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Vilification of Attorneys in Detainee Cases:

In the wake of the Cully Stimson flap, former Solicitor General Ted Olson and Georgetown's Neal Katyal co-authored a Legal Times commentary urging both left and right to tone down their attacks on lawyers who represent unpopular or "politically incorrect" clients. Olson and Katyal lament that attorneys on all sides of terrorism-related cases have been vilified for their work, and observe that the adversarial system of justice depends upon the vigorous advocacy of popular and unpopular causes alike.

The well-deserved criticism of Stimson’s remarks has thus far not encompassed another disturbing trend: the vilification of government lawyers involved in the war on terror. Some star law school graduates have recently been warned that going to the Justice Department to work on terrorism cases or terrorism policy might harm their long-term careers. Some individuals have taken to calling former Assistant Attorney General Jack Goldsmith, now a Harvard law professor, a war criminal for the advice he gave the government about detention policy. Others have sought to block Assistant Attorney General Peter Keisler from a D.C. Circuit judgeship in part because he personally argued a Guantánamo case in a federal appeals court. These personal attacks have a corrosive effect on the practice of law and on the ability of the government to get the most thoughtful legal advice.

With the war on terror, which unfortunately may go on for generations, America doesn’t have any margin for error. The legal issues that surround this war are enormously intricate and don’t lend themselves to sloganeering-based solutions. When government officials are called “war criminals” and when public-interest lawyers are called “terrorist huggers,” it not only cheapens the discourse, it scrambles the dialogue. The best solutions to these difficult problems will emerge only when the best advocates, backed by weighty resources, bring their talents to bear. And the heavy work of creating solutions for these complicated issues can only move forward when the name-calling ceases.

Attorneys should not be above criticism, they argue, but criticism should focus on "the merits of the particular position being argued rather than personally on the advocate." I would add that there is a difference between criticizing a lawyer for the way she represents a client — that is, the arguments made, defenses raised, etc., — and attacking the mere fact of representation. Likewise, an attorney's obligation to engage in zealous advocacy on behalf of his clients does not require him to make frivolous or false arguments.

A final note: Olson and Katyal have represented opposing sides in detention-related cases. Their agreement here is significant.

r78:
Ted Olson regularly attacks trial lawyers. It is interesting that he seems to believe that lawyers representing alleged terrorists are worthy of more respect than lawyers representing people who have allegedly been injured by the corporations that pay his salary.
1.23.2007 9:24am
Jonathan H. Adler (mail) (www):
r78 --

I have certainly seen Ted Olson attack trial lawyers for their methods, arguments, etc., but not for who they represent. Can you think of specific examples?

As I note in the post, there is a difference between, on the one hand, arguing that a given claim is frivolous, fraudulent, or otherwise dilatory -- and criticizing a lawyer for making it -- and, on the other, criticizing a lawyer for representing a given side.

JHA
1.23.2007 9:27am
Davide:
Jonathan,

I see little reason to give lawyers a free pass in client selection. Absent compulsion, no lawyer needs to represent any client. Who a lawyer chooses to represent says something about the lawyer.

Thus, the "mere fact of representation" says quite a lot about the attorney. It says that the lawyer chose to represent that client, for a reason. The decision was voluntary, and it was intentional. Why did the lawyer choose to do so? Does the lawyer believe his client's case has merit? Does the lawyer wish (as many do) to further her client's cause?

People can and should be held responsible for their intentional acts. This is one such. In many cases, it might be unobjectionable, but in others, it may. I see no reason that criticism should be out of bounds.

Arguing the contrary seems, rather, to lead to a view of lawyers' work as noblesse oblige: the work of aristocrats in the service of the 'public' (defined at the lawyer's whim) whose choices should not be questioned. I see nothing to recommend this approach.
1.23.2007 10:07am
Kovarsky (mail):
Davide,

I've seen you make this point over and over again. You're missing the fundamental point that it is a professional principle, along the lines of oaths taken by doctors, that every person be entitled to zealous representation within the bounds of the law.

That professional obligation, like the hippocratic oath, is one assumed for the benefit of potential clients.

When lawyers are attacked for their representation of selected clientele, it imposes a cost on representation, which interferes with the principle, however otherwise and frequently distorted by wealth and power, that everyone be represented in the aforementioned manner.

So the answer to your question:

Does the lawyer believe his client's case has merit? Does the lawyer wish (as many do) to further her client's cause?

