29th May 2024

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Upholding Ethics and Excellence in the Profession

13 min read

David B. Wilkins, Center on the Legal Profession faculty director, sat down with Sherrilyn Ifill, president and director-counsel emeritus of the NAACP Legal Defense Fund (LDF), to talk about campaign lawyering and what it means to uphold robust standards of professional responsibility for lawyers.

David B. Wilkins: We are so grateful for you spending time with us to talk about this issue of The Practice’s overarching theme around what it means be a “campaign” lawyer. The lead story is by Ann Southworth, who wrote a very interesting book called Big Money Unleashed: The Campaign to Deregulate Election Spending about the role of lawyers in the campaign to deregulate campaign finance. But we’re also talking to lawyers who are the lawyers in campaigns, including Dana Remus, who was President Biden’s general counsel when he was running for election in 2020, as well as GCs in issue-based organizations, like the Environmental Defense Fund, the Human Rights Campaign, and the Robert Wood Johnson Foundation. And that’s what led us to you, because you, in many ways, fit all of these boxes as someone who has devoted their career to a campaign for social justice in the United States and around the world. To start there, I wonder, how would you define the role of a lawyer in a mission-driven organization like the NAACP Legal Defense Fund, which you led for many years?

Sherrilyn Ifill: It’s an interesting way you set this up, David, because frankly, I don’t think it makes a difference. One of the things I’ve tried to press in my work, and particularly in talking about who we are as lawyers, is, yes, I am a civil rights lawyer. That is my identity. But it hardly matters to me whether you are a campaign finance lawyer, whether you are the lawyer for a candidate, whether you are a lawyer in private practice, or whether you are a public defender or prosecutor. What unites us—what is supposed to unite us—is the common bond of the profession that we have chosen and are privileged to be a part of. That means that we are knit together around a set of principles that are not driven by partisan affiliation or by the specialty in which we practice. I think if we lose that, we are losing something very powerful and important.

We are bound by an ethical code of conduct. It does not matter what kind of lawyer you are.

Sherrilyn Ifill, president and director-counsel emeritus, NAACP Legal Defense Fund

I regard the legal profession itself as a critical pillar of a healthy democracy. It is a profession committed to the rule of law, composed of people who are trained in law and who have taken an oath to uphold the core documents of our democracy. We regard ourselves—and should be regarded—as officers of the court, meaning that we have an obligation to the system regardless of the obligation to our clients. We are bound by an ethical code of conduct. It does not matter what kind of lawyer you are.

What has most concerned me is the sense, among some, that the fact that you are a zealous advocate allows you to withdraw from or cut corners on one of the above. The willingness of lawyers to opt out of that set of points that I just described is deeply corrosive to our profession. But I also think it is a threat to our democracy because it undermines and weakens the pillars of this profession that is so essential to a healthy democracy.

Wilkins: I’d love for you to elaborate on that critical point, which I also know is a central subject of the book you’re writing. As you say, lawyers have increasingly become identified with their clients or the organizations or institutions within which they work.  

Sherrilyn Ifill
Sherrilyn Ifill

Ifill: Let me explore your question in this way. I’m a litigator, and I’m a big believer in litigation. And I believe that litigation is an important tool. When you and I were in law school, David, we were taught that litigation presented an opportunity to wrangle out a dispute. And through that crucible of litigation, you present your best arguments to the decision-maker—the judge, jury, mediator, or whomever. They get the best arguments from both sides, and they provide a resolution to the conflict based on the rigorous examination of those best arguments.

When you’re in an election, the pressure could not be higher. It is time sensitive. It is political. The outcome is consequential—consequences that resonate beyond the four corners of the litigation.

The idea that within the crucible of that pressure, you can see yourself as so identified with the particular dispute that you “lose your professional head,” so to speak, is deeply problematic and something we should be talking about more in the profession. No one more zealously believes in the vindication of the rights of their client than I do—or any other civil rights lawyer—whether it’s a client on death row, a client in a voting rights case, students in an education case, or someone who’s been discriminated against in housing or employment. I will go up against anybody in terms of the level of zeal I feel for the representation of my clients.

I regard the legal profession itself as a critical pillar of a healthy democracy.

Sherrilyn Ifill

But—but—I would never make a misrepresentation to the court. I would never tell the court that a case says something that it doesn’t say. I would never refuse to answer a question directly from the court. I would never make a statement to the court that is subversive of the core of our democracy or our democratic principles. I understand the pressure of election litigators and campaign litigators, but I don’t think it is more pressure than someone who’s representing someone on death row. Part of why lawyers should be in most cases admired is because we are able to keep those several things in our head at the same time. We’re able to stand at trial and cross-examine a witness and still hold ourselves to a standard of conduct no matter how rattled we are. We’ve all been in circumstances where we believe we have been treated unfairly and even disrespectfully by a judge, and yet most of us still manage to convey our objection to that treatment without crossing over into something that is corrosive and disrespectful of the court.

