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Discouraging Detainee Defense:

Paul Horwitz notes that the issue of which law firms are defending detainees also made it into a Wall Street Journal column by Robert Pollock on "The Gitmo High Life." The bulk of the column discusses the relatively comfortable treatment at least many of the Guantanamo detainees receive. Yet the article also picks up on the suggestion of an "administration official" that law firm representation of detainees should be a "scandal."

Guantanamo detainees don't lack for legal representation. A list of lead counsel released this week in response to a Freedom of Information Act request reads like a who's who of America's most prestigious law firms: Shearman and Sterling; Wilmer Cutler Pickering Hale & Dorr; Covington & Burling; Hunton & Williams; Sullivan & Cromwell; Debevoise & Plimpton; Cleary Gottlieb; and Blank Rome are among the marquee names.

A senior U.S. official I spoke to speculates that this information might cause something of scandal, since so much of the pro bono work being done to tilt the playing field in favor of al Qaeda appears to be subsidized by legal fees from the Fortune 500. "Corporate CEOs seeing this should ask firms to choose between lucrative retainers and representing terrorists" who deliberately target the U.S. economy, he opined.

This article should remove any doubt about the meaning of Cully Stimson's remarks and make absolutely clear that at least some within the administration are encouraging corporations to pressure law firms not to represent detainees.

This audio segment from NPR (LvHB) is also worth a listen, and the New York Times chimes in here.

UPDATE: This New York Times news report suggests that not all of the administration is on board with Cully Stimson — or at least not officially.

In an interview on Friday, Attorney General Alberto R. Gonzales said he had no problem with the current system of representation. "Good lawyers representing the detainees is the best way to ensure that justice is done in these cases," he said.

Neither the White House nor the Pentagon had any official comment, but officials sought to distance themselves from Mr. Stimson's view. His comments "do not represent the views of the Defense Department or the thinking of its leadership," a senior Pentagon official said. He would not allow his name to be used, seemingly to lessen the force of his rebuke. Mr. Stimson did not return a call on Friday seeking comment.

I have also noticed that Stimson is a graduate of my alma mater, the George Mason University School of Law. [Ack!] I guess he must have slept through professional responsibility; he should have to take it again. Hilzoy is less forgiving: "if either having no clue whatsoever about how our legal system works or being willing to try to subvert it is grounds for disbarment, then Charles Stimson should be disbarred."

Old 33:
"Corporate CEOs seeing this should ask firms to choose between lucrative retainers and representing terrorists" who deliberately target the U.S. economy, he opined.

Correct me if I'm wrong, but isn't the official US line on most of the Gitmo detainees that they were people "picked up on the battlefield"?

If you're on a battlefield in Afghanistan, you're not really "targeting the US economy," are you?
1.13.2007 3:41pm
plunge (mail):
This is the sort of unethical behavior that should lead to being disbarred.
1.13.2007 3:46pm
plunge (mail):
Note that there is fairly decent evidence that this was coordinated right-wing talking point: a right wing talk show host was the first to FOIA the list, and this idea has been featured by right-wing pundits like Robert Pollock.
1.13.2007 4:03pm
Peter B. Nordberg (mail) (www):
I cannot dispel the nagging feeling that in addition to being despicable, Stimson's remarks may also be unlawful, though I can't put my finger on any clear doctrinal basis for that suspicion.

Query: Will any corporate clients follow Stimson's suggestion? If so, will any of the law firms knuckle under? And by the way, if they do, would it be lawful and/or ethical to call for a boycott of the aforesaid corporate clients?
1.13.2007 4:04pm
stan (mail):
Link

"...The Pentagon has been using a little-known power to obtain banking and credit records of hundreds of Americans and others suspected of terrorism or espionage inside the United States, part of an aggressive expansion by the military into domestic intelligence gathering.

The C.I.A. has also been issuing what are known as national security letters to gain access to financial records from American companies,..."


1.13.2007 4:17pm
James Dillon (mail):

Will any corporate clients follow Stimson's suggestion? If so, will any of the law firms knuckle under? And by the way, if they do, would it be lawful and/or ethical to call for a boycott of the aforesaid corporate clients?

I would be a bit surprised if these "revelations" have the consequences that Stimson seems to anticipate. Corporate CEOs and General Counsels are a somewhat more legally and culturally sophisticated group than Stimson seems to believe; some of them were probably already aware that their law firms were representing Guantanamo detainees on a pro bono basis (in my experience, firms often advertise their involvement in such high-profile pro bono cases, though I don't know whether any of the firms representing detainees actually did so), and even if they weren't, they're surely aware of the fact that law firms often take on pro bono matters not on the basis of political agreement with their clients, but on the basis of the well-founded belief that providing competent representation even to unpopular or despicable clients is a necessary and worthwhile service to the legal system itself. While Stimson seems to think otherwise, I doubt that very many key corporate decision-makers would agree with him.

As to the second question, firms might well conclude that the bad press accompanying their acquiescence to a client's demand that they drop a Guantanamo case might cost them more, in terms of both clients and recruitment opportunities, than the loss of a client would. I doubt that many NYU or Columbia students would be eager to take a job with a firm that caved in to a corporate client's demand that it terminate its representation of a Guantanamo detainee.
1.13.2007 4:18pm
AntonK (mail):
Adler says that NPR and NYTimes are worth a listen. Jeez....
1.13.2007 4:23pm
Ugh (mail):
Andrew Sullivan:

Sources among the heroic community of pro bono lawyers who are defending some of the innocent and some of the guilty at Gitmo tell me that Stimson's comments are not isolated, that there has been a full program dedicated to the harassment of Gitmo lawyers - surveillance, pettty harassment, pressure on their law firms.

And this:

Attorney General Alberto R. Gonzales said he had no problem with the current system of representation. "Good lawyers representing the detainees is the best way to ensure that justice is done in these cases,"

Is just final confirmation that AG AG is a mendacious hack. Yes, the administration that kept an american citizen in solitary confinement for over three years without a hearing and without access to a lawyer, that fought all the way to the supreme court that they had a right to do so, believes "Good lawyers representing the detainees is the best way to ensure that justice is done in these cases."

What a bunch of morally bankrupt cowards.
1.13.2007 4:25pm
Spitzer:
Unlike English barristers, American lawyers are not ethically bound to represent any client who asks for help. So US law firms have a choice to take pro bono clients at Gitmo, and they should not be immune from criticism for making that choice. I think it is right and proper that clients take notice of the pro bono (and paid) activities of law firms, and there is absolutely no ethical bar for members of the bar to inform the world that law firms are making these types of choices and then to suggest that clients may take such choices into consideration when selecting legal representation.

If this is not the case, would it be equally wrong to advertise the fact that a firm represents, say, the tobacco lobby or the KKK? How many Fortune 500 clients (the types of clients who ensure Wall Street law firms partners can afford their beach houses in Fire Island) would select a law firm who represents the KKK? My guess is none, at least once the fact of the firm's KKK representation is made public. I very much doubt there would be similar howls of protest if a member of the bar announced to the world that a firm represents such a foul client.

As for ethics, couldn't one argue that representing a terrorist who expresses a clear intent to wreck physical and economic destruction on the United States presents a conflict of interest with representing Fortune 500 clients whose fortunes (and lives) are directly or indirectly threatened by the pro bono client? After all, a firm probably couldn't represent a client who was caught actually trying to blow up a building if another of the firm's clients inhabits that same building. I understand that conflicts of interest are sometimes informally relaxed in the pro bono world, but limits must still exist.

On a broader note, one may argue that it is high time that clients take notice of the nearly-perfect leftwing pro bono choices made by wealthy wall street firms such as Cleary Gottlieb. To what extent have those law firm sbeen hijacked so that Fortune 500 clients find themselves involuntarily subsidizing legal representation for pro bono clients whose interests are economically (or physically, in the case of the Gitmo terrorists) inimical to their own? Why would it be wrong for clients to demand that law firms cease representing other clients (pro bono or otherwise) if they want to keep that business?
1.13.2007 4:26pm
PersonFromPorlock:
Considering our apparent trajectory in the War On Terror, mightn't a prudent CEO deem it wise use a firm which also had terrorist clients?
1.13.2007 4:32pm
fishbane (mail):
To what extent have those law firm sbeen hijacked so that Fortune 500 clients find themselves involuntarily subsidizing legal representation for pro bono clients whose interests are economically (or physically, in the case of the Gitmo terrorists) inimical to their own?

To what exent do Fortune 500 companies find themselves paying for a government employee to attempt to coerce them in to certain choices about partnering arrangements?
1.13.2007 4:41pm
DAVOD (mail):
Spitzer's comments are the only comments to adequately address the post. I also agree with Spitzer's remarks.
1.13.2007 4:51pm
JunkYardLawDog (mail):
Why should the enemy incarcerated at Gitmo that is not entitled to any legal representation, imho get better lawyers than the average USA criminal defendant. I say they don't need lawyers or if they do let them get some first year public defense lawyer.

They don't deserve better, and the public and clients have a free speech right to be informed about the activities of the law firms they hire or that occupy their community and to make judgments and express support or aversion to such firms and others. Government employees have free speech rights as well.

When will the big law firm pro bono lawyers start representing parents and christians whose children and rights are abused everyday in public schools, etc. When will they take on advocacy for bible study groups that want the law of equal access to public facilities actually observed. When will they defend abortion clinic bombers; abortion clinic protesters seeking to utilize their first amendment rights?

We all know the answers to these questions. These law firms deserve a lot of questions about their pro bono work, and Gitmo defense would just be one of them.

Says the "Dog"
1.13.2007 4:58pm
Public_Defender (mail):
This New York Times news report suggests that not all of the administration is on board with Cully Stimson — or at least not officially.

Bush can prove it by firing Stimson. If he doesn't, then Bush is on board. Unless Bush wants to say that he was against Stimson before he was for Stimson.
1.13.2007 5:00pm
Bill Poser (mail) (www):
Although US lawyers are not ethically bound to take any client who presents himself, they ARE ethically bound in other relevant ways. As I read the ABA Model Code of Professional Responsibility (http://www.law.cornell.edu/ethics/aba/mcpr/MCPR.HTM), Stimson's statements contravene canons 1 ("A Lawyer Should Assist in Maintaining the Integrity and Competence of the Legal Profession"), 2 ("A Lawyer Should Assist the Legal Profession in Fulfilling its Duty to Make Legal Counsel Available"), and 5 ("A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client"). See, specifically,
EC 1-1

A basic tenet of the professional responsibility of lawyers is that every person in our society should have ready access to the independent professional services of a lawyer of integrity and competence. Maintaining the integrity and improving the competence of the bar to meet the highest standards is the ethical responsibility of every lawyer.


EC 2-25

Historically, the need for legal services of those unable to pay reasonable fees has been met in part by lawyers who donated their services or accepted court appointments on behalf of such individuals. The basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. Every lawyer, regardless of professional prominence or professional workload, should find time to participate in serving the disadvantaged. The rendition of free legal services to those unable to pay reasonable fees continues to be an obligation of each lawyer, but the efforts of individual lawyers are often not enough to meet the need.40 Thus it has been necessary for the profession to institute additional programs to provide legal services.41 Accordingly, legal aid offices,42 lawyer referral services, and other related programs have been developed, and others will be developed, by the profession.43 Every lawyer should support all proper efforts to meet this need for legal services.44


and
EC 5-1

The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties.1 Neither his personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute his loyalty to his client.