Is no. But also completely besides the point.
1.23.2007 10:20am
Kovarsky (mail):
Jonathan,

I understand the broader interest in preventing attacks on lawyers' representation, but but don't you think the following two distinctions matter:

(1) that between the identity of the client - United States and a Guantanamo detainee

(2) that between the source of the criticsim - the Department of Defense and a very small minority of lawyers

In the end the War Criminal bit makes me cringe, but I find that less damaging to the adversarial process, given that it is an epithet slung by private parties and at the United States, and the likelihood that it actually damages the government's ability to obtain quality representation is not all that troublesome, compared to the other events.
1.23.2007 10:29am
Rick Shmatz (mail):
Two patients come into an emergency room with the same life threatening injuries. One is a registered sex offender for raping young boys and girls. The other is nobel prize winning research scientist who has developed drugs that cure cancer.

The doctor is shorthanded and must make a CHOICE on who he should save. What if the doctor chose to save the pedophile? That would say a lot about him. Remember, everyone one is entitled to emergency room care, just as everyone is entitled to counsel.

The choice to save the pedophile does reflect on his character and I believe should be critisized. So should the CHOICE to represent terrorists.
1.23.2007 10:39am
Kovarsky (mail):
Rick,

I think the whole premise is that we don't know that a detainee is necessarily a terrorist until we accord him some quantum of legal process.
1.23.2007 10:43am
steve lubet (mail):

The choice to save the pedophile does reflect on his character and I believe should be critisized. So should the CHOICE to represent terrorists.


The analogy is frivolous. First, no physician is ever put to such a choice. Second, no one is denied counsel because lawyers represent detainees. Third, the point of the representation is to separate the terrorists from the non-terrorists.

The question for Rick Schmatz, therefore, is whether the medical profession, as a whole, ought to deny treatment to accused pedophiles. I doubt you would find a single doctor who agrees with that proposition.
1.23.2007 10:47am
Steve:
What's troubling is not the centuries-old tradition of criticizing lawyers, but rather the disturbing comments from members of the Bar who have an professional obligation to respect the integrity of the legal system.

Lawyers should be staunch advocates for reform and improvement of the system. They should have no brief for frivolous conduct and should encourage the system to punish it. These actions enhance, rather than detract from, the reputation of the legal system.

But aspersions like Stimson's - who actually suggested, lest we forget, that major firms representing detainees may be getting paid under the table by unsavory sources - have absolutely no place coming from a lawyer. If my neighbor says "that lawyer chose to represent a pedophile, I bet he's a pedophile himself!" then I simply roll my eyes. But a member of the legal profession, who understands the necessity for the system to function, should be held to a higher standard.
1.23.2007 10:58am
Thorley Winston (mail) (www):
But aspersions like Stimson's - who actually suggested, lest we forget, that major firms representing detainees may be getting paid under the table by unsavory sources - have absolutely no place coming from a lawyer.


Stimson, of course, said no such thing.
1.23.2007 11:02am
Rick Shmatz (mail):
Steve: I just put the doctor to a choice.

If a doctor is assigned to treat a pedophile he should do so to the best of his ability. If a public defender is assigned to represent a terrorist he should do so, without criticism. It is the act of making a choice that should be criticized. If I was a client of a major firm that also actively sought out to represent terrorists (or detainees) I would question whether I want them to continue to represent me.
1.23.2007 11:06am
DJR:
The distinction between the fact of representation and the method of representation is an important one. I'm not sure I have seen anyone vilified simply for representing the government in terrorism cases. But the method of representation is a wholly different thing. The prime example would be John Woo's execrable torture memo.
1.23.2007 11:07am
Just Dropping By (mail):
"The prime example would be John Woo's execrable torture memo."

When did John Woo quit directing action pictures and start writing legal memos?
1.23.2007 11:09am
MDJD2B (mail):

Who a lawyer chooses to represent says something about the lawyer.



Davide,

You think that John Adams's representation of the British soldiers after the Boston Massacre or Alexander Hamilton representation of some Tories in property confiscation cases reflected on their patriotism? It is a fundamental premise of our legal system that all parties are entitled to capable representation. This, by implication, precludes reprisals against lawyers on the basis of whom they represent, unless that representation is intrinsically unprofessional or incompetent.



Two patients come into an emergency room with the same life threatening injuries. One is a registered sex offender for raping young boys and girls. The other is nobel prize winning research scientist who has developed drugs that cure cancer.


Rick,

Any doctor in any emergency room that I know of (and I have worked in many hospitals) would see the patient who registered first, unless one urgently needed more care than the other. And we don't ask Jeff Dahmer what he ate for lunch before we treat his upset stomach!

In the early days of renal dialysis, there were "God Committees" which allocated scares dialysis spots on the baisi of social desert. This was an aberration, and the system self-corrected.

