Obviously, political commercials do not generally offer great intellectual or moral insights. But political advertising hit a new low this week when Massachusetts gubernatorial candidate, Kerry Healey, ran a commercial (which still prominently appears on her website) that questions whether her opponent, Deval Patrick, is fit to be governor simply because he represented someone who was on death row. The catch line from the ad: "While lawyers have a right to defend admitted cop killers, do we really want one as our governor?" Watch the ad here.
Healey's claim that lawyers are in some way morally accountable for the clients they represent is oft-discussed in legal ethics. Although a few scholars contend that lawyers have some moral responsibility for their client selection decisions, it is hard to leap from that position to the view that the representation of a death row inmate should disqualify someone from serving as governor. According to Healey's logic, she would have to oppose the candidacy of a lawyer who previously represented tobacco companies. That lawyer, after all, represented a client whose product was responsible for a lot more deaths than anyone on death row. How about the lawyers who represented Enron founder Ken Lay? Imagine this ad: "Although lawyers have a right to defend corporate executives who engage in massive fraud that leads to the loss of billions of dollars and thousands of jobs, do you really want one as our governor?" Please. If that commercial would be absurd, I don't see how Healey's ad is any more reasonable.
Unfortunately, this is a game both poltical parties and their fellow travelers have become accustomed to playing. I recall several years ago now District Judge Vaughn Walker was challenges during his confirmation hearing because he had the temerity to represent the USOC in a trademark infringement action against the Gay Olympics. This clearly disqualied him from being a judge because it demonstated his "homophobia". There was a Clinton nominee who was savaged because he represented plaintiffs in police brutality lawsuits. Clearly a case of a lawyer who was anti-police. The fact is that while the ABA and other bar groups can spill endless platitudes about lawyers not necessarily sharing their client's agenda, the general populace does not appear to be convinced. Of course, a good number of lawyers espouse the concept of the "cause lawyer", so it's not a great surprise that the general public might come to believe that lawyers do share in the belief systems of the clients they represent.
I doubt that lawyers will ever be able to shake the shadow of their client's foibles and beliefs. The word "mouthpiece" is not of recent vintage. It is the nature of our profession that lawyers will be associated with their clients. This makes it all the more commendable when lawyers are able to rise above the public opprobrium they know their representation will engender and represent the "unpopular" client.
Posted by: jim fischer | October 12, 2006 at 10:34 PM
This is a serious problem, particularly because of the difficulty of recruiting competent lawyers to represent clients in death cases. The ABA should publish something prominently on this, and a group of people who work in the ethics area should either join in with the ABA or publish our own response.
Incidentally, there is a prosecutor in Utah who has moved for sanctions against a lawyer who has been representing a death-row petitioner in a habeas case. The lawyer has put in almost 500 hours and several thousand dollars of, as-yet, unreimbursed time and expenses, and has been forced to close his practice. I have written a report as an expert witness in the case. There will be a hearing in federal court, probably in December. If anyone might want to endorse the report, or submit a separate opinion, please let me know.
Posted by: Monroe H. Freedman, Prof. of Law, Hofstra Univ. | October 13, 2006 at 01:40 AM
This pattern of identifying lawyers with their clients can be used by both the left and the right. There was a story on NPR a few weeks ago about the ABA deeming a candidate "unqualified," allegedly because he was not sufficiently free from bias. The candidate is Michael Wallace, a former aide to Trent Lott. In that capacity he helped Lott advocate against extension of the Voting Rights Act, and also worked to maintain tax-exempt status for racially segregated college like Bob Jones University. Do we assume that if the lawyer is Andy's post isn't really pro-cop-killing then Wallace isn't really pro-racial-discrimination? That's just a cheap debater's point, but the serious question is the extent to which we believe that lawyers are really independent of their clients' causes, or ought to be.
As a legal ethics scholar I'm as committed to the neutral partisanship view as anyone -- except of course Monroe -- but as an observer of people and lawyers, using the kinds of common-sense inferential strategies we expect jurors to use in making credibility determinations, I'm inclined to believe that this Wallace character really does share Trent Lott's views on race. I mean, as a bright (former Rehnquist clerk), ambitious young lawyer, Wallace could have done many things but he ended up working for Trent Lott. That's got to say something. Similarly, in the capital defense cases, it says something that a lawyer defends cop-killers. Not that he's pro-cop-killing, of course, but that he believes the death penalty is unjust, that criminal defendants deserve to be treated with dignity, or that the power of the state should be resisted. The problem with the ad cited by Andy is not that the opponent is trying to make voters draw inferences from Deval Patrick's capital defense work, it is that she is trying to make them draw the wrong one. But hey, that's politics.
The bottom line is that the law governing lawyers and professional tradition creates a moral permission to represent clients whose projects and views lawyers do not endorse. But a moral permission does not block the inference to a conclusion about the lawyer's beliefs in all cases. In other words, the strong inference "L represents C, therefore L necessarily shares C's views" is not valid, but the weaker inference "L represents C, therefore L may share C's views" is.
Posted by: Brad Wendel | October 13, 2006 at 11:39 AM
Great comments. Thanks.
I agree that this is an issue that knows no party lines. That's why I didn't refer to the candidates' party affiliations.
I also agree that there are some conclusions you can draw about at least some client choices that lawyers make, especially in the pro bono context, but for some paying matters as well. And I think Brad is right on the money that the problem with the ad is not so much that we can draw conclusions about Patrick because of the work that he has done. It's that it suggests that we should draw an unreasonable conclusion as a result of that work (e.g., Patrick is soft on crime, not supportive of the police, etc).
Posted by: Andrew Perlman | October 13, 2006 at 12:48 PM
Brad, Please clarify the ambiguity in "except of course Monroe." Do you mean that you are not as committed to that idea as I am, or do you mean (correctly) that I am not committed to that idea at all? And, if the latter, am I really alone in that view? (As the substance of your comment bears out, there are in fact many lawyers who select clients and causes because the representation is consistent with the lawyer's views.)
Monroe
Posted by: Monroe H. Freedman, Prof. of Law, Hofstra Univ. | October 13, 2006 at 04:31 PM
The Massachusetts Law Week just addressed this issue in convincing fashion: http://www.masslaw.com/patrick.cfm
Posted by: Andrew Perlman | October 13, 2006 at 05:37 PM
A Sunday Boston Globe editorial also addressed this issue in a useful way: http://www.boston.com/news/globe/editorial_opinion/editorials/articles/2006/10/15/adams_everlasting/
Posted by: Andrew Perlman | October 15, 2006 at 01:08 PM
To clarify, I meant to attribute to Monroe Freedman unstinting support for the view that once a lawyer-client relationship has been formed, the lawyer must do the utmost within the law for the client. I did NOT mean to suggest (and this is a way in which his views are often misrepresented) that he believes there should be no moral accountability for the clients one selects. In fact, this is a respect in which my views are probably more committed to the ideal of neutral partisanship than he is. It would be helpful in general in legal ethics if there were a sharper distinction between criticism of a lawyer's conduct GIVEN an existing lawyer-client relationship, and criticism of a lawyer for accepting the representation in the first place.
Posted by: Brad Wendel | October 15, 2006 at 04:48 PM