This is a flagrant attempt to discourage lawyers from representing unpopular and, in many though not all cases, indigent people and as such is in my opinion grossly unethical. Stimson should be disbarred.
1.13.2007 5:17pm
Spitzer:
From the article, it does not appear that Stimson was attempting to "coerce" corporate clients to take different legal representation. Rather, according to the information at my disposal, Stimson merely advertised and criticized the law firms' pro bono activities. Advertisement and criticism alone are not coercive. Now, as a result of the advertisement and criticism, some corporations may find themselves "coerced" into changing their legal representation, but the engine of the subsequent coercion would not be Stimson's comments but rather the reaction of shareholders, markets, or corporate officers to the information in those comments. As far as I am aware, the information in Stimson's comments was available publicly, and the mere act of making public information more broadly available is not unlawful or unethical. Therefore, any "coercive effect" stemming from this exchange would arise only as a result of the public being made aware of certain disagreeable facts. Lawyers, even government lawyers, cannot act unethically merely by advertising more broadly disagreeable, but public, facts.
1.13.2007 5:18pm
Hattio (mail):
Junk Yard Law Dog,
Please tell me that when you were speaking about abortion protestors and abortion bombers, you don't believe they are one and the same.
1.13.2007 5:24pm
James Dillon (mail):

They don't deserve better, and the public and clients have a free speech right to be informed about the activities of the law firms they hire or that occupy their community and to make judgments and express support or aversion to such firms and others. Government employees have free speech rights as well.

That's among the more absurd arguments that I've heard in this or many other contexts. How on Earth does the First Amendment create a "right" for corporations to be informed about the private actions of private law firms in their representations of other clients? You can start by addressing the lack of state action, and then explain how the right to speech entails a right to information about the activities of others.
1.13.2007 5:29pm
Spitzer:
Bill, I read the canons quite differently. Firstly, the model canons do not have the force of law, and their contents have legal effect only to the extent that state bar associations have adopted them. This is a vital point, for the US does not have a single bar association, and ethics rules of the bar associations mostly deal with client confidentiality, the handling of client money, behavior toward clients (i.e. the no-sex rules), winning clients (i.e. soliciting business), and conflicts of interest with respect to current and former clients. I am unaware of any disciplinary rules that bar criticism of another lawyer's activities, and since the modern legal profession is not a monastic endeavor, I very much doubt that a bar association could institute such a rule without members' support, and within the bounds of the First Amendment.

To take your points more directly, however: (1) EC 1-1 is a merely aspirational canon that does not apply to this situation at all: the comments do not themselves bar representation to Gitmo prisoners (who are not, arguably, members of "our society" in any event), and they do not affect the "integrity and competence" of any lawyers. (2) EC 2-25 is the pro bono aspirational canon - it suggests lawyers should perform pro bono, but lawyers are not ethically bound to perform pro bono (and attempts to make binding such a requirement have been beaten back). Moreover, suggesting that clients take a second look at the pro bono activities of law firms does not infringe EC 2-25 in any way - lawyers do not have a right to a wealthy living or rich clients, and Stimson's comments can not reasonably be seen as barring lawyers from performing pro bono labors (at worst, they might make it more economically difficult for lawyers to do certain pro bono work). (3) Finally, EC 5-1 applies only to a lawyer's behavior toward his client, and the only onus of that canon applies to the acting lawyer, not to other lawyers who may criticize that acting lawyer: I think you would agree that Stimson does not represent the Gitmo terrorists.

I would be happy to hear of any other canons or disciplinary rules that may apply.
1.13.2007 5:31pm
Spitzer:
James: unless there are particular rules that apply to Gitmo by statute, rules, or court order (of which I am blessedly unaware), the fact of legal representation in a litigation matter is a public matter to which no privilege or confidentiality applies. You are of court correct that there is no "free speech right to be informed" of the representation, but you stretch it too far when you suggest that legal representation is a private matter.
1.13.2007 5:34pm
Just Dropping By (mail):
Next up, Spitzer explains that it isn't coercive for someone to stand in front of a store idly toying with a brick and commenting to the store owner that it sure would be a shame if something were to happen to that big plate glass window, but rather a mere expression of concern.
1.13.2007 5:38pm
James Dillon (mail):
Spitzer,

By "private," I was referring to the lack of state action, a prerequisite for the First Amendment to apply. Law firms are "private" entities in that they are not government agencies, and as such their actions are not generally subject to the limitations imposed on the state and federal government via the Bill of Rights and the Fourteenth Amendment. I didn't mean to suggest that the fact of representation is privileged or confidential in the sense that it cannot be revealed to the public, only that, even if Junk Yard Dog's rather ridiculous argument that the First Amendment right to free speech entails a right to information is at all valid, it nevertheless would not apply to private (i.e., non-governmental) law firms.
1.13.2007 5:38pm
Lindybill (mail):
The big mistake here was allowing the illusion to arise that these terrorists are Criminals or POW's who are entitled to our legal system. They are "non-state actors" under the Geneva Convention who can be treated like spies or guerrillas. To be shot on sight.

From "day-one" the Administration should have given them a military tribunal to establish this status, and then a firing squad. That would have stopped all this nonsense. You can "dance all the Angels" you want, but International law in this case is what we say it is.

The outcome of this gutless performance by the Administration is that the Jihadists have achieved a major victory in our "4G" war.
1.13.2007 5:41pm
CharleyCarp (mail):
The attack on lawyers having already been thoroughly discredited (except among deadenders, apparently) I'll address the other parts of Mr. Pollock's column. He responds to straw men, and pretty pitifully at that.

He witnessed a "prisoner" being "interrogated" and it didn't seem harsh to him. While this might refute a claim that every single interaction between interrogators and prisoners is harsh, no one with a brain makes such a claim. 'Good cop, bad cop' is not new. He ate the "same food" that prisoners eat, and it wasn't bad. Again, this might refute the charge that the prisoners are being fed gruel, or being starved. Another claim no serious person is making. (The government's claim that the average prisoner has gained weight suffers from an interesting flaw: it is based on weight when the prisoner arrived at Gitmo, not when they were first taken into custody. Those who lost weight at Bagram, or the prison of darkness, may have gained some back on the high starch Gitmo diet, but maybe not all). An interview with Mr. Paracha's lawyer would certainly have been appropriate, if Mr. Pollock's business was journalism, not propaganda.

To take a step back, though, Mr. Pollock's visit to Guantanamo, and viewing of a Potemkin interrogation, remind me of something. I work in the District of Columbia. I go there every workday, and most weekends. I live 100 feet from the District line, and can see into DC from my bedroom window. In 18 years here, I have never seen anyone smoke crack in Washington DC. Really. What kind of idiot would I have to be, though, to go around claiming based on this experience that no crack has been smoked in DC during all that time, and that all the hype about crack use was just MSM hysteria?
1.13.2007 5:48pm
Elliot123 (mail):
I'm both surprised and amused at the offense many in the legal profession take to this question.

I recall a Minneapolis law firm that was active in fighting affirmative action in Michigan has been soundly rejected by the Minnesota legal community itself. Both the courts and a popular vote agreed with the position taken by the firm's clients. Is this a case where it's OK for lawyers to retaliate against a firm that represents clients they don't like, but it's not OK for the rest of us? Perhaps the legal community realizes better than the rest of us what things would be like if we all emulated it.

Does Hilzoy favor disbarring the Minnesota bar? Did they all sleep through professional responsibility? What schools did they graduate from?
1.13.2007 5:50pm
fishbane (mail):
[...] They are "non-state actors" under the Geneva Convention who can be treated like spies or guerrillas. To be shot on sight.

From "day-one" the Administration should have given them a military tribunal to establish this status, and then a firing squad. That would have stopped all this nonsense. You can "dance all the Angels" you want, but International law in this case is what we say it is.


Did I miss a memo? I thought Geneva was bunk, and international law was not applicable to U.S. actions in a time of war, and anyway the creation of a bunch of wimps and cheese eating surrender monkeys. I guess I have to resubscribe to the talking points distribution list - I didn't realize that Geneva was now reformed, and that the U.S. got a make-it-up-as-you-go pass.

Alternately, I have to say I find it funny to see a "law is whatever I say it is" argument here. I think someone's been watching a few too many John Wayne movies.
1.13.2007 5:51pm
CharleyCarp (mail):
Lindybill: Cite, please. For the 'shot on sight' doctrine.
1.13.2007 5:52pm
CharleyCarp (mail):
And Lindybill, while you're looking that up, maybe you could explain how that provision of law (or whatever you want to make up) applies to civilians arrested by Pakistani police in an apartment in Pakistan.
1.13.2007 5:56pm
Just Dropping By (mail):
I make no excuses for the treatment of the Minneapolis law firm, however an immediate distinction is that no one has suggested that corporations which choose to cease using firms representing detainees are acting improperly, which would be a far closer analogy to the situation you've described than the situation here. Stimson's actions are more analogous to a DA announcing that the corporate clients of a litigation firm which occasionally represents criminal defendants on a pro bono basis should tell the firm to drop those clients or lose their business. (Although, somehow I'm guessing you've drunk so much Kool-aid by this point that you would not even find that unprofessional, let alone unethical.)
1.13.2007 6:02pm
John Steele (mail):
It's not clear that the canons are pertinent here, as they've been superseded in most jurisdictions -- in part because their open-ended aspirational language can't be consistently interpreted or enforced. The more pertinent rule is Model Rule 1.2(b), although that's mostly a rhetorical defense of a lawyer's representation of unpopular clients and not an affirmative duty to represent unpopular clients.

As some have suggested, the inhouse counsel at major corporations are likely to side with the lawyers representing Gitmo detainees, as I explain here.
1.13.2007 6:23pm
Elliot Reed:
Stimson's words amount to a request that private entities punish law firms for representing clients the government doesn't like. That can reasonably be interpreted as a veiled threat by the government to punish the law firms for representing those clients. Perhaps that was not Mr. Stimson's meaning, but it's certainly a reasonable interpretation of his meaning.

The government should not be in the business of retaliating against lawyers for representing clients the government wants to punish. That kind of behavior poses serious due process problems. The government shouldn't threaten to do it either because a threat poses the same due process problems as the act itself. And an apparent threat poses the same problems as an actual threat.
1.13.2007 6:30pm
Bill Poser (mail) (www):
I understand that is the actual disciplinary provisions of the Bar Associations of which Stimson is a member that govern his conduct, not, strictly speaking, the the Ethical Considerations of the ABA Model Code. However, it seems to me that these provide a good guide to the sort of conduct that we should expect. And the provisions that I cite are, I believe, quite generally accepted and found in roughly equivalent form in most jurisdictions. These are not picky details that may vary from jurisdiction to jurisdiction.

As to Stimson's intentions, his comments certainly seem to me to be an attempt to persuade large corporate clients to exert pressure on law firms not to represent detainees and to induce law firms not to represent them, whether by not taking on cases in the first place or by withdrawing from representation if they can. Furthermore, whenever there is pressure not to represent a client, associated with it is the pressure not to represent the client vigorously if one continues to represent him. That is why I think that Canon 5 is relevant.

In context, Stimson does not seem to be lamenting the presence of these considerations nor even to be making a neutral observation about them. My reading of his remarks, and that of the journalists who have described them with headlines such as the New York Times' "Official Attacks Top Law Firms Over Detainees", is that his intention is to complain about the fact that prominent firms are representing detainees.

