I represented Fox News creator Roger Ailes five years ago. The New York Times called it “The Curious Case of Susan Estrich.” I didn’t consider it strange at all. I represented a friend of 30 years, who was being sued by a woman so virulently anti-Hillary Clinton in an election cycle that I had called Roger only weeks before to complain. Roger made tasteless comments in her presence. As for passing her over for a spot on “The Five,” however, that was a unanimous decision, owing to her having the lowest ratings of any daytime host.
Anyway, I got beaten up pretty badly, by my own daughter even, for standing up for a man who, as a friend, always stood up for me. My old friend Harvard Law professor Charles Fried wrote an article back in the 1970s about the “lawyer as friend.” At the time, I thought it childish; now, decades of practice later, I think it is brilliant.
I got beaten up a lot more for standing up for Roger than I did for standing up for a more politically correct friend for a liberal like me, the president of the United States, when he had an inappropriate relationship with an intern. Which was inappropriate, but not unlawful (which requires that it be unwelcome), much less impeachable. If you care about privacy, those lines matter.
There is an old adage in the law that the highest calling of a lawyer is to represent the client who is hated, the one who has already been convicted in the public trial. My father was the one the judges in Lynn, Massachusetts, always appointed to represent Black defendants pro bono. I have no pretensions of being a modern Clarence Darrow. Most of my clients pay me. But I have put myself and my reputation on the line (twice) on behalf of men who are the subject of complaints of sexual harassment or sexual assault, even though I have spent my entire adult life fighting against the abuse of women. And I’m about to do it again.
Attorneys are not supposed to vouch for our clients. It’s not that we don’t have opinions. Of course we do. And we should. What you spend your time doing, when time is all that we have to sell, is what you spend your life doing. No, the reason we don’t vouch for our clients is to protect us from having to vouch for all of them. Or having to lie.
So, we aren’t supposed to say that we are representing a client because he is innocent, lest we be struck silent when we have a guilty one. Having been around this block, I’ve found my own path. For me, and this is what I teach my students, the question that you need to be able to answer is why you are taking a case.
I walked out of an alley almost 50 years ago and vowed to somehow get even. My mother told me to tell no one because no decent man would ever have me. The cops warned me that defense lawyers destroy women like me. The doctor said he couldn’t believe it because he lived in the same neighborhood. The police never found the man who raped me, and neither did my friends in the Winter Hill gang, who protected me as I bartended my way through law school, but I’ve been fighting to change the law and the system ever since.
Which is why it makes me so angry when I see women — and lawyers and hangers-on; they are the ones who really make me angry — using the pain so many of us have lived with as an opportunity to profit off relationships with wealthy men. It makes me angry to see women trade their sexual power for financial payoffs when most of us have so little power and none to trade. It makes me angry because I’m still in pain, and so are so many others.
I do not believe that destroying women — what I used to call the “nuts and sluts” defense — is the right way to defend men. It rarely works anymore and almost always backfires. But the respect I have for the overwhelming majority of women who live with the pain of assault and harassment leaves me even more determined to stand up and call out the few who would use our pain to extort even more money from their victims. On our backs.
And if it’s a friend they target, and that friend needs a lawyer who will be a friend, then yes, I’ll do it again. Proudly. Watch this space.
