Peggy Young was a delivery driver for the United Parcel Service when she got pregnant in 2006. For nearly a decade, Young met an airport shuttle at the crack of dawn. She collected and then delivered packages and letters. Because of the nature of her pregnancy, Young’s doctor instructed her not to lift anything heavier than 20 pounds. Young knew that UPS had a policy that allowed other employees to receive temporary light-work assignments and accommodations, including employees with drunk driving convictions or who had been involved in other accidents.
So when UPS refused to accommodate her doctor’s orders and forced her to take unpaid leave, she was shocked. Young’s bosses informed her that the company does not provide light work accommodations for pregnancy. One manager said she was “too much of liability while pregnant” and she could not come back to work “until [she] was no longer pregnant.”
Young lost her income, her health insurance, and her benefits for seven months. She returned to work two months after giving birth to her daughter, Triniti.
As Young was forced to leave her job, Caitlin J. Halligan was rising the ranks as a government lawyer. She served as Solicitor General for New York for six years, and held leadership positions in the New York Attorney General’s office and the District Attorney’s office. She argued cases in front of state and federal courts, including five before the Supreme Court. In December 2011, President Obama nominated her for a highly-sought-after seat on the Court of Appeals for the D.C. Circuit, often referred to as the second most prestigious court in the country. After her nomination stalled in the Senate, Halligan chose a lucrative next step: helping to lead appellate work at the major corporate law firm Gibson Dunn.
In December of 2014, Young and Halligan were both seated in front of the mahogany bench of the Supreme Court. Young was suing UPS for unlawfully refusing to accommodate her lifting restriction and discriminating against her because she was pregnant. She became the face of a fight to protect pregnant workers from discrimination in a case that affected the health, well-being, and lives of millions of women, pregnant people, and their families.
“No one,” Young said in an interview with the Washington Post, “should be forced to choose between continuing her job or continuing her pregnancy.”
“No one should be forced to choose between continuing her job or continuing her pregnancy.”
Halligan was paid to defend UPS.
A relatively small number of the country’s 1.3 million lawyers work at large law firms actively litigate on behalf of big corporations. Like Halligan, these lawyers stand up in federal courts across the country and argue that the law should protect oil companies destroying the environment, food companies that knowingly use the labor of enslaved children, and corporations responsible for human rights abuses, weapons production, coercive contracts, and facial recognition technology. If there is a case which corporations are accused of illegally extracting wealth from poor people or destroying the natural world, there is a corporate lawyer being paid huge sums of money to defend them.
It may come as a surprise that these lawyers teach at prestigious law schools, speak on public radio shows, cable news networks, and podcasts, and write op-eds about equality and democratic accountability in the most prestigious newspapers. Many have gone on to become federal judges.
Most of them have escaped accountability for taking huge sums of cash to defend corporate clients and advocating for their causes. Attempts to critique lawyers based on their choice of clients have been met with opposition from the elite legal establishment. These lawyers and their defenders argue that when clients have the best advocacy, courts make the best decisions. They offer this supposed principle to exonerate their personal decisions to become rich by making a choice to represent the least worthy causes.
Embedded this claim is the presumption that the work of lawyers is morally neutral. That simply is not true. Some of the causes that lawyers advance will increase the amount of justice in the world, and some will not. Representing Peggy Young holds a multibillion-dollar corporation accountable for discriminating against a pregnant worker. Asking judges to rule for UPS, on the other hand, would set a dangerous precedent narrowing the reach of anti-discrimination laws.
Law students, lawyers, and the public should not be duped by claims of neutrality. In the words of Duncan Kennedy, professor emeritus at Harvard Law School, “the simple answer is that the law is not coterminous with morality: there is a vast range of behavior that harms people without legal remedy, and when lawyers help people do that harm, they can’t escape responsibility for it if it is immoral.” Lawyers, in other words, like everyone else, are morally responsible for the choices they make about how they spend their time and who they choose to help with their training and talent.
Lawyers, in other words, like everyone else, are morally responsible for the choices they make about how they spend their time and who they choose to help with their training and talent.
Being a lawyer is not morally correct on its own.
Leah Litman, a law professor at the University of Michigan, sees specific danger in allowing “legality” to exonerate lawyers who perpetuate inequality and abuse power: “the important point is not whether the specific decisions the lawyers made or the policies they defended are lawful or were lawful. Some perfectly lawful policies might nonetheless be morally abhorrent and destructive to a functional system of governance.” A moral analysis that ends at whether the lawyer is zealously advocating for their client or whether the specific decisions the lawyer made was lawful is completely abstracted from material consequences. After all, prestigious lawyers like Halligan get to choose their clients.
The decision to defend the oil company that poisoned an entire region, the manufacturer fighting to avoid liability for a product that it knew caused terminal cancer, or the corporation seeking to erode workers’ rights to collective employment litigation is political. Choosing to represent these corporations is a choice to support what they do. Prestigious lawyers may not personally agree with every one of their clients’ actions, but the choice to use their skills and training to advance these causes reflects their values and their view on whose behalf the legal system should operate. We cannot allow them to hide behind claims of apolitical neutrality or legality.
Some have suggested that lawyers who defend corporations are like public defenders: providing an essential procedural guarantee. It is true that lawyers often represent unpopular clients. But the decision to represent corporate clients in disputes designed perpetuate inequality or evade responsibility for systemic harm is a vastly different project from the work of public defenders.
According to Kennedy, it does not matter that public defenders find themselves representing people accused or convicted of crimes because “there has been a society decision that people should have lawyers even if they can’t afford them.” People who might lose their liberty have a constitutional right to counsel. And this fundamental right to have a lawyer represent you as the government seeks to put you into a prison cell does not extend to corporate aggregations of wealth that seek to employ the law to the detriment of the rest of society, even if they have the money to pay for it.
Unlike corporate lawyers who employ the law for immoral ends, public defenders serve an essential role in protecting the constitutional rights of the person the state seeks to imprison. Rhiannon Hamam, a former public defender and co-host of the podcast 5-4, asks, “without the public defense bar, without criminal defense attorneys, without the people who take death penalty cases to the Supreme Court, for instance, where are our civil rights? Where is your access to courts and due process?”
Even corporate defenders do not believe that their advocacy is necessary to ensure courts make the best decision and the legal system is fair. If they did, they would be lining up to corporate cases pro bono. Elite lawyers are taking them because it pays a lot and not because representing corporations is essential for a just system.