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Devil's Advocates

Friday, February 1, 2002

There is an especially chilling moment in The Crucible, Arthur Miller’s play about the 1692 Salem witch trials, when the principal protagonist, farmer John Proctor, arrives in court to defend his wife against a charge of witchcraft. As the scene progresses, the refined and conscientious Judge Danforth looks Proctor in the eye and asks, “Have you ever seen the Devil?” At this point, we know that John Proctor will hang. Danforth’s position is clear — anyone who would defend an accused witch, thereby threatening the court’s godly work, must himself also be in league with Satan. Miller clearly captured something profound and primordial here — the assumption that anyone who defends an accused either must approve of the crime or be guilty himself. It remains a common view today, even if less often openly articulated than in the past.

Lawyers, however, have traditionally enjoyed a kind of immunity in this arena. Whether based on the belief that lawyers were above, or below, the fray, and if sometimes honored in the breach rather than in the observance, our society has permitted lawyers to ply their trade without ultimately being blamed or punished for the clients they have represented. This “immunity” is, in fact, essential to the operation of a neutral legal system, which assumes that there are two sides to any question, presupposes that all parties ought to receive a fair hearing of their case, and depends upon lawyers to articulate the relevant legal principles so that disinterested judges and juries can fairly resolve the issues presented.

Today, however, this immunity increasingly has been challenged in a number of real and immediate ways. Politicians, pundits, partisans, and activists of all stripes have attacked individual lawyers based upon the identity of their clients or because of the legal positions they have advanced on a client’s behalf. The unspoken, or spoken, premise of these attacks is that a lawyer is, for all intents and purposes, responsible for a client’s actions, or for the arguments advanced on a client’s behalf. This phenomenon, which has been fueled by both left and right, poses a significant threat to the integrity of our judicial system and to the principles that support Western-style democracy itself.

Examples here are not hard to find. Washington “superlawyer” Robert Bennett won the praise of conservatives, and liberal scorn, for successfully representing former Reagan administration Secretary of Defense Caspar Weinberger during the Iran-Contra affair, ultimately obtaining a presidential pardon for his client in 1992. A few years later, he became a conservative bête noire, and a liberal hero, for his muscular defense of President Clinton against Paula Jones’s sexual harassment accusations. Similarly, former Clinton White House Counsel Jack Quinn was heavily criticized for his successful efforts, during the Clinton administration’s final days, to obtain a presidential pardon for fugitive financier Marc Rich. Indeed, feeling was running so high against Quinn that an article in National Review attacked conservative commentator and former Washington, D.C. United States Attorney Joseph DiGenova for his representation of Quinn, on account of Quinn’s representation of Rich.

A spate of President Bush’s lawyer nominees have been opposed because of clients they have represented while in private practice, or because of positions they have advanced on a client’s behalf.1 In this regard, during his confirmation hearings, Solicitor General Theodore B. Olson was closely questioned by senators about arguments regarding such hot-button issues as affirmative action and women’s rights, which he had made for clients while in private practice. President Bush’s nomination of Harvey L. Pitt, another highly respected Washington lawyer, to be chairman of the Securities and Exchange Commission was opposed by conservative activists because he represented New Frontier Media, an internet distributor of “adult” (some would say pornographic) materials. The nomination of Eugene Scalia (son of Justice Antonin Scalia) to be the solicitor of the Department of Labor met with opposition from labor groups because he has represented companies, such as United Parcel Service and Anheuser-Busch, seeking to block adoption of certain ergonomics standards. The nomination of Jeffrey Holmstead as an assistant epa administrator was opposed by a number of environmental groups, in part because he represented “polluters” in private practice.

