Feature

Lowering the Bar

Lowering the Bar


"Defending Liberty, Pursuing Justice" is the motto of the American Bar Association, and among the association’s four stated goals, one is to "advance the rule of law." Toward this goal, the ABA is committed to "hold governments accountable under law," "assure meaningful access to justice for all persons," and "preserve the independence of the legal profession and the judiciary."

Given these pledges, it may seem odd that the association’s newly appointed president has worked as both a lawyer and lobbyist for some of the world’s most repressive regimes, as well as institutions and corporations connected to them. Nonetheless, it is true: Carolyn Lamm, a D.C.-based corporate attorney who was named ABA president in August, has registered as a lobbyist in the past for such authoritarian states as Libya and Zaire. A longtime partner at the prestigious international firm White & Case, Lamm has also had close ties in recent years to entities associated with the tyrannical government of Uzbekistan and its ruling family, working, for example, as the legal counsel of Zeromax, a massive Swiss-registered company widely reported to be controlled by Gulnara Karimova, the eldest daughter of Uzbekistan’s authoritarian President Islam Karimov.

Lamm declined to comment for this story, and an ABA spokeswoman stated in an email refusing to comment that "she is comfortable that her work with a wide range of clients around the world speaks for itself."

A repressive state often said to be the most "Soviet" of the post-Soviet republics, Uzbekistan is considered one of the world’s worst human rights offenders. According to international observers, its legal proceedings are often show trials, and it regularly tortures prisoners and jails those considered political dissidents — even boiling them alive, according to the U.S. State Department. Islam Karimov, 71, the last head of the republic’s Communist Party, has ruled the government since the Soviet collapse led to independence in 1991. The autocratic government rules with the aid of a massive internal-security apparatus. In U.S. NGO Freedom House’s current "Freedom in the World" survey, Uzbekistan is given the worst possible score.

Of course, there is nothing inherently improper with a lawyer representing any client, but David Scheffer, professor of law at Northwestern University and director of its Center for International Human Rights, who is also a member of the ABA’s human rights advisory council, says attorneys have an obligation not to "distort the truth or manage your representation of the client in such as way that you are overlooking the legitimate interests and complaints of rights-abuse victims."

This is even more true when the attorney in question is tasked with representing the American legal profession as a whole. While not commenting on Lamm specifically, Scheffer noted, "the president of the ABA represents a high level of ethical and professional conduct."

Lamm’s ties to Uzbekistan go beyond representing one company. Her firm White & Case was registered to lobby on behalf of the Uzbek government from 1997 through 2005. She also serves as general counsel and vice president of the board of the American-Uzbekistan Chamber of Commerce (AUCC), according to its Web site. The AUCC promotes trade and investment ties between the United States and Uzbekistan and lobbies against U.S. sanctions on Karimov’s government. Following the 2005 Andijan massacre — in which hundreds of unarmed protesters were mowed down by Uzbek security forces — the organization’s president, James Cornell, wrote to then-Secretary of State Condoleezza Rice urging her to take into account the "special context" of Andijan and "not rush to conclusion or ignore the thorough investigation carried out by the government of Uzbekistan."

Credible independent investigations following the events found Uzbek security forces responsible for hundreds of civilian deaths and rejected the Uzbek government’s claims that the demonstrators were motivated by Islamic extremism. According to Human Rights Watch, Uzbekistan’s government has refused to cooperate with international investigations, cracked down further on civil-society groups, and sought the forcible return of those who fled the country after the violence.

The AUCC declined to comment on Lamm’s involvement with the organization, but her official biography shows that she’s been active with the group since at least 1994.

Another of Lamm’s ties to Uzbekistan is through Zeromax, a holding firm formed in 2001 that is widely reported to be controlled by Gulnara Karimova. "Zeromax is essentially one of the facades behind which Gulnara Karimova continues to tighten her grip on any and all available sources of income in the country by any means she deems necessary, with little or no regard for legal niceties," says one Central Asian analyst.

Karimova has denied any ties to the company, though some press accounts have reported that she controls it through intermediaries. Zeromax is alleged to have bullied competitors with extralegal methods, including kidnapping, extortion, and racketeering; the firm reportedly often simply takes over competitors, as reported by Harper’s magazine. In Interspan Distribution Corp. v. Liberty Insurance Underwriters, Inc., a lawsuit filed in federal court in Houston, an American company claims that Zeromax used its influence with the government to drive it out of the country, even arresting or threatening to arrest its employees to force them to sign over assets. Currently, Zeromax dominates the oil and gas, uranium, agriculture, and gold-mining sectors, according to its Web site and the International Crisis Group. White & Case is the company’s general counsel in London, Moscow, and Washington D.C., according to Zeromax’s Web site, and Lamm served as the company’s lead counsel in a 2007 lawsuit.

U.S. Federal Agent Registration Act documents show that Lamm has lobbied on behalf of other authoritarian states. She registered to lobby for Libya in 2008, at a time when the United States and Libya were in the process of normalizing relations. She was also registered as a lobbyist for the Bank of Zaire — now the Democratic Republic of the Congo — from 1981 through 1984, and White & Case was registered as a lobbyist for the Bank of Zaire from 1980 to 1991.

