OCTOBER 14, 2025 – In litigation a conflict of interest can arise between the lawyer and the lawyer’s own client. It works something like this: in the spirit of “zealous advocacy,” a standard to which every lawyer is ethically bound, but more pragmatically, in the interest of racking up billable hours, the lawyer convinces the client that “We can win this thing [at trial]” (adding, of course, that there are no guarantees) and consequently, a “final” settlement offer by the opposing side is rejected, and the case does go to trial—without a guaranteed result but a guarantee that win or lose, the lawyer will log a solid two weeks’ worth of extra legal fees (at least 10 hours a day, to be sure).
Under such circumstances, whose interest is supposed to be paramount, and as a practical matter, whose interest is paramount—the client’s or the lawyer’s?
I see an analogy with the current stand-off between Republicans and Democrats in Congress over funding the government. In this impasse, the politician is the “lawyer” and the constituent is the “client.”
If you don’t know what the hang-up over the spending bill is (ACA credits), which I suspect might be a significant portion of eligible voters, then if you have an opinion, it’s probably what your team leaders are telling you, i.e. it’s the Republicans’/Democrats’ fault.
In this regard, the mouth of House Speaker and team leader Mike Johnson is on autopilot. “All the Democrats need to do is vote for the stopgap spending bill,” he says. As if it were that simple; as if the captain of the “Republicans” takes the baseball out of play, holds it for a big cash ransom, and says to the “Democrats, “You want the game to resume? All you have to do is pay us the ransom. It’s that simple. The game can again any time you please. It’s entirely up to you.” And when the Democrats stay in their dugout, shouting, “No ransom, no way!” the Republican’s captain grabs the bullhorn and says to the fans, “It’s the Democrats who are holding up the game!”
Both teams have worked themselves into a corner, and in the process they’ve exposed a conflict of interest between the governed and those who govern. Irrespective of your sentiments about government generally or the government we’ve got, specifically, the shutdown is beginning to have adverse effects on the governed. The longer the impasse continues, the more severe the effects and the broader their impact across the population. At some point the damaging consequences could eclipse the negative impact of increased healthcare insurance premiums, if the Republicans prevail or overwhelm whatever good the Republicans believe will be lost if the Democrats win. None of the governed—repeat, none, whether Democrat, Republican, independent or uncaring—will be unaffected by the shutdown. The political calculus for those who govern, however, is quite different from the real world, down and dirty needs and expectations of the governed. Those who govern are in the throes of a major power play. Republicans and Democrats alike perceive capitulation in the current circumstances—even for the greater good—as a potentially serious blow to their respective political power. In the short run—and our political election cycles are very much “short run”—the elected officials in Washington could be right.
Therein lies the conflict of interest. Break with your party for the benefit of your constituents, and you could well find yourself defunded, “primaried,” ostracized by the party, and out of uniform and barred from the ballpark altogether, come the next game.
What this conflict of interest reveals in turn is that at this stage of our political evolution, we’ve become ungovernable. This isn’t the first time—see the “Civil War.” But as I’ve long argued, the solution isn’t to “throw the (current) scalawags out and vote our scalawags in.” The remedy is an overhaul of our very constitution; our very organizational set-up.
The problem in advancing this idea is that its proponents could “get what they ask for,” namely, a constitutional convention. But how would delegates be selected? What would the process be protected from people powered by mega-money or driven by bigotry, conspiracy theories or religious zealotry? All these influencers and other nefarious forces would seize the chance to advance their respective agendae, and I suspect that most such agendae would be deleterious to the interests of most Americans.
And so, we must bump along, ungovernable, and eventually unviable as an international economic, political and military power. But maybe it’s time. Time in the natural course of things for people elsewhere to try their hand at doing good by doing right.
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© 2025 by Eric Nilsson
