Bench Memos

Nevada Law Profs (and Others) vs. Rule of Law—Part 3

The LGBT Section of the Nevada bar professes itself “outraged” by state bar president Alan J. Lefebvre’s column that rightly criticizes the state attorney general for failing to defend Nevada’s marriage laws. Let’s examine the supposed causes of the purported outrage:

1. The LBGT Section letter asserts that Lefebvre’s “opinions heavily rest on religious and conservative ideological grounds, a direct violation of [state bar] bylaws and an abuse of the office of Bar President.”

The factual predicate of this complaint is unsound. As I pointed out in point 1 of my Part 1 post, there is nothing in Lefebvre’s column that invokes religion. As for “conservative ideological grounds”: Is it conceivably the case that the principle that a lawyer is ethically obligated to represent his client’s legal position zealously in court and the corollary principle that a state attorney general must vigorously defend state laws against challenge under federal law so long as there are nonfrivolous grounds for doing so are now “conservative ideological” principles? If so, then belief in the rule of law suffers from the same frailty. (I’ll note that liberal law professor, and legal ethics expert, Stephen Gillers has stated his general agreement with these principles.)

2. The LGBT Section letter asserts that Lefebvre has violated state bar rules by “making statements concerning [his] personal opinions.” Again, what Lefebvre has done is what bar officials throughout the country ought to be doing: defending the basic understanding of the duty of a state attorney general.

3. The LGBT Section letter contends that because the state attorney general takes an oath to the federal Constitution, her “first duty of loyalty is to the United States government and the United States Constitution.” Well, all or nearly all lawyers practicing in this country take an oath to the federal Constitution. No one has ever understood the taking of that oath as license for a lawyer to sacrifice his client’s interest to his own personal reading of the Constitution or to his own predictive reading of how the Supreme Court will rule on an unresolved issue.

In sum, Lefebvre deserves hearty acclaim from the state bar and from anyone who cares about the rule of law.

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