That the ABA would overlook Lamm’s ties to Uzbekistan is all the more surprising given the organization’s past advocacy on behalf of democracy and rule of law in the country. The association established an office of its Central European and Eurasian Law Initiative, or CEELI, in the 1990s to "furnish technical assistance on a wide range of issues essential for further consolidation of the rule of law" in the former Soviet Union and Central and Eastern Europe. In Uzbekistan, the program ran human rights clinics at government law institutes and supported public-defender centers.

In the wake of the international condemnation of the Andijan massacre, Uzbekistan’s Ministry of Justice ordered ABA/CEELI to close it operations, as it did virtually all other NGOs. Currently, the ABA runs an "offshore" program for lawyers from Uzbekistan in neighboring Kazakhstan. A U.S. speech in March 2009 by the program director spoke of the many challenges of running such an initiative, most of which involved "ensuring the security" of the Uzbek participants invited to programs in Kazakhstan or Turkey.

The concerns about security are understandable. As Freedom House notes in its country report on Uzbekistan, "the judiciary is subservient to the president, who appoints all judges and can remove them at any time … Police routinely abuse and torture suspects to extract confessions, which are accepted by judges as evidence and often serve as the basis for convictions."

Lamm declined to be interviewed for this story and it is unclear whether her ties with Uzbekistan will have an effect on her policies as ABA president. She has committed herself to updating the association’s ethics guidelines to reflect "our changing world," and, in an August 2009 speech upon assuming the presidency of the ABA, stated, "It is not just the rule of law we are called to strengthen, but the rule of just law."

A noble goal indeed, and surely one that would be welcome by the beleaguered citizens of Uzbekistan.

Carolyn B. Lamm responds: 

C. Batkin’s Nov. 13, 2009, article in Foreign Policy titled "Lowering the Bar" relies on inaccuracies, distortions, and speculation, and also conveys a fundamental misunderstanding of the role of lawyers in promoting the rule of law and access to justice.

Central to a lawyer’s representation of a client are the Model Rules of Professional Conduct, including Model Rule 1.2(b), which reminds lawyers and the public that "a lawyer’s representation of a client does not constitute an endorsement of the client’s political, economic, social, or moral views or activities… ." This distinction is essential because it would be impossible to secure legal counsel for defendants accused of violent crimes, for example, if a client’s actions or beliefs were imputed to the representing lawyer. If anything, the act of condemning attorneys for representing those accused of even the most heinous crimes is what jeopardizes individual liberties and harms the advancement of the rule of law.

Batkin’s allegations concerning the conduct of sovereign states or corporations are factually incorrect — but in any event sovereign states and corporations are entitled to zealous representation. From the earliest days of our republic, the legal profession has been obligated to ensure that the defense of the unpopular is as vigorous as the defense of the mainstream. In March of 1777, John Adams and Josiah Quincy represented the British Army Captain Thomas Preston following the "Boston Massacre," winning his acquittal. Condemned by many for the representation, these patriots devoted their talent to ensure access to justice and due process to one accused of a heinous crime. Our adversarial system of law depends on the willingness of lawyers to undertake the representation of those some might view as unpopular. Indeed the zealous advocacy of legal counsel protects the entire system of justice as well as each person’s access to justice.

Another bedrock principle of the U.S. legal system is that no one individual or entity is presumed guilty and therefore denied counsel. Choosing to represent clients accused — often wrongfully — of heinous crimes is one of the most difficult duties of a lawyer, but also one of the most essential. That work must be celebrated, as it protects the rule of law. Such lawyers are in fact "defending liberty and pursuing justice." This is more than can be said for Batkin’s effort to malign foreign states, corporations, and individuals through the media on the basis of a one-sided presentation of "press accounts" and "credible independent investigations" with no acknowledgement of evidence and arguments to the contrary.

Moreover, the defense of sovereigns or entities in cases brought against them before international tribunals, U.S. courts, and/or administrative agencies concerning the alleged dumping of their natural resources or financial transactions is irrelevant to the alleged human rights issues that Batkin alludes to in her article. A lawyer does not have an obligation to assess whether all of a client’s acts, particularly those that are wholly unrelated to the subject of the representation, are "politically correct" or even legal before undertaking a limited representation or working to improve a bilateral relationship.

Indeed, the citation accompanying President Barack Obama’s Nobel Peace Prize praises him for his policies of worldwide constructive engagement and his willingness to use diplomacy to resolve issues. President Obama stated during his town hall Meeting in China:

"We know more is to be gained when great powers cooperate rather than collide. That is a lesson that human beings have learned time and again, and that is the example of history between our two nations and I strongly believe cooperation must go beyond our government. It must be rooted in our people—in the studies we share, the business we do, and the knowledge we gain . . ."

 
President Obama did not for a minute refuse to do business or otherwise engage in dialogue due to alleged human rights abuses in China.

As president of the American Bar Association, indeed throughout my past 35 years of leadership and involvement with the organization, I have always supported and had a deep respect for the ABA’s work to enhance the rule of law and access to justice worldwide. It is unfortunate that Batkin’s article draws inferences based on inaccurate representations regarding my international legal work to attempt to cast aspersions on the ABA’s longstanding commitments to the rule of law and access to justice worldwide. The only bar that has been lowered is for ethics in journalism.

–Carolyn B. Lamm
President
The American Bar Association
Washington D.C.