I have listened to the audio recording of the interview, which you can obtain here: http://www.federalnewsradio.com/emedia/59677.wma. Stimson says (3:18) that "It's shocking" that prominent firms are representing Guantanamo detainees. He characterizes the detainees as "the very terrorists that hit their bottom line in 2001" (3:48). That is hardly consistent with the presumption of innocence or with the fact that many of the detainees had nothing to do with Al-Qaeda and that, if they are not entirely innocent, they are merely people who sided with the Taliban against the invading US forces. This is followed by baseless innuendo to the effect that many of the attorneys are not working pro bono and must be getting funds from some suspicious source.
1.13.2007 6:33pm
Peter B. Nordberg (mail) (www):
As to the lawfulness issue, something may hinge on the extent to which the detainees are thought to possess any semblance of constitutional rights at all.

Stimson's remarks were offered not by a private actor, but by a government official. He is deputy assistant secretary of defense for detainee affairs.

May the government urge boycotts of counsel who represent disfavored litigants? Disfavored criminal defendants? Would it have been consistent with the Fifth and Sixth Amendments, for example, if the Attorney General had encouraged consumers of legal services to boycott counsel representing Timothy McVeigh?

I do not know the answers to these questions. I merely pose them.
1.13.2007 6:52pm
PhillyLawyer (mail):
I agree that given his postion as a government lawyer, Mr. Stimson's comments were inappropriate. But would it be inappropriate for a private organization to make a similar suggestion? Groups upset with edgy TV programming frequently organize boycotts of the offending program's "sponsors" (i.e. advertisers). How is this any different?
1.13.2007 6:58pm
Justin (mail):
I worked on some DP stuff with a nonprofit that also did some Gitmo stuff, and military personnel occasionally hung out outside and "asked if they could talk" with the volunteers. The volunteers were instructed not to talk with them, and I don't know if anything else became of that.
1.13.2007 7:00pm
James Dillon (mail):
PhillyLawyer,

I think there are two levels of criticism being made against Mr. Stimson's comments, one based on his status as a government employee and the other on the substance of his comments. The first, as you note, is that, as a government official, it is inappropriate and unethical for Mr. Stimson to encourage business leaders to boycott firms that represent clients with interests adverse to the government. The second level of criticism does not rely on Mr. Stimson's identity, but rather on the substance of his argument. This criticism asserts that it is not unethical, immoral, illegal, or unpatriotic for law firms to represent Guantanamo detainees, and that Mr. Stimson is incorrect to suggest otherwise. If a private group were to advocate the same position that Mr. Stimson did, it would not be subject to the first criticism, because it is not a state actor, but it would still be subject to the second, because its position would still be substantively wrong. Put more simply, while we can acknowledge the right of private groups to encourage boycotts of law firms or anyone else with whom they disagree on a political issue, we nevertheless retain the right to disagree with those groups' positions.
1.13.2007 7:12pm
Elliot Reed:
PhillyLawyer - interesting question. I think we can distinguish defendants' lawyers [1] (both criminal and civil) from other types of lawyers in this context. If you're arguing that people should punish the lawyers representing some defendant, you're essentially saying that defendant should simply be found guilty (or liable) without a trial (since a trial without a lawyer usually has no practical difference from no trial at all). In that case you're attacking the foundations of our justice system.

I think arguing that lawyers should be boycotted by private individuals (or companies) for bringing a meritless lawsuit, or for helping a company do some legal but morally wrong business deal, is entirely different.
1.13.2007 7:13pm
Just Dropping By (mail):
"But would it be inappropriate for a private organization to make a similar suggestion?"

I wouldn't say it was "inappropriate" in the sense of unlawful. I would, however, say that it was "inappropriate" in the sense that it displays a fundamental contempt for the entire American system of justice, since it undermines the essential notion of right to counsel in the criminal context and, taken to its logical end, subverts civil justice as well (since any given litigant will usually have some person, organization, institution, etc. which would like to see it unable to get competent counsel).
1.13.2007 7:15pm
JonC:
Can anyone point definitively to an ABA Model Rule of Professional Conduct that Stimson may have violated? A few commenters have pointed to the old ABA Canons of Ethics, but it's my understanding that the ABA and nearly all state bar associations have implmented more modern versions of the rules governing lawyers. Note that I'm not suggesting that Stimson hasn't violated any of the ABA Model Rules; I'm just trying to figure out which rules he might be disciplined under if some bar association (the D.C. Bar?) decides to follow up on an ethics complaint.
1.13.2007 7:21pm
Peter B. Nordberg (mail) (www):
I don't think it should be lightly assumed that private speech urging this boycott would necessarily be lawful. Stimson is essentially fomenting a secondary boycott, and those are not always and everywhere permitted by law.
1.13.2007 7:30pm
JonC:
After quickly skimming the Rules, the most on-point rule I could find is 8.4(d): "It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice." Seems pretty vague though, and the Comment to the rule doesn't suggest how it ought to be applied. Anyone else able to come up with anything else more relevant to the facts of this situation?
1.13.2007 7:31pm
Random Commenter:
"Anyone else able to come up with anything else more relevant to the facts of this situation?"

Keep looking. There's got to be something in there you can use.
1.13.2007 8:04pm
plunge (mail):
If the rules of the ABA don't hold as unethical a government lawyer encouraging people to retaliate against those who defend clients the government doesn't want to have representation, then it needs to get some new rules.
1.13.2007 8:25pm
Bob from Ohio (mail):
"I guess he must have slept through professional responsibility; he should have to take it again."

What a load of manure! And words don't describe the use of "disbarment" as somehow appropriate.

You guys can't come up with a rule that Stimson remotely violated.

These lawyers volunteered out of political motives, period. An unknown mid level official gives some mild political pushback and he must be fired or disbarred or sent back for "re-education" for thought crimes. Nice.
1.13.2007 8:35pm
Jeremy T:
Kudos to Spitzer for being one of the few people to have rational thoughts on this subject.
1.13.2007 8:43pm
Shad:
It certainly didn't take very long for the usual frothing crowd to work themselves into a "Stimson should be fired and disbarred because he dared to exercise his first amendment right and voice an opinion I disagree with!" frenzy.

(Bonus irony, no extra charge: The opinion Stimson dared to voice was that there might be negative repercussions for certain lawyers and law firms based on other people's perceptions of their behaviour.)
1.13.2007 8:46pm
Ugh (mail):
These lawyers volunteered out of political motives, period.

I completely agree. The partners at these law firms who support this representation are populated by known leftists whose only goal is to cause the destruction of the society that allows them to charge several hundred dollars an hour.

An unknown mid level official gives some mild political pushback and he must be fired or disbarred or sent back for "re-education" for thought crimes.

Yes, he is a "mid level official" who simply is the "deputy assistant secretary of defense for detainee affairs," which obviously has nothing to do with detainee affairs. He was immediately backed up by the Pentagon, where Pentagon spokesman, Lt. Col. Brian Maka stated that Stimson's comments "do not represent the views of the Department of Defense or the thinking of its leadership[.]" I've already noted AG AG's strong support of Stimson above.
1.13.2007 8:55pm
Elliot Reed:
(Bonus irony, no extra charge: The opinion Stimson dared to voice was that there might be negative repercussions for certain lawyers and law firms based on other people's perceptions of their behaviour.)
Nice place you got here. Shame if something happened to it.
1.13.2007 8:57pm
James Dillon (mail):
Shad,

People are fired for exercising their First Amendment rights all the time, and political appointees are (quite rightly) even more limited in their exercise of that right precisely because they are representatives of the government. If Tony Snow were to stand before a crowd of journalists next week and say that, in his view, the surge policy is a bad idea that is doomed to failure, do you think that the president would not (or should not) fire him on the spot, because he was exercising his constitutional right to criticize the government? Stimson absolutely should be fired, because it is abusive and irresponsible for a government employee, particularly one who is responsible for detainee policy, to seek to curb the exercise of detainees' legal rights. Just Dropping By's DA analogy is quite apt-- it is simply inappropriate, and flies in the face of due process, for the government to attempt to deprive a defendant of legal counsel. Not grounds for disbarment, in my opinion, but most certainly grounds for removing Mr. Stimson from his position in the administration.
1.13.2007 9:00pm
Ugh (mail):
(Bonus irony, no extra charge: The opinion Stimson dared to voice was that there might be negative repercussions for certain lawyers and law firms based on other people's perceptions of their behaviour.)

Exactly right, if he had suggested that these law firms were being paid by terrorists he would have gone too far, but thank goodness he didn't do that, as this AP report demonstrates:

"Others are receiving monies from who knows where and I'd be curious to have them explain that."
1.13.2007 9:01pm
Truth Seeker:
CharleyCarp:
Lindybill: Cite, please. For the 'shot on sight' doctrine.


A citation is demanded for the proposition that during a war enemy combatants can be shot on sight?"

This is the kind of post that screams out for an ad hominem attack, but they're not allowed here.
1.13.2007 10:11pm
Truth Seeker:
Spitzer, the dog, and lindybill are some of the only few with any sense here.

During a war, people who are devoting their lives to destroying western civilization do not deserve the same rights as American citizens who have broken a criminal statute. They deserve to be shot. On sight. But sometimes we need for them to tell us who their buddies are.
1.13.2007 10:15pm
James Dillon (mail):
Truth Seeker,

I for one would love to see a citation in support of the proposition that captive enemy combatants, in U.S. custody, who are unarmed and pose no imminent threat, may be "shot on sight," particularly in light of Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006) (perhaps you've heard of it?) Seeing as you can't make the ad hominem attack you'd like to make, how about defending your apparent interpretation of the law with some citation to authority?
1.13.2007 10:23pm
Cornellian (mail):
I'd sure like to know what Stimson got in Legal Ethics at GMU.
1.13.2007 10:37pm
Quarterican (mail):
For the love of keeping my invective rated "G":

Set aside the fact that while I have no clue if it's legal, I think it's inappropriate for a gov't employee to say such things.

Set aside, even, for a moment, whether you believe people whom we have legitimately detained deserve some or any rights.

The overwhelming failure of certain people to recognize not all the people detained are in fact "people who are devoting their lives to destroying western civilization," and that the only reason some of the people who were detained mistakenly have been released IS BECAUSE THEY HAD ACCESS TO LEGAL REPRESENTATION.
1.13.2007 10:45pm
Quarterican (mail):
I'm sorry, I neglected to actually provide my last paragraph with a verb and an object:

"...frustrates me."
1.13.2007 10:50pm
Elliot Reed:
While I hate to point this out, it's almost certainly false that even the detainees who are factually guilty have spent their entire lives attempting destroy Western civilization. We might be more effective at counterinsurgency if we tried to figure out our enemies' actual goals instead of imagining that they have grandiose, comic-book-supervillain plans.

Some of them almost certainly would like to see Western civilization destroyed, but that's not the same thing as trying to destroy Western civilization. I would have liked to see Ralph Nader elected President in 2004, but that's not the same thing as voting for him.
1.13.2007 11:01pm
John Steele (mail):
Well, it now appears that Stimon is pretty much all alone on this one.

In response to the comments above that the lawyers representing the detainees must be lefties, please remember that lawyers of various political stripes might have internalized the profession's belief that all accuseds deserve competent counsel.

On the question of what rule Stimson violated, the closest rule is 8.4, which at least one commentor mentioned above. I've also seen a quote from Professor Gillers invoking the "engage in conduct that is prejudicial to the administration of justice" standard from that rule. But an actual disciplinary action really can't be brought here, especially since Stimson's speech will have zero effect in the real world.