If you came into the emergency room at the same time as the Nobel Prize-winning scientist (and I assume you are a reasonably respectable person who has not done anything as uncontroversially meritorious as discover a cure for cancer) would you want him to be treated instead of you? Even though you are not a convicted pedophile, he still probably has more social desert than you.

What if he were single and 75 years old but you (or the pedophile) were 35 and the sole source of support for a disabled wife and 5 children? What should the doctor do, and what does his choice say about his sense of values?
1.23.2007 11:18am
frankcross (mail):
Rick, you really evaded the main point --

that an accusation of being associated with terrorists is not the same as guilt. And that the point of representation is to separate the innocent.
1.23.2007 11:25am
DJR:
Rick: Your emergency room hypothetical is flawed in a number of respects.

First, rhe choice is not simply who to represent but what the representation means. Representing the Guantanimo detainees means ensuring that the government is not able to simply declare whom it will and will not detain indefinitely without charges. This benefits the detainees, some of whom may be terrorists, but it also benefits all of us and the principles that the country was founded on. Representing these individuals truly serves a greater cause.

Back to your hypo, let's say that the pedophile's case presents a unique opportunity and if the Doctor treats him rather than the Nobel Laureate, he may cure a particular cancer that kills a substantial number of people each year. If he does not treat him, the pedophile will die and the opportunity will be lost. The nobel prize winner's case is a run-of-the mill case that the Doctor can cure, but the only beneficiary will be that one patient.

The doctor could refuse to cure the pedophile, reasoning that the nobel laureate is more deserving of treatment, or he might decide to choose the potential to help many by curing the pedophile, at the expense of the nobel laureate. That may not be a choice you would make, but it is a respectable choice.

A second flaw in the hypo is that it presents an overly-emotionalized choice that is not present at Guantanimo. We do not know that the detainees are terrorists; that's what the representation is all about. Nor is there the equivalent of a nobel laureate that the law firms are leaving to die. Back to the hypo again, two patients come into the hospital, one is accused of child abuse by his spouse in the course of a divorce but maintains his innocence; the other is not. The doctor may say "I want to take no chances that I might help a child abuser, even if I do not know all the facts" and take the second patient. The Doctor may also decide that he is not in the place to make a judgement about whether the individual is a child abuser, and flip a coin or make the choice of who to treat some other way.
1.23.2007 11:26am
DJR:
Er, John Yoo that is.
1.23.2007 11:27am
Steve:
Stimson, of course, said no such thing.

The actual quote:

Asked who was paying the firms, Mr. Stimson hinted of dark doings. "It's not clear, is it?" he said. "Some will maintain that they are doing it out of the goodness of their heart, that they're doing it pro bono, and I suspect they are; others are receiving monies from who knows where, and I'd be curious to have them explain that." (Emphasis added.)


I really can't believe you're going to claim that was an innocent insinuation. What do you contend Stimson was implying?
1.23.2007 11:28am
Rick Shmatz (mail):
MDJD2B: i agree with you up to a point. However, when a doctor or lawyer approaches the extremes, a pedophile who rapes little children, or a terrorist who straps bombs to his body, or other, in order to kill thousands of innocent people, it may be appropriate to make a choice if one is confronted with a choice.
1.23.2007 11:29am
Kovarsky (mail):
Thorley,

Stimson, of course, said no such thing.

Um, he most certainly did. He didn't come out and say it, but he said something to the effect of "one certainly wonders where the money to defend the detainees is coming from." The inference he sought to create should be obvious.
1.23.2007 11:30am
Thorley Winston (mail) (www):
If a doctor is assigned to treat a pedophile he should do so to the best of his ability. If a public defender is assigned to represent a terrorist he should do so, without criticism. It is the act of making a choice that should be criticized. If I was a client of a major firm that also actively sought out to represent terrorists (or detainees) I would question whether I want them to continue to represent me.


If I understand correctly what you're saying -- it's one thing to work the case you're assigned to the best of your ability and it's another to actively seek out a particular client because you want to represent that particular person. Fair enough although it could be possible that the firms which sought to represent detainees did so because they thought they were upholding an important legal principle and representing these clients was the only way to uphold that principle.
1.23.2007 11:32am
Mark Field (mail):
Olson's argument here is subtly deceitful, and I think he's smart enough to have done it intentionally.

The two "sides" Olson describes are in no way equivalent; declaring "a plague on both your houses" is his way of giving himself a false aura of neutrality in order to enhance the credibility of the political goal he's trying to achieve.

Putting aside his other comments, Cully Stimson criticized the general practice of defending accused terrorists. That's not at all what's happening on the "other side". No one (at least no one I've seen) has criticized government lawyers for the general practice of prosecuting accused terrorists. The criticism has instead been made that certain specific lawyers have made certain specific arguments which are unjustified, unworthy, criminal, etc.

