As reported in this Washington Post editorial (LvHB), a high-ranking administration official recently suggested that major law firms may have to choose between allowing their attorneys to do pro bono work for Guantanamo detainees and retaining high-profile corporate clients. No joke. In a radio interview, deputy assistant secretary of defense of detainee affairs Cully Stimson noted that a "major news organization" submitted a Freedom of Information Act request to learn the identities and law firms of attorneys representing detainees. He continued:
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. And we want to watch that play out. (Emphasis added.)After this suggestion that such pressure should be encouraged (Query: Is this official administration policy?), the Post reports Stimson intimated some firms could be receiving payment for their work on behalf of detainees from nefarious sources.
Asked who was paying the firms, Mr. Stimson hinted of dark doings. "It's not clear, is it?" he said. "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." (Emphasis added.)Mr. Stimson may well have been shooting from the hip, rather than expressing official policy. Either way, the administration should disavow his statements.
It is wrong to attack law firms because their attorneys do pro bono work on behalf of unsavory defendants. All individuals, even suspected terrorists, are entitled to a capable legal defense when subjected to judicial process, and it is wrong to impugn attorneys on the basis of the clients they represent.
I would think this administration could appreciate this principle. When left-leaning activist groups attacked administration judicial or executive nominees on the grounds some had worked for unsavory clients, the administration correctly responded that it is wrong to attribute a client's position to his or her attorney, and that nominees should be judged upon their professional qualifications, rather than the political appeal or moral caliber of their former client base. As Lee Casey and David Rivkin explained a few years back in Policy Review:
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.Folks seem to understand this at the Justice Department and the White House Counsel's office, but I guess Stimson didn't get the memo.
If all the detainees are as guilty as some claim, the administration should have nothing to fear if all detainees receive a vigorous legal defense. Instead, an administration official is suggesting law firms should be punished if their attorneys help detainees. What purpose could this serve, other than to discourage capable and zealous representation for detainees? Back to the Post:
it's offensive — shocking, to use his word — that Mr. Stimson, a lawyer, would argue that law firms are doing anything other than upholding the highest ethical traditions of the bar by taking on the most unpopular of defendants. It's shocking that he would seemingly encourage the firms' corporate clients to pressure them to drop this work. And it's shocking — though perhaps not surprising — that this is the person the administration has chosen to oversee detainee policy at Guantanamo.
One believes that people are entitled to legal counsel or one does not; one believes that lawyers are entitled to provide that counsel without the taint of association or one does not. I would have thought that Mr. Stimson, a lawyer, was fully familiar with Rule 1.2(b) of the ABA Model Rules of Professional Conduct and similar state provisions, and would side with the former views. I see now that I would have been mistaken in thinking so.