Using lawyers in film and TV series to discuss the
four ethical approaches
Another way of introducing the process of ethical decision making in Chapter 1 and
the four ethical approaches in Chapters 1 and 2 is to ask students to watch a movie or
TV series or to read a piece of fiction in which lawyers are central characters, and
which has some element of realism to the context for lawyers’ work. Examples we
have used include the Hollywood movie Michael Clayton and the British TV series
Silk.
It is particularly useful to go through the process in Step One: Awareness of
Ethical Issues of identifying all the stakeholders and their interests in a scenario
described in the movie, TV series or piece of fiction.
Then the four ethical approaches can be applied and discussed by identifying a
character or incident in the movie, TV series or fictional piece that illustrated their
approach, or to make something up that one of the characters could have done to
illustrate their ethical approach.
Case Study: The Nazi Gold
Early in 1997 the large and old Wall Street law firm Cravath Swaine announced that it
would be acting for Credit Suisse in its dispute with Jewish organisations and the
families of victims of the Holocaust over money deposited in Swiss bank accounts by
Jews during World War II, and gold and possessions looted by Nazis from their
Jewish victims and also deposited in Swiss bank accounts.
Twelve associates (junior employee lawyers) of Cravath Swaine immediately
wrote a memo to the firm’s partners protesting this decision:1
We, the undersigned, protest Cravath Swaine’s decision to represent Credit Suisse in
its dispute with the families of Holocaust victims.
Text of the memo and information about the protest from Ronald Goldfarb, ‘Guilt by Association’
and Alan Dershowitz, ‘Defending the Offensive’, The Washington Post (Washington, USA), 6 April
1997, C3. See also Michael J Bazyler, ‘Suing Hitler’s Willing Business Partners: American Justice and
Holocaust Morality’ (2004) 16 Jewish Political Studies Review <http://www.jcpa.org/phas/phasbazyler-f04.htm> at 29 May 2005; Adam LeBor, Hitler’s Secret Bankers: The Myth of Swiss Neutrality
During the Holocaust (Carol Publishing Group, Secaucus, New Jersey, 1997). The website for the class
action
briefly
summarised
here
is
Holocaust
Victim
Assets
Litigation
<http://www.swissbankclaims.com/> at 28 April 2006.
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We are hard-pressed, as Cravath-trained lawyers, to see how it is possible to
honour one’s ethical and legal obligations to advocate zealously on behalf of one’s
client and at the same time assert the interests of those asserting claims against that
client. It seems implausible that Cravath could both serve Credit Suisse and bring
about a fair and honourable resolution for those who suffered at the hands of Nazis
and their collaborators.
Representing Credit Suisse would simply add our distinguished firm’s
imprimatur and legitimacy to a client that profited from laundering Nazi loot under
egregious circumstances, and concealed its collaboration. We do not want to see this
happen.
We call upon the partners of Cravath Swaine to reconsider our representation
of this client and to preserve the good name and reputation of our firm by deciding
not to represent Credit Suisse in this matter.
In 1996 and 1997 a number of Swiss banks including Credit Suisse (a private bank)
had become the subject of massive media and government attention when their
financial implication in Hitler’s Holocaust was revealed. Concern centred around two
main issues, outlined below.
Looted Gold
It was discovered that German Nazis had used Swiss banks to launder loot stolen
from the countries they invaded, including gold from state treasuries (about US$4
billion at 1997 prices), and also gold, money, jewellery and personal possessions
stolen from Jewish victims of the Holocaust. This latter category included dental gold
that was systematically extracted from the victims’ teeth after they were killed (and
sometimes in the hours immediately preceding their deaths: altogether about US$1.3
billion at 1997 prices). Switzerland’s private banks accepted some US$550 million in
deposits of gold or bought it outright before sending it on to other neutral countries. In
this way the Third Reich was able to gain the foreign currency that it needed to buy
vital war materials. The bankers noticed that much of the new gold was coming from
Lublin and Auschwitz (sites of concentration camps) and that much of the new gold
was of a different quality – dental gold. But they did not do anything about it. Some
commentators have noted that without the Swiss bankers’ help, the war would
probably have ended two years earlier than it did. Credit Suisse was one of Berlin’s
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main economic allies in supplying foreign currency to Nazi economic agents in
Lisbon, Madrid and Shanghai.
