By Stephen L. Carter
If you’re able to shift your attention for a moment from the drama being played out in Washington, take a moment to worry about the drama being played out in Cambridge, Massachusetts, where a professor at Harvard Law School is under fire for choosing to represent an unpopular client.
The professor is Ronald Sullivan, an experienced criminal defense lawyer, and the client is Harvey Weinstein, which of course means that the fat was in the fire from the first. For signing on to defend one of the most hated men in America, Sullivan (so say a group of Harvard students) should no longer be permitted to serve as a faculty dean of Winthrop House, one of several residence halls for Harvard undergraduates.
Ron Sullivan is a friend of long standing, and one of the most generous and decent men I have ever known. The things his critics are saying about him have nothing to do with what kind of person he is; they all stem from his choice of clients. So let’s focus on that.
Weinstein is an utterly malign figure, and I certainly share the general opinion about the horrific nature of the crimes of which he is accused. But to suggest that those who represent him should be punished runs counter to the traditions of our legal system. Criminal defense lawyers defend criminals, and criminals are often horrible human beings. Sullivan earlier represented the late Aaron Hernandez, the former professional football player, and there was no outcry then that he be punished for taking on a client accused of a double homicide.
Judging the morality of lawyers by the morality of their clients carries echoes of the McCarthy era, when red-baiters would smear lawyers who represented communists. The organized bar, rather than protect its members, joined in the condemnation. The result was predictable: Rather than take on unpopular clients, lawyers cowered in what U.S. Supreme Court Justice William Douglas decried as a “black silence of fear.”
The issue is personal for me, because this great silence touched my family. In the 1950s, at the height of the red-baiting madness, my great-uncle, Alphaeus Hunton, faced prison for refusing to name names. He had difficulty securing representation. Small wonder, given the tenor of the times. Ironically, Alphaeus wound up behind bars because he would not say who had contributed to a bail fund set up for accused communists — a fund that was necessary, in part, because communists couldn’t get lawyers.
I quite understand the difference between an accused communist and an accused rapist. But the issue isn’t which client is worse. The issue is whether a lawyer should be judged by choice of client in the first place. The legal profession, perhaps as a penance for its silence in the face of the red-baiters, has spent decades fighting to distinguish the morality of the lawyer from the morality of the client. If the leaders of the bar don’t speak up firmly and forcefully on Sullivan’s behalf, it will be hard to take them seriously when they speak on other issues in the future.
The critics insist that they do not question Sullivan’s right as a professor to represent whom he chooses — only his fitness to head Winthrop House, where he has particular responsibilities for students’ well-being. They say that his representation of Weinstein makes them feel unprotected, and re-traumatizes those who have suffered sexual assault.
Those feelings of pain and fear should not be trivialized; I can’t accept the view that they’re “absurd.” But their existence shouldn’t lead automatically to the conclusion that a lawyer who would represent a hated client can’t be a faculty dean. As Sullivan’s Harvard Law School colleague Randall Kennedy asks pointedly: “Does that mean that a latter-day Bella Abzug or Thurgood Marshall would be disqualified as a prospective faculty dean? Both of them represented defendants charged with rape.”
Certainly a university might place reasonable restrictions on the outside activities of professors — to avoid conflicts of interest, for example. But a school should never pressure those of its faculty who are also lawyers to take on only popular clients and causes. Moreover, should Sullivan be forced to step down, it’s hard to imagine the protest ending there. Surely every professor shares the duty of making students feel welcomed and encouraged. At the very least, the ousting of Sullivan would start a landslide, as all faculty who do outside work of any sort have to look over their shoulders, wondering what’s allowed and what’s not.
More worrisome still is Harvard’s ominous promise to look into the “atmosphere” at Winthrop House. It suggests that the university believes that a faculty member’s choice of clients is a matter of administrative significance. And let’s not pretend to be naive: Nowadays, being investigated by campus authorities is tantamount to being convicted by them.
We’re a far cry from the days of Abbot Lawrence Lowell, the president of Harvard who developed the “house” system. Yes, Lowell had his many warts, but he did some good things. Here’s one of them: A century ago, during the runup to World War I, a Harvard professor was accused of supporting Germany. Editorialists wanted his head. Lowell’s response has justifiably gone down in history: “If a university or college censors what its professors may say, if it restrains them from uttering something that it does not approve, it thereby assumes responsibility for that which it permits them to say.”
The same reasoning, it seems to me, should apply to the selection of a client. Harvard could certainly adopt a rule holding that no faculty shall engage in outside legal work. Absent that, however, once the school decides to punish a professor for choosing the wrong client, it implicitly endorses the clients of others who are not punished.
If that’s the business Harvard wants to be in, then in all fairness the administration might as well come out and publish a list, right now, today, of acceptable and unacceptable clients. We might as well get a good clear look at the future.
Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.