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Is it OK to criticize a Harvard law professor for choosing to represent a particular client in a criminal proceeding?

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Apparently a lot of people think the answer to this question is “no.” What I haven’t seen is any coherent defense of this, to me, obviously absurd proposition.

When a tenured Harvard Law School professor takes on side legal work, he’s doing something that’s completely voluntary, in that it has nothing to do with his professional obligations in re being a HLS prof.

Therefore, it’s perfectly appropriate for people in general, and people at Harvard in particular, to question whether this particular choice is a good one. What, exactly, is Ronald Sullivan’s rationale for lending his considerable talents to Harvey Weinstein’s already-extensive team of high-powered lawyers?

From all appearances, it seems his rationale is that he’s going to get paid a whole lot of money for his services. Now “because it pays really well” is obviously not a very inspiring or ennobling response, so naturally the temptation in this situation is to trot out the Sixth Amendment and start talking as if your decision to take a six-figure side job is actually profoundly public spirited, because it makes you James Madison’s special assistant in the preservation the Rule of Law, instead of just another hired legal gun.

But that’s nonsense. Harvey Weinstein has a legal right to effective assistance of counsel, and that’s as far as his legal rights go. Ronald Sullivan deciding to take Weinstein’s money has exactly nothing to do with protecting that right, which in any event is far better protected by Weinstein’s money than it is by invocations of the Sixth Amendment.

The notion that Sullivan can’t be criticized for choosing to represent Weinstein would be obviously ridiculous on its face if not for a bunch of deeply irrelevant blather about constitutional rights, which again have literally nothing to do with Sullivan’s decision to get paid.

What Sullivan and his various champions are really arguing for is the vigorous enforcement of the little-known 33rd Amendment, which states that no sufficiently high status person can be criticized for taking any job or stating any position on any subject, because Freedom means the freedom to do whatever the hell you want just this side of the criminal law without suffering any adverse consequences whatsoever, including incurring any bad publicity.

On a related note, I’ve seen some LGM commenters argue for the view that no employment should be at will, so Sullivan should have the right to have his administrative position renewed, absent a for-cause basis for not doing so. This seems to me to be a very unrealistic position. Do people really want to argue that, for example, Harvard can’t decide to make somebody else president of the university without some sort of for-cause finding against the current president? There are lots of good reasons for not getting rid of a tenured professor just because you think you’ve found someone who would be better at the job, or do it for less money. These reasons don’t apply to replacing a high-level administrator, which is a job that should allow for regular turnover by its nature. In short, Ronald Sullivan has no more “right” to continue to be dean of a residential house at Harvard than Harvey Weinstein has the “right” to have Sullivan on his legal team, and talking about these decisions in terms of rights just confuses the issues involved.

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