The most prevalent use of this tactic occurs with respect to federal judicial nominees. This is because: (1) the stakes in such nominations are particularly high, since federal judges serve for life; (2) a growing number of important public policy issues are brought before the courts for resolution; and (3) all such nominees are lawyers, most with long and distinguished experience in private practice. Thus, the nomination of John G. Roberts Jr. for a seat on the United States Court of Appeals for the District of Columbia Circuit has been challenged by pro-choice groups based on briefs he signed while serving as deputy solicitor general under President Bush senior. Similarly, the nomination of Columbus, Ohio lawyer Jeffrey Sutton to the U.S. Court of Appeals for the Sixth Circuit (covering Tennessee, Kentucky, Michigan, Ohio, and Indiana) has been opposed based on his representation of the state of Alabama in an effort to shield states from application of the Americans with Disabilities Act. There are likely to be many more such attacks as President Bush transmits additional nominations to the Senate.

Attacks on lawyers are, of course, nothing new. Ours is not an overwhelmingly popular profession, and those practitioners who imagine some past golden age, before the “litigation explosion,” when the bar was universally respected as the champion of justice and guardian of the Republic are deluding themselves. Shakespeare summed up popular feeling, then and now, pretty well in King Henry VI, Part 2, when the leader of an English peasant revolt suggests: “The first thing we do, let’s kill all the lawyers.”

However, the more recent attacks on lawyers, and lawyer-nominees for office, have not been advanced by the pitchfork crowd, but by highly educated and sophisticated politicos, many of whom are also members of the bar — people who are supposed to know better. For example, Harvey Pitt’s appointment as sec chairman was opposed by former presidential candidate Gary Bauer, currently head of the organization American Values and a 1973 graduate of the Georgetown University School of Law. In opposing Pitt, Bauer reasoned: “Surely there are people capable of doing an excellent job in the field of securities regulations who don’t have the baggage of having a client whose activities are the exact opposite of the millions of traditional voters who elected George Bush president.” Similarly, on the left, attacks on specific Bush nominees have been orchestrated by activist groups awash in lawyers. With regard to judicial appointments, Elliot Mincberg, a 1977 graduate of the Harvard Law School and legal director of People for the American Way, has stated, “I don’t think that the fact that someone is an advocate insulates him from some responsibility for the content of what’s being advocated.”

These two examples (and there are many more) are representative of the two principal modes of attack on lawyers and lawyer-nominees for appointive office. The first is straightforward guilt by association: because the lawyer undertook to represent an entity involved in a sexually oriented business, he must himself be no better than a pornographer — and therefore would certainly be unfit for public office. The second mode of attack suggests that certain legal positions are, inherently, unacceptable for political reasons and that a lawyer who advances these arguments should be punished on that account. These modes of attack are equally insidious, and both are fundamentally at odds with the day-to-day realities of the legal profession and its governing principles.

Unpopular clients

Attacking a lawyer based on the identity of his or her clients is simple guilt by association. It is a highly effective and highly destructive tactic because it taps into the primitive emotions so ably portrayed in The Crucible. Indeed, this is a pure form of “McCarthyism” — named for Wisconsin Sen. Joseph McCarthy, who refined it to a high art during his tenure at the Senate Permanent Subcommittee on Investigations (whose activities, along with those of the House Committee on Un-American Activities, are the allegorical subject of Miller’s play). From the accusers’ perspective, this tactic has two important benefits. First, it punishes the individual lawyer for his associations, for representing “bad” people. Second, it makes it more difficult for those people or causes to obtain effective legal representation in the future.

It is true, of course, that the legal profession has a long and honored tradition of representing unpopular clients and causes, often at considerable personal and professional sacrifice. For example, the leading patriot and future president John Adams undertook the highly unpopular representation of the British soldiers involved in the 1770 “Boston Massacre.” Feelings were running very high in colonial Boston, and Adams feared (not unreasonably given the temper of the time) for his safety and that of his family. Moreover, as David McCullough notes in his recent biography, John Adams (Simon & Schuster), “Criticism of almost any kind was nearly always painful for Adams, but public scorn was painful in the extreme.” Nevertheless, Adams achieved acquittals for all but two defendants, who received comparatively minimal punishments. In his old age, Adams wrote that this was “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.”