Holocaust Victims’ Accounts
Money was deposited by many wealthy Jews in secret Swiss bank accounts
(sometimes under assumed names) to keep it safe during the war, and so that their
families could inherit it if they were killed. Since the war, victims’ families had found
it virtually impossible to access these accounts due to the secrecy laws governing
Swiss banks and their bureaucratic approach to claims. There were no death
certificates issued at Auschwitz but the banks had demanded written proof of death
from the relatives of Holocaust victims, and also details of the bank accounts, which
the relatives did not have because the accounts were opened in haste as their owners
were deported and killed.
By 1997, the Swiss government and Swiss banks had done a number of things
to return the money in dormant accounts (opened by Jews and others during the war)
to its rightful owners. But Jewish groups believed that only a fraction of the money
and looted gold that rightfully belonged to Jews and others persecuted by the Nazis
had been returned, and that processes put in place for identifying and returning the
remainder were inadequate. Jewish organisations had threatened to organise a mass
withdrawal of pensions and investments from Swiss banks, and filed a class action
against the banks to gain access to the dormant accounts, and compensation for Jews
and others persecuted by the Nazis (including gays, Roma and the disabled).
1.
How would each of the four ethical approaches to lawyering be applied to
what the lawyers at the law firm should do in this situation? Should they take
on Credit Suisse as their client and if so, how should they represent them?
2.
Cravath Swaine is to hold a meeting of all its partners and the concerned
associates to discuss whether it should represent Credit Suisse in its dispute
with the families of Jewish holocaust victims, as it had planned, or whether it
should decide not to represent Credit Suisse after all. The following groups,
each with strong views on the issue, will be in attendance at the meeting:
 the associates who initially protested the representation of Credit Suisse.
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 partners in the Litigation Department who will be responsible for
defending Credit Suisse in any litigation arising out of the Jewish claims,
including the class action that has already been filed.
 senior partners in the Corporate Department who will be responsible for
advising Credit Suisse on any arrangements to return money and making
arrangements for the Holocaust Memorial Fund.
 Jewish partners.
What ethical approach might each of these groups take to resolving this issue?
If possible, you could role-play the meeting (with different groups of people
taking on the different roles) and come to a conclusion as to what you should
do.
3.
Some of the plaintiff class action lawyers in the case against the Swiss banks,
and in other similar ‘Holocaust restitution’ cases (such as claims for
compensation against German companies that used Jews as slave labour
during the war), have been criticised for making millions of dollars in
contingency fees from these cases and, in one case, acting more as publicists
seeking to bolster their own reputation than as lawyers. It has been suggested
that plaintiff lawyers in such cases should take them on a purely pro bono (that
is, without charging any legal professional fee because the case is in the public
interest) basis. Does this change anything about your consideration of whether
Cravath Swaine should take on the case? Should lawyers only act for the
plaintiffs in such cases on a pro bono basis?
Notes on the application of four ethical approaches to
the case study of the Nazi Gold
This case study raises issues of representation of morally repugnant clients and the
conditions on which that representation might take place. It also raises the dynamics
of the commercialism of a large commercial law firm, the role of associates (What
options do they have? Would they resign over an issue like this?), and the role of
ethical principles in its decision-making about whether to take on a well-paying client
(If they decide not to take on the client is it for the sake of their own ethical principles
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or is it because of the adverse publicity the case might receive? Obversely, does the
client deserve representation despite adverse public opinion?).
Some of the main issues that could be discussed in relation to each approach
are sketched out below. However this is far from exhaustive.
Adversarial Advocate
This would probably be the litigators, but could be anybody else in the firm.
The adversarial advocate could refer to the cab rank principle in the Barristers’
rules that institutionalises the amoral lawyer theory – that a lawyer qua lawyer
engages in role-differentiated behaviour and can ignore moral considerations that
might otherwise be crucial and should defend a client regardless. But note this does
not apply to solicitors.