Olson is trying to silence the deserved criticism against specific lawyers by his false equation of two entirely different behaviors.
1.23.2007 11:34am
David in NY (mail):
In response to this:

But aspersions like Stimson's - who actually suggested, lest we forget, that major firms representing detainees may be getting paid under the table by unsavory sources - have absolutely no place coming from a lawyer.

Thorley Winston said:

Stimson, of course, said no such thing.


Stimson said, however, in response to a question about whether the firms (whom he had listed) were being paid:

"It's not clear, is it? Some will maintain that they're doing it out of the goodness of their heart, that they're doing it pro bono, and I suspect they are. Others are receiving monies from who knows where, and I'd be curious to have them explain it."
1.23.2007 11:36am
Thorley Winston (mail) (www):
I really can't believe you're going to claim that was an innocent insinuation. What do you contend Stimson was implying?


That Stimson suspects that the funding for some of the representation is coming from groups who are politically opposed to the administration. He said as much earlier in the interview. It helps to listen to the entire exchange in its full context rather than pulling out select portions.
1.23.2007 11:37am
Falafalafocus (mail):

However, when a doctor or lawyer approaches the extremes, a pedophile who rapes little children, or a terrorist who straps bombs to his body, or other, in order to kill thousands of innocent people, it may be appropriate to make a choice if one is confronted with a choice.

The others above have pretty much said all that needs to be said in response to this general hypo. I just want to point out that the "terrorist who straps bombs to his body" at least, probably will not need representation in the coming cases, for reasons that our doctors in the house can clarify.
1.23.2007 11:43am
Davide:
Kovarsky,

Your post is just off. There IS NO LEGAL ENTITLEMENT TO AN ATTORNEY. There is no ethical, legal or other canon, requirement (or even suggestion) that everyone is entitled to a lawyer.

Everyone is entitled to ASK for a lawyer. And everyone is entitled to be represented, SHOULD A LAWYER WISH TO DO SO. But there is NO REQUIREMENT FOR A LAWYER TO REPRESENT ANYONE. That is why lawyers can -- and do -- refuse left and right to take clients. Even in the narrow case of criminal felonies -- where the State undertakes to provide paid-for counsel -- public defenders have to represent those clients only because they are paid to do so. If the public defenders quit their jobs, they would not have to do so.

So, it's just rubbish that lawyers "have to" represent everyone. And lawyers don't. Every day, thousands of people represent themselves in small claims court, in civil cases, and even in criminal cases. I don't hear anyone frothing at the mouth at the grand injustice of all of this.

And so: it's clear that lawyers CHOOSE whom they want to represent. Sullivan &Cromwell, for example, gets a lot of positive press from many sides for representing Guantanamo refugees. That's a hot button topic (on this board and otherwise). It's a lot cooler than representing someone who wants $250 back for a busted stereo. That's fine: S&C can choose who it wants to assist. But the corollary also holds: S&C can be criticized for its choice of representation.

So Kovarsky's point is completely off: there is no right to pick your lawyer and force that lawyer to provide service to you. Nor is there any right to be "entitled" to representation (absent criminal felony matters).

As to MDJD2B, you make the same error Kovarsky makes. There is no right to force a lawyer to take your case. You have a right to have a lawyer, IF A LAWYER WILL CHOOSE TO REPRESENT YOU. If you don't believe me, try getting a lawyer for small matter, a non-paying matter, or a matter lawyers thinks are frivolous.

And so, at end, we are back at the beginning: lawyers intentionally choose to represent -- or not to represent -- certain clients, at certain times. That choice often reflects the lawyers' belief in the client's case, the client's ability to pay, the client's ability to generate good PR for the lawyer (think Guantanamo), and a host of other factors. That intentional act is most certainly open to criticism.
1.23.2007 11:44am
Tim Dowling (mail):
Thanks for linking to and posting about this excellent commentary. I hope it receives the widest possible circulation.
1.23.2007 11:47am
Rick Shmatz (mail):
Falafalafocus: I didn't know merely the act of strapping a bomb to a body would do anything. Unless he actually blows it up, I assume he may still need representation.
1.23.2007 11:48am
Falafalafocus (mail):
Rick,

Your response to my snark is well taken. I inappropriately assumed that a person who straps a bomb to his chest will be pulling the trigger soon. (snark) It is entirely possible that such a "terrorist" is merely putting on another layer of warmth to protect him from the cold front coming this week. (/snark). In any event, if you want to respond to my snark more thoroughly, I suggest also that a "terrorist" who does die still needs representation. After all, such a person may have an estate and a family who will need representation against upcoming tort creditors.
1.23.2007 11:57am
David Chesler (mail) (www):
Of course there is a tiny exception for mob lawyers, or any lawyer whose before-the-fact assistance in something squirrely, or promise of after-the-fact assistance, is making the squirrely stuff more likely.

