The President’s nomination of Mary Jo White to become Chairman of the SEC has generated reservations as well as praise.* Naysayers wonder whether her years in private practice representing banks and bankers, including J.P. Morgan Chase, Kenneth Lewis of Bank of America and John Mack of Morgan Stanley, will make it impossible for her to “switch sides” and hold financial companies accountable for violations of the law.
This challenge to Ms. White’s ability to move from private practice to public service is disturbing. Underlying this concern is the notion that lawyers in private practice choose sides, thus becoming tainted, and lose the capacity to serve the public. This perspective is striking – and troubling - for several reasons.
In the first place, it upends the usual attack on lawyers: the typical charge is that we are mere “hired guns” who all too readily take either side in a dispute; we have no fixed moral compass or principles and simply sell ourselves to the highest bidder. If this traditional critique were being applied to Ms. White, then her critics would be silenced: as SEC Chairman she would have a new client — investors and the public generally — and we would expect her to be as effective and powerful an advocate for these interests as for her clients in private practice. But the “hired gun” argument is not being made, at least not loudly, because it does not support critics of Ms. White who insist that the SEC Chairman must be a harsh and unstinting critic of financial institutions.
So the critics have transformed the “hired gun” argument into an argument premised on a lawyer being not too changeable but too fixed, too inextricably tied to the interests and biases of her clients. The litmus test of politics — which side are you on? – is being applied to a lawyer’s move from private practice to public service. This is not entirely new but is troubling nonetheless
What’s so bad about this line of attack? The political critique denies the possibility of genuine professionalism — the idea that a lawyer can be a responsible and zealous advocate no matter the client. That is the essence of what we do as lawyers: advocate for clients within a system that seeks to make decisions based on law and established procedure, not whim or ideology or political power. Those of us who have been both a prosecutor and defense lawyer know that a lawyer can marshal the facts and the law ethically and convincingly for either side. It does not mean that all lawyers effectively make the transition from prosecution to defense, and vice versa, but many do. Ms. White is a prime example, having effectively overseen countless important prosecutions as well as private representations for more than 20 years.
The same concern–that we cannot trust someone who has once represented the other side–has been voiced recently in regard to the so called “revolving door” between government service and private practice for supervisory and staff attorneys of the SEC and other agencies. These criticisms are also troubling. While in some cases lawyers do not manage the transition well or wisely, what is the alternative to professional movement: career government lawyers chained to their desks? Could we attract talented lawyers to public service without the freedom to reenter private practice? Would we want government lawyers who represented only one side for their entire careers?
Though not divorced from politics, law should not be reduced to politics. Law and legal process have separate value and weight. In this instance, we should be able to judge Mary Jo White by her exemplary professional record, not by the particular “side” people say she is on at the moment.
*Full-disclosure: Ms. White was involved in my hiring as a federal prosecutor for the Eastern District of New York in 1990, and I have first-hand knowledge of her exceptional legal skill and integrity. Personally I support her nomination wholeheartedly.
To read more from Jonathan Sack please visit www.maglaw.com