Firm About “Flim Flam”

Gail has served as a criminal defense attorney for twenty-three years, and she was appointed a federal district court judge in the mid 1990s. She is a highly principled person, and she feels that her values shape her decisions in her professional life. Early on in her career, when she was having trouble finding cases, she was approached with a request to represent a woman charged with “flim flam,” which was basically an elaborate scheme to steal money. After Gail initially agreed to represent the woman and received full payment on the spot, she changed her mind and returned the money. Although many would argue that Gail had a responsibility as a lawyer to represent anyone who needed it, she said that the woman clearly had resources with which to locate and hire other legal representation, and she said that there was nothing the woman had done with which she cared to be involved. Despite having made a decision that felt in line with her values, she still questions whether she made the correct professional decision.

Gail was born and raised in Manhattan. She has practiced both civil and criminal law and served as a criminal defense attorney for twenty-three years. Her civil cases include a federal court suit challenging the limitation of Medicaid funding of abortions—one of the first class-action sex discrimination cases, and one of the first sexual harassment cases in Massachusetts. As a criminal defense attorney, she handled white collar crimes, murder cases, and cases involving battered women. In the mid 1990s, she was appointed as a federal district court judge. A self-described workaholic, Gail enjoys and thrives on her work. She explains that unless she is out on a boat or on her bicycle, she is always connected to her work.

As a young woman coming of age in the 1960s and ‘70s, Gail was influenced by the civil rights movement, the Vietnam War, and the women’s movement. During this time, she realized that direct action was a way to change the status quo and she believes she has not faltered from this position since. She believed then and firmly believes now that doing nothing about a bad situation is the equivalent of doing something to support it. Involvement in criminal law, according to Gail, is the closest one can come (in the legal profession) to saving lives. In no other area of law are the stakes as high. As a defense attorney, she enjoyed fighting for those who couldn’t fight for themselves. As a judge, she feels she “gives life” to the Constitution. 

Gail is highly principled and believes that her values shape her decisions in her professional life. At a young age, Gail decided she wanted to become president of the United States. As a young adult, she was well on her way to a political career: she attended Barnard College as an undergraduate and received her law degree from Yale University. However, Gail quickly learned that a politician can’t always share her views and opinions or fight for what she personally believes in. She found that winning support was often more important than telling the truth. Gail was unwilling to compromise her beliefs, and she gave up on a political career. She turned to law, where she thought that her convictions could really make a difference: “At a certain point in my life, I realized that I was these beliefs, and I couldn’t pretend otherwise. So the beliefs to some degree shaped where I went.” 

Gail believes that her principles are more important than getting ahead. In her mind, “you are what you believe in.” During the hearings on her appointment as judge, she was brought to court after an IRS review of her taxes revealed that she had disclosed the amount of money she received from a client, but not the name of the client. The government planned to take her to court to force her to reveal the identity of the client in question, and she refused. Gail was convinced that she was in the right in doing so. She explains: 

“There were many people who advised me to call the client. The case was long over. People were advising me to call the client and say to the client, ‘It won’t hurt you; it will help me.’ I could not make the phone call. I remember dialing and before the phone began ringing on the other end, I hung up, and I couldn’t do it. I couldn’t do it even though I understood that it could jeopardize the judgeship. It was a moment [in which] nothing else mattered but the principle. I can’t describe it any other way. And the notion that if one achieved the position at the cost of decimating those—principles—I no longer wanted the position.”

Gail knew that her refusal and the attention surrounding the trial at the time of her confirmation could have destroyed her chances of being confirmed. But she also felt that if she ignored her core principles to ensure a smooth confirmation, she would be undermining everything she believed in. Being appointed district judge was not worth that sacrifice. In the end, standing by her principles did not prevent Gail from Senate confirmation. 

When asked what it means to be a “good lawyer,” Gail responds, “being able to separate personal feelings from what you argue in court.” Gail is always aware of her personal beliefs and what her professional role demands. However, she often feels that her professional responsibilities and her “personhood” are at odds. In other words, professionalism in law is not always black and white. There is not always a right or wrong answer, and the line between the two is a very fine one. As a lawyer, Gail admits, she has had to go right up to that line on occasion. She explains: 

“It’s almost as if you look at the same scene and you put one kind of filter on it, you’ll have one approach, and [if] you [put] on another kind [of filter], you’ll have another. If you look at it with a lazy filter and you say, ‘You … totally flummoxed this witness by your cross-examination. But the witness was ultimately telling the truth. Is that fair?’ Well, I mean, I experienced it as fair under the adversary system. Would I kill her so she wouldn’t testify? No. Would I send her to the wrong address, so she wouldn’t appear at the court? No. But would I use the tools that I was allowed to use to flummox her? Yes.”

In these types of situations, Gail is firm in her ethical convictions. However, she describes another situation in which she still questions if she acted as a “good professional.” More than twenty years ago, as a young lawyer, Gail wasn’t getting criminal cases and she was frustrated. 

It was particularly difficult for women, at that time, to get criminal cases. Finally, she received a call from a women’s prison to go and interview a woman who was charged with “flim flam.” What’s flim flam? The charged woman’s boyfriend explained, “You walk on the streets … you go up to old people and you swindle them … you say to them, ‘Can you give me change for this?’ … And you go to the bank and they take out their life savings and then you walk away.” In other words, according to Gail, it’s an elaborate scheme to steal money. Gail didn’t think for a second before she told the accused woman, “Sure, I’ll represent you.” 

Gail remembers going downstairs to the parking lot, and the woman’s boyfriend paid her “right then and there for my representation,” which, she says, “nobody ever was willing to do.” Gail recalls, “It was wonderful. I was so excited … Halfway home … I turned around and [came] back. I couldn’t think of a single reason why I wanted to represent this woman. She obviously had resources, so … she could find a lawyer to represent her. And there was nothing about what she had done that I cared to be involved with.” Gail continues: 

“It was really very interesting. You understand that that is unethical as far … as my profession is concerned. You’re supposed to be able to represent anybody, but I couldn’t think of any … reason why I would do that. But I mean, I’ve represented murderers … When you represent someone accused of murder who had no money, they may have done the deed, but they lacked the tools to fight the government, and I could think of helping them. But neither in terms of resources nor in terms of what she had done was there any reason why I wanted to represent this woman, so I returned the money.”

Gail made this decision based on her own personal beliefs about the kinds of people she wants and does not want to represent. Some might believe that she did not fulfill her professional responsibilities by refusing to represent this woman, someone who clearly needed her expertise. 

What do you think about Gail’s decision? What are her responsibilities as a lawyer, and why did she feel torn about fulfilling these responsibilities? Have you ever felt conflicted about your work responsibilities?