However, not all lawyers have this kind of fortitude. (Indeed, few people do, which is why such episodes are celebrated.) The reality is that, if lawyers can expect to be held accountable for the clients they represent, many simply will avoid controversial representations. In recognition of this truth, the rules of professional conduct governing the legal profession provide that: (1) lawyers have some basic obligation to undertake the representation of unpopular clients; and (2) a lawyer does not endorse a client’s conduct, character, or views by taking the client’s case. Although the rules of professional responsibility vary from state to state, they are in general agreement on these points. Specifically, as provided in the American Bar Association’s Model Rules of Professional Conduct (which have been adopted in whole or in part by more than two-thirds of the 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,” and “[a]ll lawyers have a responsibility in providing pro bono publico service. An individual lawyer fulfills this responsibility by accepting a fair share of unpopular matters or indigent or unpopular clients.” These basic principles have, in fact, been a part of legal ethics since the profession began to establish general rules of conduct early in the last century and were incorporated into the American Bar Association’s Canons of Professional Ethics as early as 1908. Canon 15, “How Far a Lawyer May Go in Supporting a Client’s Cause,” states: “No fear of judicial disfavor or public unpopularity should restrain [a lawyer] from the full discharge of his duty.”

Under these rules, a lawyer generally should refuse a client only if he or she finds the client, or cause, so personally repellent that it would affect his or her ability to perform in a competent and professional manner. Of course, every lawyer can, and should, have some limits. However, members of the profession should reflect that, ultimately, the ability to make such choices is a luxury, since the one absolute in all of this is that the profession as a whole must provide legal counsel to all comers. A system where different lawyers make different choices and where those choices are not second-guessed — at least by fellow practitioners — ensures the maintenance of this overarching imperative and permits individual lawyers to decline clients they find personally unsavory.

Unpopular arguments

Attacking a lawyer based on the arguments he or she has advanced on a client’s behalf also runs counter to the rules of professional conduct. The premise here is that if a lawyer includes a particular argument in a legal brief, an oral presentation in court, or as part of an effort to explain publicly the client’s position, he must agree with that position and, as a result, can be held accountable for it. However, each lawyer has an overarching ethical obligation to represent his or her clients “zealously” within the bounds of the law. This obligation includes advancing on the client’s behalf every non-frivolous argument available unless the client specifically consents to forgo a particular argument. Moreover, a lawyer must abide by the client’s decisions regarding the objectives of the representation (again, within the limits of the law).

Like the rules regarding the representation of unpopular individuals or causes, these requirements have long been a part of the ethical canons governing the legal profession. The aba’s 1908 canon of ethics provided that:

The lawyer owes “entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability,” . . . . No fear of judicial disfavor or public unpopularity should restrain him from the full discharge of his duty. In the judicial forum the client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense.

In addition to being inconsistent with the longstanding rules governing a lawyer’s professional conduct, the assumption that a lawyer personally agrees with every argument he or she makes is simply at odds with the realities of legal practice. As every lawyer knows, there usually are many legal issues presented in any single case, whether it involves highly contentious matters like abortion, pornography, or affirmative action, or the most mundane questions of land conveyancing. A client may have very strong arguments on one or two points, but rarely does a client have a clearly prevailing position on every point. (Where this is the case, the matter is likely to be resolved before the lawyers are even called, and certainly before litigation commences.) Invariably, there will be some arguments that, as a professional matter, the lawyer considers strong and others that, were the lawyer sitting as a judge, he or she would likely reject as weak. This is true regardless of whether the case has any larger political significance. In all cases, a lawyer is required to make every nonfrivolous argument available on a client’s behalf, regardless of his or her own feelings about what, in some epistemological sense, the “right” answer should be.

Of course, lawyers are entirely free to counsel a client against asserting certain arguments or claims, and there are some who argue that lawyers should attempt to get their clients to “do the right thing” from a political or social perspective.2 In this view lawyers should behave, in the words Russell G. Pearce, writing in the August 6, 2001 Legal Times, as a “governing class” with obligations to society which clearly trump those to a mere client.

