Last May, I wrote in these pages about judge bashing, suggesting that lawyers should do more to defend judges in the face of reckless and unwarranted criticism. Rule of Professional Conduct 8.2(a) prohibits lawyers from making false or reckless statements that impugn judicial integrity. Curiously, we don’t have a rule that protects lawyers from unjust attacks on their integrity by fellow lawyers. Is that a good or a bad thing?
The Radio Interview
This question was suggested by recent comments in a January 11, 2007, radio interview of Charles “Cully” Stimson, then-Deputy Assistant Secretary of Defense for Detainee Affairs. Stimson, a lawyer himself, apparently came to the interview primed to address a particular topic. Without prompting, he launched into an attack on several of the major American law firms who are providing pro bono representation to Guantanamo Bay detainees. Identifying the firms by name, Stimson said: “I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. It will be fun to watch that play out.”
But that wasn’t all. In response to a follow-up question about who might be paying the law firms, Stimson went on to say: “It’s not clear, is it? Some will maintain that they are doing it out of the goodness of their heart, that they’re doing it pro bono, and I suspect they are. Others are receiving monies from who knows where, and I’d be curious to have them explain that.”
Criticizing Lawyers For Their Choice of Clients
So there you have it. Stimson apparently believes clients should retaliate against their lawyers when they don’t like their other clients. Let’s take a closer look at this.
With the primary exception of court-appointed counsel, the basic structure of the American legal system is that there is freedom of contract on both sides of the lawyer-client divide. Lawyers are not obligated to accept any particular client, and clients are free to be represented by any lawyer or law firm who will have them. On both sides of the equation, these contractual relationships are generally driven by economic and quality considerations, not ideology.
In this context, should there be some degree if moral accountability on the part of lawyers for the clients they choose to represent? Rule of Professional Conduct 1.2(b) says “no.” This rule is more of a values statement than a rule. It states: “A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”
Lawyer Discretion and Moral Accountability
Given the standard conception that lawyers who represent clients are morally neutral agents, whether and when lawyers may bring their own moral values into play has always intrigued me. It seems to me that when lawyers exercise discretion they can be fairly called upon to morally justify their choices. There are more instances where the Rules of Professional Conduct give lawyers discretion than I have space to catalogue. An obvious one is the permission granted by Rule 2.1 to candidly counsel clients by referring to moral, economic, social and political considerations.
There are two other important times, not explicit in the Rules of Professional Conduct, when lawyers should be burdened by a call for moral justification—if not to anyone else, then at least to themselves.
One time is the decision to become a lawyer at all. Future lawyers are bright people with many potential career choices ahead of them. When deciding to become a lawyer, a person accepts a set of professional values, articulated in the Rules of Professional Conduct and other generally accepted professional norms, that may or may not align with his or her own value system. Take client confidentiality (Rule 1.6), for example. To be a lawyer is to give precedence to client confidentiality, albeit not without limits. Not all potential lawyers have a system of personal moral beliefs that would allow them to keep quiet about certain types of client information that lawyers are duty bound to hold confidential. In this sense, the act of becoming a lawyer involves the positive moral choice of accepting the ethic of client confidentiality as, in most cases, superior to one’s own sense of morality. Not everyone is capable of making that choice.
Another time of moral decision-making involves how one is going to invest one’s time and knowledge as a lawyer. Doing what? Working for whom? Rule 1.2(b) notwithstanding, we are inevitably called to account (to ourselves, if not to others) to justify how we spend the limited productive hours of our lives. In this sense, the right of a lawyer to tell a putative client, “I will not represent you,” logically puts the lawyer in the position of assessing client choice through the lens of her value system. This will take into account the hard economic realities of earning a living and supporting a family, which are merely part of the moral calculus. For almost all of us, there are limits to what we are willing to do for money.
Professional Pragmatism Versus Idealism
The lawyers who represent Guantanamo detainees, like all lawyers, should be able to morally justify what they are doing. In this case, though, it should be a no-brainer for most lawyers that the justification lies in implementing our legal system’s profound commitment to due process of law.
To give Stimson some due (although I don’t think this was his point), clients also have freedom to select lawyers and law firms, and they have every bit as much right as lawyers to bring their moral sensibilities to bear on the decision. If they are offended by their lawyers’ choices of other clients, pro bono or otherwise, they are free to take their legal business elsewhere.
One assumes that the corporations to which Stimson referred are well aware that their law firms represent other clients—even Guantanamo detainees. It’s not as though the Guantanamo representations have been closely guarded secrets. It would be naïve to suggest that, with the exception of true conflicts of interest, sophisticated corporate clients have any illusion that they can or should dictate their lawyers’ decisions about other client representations. If they care, they can steer clear of the law firms that are providing pro bono representation to Guantanamo detainees without Stimson’s prodding.
Lawyers Should Be More Restrained
And that’s the real point here: Stimson’s advocacy. His lawyer bashing runs afoul of so many of our core professional values that I don’t even know where to begin. Let’s start with the aforementioned Rule 1.2(b). This rule can be viewed as a social compact of sorts that lawyers, understanding the importance of our role in society, won’t criticize each other because of the clients we represent.
This should be so even when lawyers represent their clients for money. But remember that the Guantanamo detainee representations are pro bono, making this a special case. Rule of Professional Conduct 6.1 urges lawyers to render pro bono publico service. Instead of being condemned for their actions, these lawyers should be celebrated by the bar for devoting time and resources to what former Justice Sandra Day O’Connor referred to as our profession’s “highest calling.” Shapero v. Kentucky Bar Ass’n, 486 U.S. 466, 489 (1988) (O’Connor, J., dissenting).
If Stimson were an Indiana lawyer, he would have taken an oath that said, “I will never reject, from any consideration personal to myself, the cause of the defenseless, the oppressed or those who cannot afford adequate legal counsel.” Ind. Admis. Disc. R. 22. Given these core values, it is most unbecoming to have one lawyer attempt to rally public condemnation of other lawyers whose conduct exemplifies our highest professional ideals.
The Marketplace of Ideas
Returning to my opening question: Should there be a rule against lawyer bashing by fellow lawyers? Maybe I’ll be labeled a hypocrite given my position on judicial criticism discussed earlier in these pages, but I don’t think so. In the rough and tumble of our adversary system, there are plenty of mechanisms to deal with lawyers who play out of bounds. There are legitimate concerns that any such rule, no matter how carefully crafted, would chill advocacy. Instead, we should recommit ourselves to the ideal expressed in Rule 1.2(b) that we will not criticize each other because of who our clients are.
Demonstrating that many times the most effective corrective measure against intemperate speech is more speech, Stimson’s comments sparked a furious reaction from the organized bar, the legal academy and the press. The denouement occurred on February 2, 2007, when Stimson resigned his Defense Department post.