Rule 1.2(b)is also pertinent, which says "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." But notice that this rule doesn't require any behavior from anybody. It's not even an affirmative defense to discipline charges, since there's no ethics rules prohibiting the representation of bad people. It's really just a rhetorical defense.

The profession does have a deep-seated norm that everyone deserves a defense, and Stimson's comment violates that norm -- as proven by the quick and broad repudiation of the comment. Perhaps the closest thing we have to an affirmative rule is a snippet from the traditional lawyers oath saying, "I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed." But even if that text is more aspirational than binding, those aspirations are sometimes fulfilled. For example, some superb lawyers from the major law firm Morrison &Foerster represented the so-called American Taliban, John Walker Lindh, and in my view brought honor on themsleves and the profession.
1.13.2007 11:03pm
Dave Hardy (mail) (www):
1. I'd agree that a public official has no business trying to get clients to drop an attorney or firm because they took on an unpopular and anti-government case.

2. I rather liked the statement of the attorney (I think one of the Tuckers of Virginia) who defended one of the Haymarket (alleged) bombers in the 19th century... when asked how he could defend anarchy, he responded that he defended the constitution.

3. I'd also agree from my modest knowledge of international law (to the extent there is such a creature) that if the laws of war were applied to the detainees, most would be shot. Not necessarily on sight, but after a drumhead courtmartial. Caught in combat mode, no uniform, not serving a nation-state... not "detainees" but shot.
1.13.2007 11:18pm
James Dillon (mail):

In response to the comments above that the lawyers representing the detainees must be lefties, please remember that lawyers of various political stripes might have internalized the profession's belief that all accuseds deserve competent counsel.

If that canard needed to be dignified with a response, one might point out that Profs. Adler and Volokh, hardly "lefties," have spoken out in criticism of Stimson's argument to a blog community largely populated by fellow non-lefties, where there comments appear to have been generally well-received, with some obvious exceptions.
1.13.2007 11:21pm
James Dillon (mail):
Oops-- correction to my prior post, which obviously should say "their," not "there." How embarassing!
1.13.2007 11:23pm
John Steele (mail):
James Dillon,

I agree with your observation, although I was making reference to the lawyers doing the actual representations (which, unless I'm mistaken, does not include Profs Volokh and Adler).
1.13.2007 11:51pm
Bruce Hayden (mail) (www):
This is a tempest in a teapot. The corporate clients aren't going to push their white shoed law firms to drop representation of Gitmo clients. Stimson may think they should. I may think they should. But they won't. They might if it went to a vote of the stockholders or the board of directors. But that is not the way that picking representation works for the big companies that hire these types of firms.

The idea that this sort of thing would dissuade corporations is based on the idea that attorneys are interchangable. But the companies who hire this sort of firm obviously don't think so, because they are willing to pay $500 an hour for attorneys, instead of $100 an hour. And, indeed, willing to pay more for raw associates from these firms that they would pay for experienced attorneys outside them. The companies obviously feel that these firms provide value, and this sort of pro bono work is totally on the side there. It mostly doesn't matter. It is totally window dressing.
1.14.2007 12:36am
Truth Seeker:
James Dillon:
Truth Seeker,
I for one would love to see a citation in support of the proposition that captive enemy combatants, in U.S. custody, who are unarmed and pose no imminent threat, may be "shot on sight,"


Well, of course I didn't mean when they were in U.S. custody, I meant before they were in US custody, when they were first encountered in combat, on the battlefield, in the warzone, etc. Instead of saying "Come out with your hands up" we should have just bombed the building.

All you leftist terrorist sympathizers have succeeded in doing is be sure we don't take any prisoners in the future. We'll either kill them on sight or give them to some country that has no prisoner rights. Or if it's a country trying to turn a terrorist over to us, we'll tell them they need to interrogate them instead of give them to us. HA! You can't win!

And just in case you (and the terrorists) win, they'll detonate their nuclear bomb in NYC or SF or LA or somewhere else filled with pro-terrorist leftists.
1.14.2007 12:39am
Elliot123 (mail):
Would all this discussion wither and die if Stimon wasn't a lawyer? Let's say Chris Matthews or Bill O'Reilly said it. Can't disbar them, snark about their grade in legal ethics, or quote Rule 8.4. So, what would be the problem then?
1.14.2007 12:45am
CharleyCarp (mail):
Truth Seeker, you missed both my questions. As for the law that allows the US to execute captives on sight, and obviously I'm not talking about during hostilities, but after, I see no answer. As for the applicability of whatever you come up with the persons arrested in Pakistan by Pakistani police, still nothing.
1.14.2007 1:30am
jukeboxgrad (mail):
This is rich. Josh Marshall points out that Scooter Libby is on the wrong side of Stimson's proposed boycott.
1.14.2007 2:05am
Eugene Volokh (www):
Peter Nordberg: Private speech urging boycotts for political reasons is indeed constitutionally protected, see NAACP v. Claiborne Hardware (1982). The rules are somewhat different in the context of labor union speech, especially picketing, urging secondary boycotts; I'm not sure the Court was right in allowing restrictions on such speech, but it has. Still, the general rule is that speech urging boycotts outside the labor union context is protected under Claiborne.
1.14.2007 3:22am
Public_Defender (mail):
Unlike English barristers, American lawyers are not ethically bound to represent any client who asks for help. So US law firms have a choice to take pro bono clients at Gitmo, and they should not be immune from criticism for making that choice. . . .

It's one thing for the general public to make the criticisms, it's another for the government to launch a public relations campaign to try to get their opposing counsel removed.

The public criticism would be unfair, but it's well within their First Amendment rights. But when government tries to win cases by attacking it's own opposing counsel, the government is attacking the adversarial system. The government is also showing a lack of confidence that it can win on the merits.

Good prosecutors want to face good defense counsel. Good prosecutors understand the system, and they are willing to put their accusations and arguments to a fair test (and let's face it, they usually win). It's the slimy prosecutors who want either no opposing counsel or poor opposing counsel.

And while it is the public's right to make criticisms, here, it looks like Stimson's comments have backfired. The law firms are getting more publicity, and folks are reminding their big paying clients that the big paying clients are also sometimes unpopular. So those clients know that if the firms dumped the Gitmo clients because of bad publicity, the firms might dump unpopular corporate clients as well. And the firms aren't going to let that happen.
1.14.2007 4:26am
Justice Stevens (mail):

The public criticism would be unfair, but it's well within their First Amendment rights. But when government tries to win cases by attacking it's own opposing counsel, the government is attacking the adversarial system. The government is also showing a lack of confidence that it can win on the merits.


Without belaboring the utter silliness of the above argument, I offer the following comment. Opposing counsel is a term that applies to a pair of lawyers representing clients whose names usually appear in the case caption. If I represent Mr. X and you represent Mr. Y in the case of X versus Y, then we are opposing counsel. Other signs that we might be opposing counsel are if we send each other vitriolic letters concerning discovery or if we appear before a judge to discuss procedural or scheduling matters pertaining to the case of X v. Y. That said, Mr. Stimson is a lawyer who works for the government, but he is not a government lawyer as is Paul Clement. In many of these detainee cases, Paul Clement was the opposing counsel, not Mr. Stimson. If Paul Clement had made comments like those of Mr. Stimson, then perhaps we might have a major story on our hands. As it is, we have a policy official making off-the-cuff remarks. He happens to be a lawyer. But his comments in no way, shape, or fashion reveal the opinions, attitudes, or impressions of government lawyers who are opposing counsel in any cases involving detainee rights. For example, Hamdan.
1.14.2007 5:46am
markm (mail):

Elliot123 (mail):
Would all this discussion wither and die if Stimon wasn't a lawyer? Let's say Chris Matthews or Bill O'Reilly said it. Can't disbar them, snark about their grade in legal ethics, or quote Rule 8.4. So, what would be the problem then?

If a non-lawyer said that, he'd be demonstrating either his ignorance of how the legal system works, or his contempt for it. No problem, the media demonstrate their ignorance and contempt for our society every day. However, if a lawyer says that out of ignorance, he never should have received a license to practice, because he doesn't understand the first thing about the profession.

So, charitably assuming that Stimson is not incompetent, a lawyer working for the government knowingly tried to undermine the justice system to the advantage of the government in a set of particular cases. That's quite a lot different from a non-lawyer or a lawyer in private practice saying the same thing. The statement can also be distinguished from someone criticizing the way the justice system works in an attempt to make changes in it.
1.14.2007 6:25am
Lindybill (mail):
The admin made the mistake of letting you people treat them as "criminals." They are not. Any more than the German spies who came ashore during WWII were.

But now most of you are bogged down with discussions of their "rights." They don't have any "rights." They are non-state actors and can be treated as we please to treat them. The only international law that can be cited is in treaties that we signed, not laws and regulations set up by others that we are not bound to observe.

That means we can kill them when we find them fighting us. That is what I meant by "shoot on sight." We have no obligation to try to arrest them and read them any "rights." If we do take them prisoner, we can use a Military Tribunal and shoot or otherwise dispose of them. Our big mistake has been to keep them alive. It allowed the Left to make an issue of them, which is precisely what the Jihadists want. The Al Qaeda Manuals have instructions on how to act in prison in order to make yourself a "victim" and gain sympathy.

This is war, not policing. General Pershing, while a field officer in the Philippines, was very successful in putting down Muslim uprisings. One thing that is supposed to have worked for him was to bury the Muslim dead in pig-skins and publicize this action. Cut down on the number of volunteers for martyrdom.

For those of you who are familiar with the HBO series, DEADWOOD, adopting the plot idea of "sending the bodies to Wu" is excellent. Wu was the head of the Chinese community in Deadwood, and owned a large pigpen. Whenever Al Swearengen, the local Tavern owner, would dispatch someone, he would have one of his henchmen load the body in a cart and dump it in the Wu's pigpen. Cut down on Boot Hill burials.

If we had done something like this during the take-down of Afghanistan, it would probably have drastically slowed the recruitment of new Taliban and Al Qaeda members.

Of course, this is all "woulda, coulda shouda" now. The International Left has been highly successful in making "victims" out of these Salafi Jihadists.

I read a post here that proposed that we should talk to them and find out what they "really want." We know precisely what they want. Osama has written about it in detail. They want to take over the Mid East, set up a Wahhabi-run Caliph, and kill anybody how gets in their way.

We are engaged in what Historians will end up calling a "long war." We are facing the "Swamp" full of Islamic barbarism that is breeding Salafi Jihadist "Alligators."

There are two main sources of Alligators in this Swamp. The Sunni based Wahhabi Theology that comes from Saudi Arabia, and the Shiite "12th Imam" Theology coming out of Iran. These two creeds have hated and fought each other for many centuries. But they will band together to fight us whenever, "the enemy of my enemy is my friend" makes sense for them.

We need to recognize that this is what we are up against. Until we do, we don't have any chance of defeating them.


Once we do understand this, our mission will be to kill the Alligators while letting the rise of "Globalism" drain the swamp.
1.14.2007 6:56am
Justice Stevens (mail):

So, charitably assuming that Stimson is not incompetent, a lawyer working for the government knowingly tried to undermine the justice system to the advantage of the government in a set of particular cases.


Again, without belaboring the silliness of the above argument, let me comment on its sophistry. Stimson may be a lawyer working for the government, but he is not working for the government because he is a lawyer. He is employed as a public official who generates and administers public policy. Certainly his law degree may assist in the performance of his job duties, but a law degree is not necessary. I would imagine a foreign services officer would rise through the diplomatic ranks more quickly if he had a law degree, given the issues of international law that arise in the course of his workday, but one need not be a lawyer to be a foreign services officer. In sum, Stimson is just a government official who, as a matter of personal biography, happens to have acquired a law degree before his hiring.

