I have a pair of older brothers, Scott and Todd. Scott, for a long time, has been a drug rep. That is, he works for pharmaceutical companies, selling their goodies to doctors. Of course, I’ve been a public defender for even longer. That lead Todd, one time, to jokingly tell my niece (Scott’s daughter) that her dad sold drugs for a living and her uncle worked for drug dealers.
Of course, I don’t really “work” for drug dealers. Meaning, they don’t pay my salary (that comes from an even more dubious source – the American taxpayers!). But, the fact is, I do what I do on behalf of people accused of serious, and sometimes heinous, crimes that the general public look upon with scorn. Drug dealers? Of course. Murderers? A few. Child molesters and rapists? You bet. Proud to do it, too. Proud to stand, with my colleagues, between my clients and the awesome power of the state and say, “prove it!”
That doesn’t make me a drug dealer, though. Or a murderer. Or a rapist or a molester. A lawyer is not his clients.
That principle has blown up this week with the latest twist in the saga of the Defense of Marriage Act. DOMA was enacted in 1996 (another gift of the Clinton years) in order to keep the federal government out of the gay marriage business. It’s a hateful piece of legislation that should be condemned to the dustbin of history. Unfortunately, it wasn’t quickly dispatched during the halcyon days of a Democratic majority in Congress, and you can sure as hell bet the GOP isn’t about to let go of that wedge issue.
DOMA is under attack in the courts, of course. Recently, the Department of Justice announced it would no longer defend DOMA, although the administration continues to enforce it. Pursuant to well established federal law, the administration provided the House of Representatives with the materials needed to continue the defense of DOMA if they desired. Well, of course they did. To head up its legal team, the House retained Paul Clement, a former Solicitor General, admired appellate advocate, and (until recently) a partner at King & Spalding. Then all hell broke loose
The LGBT community in Atlanta has significant political influence, and [upon agreeing to defend DOMA,] the firm quickly became a target for major gay rights organizations including the Human Rights Campaign and the group Georgia Equality — the largest gay rights advocate in the state. The groups planned an aggressive ad campaign, direct communication with the firm’s clients, and a diminution of its Corporate Equality Index ranking — the metric HRC uses to track corporate support for gay rights.
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According to [Fred] Sainz [vice president of communications for HRC], HRC 'had already started contacting their clients. ... [King & Spalding was] starting to hear from companies that this was causing those companies a great deal of consternation, and they might have to rethink their relationships [with the firm].'
As a result of the backlash, King & Spalding backed out of the case, citing insufficient “vetting.” Clement, in a letter released publicly, left the firm
(moving to another) and said he would stay on the case:
I resign out of the firmly-held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. Defending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high. Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law. Much has been said about being on the wrong side of history. But being on the right or wrong side of history on the merits is a question for the clients. When it comes to the lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism....
Like I said above, DOMA should go the way of the Dodo. But Clement is exactly right – lawyers shouldn’t be vilified for the clients they represent. Our justice system is adversarial. It only works with both sides show up with the best hired guns, loaded for bear. Mismatched advocates taint the process, whether it’s the state prosecutor versus an underfunded and over worked public defender, a pro se tenant versus a represented landlord, or a group of incompetent clowns versus two of the best advocates in the business.
That last one isn’t a hypothetical. It’s the situation that played out when California’s anti-gay marriage Prop 8 was challenged in federal court
. The plaintiffs were represented by a pair of legal giants, Ted Olson and David Boies. The state, on the other hand, chose not to appear in the case (even to say Prop 8 was indefensible) and the court allowed a third party, the proponents of Prop 8, to defend the law. They were laughably bad, undermined by their own witnesses and bogged down in culture war dogma that really doesn’t hold water in court. Of course, they lost. A just result, in my mind, but it’s not hard to wonder about the legitimacy of a victory like that (it’s also screwed up the appellate process
I would never suggest that an attorney be forced to represent any particular client. There are lots of factors that go into a decision to represent a client (or not) and whether you want to represent “that kind” of client is one of them. However, once you sign on the dotted line, it’s unseemly to dump a client because of the negative publicity you get. If you’re in it, you’re in it all the way (barring conflict of interest, etc.).
The best argument I’ve seen otherwise, that it was fine for King & Spalding to dump the DOMA case in the face of pressure, is in this diary
over at Daily Kos. It basically bails down to the idea that lawyers defending unpopular clients are only to be praised when those clients are underdogs, with real skin in the game, as opposed to established interests.
Ultimately, I can’t agree, because I think that kind of analysis (a) overlooks the systemic issues laid out above and (b) results in a kind of confirmation bias. In essence, lawyers who represent my causes are to be praised, those that represent the other side are to be condemned. The system can’t really work that way, taking the long view.
As Orin Kerr sums up
Of course, both sides play this game. The most recent example on the right — or at least the example that comes to mind — has been the effort by some conservatives to punish lawyers and firms who have represented detainees at Guantanamo. This has gone through a few iterations, ranging from the remarks of a government official in 2007 suggesting that corporate clients of their firms might want to rethink being clients there to the efforts in 2010 to suggest that Gitmo lawyers were disloyal to the United States. If I had my druthers, we would have the same response to all of these disputes: It’s a lawyer’s job to represent unpopular clients, and we shouldn’t punish them for taking on that representation. Cue the John Adams tape.
Although Orin’s link is a bit odd, but Adams knew something about unpopular clients. He represented British soldiers charged after the Boston Massacre. He later said
The part I took in defense of captain Preston and the soldiers, procured me anxiety, and obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country.
Yes, he’s talking about a criminal case. But the system, criminal or civil, only functions at its best when all the players are firing on all cylinders. It’s better, in the end, if every client and every cause, even the offensive ones, get quality counsel. That requires lawyers to suck it up, bear the brickbats of public opinion, and make sure that happens.