Contra Appiah Defending Defending “Climate Villains”

[Cullen]

Written quickly

Ethicist Kwame Anthony Appiah recently published an ethical advice column in The New York Times in which he broadly concludes that it is ethically permissible (in the moral philosophy sense, not the legal ethics sense) for a lawyer to represent “polluters and companies that . . . are making the apocalyptic climate situation even worse.” Let’s call these the “Climate Villains”^[1] per the headline.

The inquirer to whom Appiah is responding asks not whether representing the Climate Villains is ethically ideal,^[2] but rather asks:

I know it is selfish to take this corporate job. But is it unforgivable? Will defending polluters, even for a short time in a junior position, be a permanent black mark on my life?

There’s a lot to disentangle from the column,^[3] and unfortunately I think Appiah is ultimately wrong. In part this is concerning because Appiah invokes EA to justify that answer:

Some analysts, notably those associated with the effective-altruism movement, might even suggest that the high-paying track could be the morally best one for you to take. In the earning-to-give approach — explored in the philosopher Peter Singer’s book “The Most Good You Can Do” — people with the requisite skills may set out to earn lots of money and give a great deal of it to humanitarian causes, helping the world more than they would have had they devoted themselves directly to doing good. You might, in this scenario, pay off those loans, help your family and then, as a richly remunerated partner, give a big chunk of your earnings to saving lives in the developing world or supporting causes that will advance climate security and justice. You’ll have passed up the low-paying job at the public-interest center, but your generous donations will fund three such positions. If your aim were simply to help as many people as you can, you might conclude, after a careful assessment, that going for the big paycheck was the right thing to do.

As a matter of accurately representing the EA view on the topic, Appiah and readers should be aware that 80,000 Hours, one of the main champions of ETG as a concept, explicitly rejects this kind of reasoning in most cases:

We believe that in the vast majority of cases, it’s a mistake to pursue a career in which the direct effects of the work are seriously harmful, even if the overall benefits of that work seem greater than the harms.

I’m guessing (without quantitative evidence) that this is generally the EA consensus view on the topic.

But as a first-order matter, I think Appiah’s suggested approach to ETG is not very demanding or promising, to the point where I think it would plainly fall outside of what most EAs would endorse in an ethically precarious position. He explicitly contemplates the order of actions as “pay off those loans, help your family and then, as a richly remunerated partner, give a big chunk of your earnings.” But reaching partner usually takes about 10 years, which is a long time to not be giving. And while the lawyer is waiting to give, the harms from climate change will be accruing. The amount that the lawyer would need to donate upon reaching partner just to offset any harms done by representing Climate Villains would accrue steeply, and the effectiveness from later climate donations may be much less effective due to climate feedback loops.

Psychologically, I expect it to be very hard for someone to actually follow-through on giving a lot only once they reach partner. There’s also no reason to set up such a standard: people can and do give a lot while paying off student loans. For example, I pay about $30,000 in student loans annually, and still give much more than 10% of my salary to EA causes. For Appiah to suggest ETG as a way to make the lawyer’s career plan permissible, without simultaneously stating that this is permissible only if the lawyer gives a large amount on an ongoing basis, undermines what most EAs would consider an ethically permissible (much less ethically commendable) approach to ETG in a morally compromised industry.

The other main argument Appiah invokes is the standard idea that all parties in a legal dispute deserve legal representation. But I think this misunderstands a few key points.

First, in civil disputes, there is usually no positive right for the state (or anyone) to provide civil representation to a party. Parties are obliged to pay for their own representation; nobody in particular is obliged to provide it. If the party has secured counsel, they have the right to have their counsel zealously advocate for them, and so on. But no particular person is obliged to do so. Thus, the case for their being a moral harm for declining to further represent a certain type of client is extremely weak.

But even supposing that we thought that denying representation to a Climate Villain was a pro tanto duty, it’s not clear why Climate Villains have a stronger claim on the labor of lawyers than any other client. If Climate Villains have the right to representation, so too do their victims, including future generations and people in the Global South, who will be hardest hit. And of course, nearly every factor imaginable argues in favor of representing the latter: they are innocent victims, broadly unable to afford their own counsel, have less political power, etc. So just acknowledging that Climate Villains suffer a pro tanto harm by not representing them is far from sufficient to justify regularly representing them.

More broadly, there are plenty of other, more-deserving possible clients who desperately need representation: immigrants, prisoners, the Global South, future generations, and farmed animals. They need lawyers much more than Climate Villains do.

