A review of “America Compromised” by Lawrence Lessig and “The Chickenshit Club – Why the Justice Department Fails to Prosecute Executives” by Jesse Eisinger
By Rick Hubbard Esq.
Do our rules of professional conduct that require us to act in our clients’ best interest combine with wage inequality to actually prevent us from achieving justice? Both of these books raise troubling questions about whether the way we attorneys practice law fails to regularly deliver the justice our legal system is supposed to deliver.
As stated in the book jacket description of America Compromised, “through case studies of Congress, finance, the academy, the media, and the law, Lessig shows how institutions are drawn away from higher purposes and toward money, power, quick rewards – the first steps to corruption.” This review is limited to only his thinking about our legal profession.
Lawrence “Larry” Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School with a formidable CV, including clerking for Justice Scalia. He is well prepared to raise ethical questions about how the practice of Law in accordance with our attorney Rules of Professional Conduct interferes at times with achieving justice.
His book begins with a story. While Lessig, an expert on internet law, was at Stanford Law School, he accepted a side-gig to work “of counsel” at a major San Francisco law firm on issues related to his expertise. Within a week there was a problem.
In a meeting with partners, the managing partner explained that a client had told the firm either the client or Lessig had to go. It seems the client was upset by Lessig’s writing in Wired magazine and other popular and broadly read publications about how aspects of internet law worked against certain public interests. The managing partner proposed a solution, that Lessig restrict his writing to legal publications like the Stanford Law Review. A second partner explained that the firm had an ethical issue since lawyers for the firm had an ethical duty to advance the business interests of their clients, and a third partner added that Lessig had an obligation not to act or write in a way that threatens those interests.
In response to Lessig’s assertion that what he wrote in Wired and other popular magazines was true, the partner stated that truth was not the issue.
Lessig briefly reflected on the nice retainer check he’d just deposited, and how easy this extra money was going to be, before he replied: “I do think there’s an ethical issue here. It is my ethical obligation to myself. I’m sorry this didn’t work out.” With that, the meeting was over and Lessig’s job “of counsel” was ended. [1]
Lessig comments: “There’s no clear rule that guides the conflict I was alleged to have created. A lawyer has a fiduciary obligation to her clients and from using information acquired in the course of representation to the client’s disadvantage.[2] That duty is not unlimited. It does not trump a lawyer’s obligations to her profession. But the rule does create ample opportunity for a firm to bend the independence of the lawyers toward better service toward the clients.”[3]
“But when an ethical rule tells the lawyer that her views should be at least consistent with the “business interests” of her client, then she’s not free to do what’s right. If her view conflicts with those business interests, then the rule of ethics comprises her obligation as a lawyer to the profession. She can choose to do what’s right, or choose to obey the rule. She can’t do both.”[4]
Here Lessig turns to Jesse Eisinger’s book “The Chickenshit Club – Why the Justice Department Fails to Prosecute Executives” to incorporate Jesse’s argument of corruption of outcomes within the Justice Department. Eisinger is a Pulitzer Prize winning senior reporter at ProPublica. His work has appeared in the New York Times, the Atlantic, and the Washington Post. In 2009, Eisinger began work on a series of stories, “The Wall Street Money Machine,” that revealed how Wall Street’s morally questionable practices had led to the worst financial crisis since the Great Depression. It was co-authored with Jake Bernstein and was awarded the Pulitzer Prize for National Reporting in 2011.
Eisinger’s book opens with a story about a new U.S. Attorney for the Southern District of Manhattan giving his first speech to staff of the criminal division. These lawyers were the nation’s elite.
The speaker opened with: “We have a saying around here: We do the right things for the right reasons in the right ways.” He then asked the seated prosecutors a question: “Who here has never had an acquittal or a hung jury? Please raise your hand.”