I’ll give you an example. In police brutality cases—in police killing cases—you have to be careful on the use of the word murder. Murder is a legal finding. When I’m giving commentary, say on TV, I’m not going to call the perpetrator a murderer. I won’t use that specific word. I can say I think they should be charged with murder, but I’m not going to refer to the perpetrator in that way until we have an actual decision. And if that person is acquitted of that crime, even if in my view the verdict should have been guilty, I’m not going to use the word murderer. I will say, “the officer who killed” or the “officer involved in the homicide of …” But having been acquitted, I won’t call the perpetrator a murderer. Because if my client is acquitted of a crime, I would object to my client being branded with the title of someone found guilty of that crime. I am in a community representing people who have seen the worst of the justice system, and yet I still hold myself to the standard of care in the language I use to demonstrate my respect for the court and the fact that I’m bound by the decision of the jury even when I disagree with it. I am bound not only as a matter of law but even in my language.

What I’ve seen over the last four or five years in the campaign lawyering space has been, in some instances, a lack of self-control and a level of excess that is being justified as zeal. I see it as a lack of fundamental self-control and the inability to see that we play a powerful function as lawyers.

Wilkins: You also call attention to the fact that a lot of advocacy now is occurring outside of the courtroom—in the court of public opinion, in the halls of Congress, and elsewhere. And if you look again back to our lead story around the campaign to deregulate campaign finance, some of it was in open court, but a lot of it was in DC restaurants, lobbying spaces, and the like. I wonder what obligations those lawyers have to act in a way that is consistent with the broader sense of democracy and free and fair elections that you spoke of earlier?

You have to understand the difference between your function as a lawyer who’s litigating in court and your role as a public advocate.

Sherrilyn Ifill

Ifill: I believe in robust advocacy, and in terms of the type of law that I practice, I don’t believe that our advocacy can be confined to the courtroom. I do believe that we should be advocating in the halls of Congress for legislation that can address the issue. In some cases, I’d rather have legislation than litigation. Litigation is expensive and takes incredibly long and is obviously a blunt and imperfect instrument.

I also believe that we should be talking publicly about the matters that we’re litigating about, including reforming campaign finance. We ought to be able to talk about those matters so that the public understands what’s going on.

But, you have to understand the difference between your function as a lawyer who’s litigating in court and your role as a public advocate. It doesn’t matter whether I’m speaking in Congress, whether I’m having lunch with a county council person, whether I’m on Twitter—it doesn’t matter. When I’m in litigation mode and I have clients, I’m restricted in the things that I can say and how I can say them. I can recall many instances when I was leading LDF where I would tee up a tweet and I’d be ready to hit send, and then I would just send it to my general counsel to check and make sure I was in line. Protecting both the institution and the clients that we represented was very important to me. And it can be tricky. I spend a lot of time thinking about it—thinking about always wanting to present myself as an ethical lawyer. And so the question for me is, who’s grappling with these questions on the regular and how do we reimagine our professional consciousness such that this is a part of what we do at all times?

Wilkins: Picking up on that, many of those who are going to read this are either law students or young lawyers. And the pressure on them, especially in today’s partisan-divided world, is to pick a side. This gets more complicated as you also have a person who is paying you who may have a very strong set of views or the person who’s in charge of whether you’re promoted and you can succeed. How do we train young people to ask these kinds of questions and to have the wherewithal to begin to resist some of the pressures that are coming at them?

Ifill: I think you have homed in on precisely the issue, which is where do the incentives lie for lawyers and particularly young lawyers? This is why we need conversations about ethics and professionalism with those who are employing these students to ensure that we’re not sending conflicting messages and placing young lawyers in untenable positions. That is critical.

We’re teaching law students, but we’re doing very little about the middle. We’re doing very little in the way of the kind of remedial education.