Lawyers can pursue with the utmost skill, aggression and diligence the client’s
objectives as long as they do not violate the law. Therefore adversarial advocates
have no problem with representing Credit Suisse and exploiting any rights Credit
Suisse might have to keep the money (including Swiss banking secrecy laws, arguing
any doubts on the facts as to whether Credit Suisse is really liable to return the money
– eg elapse of time, lack of knowledge of where the money came from etc – as well as
thoroughly testing any claims to the money for their honesty etc).
There should be some discussion of rationale – law is a public good available
to all and people need lawyers. It will be up to the court to decide the rights and
wrongs and the justice of the situation. There is no reason for lawyers at Cravath
Swaine & Moore to feel that they are morally accountable for getting the right
outcome. The best they can do to get a right outcome is provide a zealous defence of
Credit Suisse. Note this does not deny that Credit Suisse may have acted in a morally
repugnant way or that the claims against it are just. This approach simply says that
this is irrelevant to whether and how Cravath Swaine should represent them as their
lawyers.
Note that the adversarial advocate is likely to believe very strongly that the
ethical thing to do is to represent all clients, including Credit Suisse, zealously
regardless of any public criticism or moral opprobrium that might attach – they might
see moral activist and other approaches as leading lawyers to weaken clients’
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fundamental rights under the law in the interests of appeasing community opinion etc
– something which is contrary to the rule of law.
Note however that it has been strongly suggested that this theory applies only
in the criminal defence situation (individual against the state). Credit Suisse is a
powerful and rich organisation – is it really in any danger of being unrepresented if
Cravath Swaine & Moore withdraws, and does it really need the sort of zealous
representation that a criminal accused is entitled to?
Moral Activist Approach
This would probably be the Associates, or the Jewish partners.
This approach argues that lawyers should be concerned with whether their
actions actually help achieve justice as an outcome in the case. Could emphasise the
great injustice of the holocaust and Nazi Germany’s actions in World War II, and the
fact that Credit Suisse seems to have aided this injustice in some way.
Could argue that the adversarial advocate or responsible lawyer approach is
appropriate as long as the legal system is basically working justly and where there are
genuine disputes between parties. However this is an exception where the client is
proposing to continue to fight playing its part in providing just restitution to the
families of those who suffered one of the greatest injustices of the 20th century. To
make out this argument the student would need to argue that Credit Suisse was
continuing to act unjustly by refusing to pay out their entitlements to the Jewish
claimants – this could involve discussing facts about the 1962 law and memorial fund
which suggest these were not genuine attempts to do full justice, but stonewalling by
Credit Suisse and other Swiss banks.
More strongly moral activists might also argue that they do not think any
lawyer should take on any matter where justice is not on their side – this is a more
difficult argument to make than the paragraph above because it leaves its proponent
open to the charge that lawyers are to represent clients purely on the basis of moral
taste, a position that might lead to discrimination and to some parties completely
missing out on representation.
The moral activist could argue that Cravath Swaine should not take on Credit
Suisse as a client at all (as above) or could argue that they should take on Credit
Suisse only if Credit Suisse is willing to agree with Cravath Swaine’s point of view
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about what justice requires and agree to do it. Could argue that there is every
indication at the moment that Credit Suisse wants to do the right thing, at least to
avoid further adverse publicity and the possibility of a Jewish boycott, and that
Cravath Swaine can uphold its reputation by putting energy and creativity into
representing Credit Suisse to fairly distribute funds to compensate Holocaust victims,
and to find and repay the rightful owners of dormant accounts. However need to note
that Credit Suisse has also shown itself capable of very uncooperative, indeed
immoral, behaviour in the past, and that withdrawal may be necessary if this occurs
again.
Ethics of Care Approach
The Jewish partners, corporate department or possible the associates are more likely
to take this approach.
Students often find this the most difficult approach to apply because it requires
a more contextual approach and because it is more flexible – it more a way of
reasoning that you can use to come up with a variety of potential solutions to the
problem. The ethics of care is also an approach that tells you more about how you
advise a client once you are in a relationship with them – it is less helpful in deciding
whether to represent the client in the first place.