As to Stimson purposely undermining the justice system, I must confess I have no idea what the empirical parameters of "undermining" are. It sounds to me like a subjective judgment. Moreover, it sounds like a normative assessment of the content of Stimson's politics. In English, "He's 'a threat to the justice system' because you want him to shut up."

How Stimson's comments would advantage the government is beyond me. Stimson has been roundly criticized both within the administration and without it. How increasing the quantity of bad press the Bush administration gets helps the Bush administration in the pursuit of its public policy goals must have been taught in that stochastic manifolds seminar I missed out on. To my simple mind, it sounds absolutely absurd, like a claim that shooting yourself in the foot helps you run a marathon.

What is missing from the silly argument I box quoted, of course, is any analysis of what Stimson actually said. He made, in my mind, anyhow, a crucial distinction between law firms providing pro bono and law firms receiving funding from al Qaeda front-operations. Lawyers need not accept any particular client and any American lawyer who takes a check from Osama bin Laden to defend an enemy of all Americans is manure.
1.14.2007 8:00am
Justice Stevens (mail):

From the New York Times: One Washington law firm, Shearman &Sterling, which has represented Kuwaiti detainees, has received money from the families of the prisoners, but Thomas Wilner, a lawyer there, said they had donated all of it to charities related to the September 2001 terrorist attacks. Mr. Ratner said that there were two other defense lawyers not under his group's umbrella and that he did not know whether they were paid.


Stimson was correct that firms were paid. But where did the money originate? Saddam Hussein used to pay the families of terrorists if their relative died or was captured. Saddam is gone. But is all terrorist financing gone? No. Can we say Iran?
1.14.2007 8:26am
fishbane (mail):
In sum, Stimson is just a government official who, as a matter of personal biography, happens to have acquired a law degree before his hiring.

And:

What is missing from the silly argument I box quoted, of course, is any analysis of what Stimson actually said.

And:

any American lawyer who takes a check from Osama bin Laden to defend an enemy of all Americans is manure.

I think what we have here is classic sophistry, combined with advocay of a non-extant defendant. The payload is an attack on somthing that does not exist, with the argument attacking a position similar to arguing that a doctor who happens to offer a diagnosis on television on review of a video is not violating ethics rules. (No politics here, boss!)

I will happily stand corrected when you produce the name of "any American lawyer who takes a check from Osama bin Laden".
1.14.2007 8:55am
Pantapon Rose (mail):
While a government official should probably not be the one to raise this issue, I can see a corporation wondering whether they were dealing with a law firm with the next Lynne Stewart. And asking how many of terrorists' attorneys, like Stewart, are aiding the jihad. She doesn't seem that much further left than many other civil rights attorneys.
1.14.2007 9:55am
Bpbatista (mail):
Doing pro bono work for Gitmo thugs is plainly a political act. Don't be surprised if you get some sort of blow back from that activity. And many, if not all, major law firm partnerships are populated with liberal Democrats who despise GWB.
1.14.2007 10:12am
Hoyasquared:
In recent years, clients have begun putting pressure on major law firms to change their internal policies. Most notably in the area of diversity of hiring. You can check this with NALP. Clients pressure their law firms to hire more women and minorities, and the firms are responding. I haven't heard howls of outrage over that fact.

On a different note, I am interested in the unspoken assumption here that lawyers who represent corporate clients are politically aligned with their clients. In my experience among major firms in DC, that is not necessarily the case. DC lawyers are roughly as liberal as the community in which they live. For many of these lawyers and their firms, pro-bono becomes in a sense a way to atone for the sin of representing corporate America. This can be quite offputting if you don't start with the same liberal assumptions as so many DC area lawyers. For example, many of the law firms I interviewed with and summered with as a student made a point to showcase their activism against the death penalty. They did so I believe both because they were personally opposed to the death penalty, and because they thought that highlighting that particular aspect of pro-bono representation would help snag liberal law students who otherwise would be leery of working for law firms that predominantly represent large corporate clients. That same attempt, however, suggests to conservative law students that those same firms aren't going to be very friendly places for them, no matter who is on the paying client list. But any conservative law student already knows that most DC area lawyers are liberals.

The internal politics of the DC bar is why it is not controvercial at all for clients to pressure law firms to use affirmative action in their hiring, but it would be controversial for those same clients to question the political choices made by law firms when they donate their time and resources in pro-bono representation.
1.14.2007 10:45am
Mark Field (mail):

All you leftist terrorist sympathizers have succeeded in doing is be sure we don't take any prisoners in the future. We'll either kill them on sight or give them to some country that has no prisoner rights. Or if it's a country trying to turn a terrorist over to us, we'll tell them they need to interrogate them instead of give them to us. HA! You can't win!

And just in case you (and the terrorists) win, they'll detonate their nuclear bomb in NYC or SF or LA or somewhere else filled with pro-terrorist leftists.


It's good to see that "substantive arguments" like this can get a respectful hearing in this forum. Just so long as we keep out all those nasty swear words.
1.14.2007 10:55am
Shangui (mail):
One thing that is supposed to have worked for him was to bury the Muslim dead in pig-skins and publicize this action. Cut down on the number of volunteers for martyrdom.

Thanks. This is useful in getting a better idea of the type of moral notions that form the basis for your "arguments." I've got an idea, why don't we do this while wearing ski masks and then send the grainy videos to Fox News or some Christian website?
1.14.2007 11:34am
Public_Defender (mail):
There is a big difference between arguing about what the law should be, and arguing about whether someone should have access to pro bono counsel to assert whatever rights they may have.

Permitting the detainees to have access to lawyers to argue their case doesn't mean that the detainees will win anything. It just means they have a shot at getting whatever the law entitles them to (which may be nothing).

We lawyers are actually very weak. We can't storm the gates at Gitmo. We can't break down the doors of the Pentagon. All we can do is file papers making arguments. And those arguments are only as strong or as weak as the facts and the law make them.

Why are Bush and Stimson afraid of the facts and the law?

As to corporations subsidizing the pro bono work, it's more accurate to say that the lawyers are using their vacation time. Instead of spending a couple of weeks at their vacation home, they are working for free. I don't see how that could be morally suspicious.

[I meant to post this comment in this thread, but posted it first (in slightly different form) in Professor Volokh's most recent thread on the topic.]
1.14.2007 12:08pm
Truth Seeker:

One thing that is supposed to have worked for him was to bury the Muslim dead in pig-skins and publicize this action. Cut down on the number of volunteers for martyrdom.

Thanks. This is useful in getting a better idea of the type of moral notions that form the basis for your "arguments." I've got an idea, why don't we do this while wearing ski masks and then send the grainy videos to Fox News or some Christian website?


If terrorists use Koranic verses to justify their acts what could be better than using other Koranic provisions (such as threatening to wrap terrorists bodies in pig skin so they don't get to heaven) to stop them? Sounds brilliant.
1.14.2007 12:28pm
twwren:
Is it really pro bono work in the case of large law firms where a certain amount of such work is built into the fee structure and subsidized by paying clients?
1.14.2007 12:33pm
godfodder (mail):
What some of you forget is that there is a good reason for treating uniformed soldiers differently than un-uniformed spys and saboteurs. That is: we wish to discourage countries from routinely employing guerilla warfare, because it causes disporportionate civilian casualities.

That is the government's compelling interest! We wish to encourage, in the most direct and persuasive way possible, foreign fighters to adhere to basic "rules of war." Civilian lives are saved, and wars have a clear end-point when they are carried out between armies that clearly identify their state sponsorship. Just look at Iraq if you doubt what I am saying.

If there is no punishment for war strategies that seek to maximize civilian casualities, obscure state sponsorship, and make it impossible to recognize non-combatants, then some states will do precisely these things. Again, look at Iraq.

Until war is abolished, it is in the interest of every civilized human being that it be fought in a carefully constructed way. Armies and states and individuals who violate those rules need to be punished severely! Otherwise, every war will quickly become "total war," in which non-combatants have no hint of protection. Instead, civilians will be used as just another war resource-- to be burned up or conserved as one chooses. We call people who do such things "barbarians" and "war criminals." If we cease punishing this behavior, we will get more of it. More suffering, more civilian deaths, bloodier wars, wars that are more catastrophic to civilian populations.

Get it now? Look up "total war" in Wikipedia if you want a glimpse of the future if Iraq becomes the template for all future wars.
1.14.2007 12:39pm
Public_Defender (mail):
Is it really pro bono work in the case of large law firms where a certain amount of such work is built into the fee structure and subsidized by paying clients?

Yes. Saying that paying clients "subsidize" pro bono is like saying that paying clients "subsidize" vacation time.

As to associates, it depends on the firm. Some firms consider pro bono work the equivalent of billable work, some firms claim to consider pro bono work the same as billable but really treat is like vacation, others openly treat pro bono work the same is if the associate were on vacation (i.e., the associate gets zero internal credit for the work).
1.14.2007 12:39pm
godfodder (mail):
I meant "disproportionate,"not the way I spelled it. (Sorry. Can't help it. It's the English major in me.)
1.14.2007 12:43pm
Public_Defender (mail):
What some of you forget is that there is a good reason for treating uniformed soldiers differently than un-uniformed spys and saboteurs. . . .

What does this have to do with whether lawyers should work for free to assert whatever rights detainees might have? If the detainees have no rights in court, then the Bush administration should be happy to let the lawyers use what could be their vacation time to argue in vain.
1.14.2007 12:45pm
godfodder (mail):
Yes, Public Defender, you are right. This is only tangential to the original point of the thread. My comments have to do with the more fundamental question of why guerilla combatants should not necessarily be treated well when they are captured.
1.14.2007 12:54pm
Ugh (mail):

My comments have to do with the more fundamental question of why guerilla combatants should not necessarily be treated well when they are captured.


Not treating them well when captured also makes them less likely to surrender.
1.14.2007 1:00pm
Public_Defender (mail):
godfather,

Yes, the thread did drift. People made comments on the other side of the question of what rights the detainees have or don't have, so it was unfair to single you out. Sorry about that.
1.14.2007 1:00pm
Byomtov (mail):
Is it really pro bono work in the case of large law firms where a certain amount of such work is built into the fee structure and subsidized by paying clients?

Yes. If a law firm can command certain fees, say $500/hr., then every hour it provides for free has an opportunity cost of $500. Don't tell me they raise their fees to cover it. If they can get $600 to "cover the cost of the pro bono work" then they could get it even without the pro bono work.
1.14.2007 1:36pm
Parvenu:
Well, let's see here ...

That Stimson is violating the spirit of the Model Rules of Professional Conduct (2004) is almost beyond question. See, e.g., the Preamble to the Model Rules, paragraph 6 (lawyer's role and responsibilities as a public citizen). The Preamble, however, like the Preamble to our Constitution, or the Declaration of Independence, is only a strong and official statement of intent; it has no independent legal force and serves only as an interpretive aide.

MRPC Rule 8.4 provides that "It is professional misconduct for a lawyer to (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; ... (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law." Additionally, the comment to that rule (interpretive, but pertinent) provides that "Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer's abuse of public office can suggest an inability to fulfill the professional role of lawyers." MRPC 8.4 c. 5. Comment 1 to Rule 8.4 also fleshes out 8.4(a) thus: "Lawyers are subject to discipline when they violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so or do so through the acts of another, as when they request or instruct an agent to do so on the lawyer's behalf." (Emphasis added.) One critical issue is going to be how far beyond this "as when" clause the rule is intended to be read; Stimson's conduct was not directed at his agents but at corporations with whom he has no direct relationship, but over which he (or the U.S. government, if his statements are at least partly identified with his public office, not merely Stimson himself) might have influence.