Hands shot up from those in the office who thought themselves to be the best trial lawyers in the country. “Me and my friends have a name for you guys.” the speaker said. “You are members of what we like to call the Chickenshit Club.”[5]
That speaker was James Comey in 2002. Eisinger then goes on to explain Comey’s subsequent comments to his trial attorneys. “I don’t want any of you to make an argument you don’t believe in.” Prosecutors – unlike other lawyers – are not simply advocates for one side. They are required to bring Justice. They should seek to right the biggest injustices, not go after the easiest targets. Victory in the courtroom should be a secondary concern, meaning that government lawyers should neither seek to win at all costs nor duck a valid case out of fear of losing.[6]
Lessig then incorporates the argument Jesse makes in his book that white collar prosecution in America has changed in more recent years. Both authors then dig into why this has changed and how these changes work against delivering justice.
In earlier times, our government prosecuted white collar criminals while prosecuting white collar crime. It prosecuted more than 1000 people in the 1980s after the savings and loan crisis, and subsequently aggressively pursued the leaders of the junk bond crisis in the late 1980s, and after the tech bubble burst in the late 1990s and early 2000s it pursued fraud again, including fraud within major telecommunication and energy firms like World Com, Qwest Communications, Adelphia and Enron, with many ending up in prison.[7]
These prosecutions were not political, they were important for both Republicans and Democrats.[8] But as Eisinger tells it, this all changed. “After the 2008 financial crisis, the government failed. In response to the worst calamity to hit capital markets and the global economy since the Great Depression, the government did not charge any top bankers. The public was furious.”[9]
As Eisinger relates it – “While a Republican president had presided over the crisis and a Democratic one had saved the financial system, Hillary Clinton, Obama, and the Democrats could not claim to be the protectors of the working class and the scourges of investment bankers. That was due, in large measure, to the lack of corporate prosecutions.”[10] Lessig then poses the question, “Why?”[11]
Lessig writes that while many experts have written in answer to this question, and while no doubt the causes are many, he focuses on the incentives affecting the many great trial attorneys in our Justice Department because, in that one dynamic, we can see the pattern that is the subject of Lessig’s entire book: institutional corruption.
Perhaps the book jacket cover states it best:
And it’s our fault. What Lessig shows, brilliantly and persuasively is that we can’t blame the problems of contemporary American life on bad people, as the pundits all too often tend to do.” Rather, he explains, ‘We have allowed core institutions of America’s economic, social, and political life to become corrupted. Not by evil souls, but by good souls. Not through crime, but through compromise.’ Every one of us, every day, making the modest compromises that seem necessary to keep moving along, is contributing to the rot at the core of American civic life. Through case studies of Congress, finance, the academy, the media, and the law, Lessig shows how institutions are drawn away from higher purposes and toward money, power, quick rewards – the first steps to corruption.[12]
With respect to our legal profession, Lessig’s critical analysis is so central, and so important to the way we practice law, to our reputation as a profession, and to its relation to the core of American civic life, that I hope each of us will carefully consider his argument and think about its implications, as well as what we should be doing in response, if anything.
Lessig begins with an analysis of prosecutors, who are simply people with families and expectations. At a certain point, when in law school, all aspiring attorneys are equal. But after graduating, all scramble in different directions based on our expectations as set by our families, friends and our own dreams. Some go to big firms, others to small firms, and some become prosecutors, and more.
Lessig goes on to say that:
Thirty years ago, that choice was less significant than it is today, at least financially. Thirty years ago, a prosecutor in New York could “afford” to be a prosecutor for his (and it was mainly his) or her whole life. ‘Afford’ not in the sense that they would starve on a prosecutor’s salary. Obviously, even today, the top prosecutors with the most experience get paid $160,000. But “afford” relative to others – their contemporaries, their friends, and their colleagues in private practice. And ‘afford’ relative to what relative sacrifice they could expect their families to bear. No doubt there has always been a gap. But the gap was tolerable. No one was going to get rich, but no one need feel poor.