And there is non-neutrality. We praise the Institute for Justice for the clients they offer to help and likewise praise or criticize the ACLU for their choice of clients.

There is a difference between the doctor one of whose patients shows up and is diagnosed with [disease-of-the-week] and the doctor who has given up a lucrative private practice to do nothing but research in finding the cure for [dotw], and the doctor who specializes in getting called in the middle of the night to remove bullets and not report them.

But in the main folks, and especially those criminally accused, are entitled to good representation. Otherwise the notion that the adversarial system results in anything close to truth or justice goes away.

And keep in mind what happened when Mass. incumbent Lt. Gov. Kerry Healey criticized since-elected Gov. Deval Patrick for representing an accused cop-killer long before he became a big lawyer for big companies.
1.23.2007 12:09pm
Truth Seeker:
Some terrorists have pulled the trigger on the bomb strapped to their chest and it didn't go off and they were caught.

Do we really want him to get a sharp lawyer who can bring up the fact the the police didn't read him his Miranda warning before looking into his jacket so he can get off and try again?

Maybe representation isn't the issue here as much as whether a terrorist's right to a Miranda warning is more important than the lives of say 25 innocent people whom he will kill when he gets off. I'm not sure how to do it procedurally, but those cute loopholes we use to get traffic and drug offenders off easy should not be available to those who want to end our civilization. I think is was Justice Jackson who said the constitution is not a suicide pact.
1.23.2007 12:10pm
Jonathan H. Adler (mail) (www):
Mark Field --

I think you are misrepresenting Olson's (and Katyal's) position. Later in the article, they write:
Working as an attorney for the government or on behalf of a detainee pro bono doesn't make an individual a hero, nor does it insulate the individual from criticism. But such criticism would be more constructive if it focused on the merits of the particular position being argued rather than personally on the advocate.
I think it is quite strained to suggest this is an effort to silence criticisms of particular positions or people.

Davide --

Your posts overlook some important reasons lawyers choose to represent particular clients or accept court appointments and the like. For instance, an attoreny may believe that an individidual is entiteld to a zealous defense because it is important to vindicate the position that the government must carry its burden, or to ensure that certain legal principles are preserved for future cases involving more worthy defendants. Moreover, it is generally accepted that the bar, as a whole, has an obligation to ensure that zealous representation is available to all parties in all cases. As Olson and Katyal write:
The ethos of the bar is built on the idea that lawyers will represent both the popular and the unpopular, so that everyone has access to justice.


JHA
1.23.2007 12:13pm
huggy (mail):
In a life or death struggle fine points get lost. In the current political arena most sides seem to think this is life or death. Till that changes all these calls for reasonableness have as much relevance as a good fart.
1.23.2007 12:17pm
Davide:
JHA,

The "ethos of the bar" is a cleverly empty phrase. Does the "ethos of the bar" dictate to an attorney how to choose between representing a detainee at Guantanamo or an elderly woman being evicted from her apartment? Of course not. It is a platitude that defends an attorney's ability to act -- in a manner and time of her choosing -- for whomever she wishes to act. It imposes no obligation on the attorney. Stop pretending that it does.

It most certainly NOT accepted generally that "the bar, as a whole, has an obligation to ensure that zealous representation is available to all parties in all cases." Show me the law that so states. There is none. Lawyers have NO obligation to accept matters for no fee. They have NO obligation to represent any potential client who arrives at their door. They have NO obligation to spend their days in traffic court -- or in court representing detainees from Guantanamo. Certainly one can mouthe this platitude, but it is FAR from reality. Olson and Katyal -- like you -- are concerned about defending lawyers' entitlement to pick clients as they choose without being castigated for the choice. Neither suggests that lawyers have any sort of obligation to do so.
1.23.2007 12:22pm
billb:
Davide: Criminal defendants are entitled to an attorney, and an attorney that accepts a client in a criminal case cannot unilaterally choose to drop them. They'll need at least the permission of the client and the court or truly exceptional circumstances. If a criminal defendant asks for counsel, and no attorney that he asks directly to represent him is willing, the court will appoint someone and force them to be his representative (which they had better do to the best of their ability).

All that being said, there has been some room for disagreement as to whether those at Gitmo are "criminal defendants" and as to whether the right to counsel extends to them. Additionally, it is unclear which people being held at Gitmo are terrorists, enemy combatants, or something (like innocent farmers, or what have you). Since these areas of law and status have been or are unsetteled, and the only way to settle these issues is to have court cases, for those attorneys who would like to see such issue settled rather than remain open, it makes sense for them to represent these people in the cases that will bring these legal issues to a close. It seems that the only way to make these issues justicable is to bring habeas petitions on behalf of people being held at Gitmo.

