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At a recent lecture at the Jewish Theological Seminary in New York, U.S. District Judge Jed S. Rakoff lamented the demise of the lawyer-statesman. He spoke of the tradition of great lawyers past such as Bernard G. Segal, a founding partner of Philadelphia’s Schnader Harrison Segal & Lewis, an outstanding attorney known for his commitment to public service during a lifetime of private practice. The lawyer-statesman, explained more fully in “The Death of an Honorable Profession,” by Carl T. Bogus, 71 Ind. L.J. 911 (1996), was long considered the ideal model of the legal advocate-a lawyer who saw himself not simply as a hired gun bent upon achieving victory for his client, but also as a servant of the greater public good with very real and specific duties to the bar, the community and the nation. The lawyer-statesman would take it upon himself to advise his client not just on the technical legality of a business goal desired by the client, but would also opine upon its morality. And, if push came to shove, the lawyer-statesman would refuse to walk a legal line of dubious morality or questionable patriotism (such as facilitating offshore tax shelters). But the modern realities of the profession, including a buyer’s market for legal skills, the seemingly fungible nature of law firms and the dog-eat-dog competition for clients, Rakoff fears, have made such lofty considerations a thing of the past. The obsession with competing for and holding on to clients has damaged the country, because lawyers no longer act as the conscience of the corporation. I wondered whether Rakoff had taken too gloomy a perspective on things. But sure enough, I was reminded of his thesis in a matter of weeks when news broke of a disturbing decision made by a powerhouse Wall Street law firm to drop an important pro bono representation after the objections of a paying client. A real-world example This month, Weil, Gotshal & Manges announced that due to “certain potential ‘positional conflicts,’ ” it would no longer be able to continue its representation of the city of New York in the city’s suit against a group of gun manufacturers, now pending in federal court in New York. According to a New York Times report, a lawyer for Smith & Wesson Corp. (a defendant in the gun lawsuit) made a call to a corporate client that is also a client of Weil Gotshal. The unidentified Weil Gotshal client then asked the firm to reconsider its representation of the city against the gun makers, fearing it could set a precedent that would be against its own interests; the firm withdrew. The withdrawal of Weil Gotshal is not quite as disastrous as some have painted it. The city also has the assistance of lawyers at the Brady Center to Prevent Gun Violence, as well as lawyers in the city’s corporation counsel’s office, who plan to pursue the case aggressively. And apparently, the city has already had a number of inquiries from interested private firms that might step up to the plate. But the good news that Weil Gotshal did not leave disaster in its wake does not take away from the troubling nature of its decision. The firm reasoned, in essence, that it could not represent the city because, by doing so, it might have to take a position on behalf of the city that might, in theory, someday conflict with a position it might have to take on behalf of “long-term existing clients.” The use by Weil Gotshal of the phrase “existing clients” is curious. After all, what does that make the city-chopped liver? Weil Gotshal had been involved with the gun case on behalf of the city since at least as early as 2001. In other words, the city was an “existing client” too-it just wasn’t a paying client. Moreover, conflicts checks are normally undertaken at the commencement of a representation-not a few years down the road at the behest of another client. True, the gun case had been stayed much of the time since it was filed in 2000. But those were years in which the city relied on having Weil Gotshal in its corner. A prior suit against the gun manufacturers had been tried by the National Association for the Advancement of Colored People; while it adduced important statistical proof of the impact on the gun trade on the community, it ultimately failed on standing grounds, and Judge Jack Weinstein has indicated that another plaintiff might stand a better chance. Before it withdrew, Weil Gotshal had assisted with a crucial motion to allow in, for trial purposes, some of the key evidence presented during the NAACP trial. Now a motion to dismiss the city’s case has been denied, sending the case toward trial, and the city is left to find another white knight while it prepares for a trial against about 40 defendants and does battle with numerous private firms. The city has graciously refrained from criticizing the firm, noting its many pro bono contributions to the city on other matters. But this is not an ordinary case. The gun case is of enormous social, monetary and legal significance to the people of New York City-most especially for its poorest citizens. And as the moment of truth (i.e., the trial) drew near, Weil Gotshal faced an existential decision: whether to act in the tradition of the lawyer-statesman or bow to the siren song of modern practice. Sadly, it is clear which course Weil Gotshal chose.

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