Fletcher: “Bullshit and the Tribal Client”

I’ll be presenting aspects of a draft paper, “Bullshit and the Tribal Client,” at Federal Indian Bar next week. Here is the abstract:

While it is well established that lawyers may not lie to their clients, it is not well established whether counsel can bullshit their potential and active clients. I do not mean bullshit as a term of abuse, but rather as philosopher Harry Frankfurt meant it. Frankfurt identified politicians and public relations professionals as examples of modern day bullshitters. Politicians and PR professionals care only about reaching their goals, and while that may include telling lies, it definitely includes making statements that no one can possibly know is true or not. All that matters is the outcome. Lawyers are bullshitters, too. And lawyers utilize bullshit for the same reason politicians do – to persuade someone to select them. Politicians want a vote; lawyers want a client. In American Indian law and policy, lawyers are not the only bullshitters – elected tribal officials are politicians, too, and many of them are bullshitters as well.

While there is a lot of bullshit going around, I am mostly (but not entirely) concerned about bullshit from outside counsel, often specialized counsel, directed at tribal clients. This paper is intended to identify areas where counsel employs bullshit when dealing with tribal clients. By counsel I mean both outside counsel and in-house counsel, and by clients I include both in-house counsel and tribal leadership. The relationship between in-house counsel and most, if not quite all, tribal government clients renders tribal clients uniquely vulnerable to bullshit by outside counsel. I offer suggestions, mostly for the benefit of in-house counsel, on how to deal with bullshit from both outside counsel and tribal officials. However, I will be the first to acknowledge that in-house may be placed in a no-win scenario, especially once appellate specialists take control of a case involving tribal interests.

Substantive comments welcome.

On another note, I recommend learning more about and perhaps joining the Tribal In-House Counsel Association.