There’s a kernel of truth to Appiah’s principle, which is that judging lawyers too harshly for individual instances of representing unsavory clients is likely to degrade the quality of justice administration in the long run, by moving courts of law closer to courts of public opinion.^[4] If Climate Villains were unlikely to counterfactually receive any representation, then the case for representing them might be stronger. But in reality, these are some of the best capitalized and politically powerful actors on the planet. They don’t need our help, and will be able to find good lawyers regardless.

Counterfactually, the effect of declining to represent Climate Villains is that it raises their costs of legal representation slightly, which in turn acts as a tax on their carbon-emitting activities. Since the whole economic explanation for why greenhouse gas emissions are harmful is that we fail to tax them adequately (to account for these externalities), imposing inefficiency taxes (by withholding labor at market rates) is ethically commendable in itself.

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1. ↩︎

   I largely want to take for granted that this is an apt descriptor, despite the important role that energy (including fossil fuels) play in development

2. ↩︎

   It’s worth stipulating at this point that the legally representing “Climate Villains” might not always be directly harmful, since many (for example) develop green energy projects which require lots of legal work, in which case most of the dilemma dissolves. And the case is much clearer cut if, for example, the lawyer was directly working on writing comments opposing beneficial climate change regulations. I assume, since it’s most ethically interesting, that the inquiring lawyer does a lot of very routine work that modestly improves the efficiency of Climate Villains’ work, such as routine transactions.

3. ↩︎

   In particular, I don’t want to discuss the lawyer’s question about whether it will be a “permanent black mark” on their life.

4. ↩︎

   Though certainly making a habit of representing villainous clients is more morally suspect.

[Arjun Panickssery]

Disclaimer: I did not read this post

But I think Michael Huemer’s 2014 paper “Devil’s Advocates: On the Ethics of Unjust Legal Advocacy” is relevant here: https://​​philpapers.org/​​archive/​​HUEDAO.pdf

Most legal professionals would confidently reject my proposal in favor of some version of Devil’s Advocacy, the view that a lawyer should pursue his client’s interests without regard to justice. But the confidence with which lawyers advance this view is not matched by the arguments in its support. Some appeal to the impossibility of being absolutely certain of a client’s guilt, but this hardly seems to explain why pursuing an outcome that one believes to be in the client’s interest is more important than avoiding something that is almost certainly a serious injustice.

[Cullen]

There’s also this interesting discussion from Bentham against the attorney–client privilege: https://​​h2o.law.harvard.edu/​​text_blocks/​​7432.

(I don’t endorse Bentham’s view).

[Cullen]

Thanks! Was not aware of this; definitely relevant :-)

[Eli Rose]

Have you considered writing a letter to the editor? I think actual worked examples of naive consequentialism failing are kind of rare and cool for people to see .

[Davidmanheim]

If Climate Villains were unlikely to counterfactually receive any representation, then the case for representing them might be stronger. But in reality, these are some of the best capitalized and politically powerful actors on the planet. They don’t need our help, and will be able to find good lawyers regardless.

I actually think there is a good market based moral case for each individual to not represent them, especially if this becomes a widespread issue. This is because even if there is a pro tanto duty to ensure they are represented, there is no duty to ensure they are represented cheaply. If few lawyers are willing to defend them, the price for this will increase and they will be less inclined to pursue actions that will increase the likelihood of lawsuits. Second, the quantity and quality of lawyers they and other bad actors can hire will eventually decline, or at least the price will rise significantly, making it less likely that they can successfully pursue typical corporate tactics like overwhelming the other party with near-spurious claims and appealing indefinitely.

[Larks]

Great article, thanks for writing it. I think all your points are basically correct. (Internet Archive link to the underlying).

I think he also misses a consideration in the opposite direction. The original letter seems to basically assume that being a polluting company means the company is a net bad thing. But just because they are causing some negative externality doesn’t mean that externality outweighs their positive impacts. The author doesn’t explain exactly who he is opposed to, but my guess is a proper analysis would suggest that the direct consequences of [working for] these firms are much less bad than the author expects. This is similar to how I think 80k overstated the harms of several ‘bad’ careers (e.g. this).

[Tyler Whitmer]

This is a great response. I wonder how many young lawyers that might be wrestling with this kind of thing realize how little influence they have over what they work on as junior associates (or even junior partners in many cases) at most big law firms (at least in the US). In other words, the decision to go work for a large law firm is often itself the decision to represent morally compromised clients. Not always, but often.