Now, they may do this on behalf of someone who is in fact a terrorist and deserves to be locked up, and, in those cases, if the Government opposes the petition well, they will probably lose the habeas petition--a situation that may be just fine with the attorney. But the mere fact that the petittion is brought doesn't mean that the attorney wants to see the client freed. It only means that there is someone of nebulous background out there being held against their will in nebulous legal circumstances, and that there is an attorney with some stones who is willing to see through a case where the issues are resolved.
1.23.2007 12:26pm
Davide:
In fact, Prof. Adler, on this point, let's digress for a minute:

"it is generally accepted that the bar, as a whole, has an obligation to ensure that zealous representation is available to all parties in all cases."

Oh, really? Do you believe attorneys must represent clients who bring frivolous claims? Wouldn't that be sanctionable in federal court?

Do you believe ALL parties bring meritorious claims? Each and every one?

Do you believe all parties in traffic court must be represented zealously by attorneys in ALL cases?? Why don't attorneys actually do so? Why aren't attorneys being haled into court for derelicition of their duty?

And, for a minute, let's switch aways from the PR glory of Guantanamo: how many small claim court claimants are acting pro se? How many elderly indigents are acting pro se in a variety of "cases" today ???
1.23.2007 12:27pm
Davide:
billb:

Davide: Criminal defendants are entitled to an attorney, and an attorney that accepts a client in a criminal case cannot unilaterally choose to drop them.

WRONG. Criminal defendants are NOT entitled to free counsel unless that crime is a felony. They are only so entitled in US courts. There is no such entitlement present in the Gitmo situation.
1.23.2007 12:28pm
Sigivald (mail):
Truth: Not getting a Miranda warning won't invalidate the evidence of having the bomb vest and attempting to set it off - all it'd do is invalidate any confession he happened to make after being arrested, as I understand the law.

So, yeah, I'm fine with a lawyer challenging any such confession based on legal precedent, in any case - but especially when there's more than ample evidence to convict without one.
1.23.2007 12:35pm
Mark Field (mail):

I think you are misrepresenting Olson's (and Katyal's) position. Later in the article, they write:

"Working as an attorney for the government or on behalf of a detainee pro bono doesn't make an individual a hero, nor does it insulate the individual from criticism. But such criticism would be more constructive if it focused on the merits of the particular position being argued rather than personally on the advocate."

I think it is quite strained to suggest this is an effort to silence criticisms of particular positions or people.


I think the quoted passage is consistent with the point I made earlier. Olson is saying, in effect, "it's okay to criticize individuals on the merits" as an implied contrast to the present situation, as though that's not what has been happening. As I said above, that IS what has been happening.

Olson's contrast of "proper" and "improper" criticisms omits the critical fact that previous criticisms of specific government lawyers meet his own test. He is falsely equating the legitimate with the illegitimate. And I think he's smart enough to know exactly what he's doing.
1.23.2007 12:45pm
A.S.:
Olson is saying, in effect, "it's okay to criticize individuals on the merits"

No. Olson is saying it's okay to criticize the merits. Big difference.
1.23.2007 1:06pm
Just an Observer:
I think there is some jiu-jitsu going on here to insulate from criticism those administration lawyers who have may have pushed the envelope too far in facilitation of illegal policies. They are not always acting as zealous advocates, because that is not always supposed to be their role. They are government lawyers, putatitively counseling the executive branch on what the law is, not conniving on what the President and his subordinates might get away with.

As such, the comparison between the two generalized groups of lawyers discussed in the Olson-Katyal is not always apt. The way the public's business is conducted by government officials not out of bounds to criticism just because they happen to be lawyers.

If one wants to conjure a balanced hypothetical, imagine that some administration lawyer is formally accused of crossing the line and committing criminal or unethical acts, and hires an attorney to represent him. That attorney then has a duty to represent his client jealously, even if the client is accused of something heinous such as a war crime. (Such a case might, of course, involve something less outrageous, but still serious.)

It really depends on specific situations, and it is important to know the facts before taking conclusory positions. Remember that Goldsmith endured much criticism by association when he left OLC and joined the Harvard faculty, although subsequent reports have indicated that he actually had fought inside OLC against some of the more egregious opinions about torture that animate the critics.
1.23.2007 1:32pm
SteveW:
With the war on terror, which unfortunately may go on for generations, America doesn't have any margin for error.

