Forward-Leaning Legal Advice
Last week the Department of Education issued a “Dear Colleague” letter which, despite the collegial salutations, consists of a series of threats. The letter purports to apply the Supreme Court’s 2023 decision in SFFA v. Harvard College, 600 U.S. 181 (2023), but even someone with only a passing familiarity with the SFFA decision will recognize that the “Dear Colleague” letter takes legal positions that are much broader and more aggressive than the Court majority. The thrust, and the tone, of the letter is clear from the third paragraph:
Educational institutions have toxically indoctrinated students with the false premise that the United States is built upon “systemic and structural racism” and advanced discriminatory policies and practices. Proponents of these discriminatory practices have attempted to further justify them – particularly during the last four years—under the banner of “diversity, equity, and inclusion” (“DEI”), smuggling racial stereotypes and explicit race-consciousness into everyday training, programming, and discipline.
Along with other executive orders targeting DEI policies in federal government employment and in federal grants and contracting, and actions like firing the entire governing board of the Kennedy Center, the Dear Colleague letter is part and parcel of the administration’s “war on woke.”
I don’t want to talk about all of that here, but there is an interesting legal ethics issue wrapped up in the Dear Colleague letter. It has to do with how to think about legal interpretation, or legal advice, or a legal communication, that strains against the boundaries of the law. I wrote about this issue in connection with the advice given by government lawyers to the Bush Administration concerning the domestic and international legal restrictions on torture. Call it pushing the envelope (if you like the Right Stuff metaphor), “creative and aggressive” (oops – that’s a term apparently used by lawyers for Enron to justify the accounting treatment of dodgy transactions), or maybe “forward-leaning.” Marty Lederman sat for an interview for a documentary about the torture program. Here’s his description of the stance the president asked government lawyers to take toward the law:
In this administration, President Bush has, by all accounts, been quite forthright in that he's asked his lawyers not to give him the best view of the law, but instead, to push the envelope. The metaphor that they've used is to go as close to the legal line as possible without going over. So the metaphor they've come up with is to “get chalk on one's spikes.” This was the message that went out from the White House. They want not the view of the law that an objective observer might say was the best. But the view of the law within broad limits of reasonableness that would give the president the most authority to do what he thinks needs to be done in the conflict with al Qaeda.
Never mind that the area marked with white chalk on a football field is out of bounds, so a runner trying to get chalk on his spikes has screwed up. You get the point of the metaphor. The ethical question is what to think about lawyers who accept the direction of a client to push as close to the line as possible without crossing it. Is this admirable – an instance of “zealous advocacy” in the good sense? Or should lawyers be putting more restraints on clients who are trying to walk too close to the line?
Consider the legal position asserted by the Department of Education. In addition to warning against the use of race by colleges and universities in making admissions decisions, which was the issue in SFFA, the Dear Colleague Letter takes aim at a number of other practices the administration apparently finds objectionable:
Affinity housing for students who share a common racial or ethnic heritage. (“In a shameful echo of a darker period in this country’s history, many American schools and universities even encourage segregation by race at graduation ceremonies and in dormitories and other facilities.”)
Educating students about the effects of systemic racism or unconscious bias, which are declared by fiat to be unsupported by competent evidence. (“Educational institutions have toxically indoctrinated students with the false premise that the United States is built upon “systemic and structural racism” and advanced discriminatory policies and practices.”)
Trying to create a more inclusive environment for traditionally underrepresented groups, in the staff and faculty of schools as well as the student body. (“Proponents of these discriminatory practices have attempted to further justify them—particularly during the last four years—under the banner of “diversity, equity, and inclusion” (“DEI”) . . ..”)
Raising interesting and challenging moral questions about responsibility for historical wrongs. (“DEI programs . . . teach students that certain racial groups bear unique moral burdens that others do not.”)
Apparently, relying on race-neutral criteria such as economic disadvantage or overcoming significant challenges in one’s life, where those criteria might happen to overlap with race. (“Relying on non-racial information as a proxy for race, and making decisions based on that information, violates the law. That is true whether the proxies are used to grant preferences on an individual basis or a systematic one.”)