Sherrilyn Ifill

I’ll give an analogous example around police reform. Police departments, particularly those who have been sued, will, as part of some settlement or remedy, talk about training. They will frequently ask for money for more training. They will conduct training on bias and the like. Usually they will also hire new officers and graduate new classes of cadets, the idea being that we want some fresh new folks to change the culture. What invariably happens, though, is that the culture is held by the middle of whatever is the profession. It doesn’t actually matter how much training or however many new recruits you bring in—in policing it’s the sergeants who hold the culture and the sergeants aren’t going anywhere. They’re not even trying to be lieutenants. They know that they can stay employed forever. Their union protects them, and so on and so forth. So, when that young cadet that you’ve newly trained with fresh new ideas gets in that car with their field training officer … it’s almost like that movie Training Day. Your field officer says to you, “I know what they said, but let me tell you, if you want to survive in Baltimore on these streets …”

Lawyers do the same thing: “I know what you learned, but this is what we do, and if you want to make it, this is how you do it.” So we’re teaching law students, but we’re doing very little about the middle. We’re doing very little in the way of the kind of remedial education around these concepts. I think the idea that you can enter this profession, maybe take a CLE here or there and then be trained for life, is flat-out wrong. The middle is not getting a refresher on the ethical infrastructure of the profession—of who we are as lawyers. We don’t have any mechanism within the profession for undoing the slide, or for reestablishing and refreshing one’s ethical compass. We simply don’t have that. That’s not the way the profession is constructed. And, in fact, there’s almost a sense of glee that once you’re in and you’ve practiced a few years, you’re in and nobody bothers you again. This is deeply problematic.

Wilkins: Having just walked out of teaching 62 managing partners and senior leaders at law firms in our executive education courses, I could not agree with you more. And, as you emphasize, it’s not just enough to know what the values are supposed to be. You have to understand how they are actually operating in practice and what are the institutional incentives, the structures and the mechanisms, and the flexibility and ability to move within those structures to protect yourself and to ensure that you hold to your values.

Iffil: I love that you’re saying that you were just teaching managing partners. That is a key inflection point because they’re going to set the tone, the incentives—everything.

Wilkins: What advice do you have for young people on what to look for in the organizations that they join and as they choose to invest their most precious resource—their soul and their human capital and their very moral beings?

Iffil: It’s important for young people, especially now, to enter the profession in a place where excellence is the coin of the realm. We’re in a time where everybody has a lot of feelings. I have a lot of feelings. You have a lot of feelings. We all believe we’re right. And, we’re in a time of democratic crisis, which adds a level of urgency and panic to a lot of what we do. The only thing that’s going to hold the standard is a commitment to excellence—to ensuring that the writing is clear and not hyperbolic, that the arguments are sound, that the references have been checked, and that we’re not being irresponsible in our oral advocacy. You want a firm or an organization that has that reputation because you need to be trained—and to be trained in an environment that is loose on the standards is a problem.

And you want to be in a place where what is happening in high-profile changes, where it appears that new standards are emerging, are topics of conversation and teaching. If you are going to a space where they don’t talk about those things because they are considered off-limits because they think of these matters as partisan or because they can’t pull the professional lesson out and have conversations, that’s a red flag. Because it’s not a partisan or political conversation. It is a question about standards.

Kick the tires of any organization’s code of professional responsibility, ethics, and excellence. It’s not just about getting a job with a great name; it’s getting a job in an environment where people believe that we are held to a very particular standard.

Sherrilyn Ifill

And if I can, for a minute, this is why I love the community of civil rights lawyers, especially at a place like LDF. Because we are constantly examining ourselves and the conduct of litigation in our field. We talk all the time about how we manage and handle ourselves in litigation. We are keenly aware of our professional identity—largely because we know we will not be given the latitude that is often afforded other lawyers in the profession, and because we never want our conduct to harm our clients who trust us, sometimes with their lives and livelihood.  

In a law practice—at a firm, for example—the example that the senior lawyer sets is what young lawyers are going to see, and they are watching. For young lawyers, as they’re entering the profession, I would remind them, you are a great commodity for our profession. You have promise; you are our future. And you have questions to which you deserve answers. Ask them respectfully. Kick the tires of any organization’s code of professional responsibility, ethics, and excellence. It’s not just about getting a job with a great name; it’s getting a job in an environment where people believe that we are held to a very particular standard. And that standard allows us to contribute something powerful and valuable to the health of a democracy.

Wilkins: Well, Sherrilyn, I can’t thank you enough for sharing these lessons with our readers and even more important, for upholding such an incredible standard of excellence in everything you’ve ever done and being willing to be open about the challenges of doing it.

Sherrilyn Ifill served as the seventh president and director-counsel of the NAACP Legal Defense Fund (LDF) from 2013 to 2022, and currently serves as president and director-counsel emeritus. She is the inaugural Vernon E. Jordan, Jr. Chair in Civil Rights at Howard Law School, where she will become founding director of the 14th Amendment Center for Law and Democracy.

David B. Wilkins is the faculty director of the Harvard Law School Center on the Legal Profession.


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