Beginning in Chapter 8 is important because you're out of the realm of "should" and "should not" when you get here; Chapter 8 speaks in terms of "shall" and "shall not." Chapter 8 is not aspirational. It is prescriptive.

The question thus becomes not whether Stimson himself is violating the Rules of Professional Conduct; it only matters if he is trying to induce others to do so. The ultimate issue is therefore, is what he is trying to bring about a violation of the Rules of Professional Conduct, with himself as the prime mover, even if not the final link in the causal chain?

I admit this is where I get stuck. Stimson will say, at any hypothetical proceeding, that all he is trying to do is get lawyers to choose different pro bono clients, and there is no obligation to take a particular client pro bono. There are far more opportunities than available lawyers, after all. Declining to take a particular client is not a violation. Even terminating representation of a particular client is not generally a violation, if I remember correctly, unless done in bad faith. Therefore, he will say that his endgame is nothing that amounts to misconduct, and therefore, nothing he intended to induce (or did induce) can be grounds for disbarment under 8.4.

If there is a legitimate argument that he is attempting to induce something that amounts of a violation of the Model Rules, I do think that the chain of liability back to him is strong enough that that he would not escape. The counter-argument is that the corporations themselves are independent loci of decision-making and that therefore it would ultimately be their decision, not his, to pressure the private law firms. That seems pretty weak to me, since a compelling case could be made that, but for the statements made by a high-level government official, the corporations in question wouldn't have bothered wasting time even thinking about it.

I also suggested 8.4(d) and 8.4(e) as alternative theories of liability, but I'm less convinced on those than I am on the "induce" prong, and I don't have the patience to run those down right now. (Also, I've rambled on way too long as things stand.)

As a final note: one ought to make a distinction between lawyers in the target corporation (i.e., the general counsel) and non-lawyers. General counsels are not wholly subsumed into the identity of the corporation; they are still individual lawyers. Therefore, even if the corporation as a whole were of a mind to interfere with the attorney-client relationship between Hunton &Williams and Gitmo detainess, the general counsel might well want to steer clear of anything to do with it. The GC might have a duty not to compete or work against the express interests of its corporate client, but also has an obligation not to get involved with a corporation doing something that the corporation might have a right to do, but the lawyer as an individual would not. Maybe this is purely precautionary, but if I were general counsel of a corporation intending to interfere with other attorney-client relationships of my outside counsel, I honestly have no idea how I'd react other than feeling extremely squeezed.
1.14.2007 1:46pm
Mahan Atma (mail):
"What some of you forget is that there is a good reason for treating uniformed soldiers differently than un-uniformed spys and saboteurs."


So what's the U.S. government's excuse for using non-uniformed "private security contractors"? Think these guys aren't engaged in combat?

Perhaps you haven't seen that video of the Aegis randomly shooting civilians:

LINK
1.14.2007 1:46pm
SG:
So what's the U.S. government's excuse for using non-uniformed "private security contractors"? Think these guys aren't engaged in combat?


The current situation argues strongly in favor of this trend continuing. The US Military has all sorts of restrictions placed on its operations (see, say, this thread), yet receives no advantage domestically nor from the enemy for its troubles. Private contractors don't have the same inhibitions on their actions, nor are they subject to greater punishment from the enemy due to not being in uniform or under a formal chain of command.

I don't think this trend is a positive development, but I think it's a logical outcome when one side respects an ever increasing array of legalistic obstacles while the other side has none. The exact same dynamic can be seen at work with the US manufacturing industry moving to China.

For all those who are asking for more rights to be granted to prisoners: Be careful what you wish for...
1.14.2007 2:04pm
Mahan Atma (mail):
"I think it's a logical outcome when one side respects an ever increasing array of legalistic obstacles while the other side has none."


I'd say it's outcome of our government having an ideological bent towards privatization.

If you need any further confirmation of this, see this excellent article by Rajiv Chandrasekaran and how the CPA's desire for privatization severely crippled the effort to keep Iraq's factories functioning immediately after the invasion:

LINK

Rather than using government money to keep the factories open (thereby allowing tens of thousands of otherwise unemployed Iraqis to keep their jobs), Paul Bremer and the CPA decided to let "the invisible hand" do its thing, thinking private owners would come along and buy up the factories.

Only problem? The buyers never came...
1.14.2007 2:14pm
Mahan Atma (mail):
BTW, SG, your statement seems to assume that removing these "legalistic obstacles" results in a more effective way to wage war.

Well, when the objective of the war is to establish a democratic society that is not harmful to U.S. interests, how does it help to have private contractors shooting up civilians at random?

For that matter, how does it further any military objective to have private contractors shooting up civilians at random?
1.14.2007 2:18pm
Duncan Frissell (mail):
But libertarian lawyers don't believe in licensure of the legal profession so they don't believe in disbarment. That's a perfectly defensible position.

If I as a licensed attorney want to call someone a terrorist symp who should be fired, surely I have a 1st amendment right to do so. In fact, I am and I have.

The NYT article quoted some terrorist symp as saying that lawyers may have an obligation to defend criminals but, of course, the POWs aren't criminal suspects. They're POWs or perhaps pows (to reflect their non-Geneva status). You get to keep them until the end of the war.

This whole ethics con is just a left-wing attempt to substitute personal (left-wing) opinion for established principles of right and wrong. I already have those lists from religion and common law. I don't need up-to-the-minute commie garbage for guidance.
1.14.2007 2:36pm
SG:
Mahan Atma,

I didn't say it was a good thing, I said it was a bad thing. I also think it's bad that polluting industries move to China where it's legal to pollute rather than here where they'd have to be cleaner.

But people need security and are willing to pay for it. And the enemy has as a matter of strategy chosen to be indistinguishable from the civilian population. Largely because any attack on them can then be spun as shooting up civilians at random, which then becomes a defeat of the US Government. Having civilians contractors do it puts the US Government at arms length.

It's not my position that this is the reason that contractors are being used currently. I am saying that I imagine seeing private armies becoming a larger part of the battlespace. Not limited to Iraq, and not limited to the US Government as the paymaster either (I'd guess that oil companies will lead the way). Given the political realities, western governments are at a disadvantage when fighting against an enemy that willingly blends in with civilians. Private armies operating in lawless regions won't be. It's the capitalist equivalent of the Madhi Army.
1.14.2007 2:38pm
Mahan Atma (mail):
SG,

I understand your position that it's not a good thing. I'm addressing the statement that it's a logical outcome. I think that assumes it's effective in some sense.

Again, if our goal is to establish a democratic society that functions under the rule of law, I don't understand how we further that goal by subverting the law.

Also, I'm not sure it puts the US government at arms length at all, since the US government is the one footing the bill. And certainly the people of Iraq can tell who the westerners are, by and large. They're all going to get associated with the U.S./Britain.
1.14.2007 2:51pm
Charlie (Colorado) (mail):

As for the law that allows the US to execute captives on sight, and obviously I'm not talking about during hostilities, but after, I see no answer.


Why would that straw man deserve one?
1.14.2007 3:38pm
twwren:
We have established that law firms have to cover the cost of pro bono work in their fee structure just as they cover vacvation, sick time, holidays, etc. So, as a client, my hourly fee is covering this cost. As a general counsel, is it ethical for me to ask a law firm that I employ to provide a list of pro bono work and to make the employment decision dependent on whether such work benefits my company, or at least does not harm it?
1.14.2007 4:16pm
SG:
Mahan Atma:

You made some inferences that I don't agree with.

1) I don't think that outsourcing/privatizing of hostilities would be effective at the stated US goals of democratization, and would be an implicit admission that those goals are not acheivable, at least near-term.

2) The US Government won't be the only player in this game. That's what all those sectarian militias are in Iraq. The realization has been made that the US and Iraqi governments are not able to provide security against an enemy that purposely conflates itself with civilians. The government isn't willing to do what is required to gain and maintain a monopoly on the use of violence. This creates a vacuum that will be (and has been) filled.

3) Even with the US Government, I don't think that it would necessarily be outsourced to westerners. For example, we largely outsourced dealing with Somalian Islamists to Ethiopia. My understanding is that the US supplied them with intel, paid their bills, gave them fuel, provided logistics, etc. Our direct involvement was limited to gunship attacks as the Islamists were retreating.

As far as providing deniablity, I don't know what the Ethiopian ROEs were like, but I'm guessing they weren't anything like ours. I know that whatever they were, the US government hasn't been tagged with responsibility for the whatever destruction was done, so it does seem to have been politically successful.
1.14.2007 4:43pm
James Dillon (mail):

But is all terrorist financing gone? No. Can we say Iran?


Can we say "family of the accused," since that's what the NYT article said? Of course, it was probably a bad PR move for Shearman &Sterling to accept payment for that work, even if they did donate it.

Truth Seeker,

Yes, you've got me. All this nonsense about respect for due process and human rights is just a cover for the fact that I really, really want al Qaeda to drop a nuke onto NYC, preferably right on top of my apartment. I've been undercover as an atheist NYC lawyer for years, but just like every other proponent of humane treatment of prisoners (including most of the Democrats and many Republicans in Congress), I'm really a jihadist militant plotting the downfall of Western civilization. Please don't tell Homeland Security.
1.14.2007 5:10pm
Nadine Carroll (mail):
>>"What some of you forget is that there is a good reason for treating uniformed soldiers differently than un-uniformed spys and saboteurs."


So what's the U.S. government's excuse for using non-uniformed "private security contractors"? Think these guys aren't engaged in combat?


This might indeed give us pause, if we were fighting an enemy who obeyed a single law of war as laid out in the Geneva Conventions. Since they don't, and nobody on the planet seems to expect them to, it hardly makes a difference, does it? Any prisoners they take wind up as mutilated corpses. We know that ahead of time.

BTW, contractors, war correspondents, and the like, who are attached to an army, are covered in the Third Geneva Convention as needing to obey the laws of war and entitled to the rights of POWs. Those who are explicitly not covered are those who do not wear some distinguishing mark, carry arms openly, and obey a military hierarchy.

Therefore the Fourth Geneva Conventions mentions saboteurs (who operate disguished as civilians behind enemy lines) as being outside the normal protections in cases of military necessity. In WWII, it was understood by both sides that saboteurs could be summarily shot upon capture. I believe these passages in the Third and Fourth Geneva conventions were what LindyBill was referring to when he suggested that our military retain the option to treat captured terrorists as saboteurs and shoot them.
1.14.2007 5:43pm
Public_Defender (mail):
We have established that law firms have to cover the cost of pro bono work in their fee structure just as they cover vacvation, sick time, holidays, etc. So, as a client, my hourly fee is covering this cost. As a general counsel, is it ethical for me to ask a law firm that I employ to provide a list of pro bono work and to make the employment decision dependent on whether such work benefits my company, or at least does not harm it?

If the law firm is willing to leave clients high and dry after a little bad publicity, could those corporate clients have any confidence in the firms?

Ironically, this publicity is making the firms look better, not worse, especially to their fellow lawyers. And it's the corporations' in house counsel who make the decisions on which firms to hire.

Ain't the First Amendment great?