Deciding not to use a standardized test if a university was persuaded that it systematically discriminates on the basis of race. (“It would, for instance, be unlawful for an educational institution to eliminate standardized testing to achieve a desired racial balance or to increase racial diversity.”)
One of the principles of this newsletter is “stay in your lane.” I am a legal ethics scholar, not an expert in education law, constitutional law, administrative law, or antidiscrimination law. As part of my scholarly project, however, I am very committed to what has been referred to, and criticized, as “positivist legal ethics.” What I mean by that is that the most basic obligation of lawyers is to use reasonable skill and diligence to further the legal interests of their clients. The constraints on what lawyers may do in service of their clients’ objectives are not provided by morality (e.g. avoiding harms to third parties) or political values like justice or the common good. Rather, the limits of what lawyers may do for their clients are provided by the rights and duties established by the positive law of the political community. (I wrote a whole book about this.)
One way to think about legal ethics, then, would be to see whether what a lawyer is doing on behalf of a client is adequately supported by the law establishing the client’s rights and duties. Another part of my position is important here, though: Context matters a lot. Although some critics think I haven’t said enough about this problem, I do realize the law isn’t self-interpreting. Determining the content of a client’s rights and duties requires a great deal of training, experience, and judgment. There is a lot of gray and fuzziness in the law, even conceding that it’s not a matter of “everything goes” – some positions are untenable on the basis of the landscape of existing law, as well as the norms that govern good-faith interpretation of legal sources.
In those gray zones, it makes a great deal of difference what the lawyer is doing for the client. Is the lawyer . . .
Advocating that a court adopt a position on the law that is favorable to the client? As I discuss in a previous post, lawyers are permitted to push the envelope in a litigated matter, provided that they have a good faith basis to argue for an extension, modification, or reversal of existing law. (What constitutes a good faith argument is very much down to the tacit norms of legal interpretation, the acquisition of which is a big part of legal education and professional socialization.)
Giving advice to a client, of the form, “the law permits you to do X.” It may matter quite a bit whether that advice will ever be disclosed publicly, with the lawyer who gave it forced to defend it in an impartial tribunal. It may also matter whether the client is sophisticated and understands the legal risk involved.
Communicating to a third party, in a non-litigation setting, “my view of the law is X,” with the explicit or implicit threat that if the third party doesn’t do what the communicator wants, bad things will happen that are in the power of the communicator to bring about.
One of the things that makes me jump up and down and wave my hands and yell a lot is the sloppy or intentional conflation of these different contexts. It drives me absolutely batshit crazy when lawyers justify private legal advice to a client, in the form of a memo stamped PRIVILEGED AND CONFIDENTIAL and never intended to be disclosed publicly, as an instance of “zealous advocacy.” No, no, no, no!!! The reason we permit, and even valorize zealous advocacy is that, in theory at least, it’s a fair fight – both sides are adequately represented by competent counsel, no one is hiding the ball in discovery, the issues are fully briefed and all the relevant authority is known to the judge, and the judge is competent and impartial. In that idealized setting, norms of zealous advocacy ensure that the issues are thoroughly aired out, all the competing arguments are taken into account, and the resulting decision is as good as it can be.
But it’s not advocacy, zealous or otherwise, to inform a client about the state of the law relevant to something the client wants to do. If the question is whether some related-party transaction cooked up by the Chief Financial Officer to move a bunch of debt off the company’s financial statements may be treated as arms-length for financial accounting purposes (an Enron example), the lawyers is not serving as an advocate in any meaningful sense. Instead, in a sense, the lawyer is serving as a private law-giver for the client. This is the thing I say that probably makes the most lawyers the most angry. Lawyers do not want to think that there is any aspect of impartial judging in their ethical obligations. Lawyers are lawyers, judges are judges, and ne’er the twain shall meet. But all of the conditions for permitting creative, forward-leaning, or whatever advice are absent in the counseling and advising context. There’s no opposing counsel asserting counterarguments, no procedure for disclosing bad facts and adverse authority, and no impartial decisionmaker. True, there is the possibility – remote, in many cases – that the lawyer’s advice will be litigated. The greater the likelihood of this, the more careful lawyers tend to be in giving advice. But it’s just a conceptual mistake to think of the duties of lawyers as being the same in litigation and advising contexts.
