Monday, April 25, 2011
Can lawyers be blamed for the cases they accept?
Today superstar appellate lawyer Paul Clement resigned from King & Spalding after the firm withdrew as counsel representing the U.S. House of Representatives in defending the Defense of Marriage Act. I assume that the firm feared financial blowback from taking on a case like this, much as Ropes & Gray feared being hurt on the hiring front for its decision to help Catholic Charities find a way around the Massachusetts law forbidding discrimination against same-sex couples as adoptive parents. Though I would defend both of these representations, I reject the suggestion that lawyers are somehow beyond moral reproach for the cases and causes to which they devote themselves. There is a moral dimension to accepting a representation. Justifying the representation does not mean that the case or client itself has to be morally justified; there is a moral case to be made for the profession's long tradition of defending unpopular causes. We are, and should be, morally accountable for how we spend (and don't spend) our time -- there is nothing wrong with calling lawyers out for their decisions in that regard. (I think it's a different story entirely when a government official calls lawyers out.) The best response to such criticisms is not to pretend that morality has nothing to do with it, thereby feeding into the lawyer-as-amoral-technician paradigm, but to offer a moral defense of the decision.
https://mirrorofjustice.blogs.com/mirrorofjustice/2011/04/can-lawyers-be-blamed-for-the-cases-they-accept.html
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Of course they can be blamed. I agree that lawyers are not beyond moral reproach for cases they accept. But here the issue is reneging on a client you've accepted because of unpopularity. That seems a lot worse than any initial decision to represent them in the first instance.
Posted by: John | Apr 25, 2011 3:23:26 PM
I agree -- withdrawing is much more problematic than declining in the first place. I've read some speculation that K&S underestimated the reaction of their own employees, but it still seems backward to put the burden of the firm's failure to vet the representation adequately on the client.
Posted by: rob vischer | Apr 25, 2011 3:28:27 PM
Hi Professor Vischer,
I don't disagree with what you've said in your points but I can't refer to Mr. Clement as a "superstar". His defense of Bush Adminstration detention and torture policies that are in direct contradiction to our church's teachings eliminates him from that consideration for me.
Respectfully submitted
Edward Dougherty
Posted by: Edward Dougherty | Apr 25, 2011 3:53:18 PM
Under Edward's view, no Catholic could in good conscience be SG. To defend a law in court as constitutional is not to say you think the law is good. It is distressing that parts of the legal elite are trying to scrap federal law and even avoid a fair hearing.
Posted by: Mike P. | Apr 25, 2011 4:24:28 PM
Certainly a Catholic can be SG, Mike. They just shouldn't defend obvious torture and immoral detention policies.
Posted by: Edward Dougherty | Apr 25, 2011 4:31:23 PM
In criminal law, would this mean that morally upright lawyers should only defend innocent clients?
Posted by: David Nickol | Apr 25, 2011 5:12:23 PM
In crim, there are more obvious systemic justifications for rep'ing guilty clients -- e.g., making the govt meet its burden of proof. In the DOMA case, there is a value in establishing the constitutionality of the statute, assuming that Clement finds something erroneous, or at least contestable, in the Obama administration's interpretation of the law (deeming it unconstitutional). There is a point, though, where providing access to the law is not a sufficient justification -- e.g., agreeing to represent a minor who is seeking judicial permission to have an abortion without parental consent; or, to bring it back to the torture context, helping a government official obtain a "torture license" based on the exigent circumstances, if a system such as the one Alan Dershowitz and others have proposed is ever adopted.
Posted by: rob vischer | Apr 25, 2011 6:03:24 PM
I am at odds with myself on this one. Law firms have the right to decide which cases to take on. However, ideally the decision should be based on their opinion of the merits of the case, not the social and political repercussi¬ons of taking the case. Personally¬, I believe DOMA to be unconstitu¬tional based on several points that I have written about before.
Posted by: Atlanta Roofing | Apr 25, 2011 10:55:44 PM
It seems to me that once you take a case, you need to stick with it. If you didn't want to deal with the fact that the decision to take it is "unpopular in some quarters" then you shouldn't have taken it in the first place. Any decision to take any case is going to be unpopular in some quarters, and in a firm with 800+ people, you might just find some of your employees are in said quarters.
Posted by: Mike P. | Apr 25, 2011 11:56:08 PM
I am in need of education on this issue. If every man is entitled to legal representation in a court case, does that mean a lawyer who defends a notorious cold-blooded murderer, and argues to acquit the person (thus putting him back on the streets if he wins), is justified morally. I do not know what the Catholic Church teaches on this question. Or, if there is any teaching regarding lawyers. I do know lawyers who refuse divorce cases, so, obviously, a lawyer cannot be forced to advocacy in cases he finds compromise his conscience. Senator Arlen Specter defended Charles Manson. If he won his case I assume that Manson would have been free to kill again. How could any lawyer with a conscience defend a dangerous murderer he knows is guilty and, if acquitted, will likely kill again?
Posted by: kelso | Apr 26, 2011 10:41:45 AM
kelso,
You can't have an adversarial system like a criminal trial if lawyers won't defend the guilty. It is the duty of the state to prove guilt beyond a reasonable doubt. That can't happen without a defense lawyer? And if legal thrillers are any guide (and I think in this regard, they are) criminal lawyers often try not to know whether their clients are guilty or not. It's not their job to determine innocence or guilt. It's their job to make the state prove its case.
Question for a lawyer: I just read Michael Connelly's latest Mickey (The Lincoln Lawyer) Haller novel called The Fifth Witness. It would be interesting to go through and count the number of times Haller asks a question in court, the prosecution objects, the judge sustains the objection, and Haller says (as the narrator of the novel) something like, "I was satisfied, though, because I planted the thought in the minds of the jury." It is basically his entire strategy! Is deliberately doing that ethical, and how often can a lawyer get away with it? How does a judge determine whether something should just be stricken from the record or whether the jury has heard something that they should not know and can't disregard?
Posted by: David Nickol | Apr 26, 2011 5:23:53 PM
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