It sees general ethical considerations as important, rather than just the lawyers’
role as advocate for the client and/or officer of the court. Therefore students adopting
this approach should be concerned about whether Credit Suisse is acting virtuously
and whether they can live with themselves if they represent Credit Suisse.
This approach emphasises relationships – so there might be discussion of how
it would impact on Jewish lawyers in the firm to act for Credit Suisse in this matter in
terms of their relationships with their families and communities, and perhaps the
impact of the case on the firm’s relationship with any Jewish clients etc. This might
lead to the view that the firm should not represent Credit Suisse.
But alternatively, one might also decide that the firm has an obligation to care
for Credit Suisse and to help it deal with this situation in the best way possible.
Therefore the firm might agree to take on the case and to advise Credit Suisse as to
how to settle the matter in the best way possible – perhaps offering an apology,
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fulsome restitution etc. This could be couched in terms of a win-win solution for
Credit Suisse that helps it improve its relationships with its potential customer base
and in the American financial community etc. However this raises an important
problem of what the firm should do if Credit Suisse doesn’t want this type of
representation; ie what if Credit Suisse insists on zealous litigious representation
when the firm wants to caringly help it resolve its problems? (A number of papers I
have read already do not address this problem.) Ultimately I think the firm would not
be able to act under an ethics of care approach if Credit Suisse did not want to accept
that type of approach.
Again this approach is open to the criticism that parties’ rights under law may
be ignored on the basis of the moral taste of lawyers. Therefore it is good for students
to come up with some reason why the ethics of care should be particularly useful in
this case; for example, that the court is unlikely to be able to fully resolve the issues
that are really at stake in the case (eg because of people’s feelings of injustice or
because of vagaries of applying legal principles across different countries and in a
situation where the law in Switzerland may be partly to blame for the problems).
Responsible Lawyer Approach
This is most likely to be the lawyers in the corporate department, but possibly the
litigators or associates.
Here the argument is, like the adversarial advocate, that all people are entitled
to legal representation and there should be no moral basis for turning down a client.
So Cravath Swaine should take on Credit Suisse as a client. However, unlike the
adversarial advocate approach, the responsible lawyers would emphasise that there
are limits to what they will do to zealously represent Credit Suisse and that if Credit
Suisse insisted on acting unethically, then the firm would be required to withdraw
from representing it. (Note that again some students will argue that Cravath Swaine
can represent Credit Suisse following principles of responsible lawyering without
considering what will happen if Credit Suisse insists on a more adversarial approach
to representation – again Cravath Swaine would need to withdraw from the
representation on this approach.)
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The main object of representing Credit Suisse should be to ensure its defence
is heard fairly according to its merits in court, or that a settlement is fairly negotiated.
But the responsible lawyer would not countenance exploiting loopholes to defeat what
appear to be just claims or stonewalling to delay settling the matter. Could discuss the
use of Swiss banking secrecy laws, the failure of the Ombudsman to determine
whether these are unfair attempts to avoid the real merits of claims being decided
fairly.
The responsible lawyer aims to use the legal process fairly so that the legal
system/court has the best chance of deciding the matter justly on its merits. But the
responsible lawyer is not concerned with making his/her own judgments about what
justice in the broader sense (beyond the justice of legal processes) requires or what is
required to resolve all the issues (including relational issues) raised by the problem in
this scenario. Therefore at the end of the day the legal process might still not provide
an adequate resolution to the issue (as it has failed to do before) and Jewish claimants
may still end up without their entitlements or without feeling that justice has been
done in this matter. In other words, the ethics of the responsible lawyer approach is
limited by the extent to which the law and the legal process is able to deliver an
ethical outcome. Some of the issues raised by the ethics of care and moral activist
approach may not be addressed following a responsible lawyer approach, even though
this approach will not be as potentially manifestly unjust as the pure adversarial
advocate approach. On the other hand, the responsible lawyers may argue that this is
not their concern as lawyers and therefore Cravath Swaine need not worry about it.
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