In the past thirty years, that gap has grown. While the top pay-scale for federal prosecutors increased by as much as 60%, the average salary at the top firms increased by almost 160%. As the gap has grown, the ability to be a prosecutor for life has changed. Again, not in an absolute sense – a New York US Attorney gets paid three times the median income in America. But changed in a relative sense. Earlier, the choice was not difficult. If you liked the work, you could stay. Today, it has become increasingly difficult. The sacrifice feels real, not just to the lawyers, but to their families. And more and more are beginning to think about how they can make the law work better for them, or at least, better for their families.[13]
Lessig continues:
To revolve (as in the revolving door) successfully, the prosecutors need to be hirable. Which means they need to do their job in a way that lawyers in the white-collar defense firms respect. Which means they need to prosecute in ways that lawyers in white-collar defense firms agree with. Which means they need to prosecute in a way that doesn’t get the clients of the white-collar defense firms too upset. ‘The revolving door was not just a way for government employees to cash in,’ Eisinger says. ‘Both sides were changing the other – ultimately to the benefit of corporations.’[14] …A symbiotic relationship developed between Big Law and the Department of Justice.’ ‘The business had become much more commercial and more mercenary.[15]
…Those needs are consistent with the changing practice of criminal prosecution in America today. As Eisinger says, more and more, prosecution is not against individuals. It is against corporations. And more and more, those corporations settle the prosecution without admitting guilt, with something called a ‘deferred prosecution agreement,’ and by paying a tiny fine. Criminal prosecution becomes, as Eisinger has described it, a simple cost of doing business.’[16] And corporations become repeat offenders, taking the profits from the crime, and using a small part of those profits to buy the ability to commit those crimes again.[17]
Although there are exceptions, Lessig notes that “the rule is not set by the exception.’ ‘More and more, the expectation is that great lawyers will ‘subsidize’ their practice by practicing privately for at least some time. And who could think that subsidies have no effect on the subsidized?”[18]
Lessig names dependency as “the lens through which this example fits the model of institutional corruption. The purpose of prosecution is to do justice. That means never prosecuting anyone believed to be innocent; it means never declining to prosecute just because the case might be difficult. It also means not bending the prosecution to make the lawyers defending the alleged criminals happy. Yet in a world where prosecutors depend upon jobs from the lawyers defending the alleged criminals, the temptation to that bending is endemic. It is unavoidable. And the history of the change of practice by prosecutors over the past decades is consistent with the consequence one might expect; from such an influence.”[19]
However, Lessig is careful to say that corruption is not the only cause, and he cites Eisinger as doing “an admirable job of highlighting the bizarre activism of the judges carving back on prosecutions and discovering all sorts of new rights that happen to apply to white-collar criminals but not so clearly to the rest.”[20]
Lessig goes on to make the point that “prosecuting individuals is costly – especially when their corporations pay the legal fees. It takes time. One mistake on appeal can start the whole process over again. It takes a real commitment by the Justice Department to see these prosecutions through. And, more importantly, to convince the potential white-collar criminals that breaking the law is not costless.”[21]
But, as Lessig says:
If there is a reason for laws against fraud, or insider trading, or manipulation of the market, then we ought to have a Justice Department that enforces those laws enough to convince the criminals not to violate them. For these are not street-level crimes. They impose real costs on society. No doubt, crime doesn’t explain 100% of the cause of the financial crisis. But it does explain a significant slice of it. Had the law been enforced fully and reliably, there is a significant chance that these crimes would not have been committed. And that means that the millions who actually suffered from that crisis – not so much the individuals in companies that received massive government bailouts, but the homeowner who lost her home, or job, or future – have a fair complaint against this culture of corruption.
