A couple of days ago, the New York Times feature "Room for Debate" began commentary ("Attacking Lawyers From the Right and Left") on a story involving a group called Keep America Safe. (I hate the power we give to "proper nouns," letting them force us to say words that we'd never otherwise utter. But that's another story.) This excerpt from their "about" page will give you the flavour:
The United States remains a nation at war. We face a growing threat from rogue regimes that seek or have already obtained nuclear weapons. America’s interests are challenged by an authoritarian China, a resurgent Russia, and dictators in our own hemisphere who ally themselves with our adversaries. Amidst the great challenges to America’s security and prosperity, the current administration too often seems uncertain, wishful, irresolute, and unwilling to stand up for America, our allies and our interests.
The Board members are Elizabeth L. Cheney, Debra Burlingame, and William Kristol.
This group released a video via YouTube that strongly criticized U.S. Attorney-General Eric Holder for hiring to the Justice Department seven lawyers who at one time had represented terrrorist suspects, and who, the video implied, therefore had suspect "values." These lawyers were labelled the "Al Queda Seven" in the video.
The question asked by the Times editors was "Is it fair to criticize lawyers for the actions of their clients?" Answers have been supplied by a number of prominent law professors and legal commentators, all but one or two supplying the obvious answer of no. All are worth reading, because the issue is nuanced around the edges, it seems to me.
For example, Stephen Gillers, legal ethics prof at NYU, moves the question to whether any of the criticism is right, pointing out that "When a lawyer is free to choose, the choice can be criticized because the freedom gives the lawyer moral agency." But he treates litigation differently from, say, corporate work "[b]ecause litigation happens in public, it educates us and enables the law to grow."
I think there's some merit in that distinction, particularly if litigation is understood to mean actions involving the government. One gross oversimplification I use from time to time gives lawyers two main social functions: that of creating new wealth and that of supporting the weaker against the stronger. The latter, in my view, is the obligation the profession assumes in return for the right to the monopoly on practice. However thought of, though, the professional duty to represent those accused by the state of wrongdoing means necessarily that lawyers will associate with folks whose values they likely don't share.
But that doesn't stop some people from conflating lawyer and client, from recoiling in distaste: how can you get a rapist off on a technicality? how can you defend murderers? and so forth. Most difficult of all for some people are the politico-criminal cases such as those involved in this current American right wing brouhaha. Larger forces than run of the mill human venality are at play and even lawyers can be swayed by the wieldings of power that may occur.
I remember a case that occurred in Canada just as I was beginning my career — nothing so extreme as terrorism — just a small matter of social activism and strong language. The account is written up in what I think is an essay by a student at St. Thomas University — I found it as a .doc file via a Google search. It tells the story of Tom Murphy, who, in 1969, wrote an article for The Brunswickan, the student newspaper at the University of New Brunswick. (See also Canada's Rights Movement: A History.) Murphy's article was harshly critical of the judge who sentenced Murphy's mentor and physics professor to 30 days in jail for violating the terms of his suspension from UNB, which, in turn, was imposed on him for having taken part in a protest. Murphy said, among other things, that the courts of New Brunswick were "simply the instruments of the corporate elite," and that the judge was biased and unfair, because "[c]ourt appointments are political appointments. Only the naive would reject the notion that an individual becomes a justice or judge after he proves his worth to the establishment.."
Murphy was cited by the judge for contempt of court as a result. The difficulty, as I remember it, and as this piece recounts, was that no New Brunswick lawyer would represent Murphy. In the end, Murphy wrote to John Diefenbaker, who in turn arranged for Canadian Civil Liberties Association lawyer, Alan Borovoy, to be Murphy's lawyer. Murphy was sentenced to ten days in jail. ( R. v. Murphy (1969) N.B.J 53)
Wouldn't happen now.
The litigation/corporate law distinction can also be a question of justifying past acts vs preventing future wrongdoing (in the best case scenario). This is why, for example, some of my environmental activist law school friends decided not work in litigation for major corporations but instead join their corporate practice and advise their clients on best practices and how to conform to the law. Not sure any of them are still working in corporate law, though. I think the reality of the practice and the possible disconnect between their values and those of their clients became too overwhelming.
What criminal lawyers are doing – or others who represent unpopular clients – is holding the state to its own values: due process of law is more important than any particular conviction. That was true before our Charter, and it was true in Britain about the same time as the US Bill of Rights was prepared. (There is a famous speech by – who, Lord Ellenborough? some famous advocate – in the first decade of the 1800s on the right and duty of lawyers to defend those in need of defence, without being associated with the activity of which their clients were accused.)
I agree that not every lawyer manages to recall the distinction – OTOH that society looks down on some activity does not make it illegal. cf Murphy as cited by Simon.
Of course the ideologues and McCarthyites who are running the US campaign that Simon refers to think that they and their cronies will always be running the state, so they don't need any protection against it. And they are ready to assume that anyone in Gitmo is a terrorist, whereas the vast majority have been found guilty of nothing and have generally been guilty of nothing, or not very much. US courts when given the chance seem capable of convicting terrorists if the evidence warrants it.
The lawyers who are being targeted in the US have crossed no lines. Even the prosecutor against whom they maintained the interests of their client has said that they were doing the right thing in offering the defence.
The established Bar in this country likes to underline its independence of government in just this kind of case, especially when its right to self-regulation is seen to be threatened. In principle it is quite right to do so. (How that position is consistent with sucking up to politicians to get QC appointments, in those jurisdictions where QCs are still available, is a different question… sorry, bee in bonnet…)
I initially thought that the "famous speech" must have been that of Brougham in defence of Queen Caroline, but it isn't a perfect fit. See Monroe H. Freedman, "Henry Lord Brougham and Zeal", Hofstra Law Review 34(4):1319-1324 (Summer 2006). Anyone else?
I enjoyed the post. Leaving aside Liz Cheney's attacks for now, I find that thoughtful people have a hard time deciding the extent to which one should or shouldn't morally blame a lawyer for working for a client. The lawyer might be thought to vouch for nothing more than the fact that \everyone deserves a lawyer,\ or for a particular role in the process (i.e., the lawyer for the heinous criminal who's simply putting the state to its proof), or for the very tactics employed in the matter (over which the lawyer has control), or for the whole package (I'm 100% behind my client, her conduct, my tactics, and my role in the system).
We also see the argument fracture on types of lawyers (e.g., criminal defenders get a pass, wealthy corporate lawyers don't). One of the difficulties of that is ensuring we're just not picking favorites. And the linkage between role and motivations isn't always clear. In the current controversy, when the DOJ lawyers were back in private practice they were indeed representing the \friendless and accused,\ but they were also chasing prestige and politics.