Contexts carry their ethical norms with them. A lawyer can’t wave a magic wand and intone “zealous advocacy” when a lawyer is doing something other than advocacy. To state the obvious – which may not be so obvious, since lawyers tend to gloss over this distinction – the Dear Colleague letter is not a brief, and should not be accorded the same latitude as an argument would be in a motion or response brief submitted to a court.
I think I may have buried the lede here, so to be explicit about the ethical problem: The author of this letter (who is a lawyer) is behaving like the most aggressive kind of advocate, but doing so in a context that purports to state an impartial view of what the law requires. Right there in the first paragraph it says “[t]his letter explains and reiterates existing legal requirements . . ..” Footnote 3 reiterates: “This document is designed to provide clarity to the public regarding existing legal requirements . . ..” The positivist legal ethics analysis of this case, and those like it, would therefore have to consider what the law actually is that applies to the various programs and practices described in the letter. The farther a piece of legal advice gets from a reasonable, mainstream, middle-of-the-road interpretation of existing law, the sharper the ethical questions become.
The downside of the positivist legal ethics is that there’s no alternative to digging into the legal analysis. There’s no snappy bumper-sticker slogan like “zealous advocacy” that waves off the difficult questions. Non-legal readers lose interest. Heck, even non-specialist legal readers have to do some work to come up to speed on the governing law. I’ll try to give an example here, as very much a non-specialist in this area of law.
The Legal Landscape
Let’s go back to SFFA and see what, exactly, the Court held and what it said continues to be constitutionally permissible in the college admissions process. The majority characterized the issue, under both the 14th Amendment (for UNC) and Title VI of the Civil Rights Act of 1964 (for Harvard), as whether “a university may make admissions decisions that turn on an applicant’s race” (143 S. Ct. at 2163). It concluded that the educational benefits of a diverse student body are not sufficient clear to satisfy judicial review and thus do not pass strict scrutiny (143 S. Ct. at 2166-67); there is an insufficiently tight connection between the universities’ goals and the means used to achieve them (id. at 2167); race is sometimes used as a negative factor and in a stereotypical way (id. at 2168-70); and there is no logical end point for the universities’ programs (id. at 2170-73). Thus, the admissions programs at Harvard and UNC could not continue in their existing form. But the majority did not say diversity was not an impermissible educational goal, nor that universities could not consider how race affected a student’s life. Chief Justice Roberts wrote:
[N]othing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise (143 S. Ct. at 2176).
It would be impermissible for a university to presume that an applicant from a traditionally underrepresented group had affected that applicant in a positive or negative way. And no getting cute, the Chief warned, with the use of application essays that invite applicants to make an end-run around the Court’s decision. As long as things are done correctly, however, admissions offices may still consider, as part of a holistic analysis, specific to the applicant, how the experience of overcoming discrimination contributes to that student’s character or record:
A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university (id. at 2176).
And this is only on the admissions side. The Dear Colleague letter deals with many practices beyond admissions. To take the most aggressive example, consider the threat to take enforcement actions against universities that foster, promote, or teach positions the government deems to be false. Like I said, I’m no con law specialist, but even I remember the flag-salute case, West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943), and this passage:
But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us (p. 642).
Yes, I realize the author of the letter has a competing constitutional principle on the other side – the colorblind approach to racial equality endorsed by SFFA. But a good-faith legal argument would at least consider the anti-orthodoxy principle of Barnette and how it might affect efforts to prescribe what universities teach about matters like systemic and structural racism. At the very least, it’s hard to see how a lawyer trying in good faith to restate existing law could refer to a contested idea in sociology and legal scholarship as a “false premise.”