The rules of professional ethics do permit a lawyer to urge upon a client one course of action over another, based on moral or prudential grounds in addition to simple legal calculation. As the aba Model Rules note, in his or her role as an advisor, “a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.” There are, however, two highly important qualifications. First, such advice must be given based upon what the lawyer believes to be the best interests of the client and cannot be driven by the lawyer’s concern for the interests of some other entity, ideology, or cause, however exalted — including the lawyer’s own political or moral views. (The model of lawyer as “ruling class,” really more “enlightened despot,” was deposed long ago, if it ever really reigned at all.)

Second, any such advice is strictly between the lawyer and the client. Whether and how such advice may have been given, and how the client responded to it, cannot later be revealed by the lawyer — even years after the fact.3 Moreover, a lawyer cannot resign his or her representation merely because a client chooses not to accept or act on this advice, cannot later attack the client for a decision, and cannot even discuss how he or she “felt” about a client or the client’s decisions.

In addition, a lawyer’s obligation to represent a client’s interests zealously also is limited by the overriding caveat that he or she cannot actually assist a client in carrying out a criminal act. Lawyers who do undertake to foster the criminal plans or purposes of their clients enjoy no special immunity — either in law or theory — and are fully subject to prosecution like any other common criminal. Fortunately, however, the “mob lawyer” remains very much the exception rather than the rule. Such people are prosecuted and punished not because of who they represented, but because of the crimes they themselves committed.

The advocate’s role

Accepting that these are the rules, and they are, the question remains whether different standards should be applied to lawyers who willingly choose, on a regular basis, to represent a particular type of client, who specialize in certain highly controversial areas, or who accept contentious cases on a pro bono basis. An argument can be advanced that, at least in such cases, the identity of the client, and the arguments put forth on the client’s behalf, can fairly be attributed to the lawyer because the lawyer has purposefully associated himself or herself with those clients and causes. In other words, if the lawyer did not agree with the client and the case, he would not have undertaken the representation. The temptation to ascribe a client’s views to a lawyer is perhaps strongest in cases where the lawyer works full-time for a group dedicated to the pursuit of one or more related issues — such as civil rights groups, environmental protection groups, or “pro-life” or “pro-choice” groups. The agreement in point of view is no doubt true in many or perhaps most instances. But it should be remembered that there are many reasons, other than ideological commitment, why a lawyer may take on controversial clients or cases. These reasons vary, ranging from a general intellectual interest in the subject matter to pressure from an employer to simple contrarianism.

Nevertheless, the rules are, and should remain, the same. This is because they were not developed merely for the comfort of the legal profession, in order to enable practitioners to act as “hired guns” with a clean conscience and unblotted professional copybook. These rules were, in large part, adopted to ensure that every litigant can, as a matter of due process, obtain legal counsel. As explained in Canon 5, “The Defense of Prosecution of Those Accused of Crime,” of the aba’s professional ethical rules:

It is the right of the lawyer to undertake the defense of a person accused of crime, regardless of his personal opinion as to the guilt of the accused; otherwise innocent persons, victims only of suspicious circumstances, might be denied proper defense. Having undertaken such defense, the lawyer is bound by all fair and honorable means to present every defense that the law of the land permits, to the end that no person may be deprived of life or liberty, but by due process of law.

In addition to the due-process considerations, these rules also are compelled by the very nature of our adversarial system of justice. Following the English common law model, rather than the Roman law “inquisitorial” model still used today in continental Europe and much of the rest of the world, the actual workings of the American justice system depend largely upon the lawyers, rather than the judges. The judge’s role in our system, whether a criminal or civil matter is involved, is to act as a strictly neutral arbiter. The judge cannot tell who should win based on the identity of the parties, and it is not the judge’s role, as it is in some civil law systems, to perform his own investigation of the matter. Moreover, most judges have neither the time nor the resources to identify, research, and analyze all of the legal issues presented by a case.

Ultimately, judges must rely on the lawyers to present the facts and law of each case to them for decision, elucidating the relevant decisional principles.4 The validity of this reliance is itself premised on the assumption that each of the lawyers involved will vigorously advocate the client’s position, regardless of their own personal feelings about the correct outcome. A rule that permitted lawyers to be held accountable for the clients they represent, or the arguments they make, would fatally undermine this system. Judges could no longer act as neutral arbiters with any confidence that they were indeed doing justice. Unfortunately, at least for an important segment of those who have embraced these tactics, this may well be the whole idea.