…Indeed, when you think about where criminal law is severe and where it is lax, it’s pretty clear the law has it exactly backwards. The law is very harsh against the individuals who are least likely to make calculations based on the expected value of their behavior. Not because they’re stupid, but because when you’re desperate, you do what you can. But corporations are the perfect machines for tracking the expected cost of their behavior. Make the cost of violating the law high enough, and corporations won’t violate the law. That’s especially true if the CEO realizes that violating the law means he goes to jail. Here the law treats with a rational actor. Yet the law is lax here with the rational, and extreme with the non-rational. [22]
Lessig doesn’t believe this balance was selected self-consciously. “It is the product of pressures that manifest incentives not properly aligned – or, more simply, institutional corruption, given the clear purpose of prosecution in a rule of law system.”[23]
Within his book America Compromised, Lessig has at this point described two causes that contributed to the absence of prosecutions after the financial crisis of 2008. In Chapter 2-Of Finance, which is not covered in this review, Lessig “mapped a political cause, grounded in the reality that the Democratic Party simply could not afford to alienate its funders on Wall Street any more.”[24] However, in Chapter 5-The Law, which is being reviewed, Lessig described a more internal cause. For lawyers protecting their future, aggressive prosecution of Wall Street made no sense. Lessig maintains he has no way of reckoning which of these causes was more significant.
However, to the extent the corruption of justice was driven by dependence on Wall Street’s money in political campaigns, Lessig is convinced that problem could be solved relatively cheaply, and that “we could fund political campaigns publicly for a fraction of the cost that we spend on bizarrely expensive weapons of the military each year.”[25] But to the extent that the corruption of justice comes from the culture of prosecution, Lessig finds it extremely hard to imagine the cost of solving that being borne by anyone. “We’re not going to see government lawyers being paid more than the president.”[26] I could well imagine changing the way campaigns are funded; I can’t begin to imagine changing the way government lawyers are paid.”[27]
Lessig ends his Chapter 5 with the observation that “what drives the distortion in the culture of prosecution is much more than lawyers.”[28] Indeed. It may well have much to do with the dramatic rise in inequality as well as the increasing dysfunction of our federal political system over the past forty years.
There is much in these two books for attorneys as well as the entire American public to consider. When a real estate mogul, as a business strategy, stiffs many building subcontractors and successfully works through attorneys to use the legal process to either avoid payment altogether, or substantially underpay, is justice being served? Most of us know of instances where attorneys, to serve the interests of their clients, use the legal process in ways that do not line up well with justice.
The issues raised in these two books cry out for consideration, discussion and debate. I maintain: who better in Vermont to lead this process than the leaders of our judiciary system, the Vermont Bar Association, and Vermont Law School? But will this happen? Or will the issues raised by Lessig and Eisinger simply pass us by as we continue on our way as before?
Rick Hubbard Esq. is a native Vermonter, retired attorney and former economic consultant now living in South Burlington.
[1] Lawrence Lessig, America Compromised, Chicago and London, The University of Chicago Press, 2018, 159-160.
[2] Lessig, America Compromised, 161. And See ABA Model Code of Professional Responsibility, EC 4-1, 4-5, American Bar Association, adopted August 12, 1969, last amended August 1980; “Restatement Third of the Law Governing Lawyers,” Sec. 16, 49 (3rd 2000)
[3] Lessig, America Compromised, 161.
[4] Lessig, America Compromised, 162.
[5] [5] Lessig, America Compromised, 164, citing Jesse Eisinger, The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives (New York: Simon & Schuster, 2017), xiv.
[6] Lessig, America Compromised, 164, citing Eisinger, The Chickenshit Club, xv-xvi.
[7] Lessig, America Compromised, 165, citing Eisinger, The Chickenshit Club, xv-xvi.
[8] Lessig, America Compromised, 165.
[9] Eisinger, The Chickenshit Club, xvi
[10] Eisinger, The Chickenshit Club, xvi
[11] Lessig, America Compromised, 165
[12] Lessig, America Compromised, jacket cover.
[13] Lessig, America Compromised, 166, citing Eisinger, The Chickenshit Club, 201.
[14] Ibid.
[15] Lessig, America Compromised, 167, citing Eisinger, The Chickenshit Club, 192.
[16] Lessig, America Compromised, 167, citing Eisinger, The Chickenshit Club, 44-45.
[17] Lessig, America Compromised, 167.
[18] Id at 169.
[19] Ibid.
[20] Id at 169-170.
[21] Id at 170.
[22] Id at 170-171.
[23] Id at 171.
[24] Ibid.
[25] Ibid, 171.
[26] Ibid, 172
[27] Ibid, 172
[28] Ibid, 172