More recently, consider a case on the First Amendment limits on Congress’s spending power as it pertains to higher education, Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006). The case arose out of the attempts by many law schools to block on-campus recruiting by the legal offices of the armed services (the so-called JAG Corps) in protest of the then-existing exclusion of gay and lesbian citizens (the term LGBTQ+ wasn’t in use then) from the military. Congress responded by passing the Solomon Amendment, which would deny federal funding to any higher education institution that “has a policy or practice . . . that either prohibits, or in effect prevents” the military “from gaining access to campuses, or access to students . . . on campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer.” This set up a difficult question concerning the limits of Congress’s ability to impose conditions on the receipt of federal funds. The Court avoided the “unconstitutional conditions” problem by construing the Solomon Amendment in such a way that it would be constitutional if imposed directly. The Court said that “the Solomon Amendment regulates conduct, not speech. It affects what law schools must do – afford equal access to military recruiters – not what they may or may not say.” The Court’s compelled-speech cases did not apply, because the Solomon Amendment does not dictate the content of speech. (Thanks to Mike Dorf for reminding me of this case.)
But, holy moley does the Dear Colleague letter dictate the content of speech! Under the letter’s view of existing law, a university is perfectly free to teach that the history of the United States has been one of steady progress toward racial equality. But mentioning in class the aftermath of Reconstruction, the Jim Crow era, the Tulsa massacre, residential redlining, the massive resistance to Brown v. Board of Education, the racial disparities in the administration of the death penalty . . . oh no, that’s “toxic indoctrination,” a “false premise,” and tantamount to legally prohibited discrimination. The most charitable explanation of the position in the letter is that it’s a sloppy conflation of the precise holding of SFFA with the policy positions of the administration. Remember the Bondi memo that I wrote about a couple of weeks ago – it’s just another instance of zealous advocacy. Except, this isn’t advocacy in the ethically significant sense. It’s advocacy in the court of public opinion or, more troublingly, a threat that the government will turn its enforcement resources on institutions that express a disfavored message. Surely that possibility raises First Amendment concerns that a lawyer would take into account when giving advice about existing law.
Ethics and “Ethics” Rules
The other difficulty with the positivist legal ethics approach is that it’s not a tidy fit with the rules of professional conduct. The old 1969 Model Code was criticized for making it sound like all lawyers are litigators. The 1983 and later versions of the Model Rules are better – there is a series of litigation-related rules on meritorious claims and contentions (3.1), candor to the tribunal (3.3), not interfering with the process (3.4), and the like, and there are rules that pertain to things like truthfulness in negotiations and other contexts (4.1) and not talking to parties who are represented by counsel in the matter (4.2) – but there are still some gaps in coverage or imperfect fits between the rules and conduct.
One of the biggest gaps pertains to forward-leaning legal advice. The closest any rule gets to covering the problem is 2.1, and it’s still off by a wide mark. The rule provides:
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.
Maybe you could also shoehorn excessively aggressive legal advice into Rule 4.1(a):
In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person . . ..
Except that the “third person” language is most naturally read in contrast with the introductory language of “[i]n the course of representing a client,” so it’s a bit awkward to use that rule to cover creative and aggressive legal advice. Anyway, it would be very difficult to establish that a lawyer knowingly made a false statement of law, because the lawyer would argue some basis for believing the position was sufficient well supported to be, if not true, then at least not-false.
I suggested above that the letter can be viewed as a threat. Rule 4.4(a) prohibits threats. It says a lawyer “shall not use means that no substantial purpose other than to embarrass, delay, or burden a third person . . ..” That “no substantial purpose” language is a problem. The letter does have a substantial purpose, which is to advance the administration’s extremely aggressive policies of stomping out any vestige of anything that might be considered “woke.” Surely that’s not what the rule means, though. Comment [1] doesn’t put much meat on the bones of the rule; it only says that responsibility to a client does not mean a lawyer may disregard the rights of third persons. It then gives as examples using illegal methods of obtaining evidence and unwarranted intrusion into privileged relationships.
I’ll conclude by reiterating that many of the most interesting legal ethics issues don’t come down to application of the rules of professional conduct. Relatedly, those who are appalled at the conduct of lawyers in this administration should not expect these lawyers to face a significant risk of discipline in their admitting jurisdictions. Constraints on this sort of behavior are going to have to come from elsewhere. A bunch of Justice Department lawyers, including most recently the head of the Criminal Division, have resigned rather than carry out instructions from political officials. I’m pretty sure they were not thinking about the possibility of a professional grievance in state court when they made these decisions. What they were thinking about – that’s the part of legal ethics that I’m most interested in.