The “crit” connection

The rules and reasons for not holding lawyers accountable for their clients described above are, in fact, very well known to the lawyers and activists who have utilized these tactics against lawyer nominees to federal office and, especially, for federal judgeships. For the less scrupulous, these tactics are merely a means of obtaining temporary political advantage — one way of defeating an objectionable nominee who is otherwise entirely qualified for the job in question. For others, mostly on the left of the political spectrum, there is much more at stake. At the very core of these attacks is a different conception of the legal profession, linked with a different vision of our judicial system.

Holding a lawyer accountable for his or her clients, and the arguments made on the clients’ behalf, effectively denies the neutrality of the legal profession — the very essence of professionalism — and is one aspect of a broader movement, in progress now for many years, that denies the neutrality of the law itself. Although claims that the law, courts, or individual judges act politically surface from time to time (the most recent example being the dueling criticism of the dueling opinions of the Florida Supreme Court and the United States Supreme Court involving the last presidential election), a more systematic approach to the question can be traced to the 1970s and 1980s. During these years, scholars like Harvard professor Laurence Tribe openly began to advocate a policymaking role for the judiciary, with the Supreme Court in particular being viewed as a kind of enlightened despot — the “republic’s schoolmaster,” ensuring justice rather than dispensing justice under law. This idea reached its logical conclusion very early on in the “critical legal studies” (cls) movement.

cls involved a group of radical legal scholars, such as Roberto Unger, Duncan Kennedy, and Catharine MacKinnon, who argued, in one form or another, that law is politics. As Mark Tushnet, himself a founder of the movement and a leading “crit,” wrote in the 1991 Yale Law Journal:

When people associated with cls assert that law is politics, I take them to mean that when one understands the moral, epistemological, and empirical assumptions embedded in any particular legal claim, one will see that those assumptions operate in the particular setting in which the legal claim is made to advance the interests of some identifiable political grouping.

As a practical matter, the ultimate denial of law’s objectivity moved from the classroom and faculty lounge to the national stage in 1987, during the campaign against Judge Robert Bork’s Supreme Court nomination. The stakes were high, and, by any objective measure Bork was one of the most qualified individuals ever nominated for a Supreme Court seat. Objectivity was, therefore, the first casualty of the Bork confirmation process. Although the assault came in the guise of “judicial philosophy,” in itself a proper area of inquiry for the Senate, the real “charge” against Bork was that he simply decided cases the wrong way. Over and again Bork’s opponents claimed that he was “anti-civil rights,” or “anti-privacy,” or “anti-individual,” or “pro-business,” merely because he had criticized the reasoning of important precedents dealing with such issues or because, while serving on the bench, he had ruled for one side more often than another. As a 1989 Justice Department report explained:

[T]he reports [produced by Bork’s opponents claiming to assess his judicial philosophy and record] premised their ultimate assessments of Judge Bork’s record upon assumptions that are difficult to defend, except perhaps in raw political terms. Most significantly, they generally drew conclusions about Judge Bork’s record without seriously attempting to challenge, or even to evaluate, the legal reasoning in the cases or the merits of the holdings from a legal perspective. . . . For example, the Public Citizen Report concluded that Judge Bork was “willing to cut back on basic safeguards for persons facing criminal charges” because in “the 24 criminal cases in which he [had] participated, Judge Bork [had] voted for the prosecution 23 times.” . . . In essence, Public Citizen’s complaint was not that Judge Bork had failed either to follow applicable precedent or to reason the cases through but simply that he had voted against the criminal defendant a certain percentage of the time.