And if one of my clients asked for a list of my other clients, I'd say, "None of your business."
1.14.2007 5:46pm
James Dillon (mail):
Law firms do, of course, have an ethical obligation to inform an existing client (and sometimes obtain that client's consent) before commencing representation of another client whose interests are actually adverse to the first client's. But I can't imagine that any court or ethics board would hold that a Guantanamo detainee's interests are sufficiently directly adverse to those of a Fortune 500 corporation to trigger that obligation.
1.14.2007 6:01pm
John Steele (mail):

"As a general counsel, is it ethical for me to ask a law firm that I employ to provide a list of pro bono work and to make the employment decision dependent on whether such work benefits my company, or at least does not harm it?"


I can't think of an ethics rule that such a request would break. But, in my experience, that's way too crude for most inhouse counsel anyway. Issues like that get worked out in more subtle ways.

Notice, also, that some law firm tout their pro bono work as recruiting tools or to win professional awards. One might argue that if firms use pro bono to garner social praise they can't be too shocked if they garner criticism as well. In fact, IIRC, there recently was a student boycott of a major firm for representing a religious charity that opposed same sex adoptions. We've also seen lots of praise for corporate clients for threatening to boycott law firms that have bad diversity statistics. So, I think that, within limits, there can be a healthy give and take between firms and clients on issues like this, but we certainly don't want the federal government or corporate clients to call all the shots for the legal profession.
1.14.2007 6:29pm
John Steele (mail):
Here's an interesting case history on this topic of corporate clients and major law firms. A major firm stepped out of a pro bono representation of New York City in a lawsuit about gun accessibility. After inquiries from corporate clients who were not defendants in the suit, the firm dropped out because (depending on your point of view) positional conflicts that might harm current clients or political pressure on the firm.
1.14.2007 6:37pm
Ricardo (mail):
If I were a CEO accused of embezzling money from the employee pension fund I would want representation from someone willing to defend the sleaziest most disreputable clients, public opinion be damned. A firm that actively defends international terrorists would be high up on the short-list.

Moreover, many corporations and CEOs must realize that they are not likely to receive widespread public sympathy when it hits the fan. If anything, conventional wisdom is that corporations and CEOs get off too easy when they break the law. Condemning law firms for taking on murderers and terrorists would work against the interests of business leaders in the long-run as white collar criminals are assigned a place in hell by public opinion only a few circles above terrorists.
1.14.2007 7:04pm
twwren:
Here's my point. If it is not unethical for a general counsel of a corporation to ask for a list of pro bono clients of its outside lawyers and, based on a review of such list, to ask the firm to make a choice between the corporation and its pro bono defendent base on a good faith belief that such representation harms his company, why is it unethical for Mr. Stimson to suggest that corporatations do so because he believes it harms the country?

And please, I am not arguing that a law firm has any obligation to turn over its pro bono list if it doesn't choose to.
1.14.2007 7:29pm
Public_Defender (mail):
Unethical to demand a list of clients? Maybe, maybe not. It's certainly unprofessional for a general counsel to do so.

It's more likley to be unethical for a lawyer in litigation to try to deprive it's opposing party of counsel by threatening that counsel with economic harm for continuing the representation. It's certainly slimy. And here, it has probably backfired.

We can certainly be critical of Stimson's logic. It's utter nonsense to argue that it "harms the country" for detainees to have free lawyers. If Stimson is correct that the detainies have no rights, then the lawyers can do no harm.

Stimson's counter-productive effort to squeeze out the detainees' lawyers is a sign that he lacks confidence in his position.
1.14.2007 9:02pm
John Steele (mail):
TWWren,

I do make a distinction between (1) a client making a request like that, and (2) the federal government trying to convince clients to make those requests. Independent professions -- that is, independent of the government -- are an important component of the civil societies that support liberal democracies. It's particularly bad when a particular exectuive branch administration tries to solve its considerable legal problems by trying to convince others to convince the accuseds' lawyers to abandon their clients.

I'm not saying I always find it OK when clients themselves make request like that of their own volition. Clients do have far more direct interests in the conduct of their own lawyers -- particularly when that conduct directly impacts the lawyers. So, there can be an appropriate level of give and take on issues like that.
1.14.2007 9:03pm
Peter B. Nordberg (mail) (www):
I am grateful to Professor Volokh for his useful remarks on Claiborne. They clarified my thinking to at least the following extent: If a private citizen, with no other role in the matter, were to advocate a boycott of law firms representing Guantanamo detainees, I would be pretty slow to conclude that such advocacy should fall outside the First Amendment's protection. One vexing difficulty here, I suppose, is in imagining a private actor with whom Stimson would otherwise be similarly situated.

I remain unsatisfied that the legal terrain has been fully explored. The ethical rules governing lawyers are important, but it seems analytically exogenous to me that Stimson is a lawyer. I'd be just as disturbed over his behavior (or almost as disturbed) if he didn't happen to be a member of the bar.

Part of my intuition, which the "secondary boycott" concept admittedly may capture only incompletely and imperfectly, is that there's something more amiss about a government official's urging corporations to boycott the law firms, than there would be about his urging the law firms to boycott the clients. That intuition may be based partly on a tacit appraisal that urging a direct boycott of the detainees would have less potential to prevent their access to counsel altogether. Most of the bar, that is, would simply ignore Stimson's views and go on representing whatever clients it pleased. Urging the corporate boycott of the firms, by contrast, goes beyond moral suasion, and embroils a government official in the attempted creation of economic disincentives to the representation of disfavored parties. Not able to fine the lawyers himself, the government official attempts to outsource the fining function. To me, this seems especially offensive -- although, to repeat, I remain unable to identify a legal doctrine that takes precise aim at this particular variety of offensiveness.
1.14.2007 9:39pm
Justice Stevens (mail):

The payload is an attack on somthing that does not exist, with the argument attacking a position similar to arguing that a doctor who happens to offer a diagnosis on television on review of a video is not violating ethics rules. (No politics here, boss!)



Except your analogy is not analogous and is about as mistaken as your spelling of "advocay". Bill Frist did in fact diagnose Terri Schiavo and claim his expertise as a doctor enabled him to do so. Mr. Stimson did not perfom any sort of legal equivalent of a medical diagnosis. He stated the fact that some white-shoe law firms have been paid to represent Gitmo detainees and he speculated that those funds could have originated from anywhere, the implication being that at least a portion of that funding could have flowed from an al Qaeda front-operation. One who receives money from an al-Qaeda front-operation is a -- in a colorful manner of speaking -- recipient of "a check from Osama bin Laden." And there's nothing wrong with disclosing that to the public.


We can certainly be critical of Stimson's logic. It's utter nonsense to argue that it "harms the country" for detainees to have free lawyers.



This borders on lying. Stimson did not say that pro bono "harm[s] the country." Stimson did not imply it harms the country for Gitmo detainees to receive free legal services; he implied that it is bad business judgment for a law firm to take on terrorist front-operations as paying clients. Do you disagree?


It's more likley to be unethical for a lawyer in litigation to try to deprive it's opposing party of counsel by threatening that counsel with economic harm for continuing the representation. It's certainly slimy.



Slimy or not, Mr. Stimson is not opposing counsel on any of these detainee cases.


Can we say "family of the accused," since that's what the NYT article said?



Is not it the case that Saddam Hussein would regularly finance terror operations by paying the families of suicide bombers $25,000 once they had blown themselves up? (Yes.) Is it not true that other financiers of terror pay the families of terrorists once they are imprisoned or captured? (Yes.)


Of course, it was probably a bad PR move for Shearman &Sterling to accept payment for that work, even if they did donate it.


Ah, so you do agree with Mr. Stimson. Perhaps you should be disbarred.
1.14.2007 9:56pm
twwren:
Okay, let's say that as General Counsel I represent L Mart, Inc. and I find that a large law firm I employ intends to represent pro bono a defendent on trial for robbing one of my company's stores. Is it unethical or unprofessional if I ask the firm to make a choice between such representation and further business from my company?

I fail to understand why it is unethical or unprofessional to request the pro bono list of a law firm as a part of due diligence; certainly not just because a commenter says it is.
1.14.2007 10:07pm
Justice Stevens (mail):

What does this have to do with whether lawyers should work for free to assert whatever rights detainees might have?



As Mr. Stimson and the New York Times have reported, some of these white-shoe firms are being paid. Do we know where every cent of each dollar of the money originates?
1.14.2007 10:09pm
Parvenu:
If I were a CEO accused of embezzling money from the employee pension fund I would want representation from someone willing to defend the sleaziest most disreputable clients, public opinion be damned. A firm that actively defends international terrorists would be high up on the short-list.
Maybe it's just because I've never had any interest in white-collar crime, but I fail to see the connection here. The vast majority of CEOs and GCs will never come under indictment, and are not hiring lawyers with that in mind. They are hiring lawyers to represent the company, primarily, not themselves individually, and in civil litigation and transactional matters, not criminal prosecutions. They want advice on products liability, employment discrimination, mergers &acquisitions, SEC regulations, shareholder disputes, and so on.

I would actually be interested in seeing the breakdown of the practice areas of the Gitmo volunteer lawyers. I would not be at all surprised if very few were white collar criminal defense specialists, though I have no data either way.
1.14.2007 10:23pm
David Sucher (mail) (www):
1. The question is not an ethical one. Stimson is simply naive about how corprations operate.

2. "...couldn't one argue that representing a terrorist who expresses a clear intent to wreck physical and economic destruction on the United States..."

Yes one could so so. It would be nice if the US Govet would. Thevery problem is that it refuses to bring detainees to trial so we have no idea if any of them have evinced any intent (much less an action rising to the level of a conspiracy) to destroy the USA. That's the exact issue -- habeas corpus being ignored by our government.
1.14.2007 10:36pm
Justice Stevens (mail):

That's the exact issue -- habeas corpus being ignored by our government.



I don't see that as the issue at all. I am concerned that you do not care that some white-shoe law firms may be representing actual terrorists in exchange for terrorist-raised cash.
1.14.2007 10:52pm
fishbane (mail):
Bill Frist did in fact diagnose Terri Schiavo and claim his expertise as a doctor enabled him to do so. Mr. Stimson did not perfom any sort of legal equivalent of a medical diagnosis. He stated the fact that some white-shoe law firms have been paid to represent Gitmo detainees and he speculated that those funds could have originated from anywhere, the implication being that at least a portion of that funding could have flowed from an al Qaeda front-operation.

Did he? You believe he offered an actual medical opinon? Can you point to the medical records (even if they're restricted)?

While I can imagine that you're being funded by Illuminati operatives, I would never go out of my way to insinuate that you actually were. That would be unethical, afterall, even if it wouldn't violate ethics rules. I would also hate to suggest that your business interests didn't coincide with the growing Vast Pirate Conspiracy (Yar!), but it would be unfortunate if anything happened to your kid's trust fund.
1.14.2007 11:16pm
Robert Jackson (mail):
While I can imagine that you're being funded by Illuminati operatives

Because the Illuminati fund front organizations as often as al Qaeda does. Because al Qaeda does not exist. And because the Twin Towers are still standing.
1.15.2007 1:02am
Bob2435:
The comments on this issue are a disgrace. They say nothing about Stimson or his argument, but speak volumes about the arrogance of the attorney class in this country. Rather than actually address the merits of the argument, many posters here simply decide that he should be disbarred. Very persuasive. On what grounds? One legal genius cites provisions of the ABA Model Code for PR, which of course is a MODEL CODE and not an actual code of ethics that would justify disbarring Stimson.

