Credit or Blame for Client Identity

I haven't posted anything on the Cully Stimson controversy, mostly because I didn't have much to add to the excellent discussion on many blogs.  John Steele's post here, David Luban's at Balkinization, and a series of posts (here, here, here and, oh heck, just follow the internal links for more) at Volokh Conspiracy did a great job of setting out the issues.  I have actually read most of the comments that have been posted on the Volokh site, and there is one issue raised in the comments that I don't think has attracted much attention from the professional commentators.  That is, why do lawyers keep saying they have a professional obligation to represent unpopular clients when the really don't?  And if they don't, then isn't it appropriate to criticize or praise lawyers for their choices of clients?

On the first point, for all the rhetoric in the Model Rules about neutrality and the right to representation, the U.S. has no counterpart to the British cab rank rule, which obligates barristers to accept briefs from solicitors in the order they're received (hence the name), rather than on the basis of judgments about merit.  British commentators observe that the rule is widely subverted by barristers' clerks, but it at least remains as an obligation, and evasion is treated as something distasteful, not to be openly celebrated.  In the U.S., all of the provisions of the Rules of Professional Conduct bearing on client selection are aspirational only, with the limited exception of the appointed-counsel rule.  MR 1.2(b) isn't a rule at all, as John Steele points out; MR 1.16(b) permits withdrawal from an existing representation (where the obligation not to judge one's client's projects seems even stronger) if the lawyer considers the client's actions repugnant; the pro bono rule (MR 6.1) says lawyers "should aspire" to fulfill their professional obligation to provide legal representation to those unable to pay, but says nothing about neutrality in client selection; and the court-appointed representation rule (MR 6.2) not only is limited to lawyers who have volunteered to accept appointments, but contains an opt-out provision (subsection (c)) for repugnant clients.

In my contribution to the symposium honoring the work of Monroe Freedman, I argued that there is a cab-rank principle in American law, even if there isn't a bottom-line, enforceable duty to accept representation of any client.  ("Institutional and Individual Justification in Legal Ethics:  The Problem of Client Selection," 34 Hofstra L. Rev. 987.)  Professional detachment and neutrality, and accepting the representation of unpopular clients are undoubtedly central aspects of the normative identity of the American legal profession.  For evidence, look at our professional lore which praises lawyers (e.g. John Adams) for representing unpopular clients (in Adams' case, the British soldiers accused of taking part in the Boston Massacre).  And there is no question that Stimson's comments struck most lawyers, on both sides of the underlying political debates, as utterly inconsistent with professional traditions and aspirations. 

If the profession as a whole takes neutrality and the duty to represent seriously, how come we don't impose obligations on individual lawyers to represent clients?  Why isn't there a cab-rank rule for American lawyers?  The answer, in my view, is that we want to hold on to a plurality of conceptions of good lawyering, within one larger, overarching concept of a legal profession.  This Rawlsian terminology is just meant to point out that we can recognize a fairly general idea of what it would mean to be a professional, with abstract ideals like neutrality, partisanship, and loyalty, while leaving under-specified the more particular duties that would flow from those ideals.  The reason for this is twofold:  (1) We think that good lawyering is a matter of context, and resist a one-size-fits-all approach to defining professional excellence.  (2) We want to preserve some space within the professional role for lawyers to make moral decisions, and define themselves as persons as well as professionals. 

Focusing on #2, if professional duties were so particularized that there was little or no room for the exercise of discretion and moral judgment, lawyers might feel so hemmed in by their professional obligations that they started to become alienated from the connections and values that gave meaning to their lives as people.  (This is one of the strongest criticisms of role-differentiated morality, pursued by Postema, Luban, Shaffer, and many others.)  One response to this problem, by the profession, has been to establish some wiggle room within the professional role for the exercise of moral judgment.  In addition to opt-out provisions in the rules, permitting withdrawal where the client's actions are repugnant, the law of lawyering builds in wiggle room for the exercise of moral judgment by not enforcing a strict cab-rank rule.  The profession has reacted by spitting into sub-professions, defined in part by the identity of clients.  Lawyers tend not to identify as lawyers-full-stop, but as "plaintiffs' side PI lawyers," "criminal defense lawyers," "M&A lawyers," or whatever.  There is a great deal of academic literature on the concept of "cause lawyering" -- that is, lawyers who believe that pursuing a particular political agenda is an inextricable aspect of their professional identity.  We don't see lawyers for the ACLU or the ACLJ as simply lawyers -- it's not just "you say po-tay-to, I say po-tah-to" -- we all know that people represent the ACLU or the ACLJ for moral and political reasons.  And that's okay. 