Punishing lawyers, and particularly lawyer-nominees, based on the identities of their clients, or the arguments they have advanced, is merely another aspect of the “law is politics” approach that proved so successful against Judge Bork and that has since become something of an article of faith among the politically correct. In fact, the next use of this tactic against a judicial nominee took place only two years after Bork’s nomination was defeated. In 1989, San Francisco lawyer Vaughn Walker’s appointment to the local United States District Court was fiercely contested by a number of gay rights organizations, based on Walker’s representation of the United States Olympic Committee in a trademark infringement action against the sponsors of the “Gay Olympics.”5 The tactic is especially suitable for use against nominees who have no long record of judicial opinions or personal writings to draw from, as is the case with a number of President George W. Bush’s current nominees.

The almost casual use of this tactic today, by both left and right, lawyers and laymen, and against nominees for judicial and non-judicial offices, suggests that the “law is politics” thesis has gained much ground in the past decade. It certainly indicates a growing acceptance, among the politically active as well as the public at large, of this thesis — a highly troubling development since a neutral rule of law is the glue of any democratic body politic, and of ours in particular. The rejection of even the idea of neutral institutions and individuals was, in fact, a central premise embraced and implemented by the fascist and communist regimes of the last century, and was summed up by an avid early practitioner, Maximilian Robespierre: “I know only two parties, that of good citizens and that of bad.” In the old Soviet Union, this principle was expressed by the term “Kto Kovo,” “who triumphs over whom,” which reduces all of life’s complexities and nuances to a crude zero-sum paradigm.

This pedigree should be reason enough to eschew attacks on members of the bar based on their clients or causes. Such tactics constitute a rejection of the principle of objectivity — that there can be right and wrong divorced from political labels or causes — and of the Western democratic tradition itself. Lawyers also, regardless of political beliefs or affiliations, should actively and collectively denounce such tactics — if not from a basic appreciation of the needs of our adversarial judicial system and its importance to our democracy and the rule of law, then out of a healthy dose of self-interest. Public opinion is a highly changeable affair. Although today the “politically incorrect” client may be a tobacco company, corporate “polluter,” or gun manufacturer, tomorrow it might be banks, liquor manufacturers, or media companies that become the target of public opprobrium. There are few lawyers who are not vulnerable on this score. In a world of shifting black hats, you can never know when you will end up having fought on the wrong side.

From the perspective of the general public, all have an interest in a genuinely neutral judicial system, whatever may be its flaws. Objectively, there is no particular reason why a lawyer who has represented unsavory or unpopular clients cannot serve with distinction in high office. Before his election as president, Abraham Lincoln represented railroad interests which, at the time, enjoyed a reputation not unlike that of tobacco companies today. However tempting, and even satisfying, it may be to associate a lawyer with his or her clients and to make the lawyer “pay” for representing unpopular individuals or causes, it is in everyone’s interest to rise above Judge Danforth’s instincts.

1The practice of opposing the appointment of otherwise qualified individuals based on their personal views on political and public policy issues is both unfortunate and clearly emblematic of the partisan rancor in Washington. However, when applied to lawyers, based on the clients they have served, these practices are particularly distressing, since they involve inferring the lawyers’ views from their professional work rather than obtaining direct knowledge of those views.

2 Indeed, the authors themselves experienced this, from colleagues, diplomats, and others, in full measure (both in Europe and America) during several years in which they represented the government of Croatia before the International Criminal Tribunal for Yugoslavia.

3 The Supreme Court, in fact, recently ruled that the lawyer’s obligation to keep attorney-client confidences private survives even the client’s death. In that case, the Whitewater independent counsel had sought to compel disclosures from a lawyer whom former White House deputy counsel Vincent Foster had consulted before his death (Swidler and Berlin v. United States, 1998).

4 The ability to relate the case-specific facts to the relevant and neutral decisional principles is of paramount importance in the common law system. In the long run, preoccupation with the results in individual cases, rather than the integrity of those principles, must certainly destroy the system itself.

5 Judge Walker was eventually confirmed for the United States District Court for the Northern District of California, sitting in San Francisco, after he was reappointed by President George H.W. Bush. Ironically, he has been attacked by conservatives for his vocal opposition to federal drug enforcement policies. This should serve as a reminder to all, right and left, who believe that they can predict how any nominee will perform on the bench.