Further the provisions cited impose duties on the attorney in an attorney-client relationship. It imposes no duty on third parties, who are free to criticize a decision to voluntarily represent the America's enemies. Finally, I don't recall any statute, rule, or code of ethics that says that the folks accused of the worst conduct have a right to the access the best law firms in the country. These firms could represent any number of poor people who are not accused of plotting mass murder. If they choose to bestow their talent and resources on the accused mass murderers, then they should be prepared for a reaction from those murderers' would-be victims.
1.15.2007 1:21am
fishbane (mail):
Because the Illuminati fund front organizations as often as al Qaeda does. Because al Qaeda does not exist. And because the Twin Towers are still standing.

Note that I am not making those assertions. And when you can tell me that al Quaeda is literally paying for the defense of people currently rotting in extraterritorial jails, please provide cites. This shouldn't be difficult - you're clearly certain of what you're talking about. So do it. Tell us all about it.

I would note that I work from an office with a window that faces where the World Trade Center used to be. I see the altered skyline every single day. I do find it notable that people who don't live here seem much more cavalier about using our horror to promote whatever it is they want. I've been told that I'm an idiot, a traitor, and a liar because I fail to how our current actions are making anything better. I wish I were persuaded by those arguments, but I feel, sadly, smug.
1.15.2007 1:38am
fishbane (mail):
You believe he offered an actual medical opinon?

I can't tell to whom you're directing this question, but from tenor, I assume it is me. If so, the answer is, 'no'. Which happens to be my point.
1.15.2007 1:44am
Public_Defender (mail):
It imposes no duty on third parties, who are free to criticize a decision to voluntarily represent the America's enemies.

Stimson is not a third party. He is a party to litigation and he is trying to deprive his opponent of counsel. Worst, he is the government party. So the government is trying to deprive its opponent of counsel.

Even Alberto Gonzales, who is an strong advocate of strong government power won't publicly back Stimson on this one. Why should we?

Unless there is something more to this than public attacks on his opposing counsel, I don't think Stimson should be disbarred, but he should be criticized. He might even deserve to be fired if he refuses to back down.

As Mr. Stimson and the New York Times have reported, some of these white-shoe firms are being paid. Do we know where every cent of each dollar of the money originates?

This was a tremendous slime from Mr. Stimson. He said that he "suspects" that the firms were getting paid, but The firms deny that they are getting paid. Stimson provided no evidence to back his assertion that the firms are representing the detainees for free.

I "suspect" that Stimson is just lying about the firms getting paid. If he is lying, that really might be the grounds for bar discipline.

Finally, from the corporate client's point of view, would you want a firm that went weak in the knees every time a government official issued a shrill attack? Would you want a firm that threw its clients overboard at the first public criticism? I wouldn't think so. That's part of why Stimson's comments will backfire.
1.15.2007 4:06am
Robert Jackson (mail):

I "suspect" that Stimson is just lying about the firms getting paid.



The New York Times reported that Sherman & Sterling was paid. S&S donated the money to 9/11 charities. Stimson was correct. You are not.

Fishbane,

It looks like a medical diagnosis to me. The citations to medical texts and standards, the fact that he disagreed with other doctors' diagnoses (i.e., offered a second opinion), and that other doctors were taken aback by the move suggests it was an actual diagnosis. That the actual diagnosis was premised on insufficient evidence and contact with the patient is another matter. If the low quality of the diagnosis is your point, you're putting too much stress on the word actual for it to qualify as a non-fallacious argument.
1.15.2007 4:16am
Robert Jackson (mail):

And when you can tell me that al Quaeda is literally paying for the defense of people



Except that is not how al Qaeda works. They use front operations to funnel money just like mobsters use laundromats or casinos to launder cash. The question is whether the families that paid white-shoe law firms to represent their relatives (who exist, btw) received a wire from a front operation. The proof of that would necessarily not show "literal" payment, because the money would go through at least two conduits.
1.15.2007 4:20am
Public_Defender (mail):
I fail to understand why it is unethical or unprofessional to request the pro bono list of a law firm as a part of due diligence; certainly not just because a commenter says it is.

The "pro bono list" would be off limits because a firm's payment relationship with its clients is irrelevant. Would you go to a doctor who disclosed your account to other patients?

A client does have the right to expect a firm to conduct a conflict check. Your robbery example would likely be enough to cause a conflict because the store-client would be providing witnesses and information against the accused-robber-potential-client. But your example includes a direct link between the accused robber and the company.

But GM or Walmart would not have to provide witnesses or evidence against some dude picked up in rural Afghanistan because his neighbor called him a "Taliban" in order to pick up the U.S. paid bounty. To say that there is a conflict there would mean that firms that have any criminal practice would have conflicts because crime is also against the interests of everyone in the U.S.

If you have any authority that demonstrates that representing someone accused of being a terrorist or a criminal creates a conflict with representing American citizens or corporations, I'd be interested in seeing it.
1.15.2007 4:23am
Robert Jackson (mail):

Stimson is not a third party. He is a party to litigation and he is trying to deprive his opponent of counsel.



Stimson is not a party to any of these litigations. He's just a public official in the Bush administration.
1.15.2007 4:26am
Robert Jackson (mail):

The "pro bono list" would be off limits because a firm's payment relationship with its clients is irrelevant. Would you go to a doctor who disclosed your account to other patients?



This is absolutely ridiculous. White-shoe firms make "issues conflict" choices all the time. If you take pro bono that angers your paying clients, it reduces your profitability. If you represent water polluters, you don't go and represent the Sierra Club for free. This is so basic it is shocking you don't get it.
1.15.2007 4:29am
markm (mail):
"I am concerned that you do not care that some white-shoe law firms may be representing actual terrorists in exchange for terrorist-raised cash."

I'd rather that money was going to lawyers than being spent on explosives and detonators.
1.15.2007 8:46am
Mark Field (mail):

Stimson is not a party to any of these litigations. He's just a public official in the Bush administration.


That is not a credible distinction. He's an employee of one party.


I am concerned that you do not care that some white-shoe law firms may be representing actual terrorists in exchange for terrorist-raised cash.


Gee, another "substantive argument". No swear words, though; that makes it ok.

Apparently inventing "facts" -- on two different levels, no less -- is no longer a sign of paranoia, but of "serious" analysis.
1.15.2007 10:49am
Parvenu:
Bob2345 writes:One legal genius cites provisions of the ABA Model Code for PR, which of course is a MODEL CODE and not an actual code of ethics that would justify disbarring Stimson.Most states' codes track the Model Rules extremely closely, and yes, they *do* provide grounds for disbarment. I was trying to get the thread back on the subject of Adler's original post, i.e., whether there could be grounds to disbar Stimson, not whether he has acted inappropriately. My guess is that the variation between the Model Rules and the D.C. bar's rules, or the rules of whatever jurisdiction might be applicable under the relevant choice of law rules, are near mirrors of the Model Rules. Most state bar associations have not enacted many substantive alterations. If you happen to know that the D.C. bar has different ethics rules than those I posted, bring them out, but otherwise, my guess is that their provisions are nearly identical to the Model Rules--it's not like any of those individual rules are that controversial, after all.
1.15.2007 11:05am
John Steele (mail) (www):
A couple of technical points about the ethics rules. First, the Model Code has been superseded in all significant jurisdictions except NY. The Model Rules are now the dominant set of rules. DC is a Model Rules jurisdiction, but when you're dealing with a federal government employee lawyer you need to look at other factors such as where the lawyer is currently licensed, where they're working, what rules the federal government adopts, what policies the government adopts. By way of example, the military lawyers in Gitmo usually have a state license but are also governed by military rules that closely track the Model Rules. In other words, there is a slightly complicated choice of law question to explore. But, as I say, I don't think it matters, since Stimson didn't commit a disciplinable act by any standards.

Second, as I may have posted in an earlier Volokh site thread, I don't see how Stimson can actually be disciplined. The closest rule is 8.4 but I can't imagine that what Stimson did actually caused prejudice to the administration of justice. Rule 1.2(b) is somewhat on point, but it's basically impossible to break that rule; it's a rhetorical defense for lawyers who represent "bad people."

Third, Stimson's suggestion does violate deeply held professional norms, but you can't be disciplined for that.
1.15.2007 11:40am
Parvenu:
John Steele: I'm now leaning towards saying that Stimson skirted the line without crossing it, despite my first instinct being that there should have been some actionable conduct there, but I don't think the conclusion that he was in-bounds is as open-and-shut as your tone suggests. In particular, I think 8.4(a) might be a better peg to hang one's hate on here than 8.4(d) (prejudice to the administration of justice); the latter is supposed to encompass conduct like subtly trying to incite racial prejudice in a jury in order to convict a minority defendant, IIRC. Nevertheless, I still believe that if he was trying to induce unethical conduct, he can be held liable for that. The problem I see is proving what exactly he intended to accomplish by his statement. He could arguably have been trying to induce only lawful and ethical courses of action, even though I don't believe that for a second. My disbelief, of course, is grounded only in the fact that, as you noted, "Stimson's suggestion does violate deeply held professional norms;" however, sometimes there actually *is* a parallel between professional norms and ethics rules. There may yet be one here, even if articulating it is still beyond me. I wouldn't close the book on this yet, at any rate.
1.15.2007 12:58pm
JosephSlater (mail):
First, it's bizarre that anybody thinks partners at big corporate lawfirms -- successful capitalists, working for and with succesful capitalists -- are huge lefties, terrorist symps, etc. Have you ever met any of these folks?

Second, as to the Gitmo folks, it's not just that "everyone deserves a defense," although that is a big part of it: many people sincerely believe the government is violating constitutional or other significant rights of the detainees.

Third, although this was off the beaten track, I personally would be very interested in Eugene at some point giving his thoughts on the constitutionality of the restrictions on union speech contained in NLRA Sec. 8(b)(4) (the "secondary boycott" issue mentioned above).

Finally, as a meta comment, I echo Mark Field's posts which essentially wonder why the folks running this blog think it's consistent with the comments policy to call other posters terrorist symps or commies, while the use of the phrase "kiss my ass" justifies a ban.
1.15.2007 3:50pm
Public_Defender (mail):
<i> If you represent water polluters, you don't go and represent the Sierra Club for free. </i>

Agreed. But what does this have to do with anything? What position would the lawyers take in the Gitmo cases that would harm the interests of GM or Walmart?

You might argue that terrorism is bad for corporations, but so is fraud against corporations. These law firms defend people acused of fraud against corporations without creating a conflict. How is representing people accused of being terrorists any different?
1.15.2007 7:34pm
jallgor (mail):
Steele and Parvenu: Is it really a "choice of law' question when discussing disbarment? After all, the various state codes of professional ethics are not laws. The answer is that anywhere a lawyer is licensed to practice he is subject to disbarment for violating the profesional conduct rules of that jurisdiction. If I am a member of 3 state bars, all 3 state's rules have effect but only as to my status in that state. The same goes for any military or federal gocernment policies that might apply to a particular lawyer. It's not a choice of law question.
Joseph Slater: Have you met any of these folks? Because I have met a couple hundred of them and I have known about 60 or 70 well enough to know their politics. Of those 60 or 70, I would categorize about 90% of them as left and about 15% of them as hardcore left. For the hard core folks I am thnking of people who would do things like put a "No more Bushit" bumper sticker on their office door, etc. These firms however, are made up of hundreds of partners so in my experience even the most radical beliefs among the partners get tempered when it comes to any formal action by the partnership.
1.17.2007 9:13am