That sounds like something that would have been written in 2003, not 2007.
1.23.2007 1:34pm
Kovarsky (mail):
Davide,

Check out your Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Whether one is entitled to an attorney is a different question, of course, than whether a given attorney must represent a given client, but I don't take your point to be even that granular. Also, the obligation to help ensure that everyone receive zealous representation is imposed by norms of professional conduct, not by law.
1.23.2007 1:35pm
Mark Field (mail):

No. Olson is saying it's okay to criticize the merits. Big difference.


Fine, but it's still falsely equating two entirely different types of criticism.
1.23.2007 1:38pm
Kovarsky (mail):
JaO and several other people seem to make this point, although I want to make it expressly:

The Katyal-Olsen memo elides the difference between an attorney-as-advisor and an attorney-as-advocate.

That being said, again, I think the War Criminal business is absurd.
1.23.2007 1:39pm
A.S.:
Check out your Sixth Amendment:

In all criminal prosecutions


Hmmm. Anyone see the error in applying the Sixth Amendment to these cases?
1.23.2007 1:44pm
Davide:
Kovarsky,
Are you reading anything I write?!!?! I noted that, in felony cases (actually, in cases involving imprisonment as a possible sentence) the state is required to provide free legal representation IF you can't pay for it yourself.

SO WHAT??!?! This DOES NOT MEAN that a laywer -- hell, any lawyer -- can be forced to take your case. If you think otherwise, just try asking any of the renowned firms that represent the Gitmo detainees to represent you in your drunk driving case in state court. Only certain lawyers -- paid for by the state -- will do so for free.

My point is, was, and always has been, that AN ATTORNEY IS FREE TO DECLINE ANY POTENTIAL CLIENT. Therefore, an attorney who does represent someone (a rapist, Gitmo detainee, or billion dollar corporation) INTENTIONALLY CHOSE to do so. That intentional choice, like all intentional acts, can be criticized. It should be, too, when appropriate. Lawyers don't have carte blanche to sashay around, pick someone, zealously defend that person's meritless position, and then bleat, "I'm obligated to zealously defend...!" Please.
1.23.2007 1:46pm
Loki13 (mail):
Davide,

Two quick points...

1. I believe the caps lock on you computer is malfunctioning. You may want to preview before posting.

2. You seem to be skipping over the very basis of how our adversarial system works, and the reasoning behind the adoption of the Model Rules by the ABA and their analogues by the State Bar Assns. I don't think that I can possibly follow the brilliant Doctor/Nobel/Paedophile hypothetical with an equal, but please try to imagine this-

You, Davide, are falsely charged with child molestation. Lawyers can choose their cases. Because, in your world, a lawyer is identified with their cause... no one wants to take you case. The government never makes mistakes, right? And no lawyer is pro-child molesting, right?
1.23.2007 1:55pm
Davide:
For those who think that a lawyer's choice of client is above reproach:

Let's play this out a bit. If a public defender cannot be criticized for choosing to defend accused rapists or murderers, what about the lawyers who continually represented convicted mobsters like John Gotti? Are they, too, above reproach for their choice of client? Is "the mere fact" that they are, time and again, mob mouthpieces smoething that cannot be criticized?

Is the ability of a lawyer to choose his client so sacrosanct that it cannot be questioned or examined? If so, why?
1.23.2007 2:02pm
Bob from Ohio (mail):
I see nothing wrong with calling Gitmo pro bono lawyers "terrorist huggers" nor do I see anything wrong with calling Goldsmith a "war criminal" if that is what you think. When lawyers enter politically charged areas on either side, they should expect flak. If you don't want the heat, stay out of the kitchen (so to speak).

I do not see why lawyers are immune to comments like that nor why other lawyers should necessarily refrain from such comments. The proper response is more speech pointing out the errors of the comments. Is not that what happened in the Stimson case? Despite the desire by some here to see him disbard or fired, he received a barrage of negative comments from his guild and recanted. Free speech triumped without the necessity of punative sanctions.
1.23.2007 2:03pm
Kovarsky (mail):
A.S.,

Hmmm. Anyone see the error in applying the Sixth Amendment to these cases?

If you look upthread, you'll see that the assertion was made that there was no right to counsel anywhere. I'm obviously aware that one doesn't have a right to an attorney in, say, a civil proceeding.

If we were actually talking about the merits of this particular issue, we'd be talking about whether one can be barred from access to willing counsel.
1.23.2007 2:05pm
Davide:
Loki123-

1. Caps was meant to help someone understand a simple point. It doesn't seem to be sinking in, despite caps. I'll just try, and try again.

