out intense differences. When asked who he represented, he responded that he was "lawyer for the situation."
I don’t think Brandeis meant this "situation."
Most lawyers are, by nature, problem solvers. Besides victory at trial, there are few occurrences as professionally satisfying as helping two warring parties set aside their differences and reach an agreement. Outside the arena of the courtroom — where lawyers are required to take up arms on behalf of one and only one side — there are many opportunities for lawyers to make such an agreement happen.
The role of peacemaker is often too enticing to pass up because it appears to be good, moral, ethical work in the highest traditions of the profession, helping people avoid the trauma, delay, and expense of litigation. There appears to be little potential downside, and a lot of potential upside.
But consider this case:
After two mornings of skewering, the Boston lawyer who wrote the disputed marital property agreement at the core of the bitter Frank and Jamie McCourt divorce battle got to explain himself and try to rehabilitate his image.
Larry Silverstein, the lawyer who changed the wording in three signed copies of the agreements without consulting the McCourts, testified Wednesday afternoon how he came to make and then fix what he says was an innocent mistake.
Silverstein explained that he simply botched his words in a draft he wrote late one night or early morning in 2004, when he listed Frank McCourt’s sole property as "exclusive" of the Dodgers.
Later, the attorney changed "exclusive" to "inclusive," meaning the Dodgers were not joint property of the now-estranged couple.
"Sometimes I garble the language," the beleaguered attorney said under friendly questioning by Victoria Cook, one of Frank’s attorneys. "I was trying to write it as the exclusive pool of assets."
Or this one:
Schaerr, who earned his undergraduate degree from BYU, began handling regulatory and legislative matters for the school in 2001 as a partner at Sidley Austin, according to the decision. In 2005, Pfizer hired Sidley Austin for the dispute with Pfizer and its predecessors. Sidley Austin obtained a waiver from the school to pursue the Pfizer matter. Later that year, Schaerr left Sidley Austin for Winston & Strawn, which also obtained an "advance patent waiver" from BYU for any clients that might be adverse to the school. Winston & Strawn was not working on the Pfizer case at the time. Schaerr was never formally attached to the dispute between BYU and Pfizer.
It is unclear when Schaerr, who declined to comment for this story, learned that Winston & Strawn was representing Pfizer in the BYU litigation. …
In January 2010, Schaerr informed BYU general counsel Michael Orme during a telephone conversation of Winston & Strawn’s involvement in the Pfizer case. The substance of that conversation and correspondence between the two men that followed were of particular concern to the magistrate judge.
According to Wells’ decision, during the call, Schaerr offered to help broker a settlement between BYU and Pfizer by acting as a "go between" to bring the parties to the table. Schaerr, the judge wrote, asked Orme to divulge the specific dollar amount that the parties had discussed when mediation broke down in 2006. He also said during the call that Winston & Strawn would not play the same "discovery games" with Pfizer that Sidley Austin had played. (Orme did not return telephone calls seeking comment.)
Whatever the ethical questions of "the lawyer for the situation," it happens every day. The divorce lawyer guiding a splitting couple in the midst of a bitter divorce. A non-litigator attorney performing shuttle diplomacy between two clients on the verge of litigation.
It’s quite possible that the attorneys in both cases were, in fact, acting in nothing but good faith. It’s possible that they intended only the best for their clients, to try to reach a meeting-of-the-minds, to resolve the differences amicably.
And it left both attorneys in seriously hot water. Silverstein has had his work chewed up and thrown in his face, in court and in the papers. Schaerr just got his firm disqualified from representing one of the world’s largest companies in a massive case.
Maybe Louis Brandeis got away with it. Maybe Prof. Hazard is right that the rules permit such "lawyers for the situation" in more situations than generally acknowledged.
But if you can avoid being the "lawyer for the situation," do so.