But then the next step in the argument is obvious:  If there is this discretion to choose specialized conceptions of lawyering within the overarching concept of lawyer, then shouldn't lawyers expect to be judged morally based on the clients they represent?  At the very least you can't have it both ways, coming in for praise for representing [insert your favorite "good" client, whether the Sierra Club or the Pacific Legal Foundation] and then seeking to avoid blame for representing [insert your favorite "bad" client, whether cigarette companies or terrorists]. 

The appropriateness of praise or blame does not mean that moral evaluation should be based only on the client's own moral projects.  The inference, "this lawyer represents child molesters, therefore he must be a child molester" is stupid.  A lawyer may represent particular clients not because she shares the commitment to their cause, but because she is committed to a political project that includes safeguarding the rights of unpopular clients.  Big firms doing pro bono work for detainees are not pro-Osama; rather, they are committed to ensuring that the government conducts the war on terror in accordance with constitutional and human rights values that are the very thing we're supposed to be defending in the war on terror.  Corporate America seems to have recognized this when it responded, overwhelmingly, to Stimson by reaffirming its commitment to hiring law firms that represent detainees.  Another much-discussed example is the African-American ACLU lawyer in Texas who represented the Klan in a parade-permit lawsuit.  (David Wilkins has an excellent article about this case.)  Obviously the lawyer is not pro-Klan, but as a civil liberties lawyer he is committed to protecting rights that African-Americans had relied on in their struggle for equality. 

It's not a particular earth-shaking point that a lawyer may be committed to something abstract, like the protection of rights, rather than to her client's projects.  Every criminal defense lawyer has to struggle with this sort of identification problem when representing loathsome clients.  What I think is worth keeping in mind -- which I hope justifies this long post -- is that there is a certain amount of moral discretion in lawyering, and lawyers can't just hide behind some duty that doesn't exist to represent every client who walks in the door. 

[UPDATE:  I meant to say all the provisions of the Model Rules that bear on client selection are aspirational only.  The original post left out the italicized bit, making it sound like there are no enforceable duties in the Rules, which is of course flatly wrong.] 

Comments

[Doug Richmond]

"[A]ll of the provisions of the Rules of Professional Conduct are aspirational only?" I don't think so. The Ethical Considerations in the Model Code were aspirational; the Model Rules establish minimum standards of conduct for lawyers.

[John Steele]

Doug,

It's often said that the MC had aspirations and that the MR do not. But there's still a few aspirational and expressive passages in the MR, right? "Should aspire," from 6.1, is the most obvious. (If "aspire" is "aspirational" then what is?) The Preamble is chock full of forensic rhetoric that doesn't have any regulatory teeth.

[John Steele]

Doug & Brad,

Sorry, I read it too quick. I think Doug was responding to this sentence by Brad: "In the U.S., all of the provisions of the Rules of Professional Conduct are aspirational only, with the limited exception of the appointed-counsel rule."

Doug, I read that sentence as referring to "all of the provisions [suggesting lawyers should represent unpopular clients] are aspirational only." Brad, is that right?

[Doug Richmond]

I certainly agree that Rule 1.2(b) is not a "rule" at all and, for that matter, I do not believe Rule 6.1 to be a "rule." If Rule 6.1 were in fact a rule, the first paragraph is so badly written that a lawyer arguably could not decline a client who was unable to pay for the lawyer's services. I also agree with Brad's premise that lawyer's have no obligation to represent unpopular clients. I simply thought that Brad's quoted statement swept too broadly.

[Brad]

Oops, sorry for the imprecision. I meant all the provisions of the Model Rules that bear on client selection. Of course most of the rest of the Rules are binding -- confidentiality, conflicts, perjury, etc. Sloppy writing on my part -- sorry for the confusion.

[John Steele]

Brad,

I agree there's no rule on that point. The closest "rule" is in the traditional Lawyer's Oath, from the Field Code, which lifted the oath from medieval guild oaths. The key phrase, "never to reject the cause of the defenseless or oppressed," which is in California's State Bar Act and in other state's oaths, codes, etc. (Cal. B&P Code section 6068(h)) But that's clearly aspirational as well.