2. Loki123, are you reading anything I wrote? Let's try again. In a child molestation case, there is no right (see? No caps, specially for you) for the accused to force anyone to represent him. Any lawyer may refuse to take this case. No, if the accused molester has money, she may offer to pay a lawyer to represent her, and if a lawyer wishes to agree to the sum, then the accused molester will be represented. But if no lawyer wishes to do so, the molester will not be able to force the unwilling lawyer to do so.

Now, for a poor accused child molester, certain lawyers have agreed to provide such services, and because there is a risk of actual imprisonment, the state is obligated to ensure that counsel will be available to take the case for free.

But this, again, does not mean any particular lawyer must take the case. So, if the client is a perjurer, or has a case that the lawyer believes objectively is meritless, the lawyer cannot (under ethical rules) continue representing the client (in the case of perjury) or continue to zealously prosecute a meritless case. Got it?

But if you still don't get it, Loki123, let's come back to Gitmo. There is no obligation to the State to provide lawyers to them -- and surprise! They aren't. The government is not paying for their counsel. So your hypo is just wildly, wildly off.

Now many fancy lawyers have voluntarily chosen to represent them (Sullivan &Cromwell, among many others). But not a single lawyer at S&C was obligated to do so. Not a single lawyer at S&C was required by any law or ethical requirement to pick up the phone and represent these people. They chose to do so for their own reasons. That's fine, but it's an intentional choice. And that choice, like any other intentional choice, should be open to criticism.

Got it?
1.23.2007 2:09pm
Loki13 (mail):
Bob from Ohio,

The problem with Mr. Stimson's case was not one of free speech. If you are to call the Gitmo lawyers "terrorist-huggers" there would be no problem. Why Mr. Stimson has a problem is based on a two factor analysis:

1. He is a lawyer, and is thus bound by rules of professional conduct.

-This is not determinative in and of itself. Lawyers can criticize others for their choices of clients, although this is usually done indirectly. See Goldfarb's much cited 1997 Wash. Post editorial criticizing the choise to represent Credit Suisse for holocaust reparations for a liberal take on lawyer's client choices, and how that reflects upon their morals.

2. He had an involvement in the case.

-Here is where the problem arises. Not only is this chilling to the opposing lawyers, imagine that you are a DOD lawyers who was assigned to a Gitmo detainee that did not receive a BigLaw pro bono attorney. Your boss has made this announcement. What are your career prospects if you vigorously defend your assigned clients rights?

For those two reasons, this is not a simple 1st amendment case.
1.23.2007 2:12pm
Kovarsky (mail):
Davide,

(1) if you do not think there is not a professional norm that requires lawyers to assure zealous representation to all individuals, then we have no real reason to continue this discussion, although I submit in that case that you really don't know what you're talking about.

(2) we also do not have much to talk about if you are going to reason from the premise that all gitmo detainees are terrorists before they are adjudicated as such pursuant to some judicial procedure.

(3) nobody has said that any given lawyer has to take any given case; the issues is whether a lawyer the Department of Defense should be thuggishly threatening lawyers who are willing to.

so, if you have some point to make other than (1) there is no "ethos" or "norm" or whatever else you'd like to call it that imposes a professional obligation to ensure zealous representation; (2) these people are terrorists; and (3) no lawyer can be forced to take a case, PLEASE MAKE IT. Otherwise, I'm confident we've vetted these issues, at least to my satisfaction.
1.23.2007 2:14pm
Loki13 (mail):
Davide,

Under Military Commision rules, Guantanamo detainees are assigned lawyers. They are, in fact, required to have lawyers. They are given military lawyers if they cannot get private counsel. For example, see:

Defenselink

We're talking about the Guanatanamo deatinees, right? And the military commisions?
1.23.2007 2:17pm
Davide:
(1) Kovarsky: You're the person who doesn't know what he's talking about, I'm afraid. There is no professional norm "that requires lawyers to assure zealous representation to all individuals." The New York Rules of Professional Conduct, for example, in Ethical Consideration 1-1, states that "every person in our society should have ready access to the independent professional services of a lawyer with integrity and competence." That does not mean every person is entitled to force a lawyer to represent her. Nor does it mean that meritless cases must be prosecuted zealously-- far from it: that is sanctionable counduct. If you think there is such a foolish requirement, cite it next time you write.

(2) Again, I question your basic reading skills. When and where did I ever say that "all gitmo detainees are terrorists before they are adjudicated"? Hint: I never did so. I express no opinion on their status and never have.

(3) I have not disagreed with anything in this point in this thread.

Your summary paragraph is both unclear and not at all derived from anything I've written.
1.23.2007 2:24pm
Loki13 (mail):
Davide,

BTW, I was not trying to be snarky. Are you saying they have no rights to lawyers before military commissions, or no rights to lawyers vis-a-vis the US court system (Al Odah v. US would seem to contradict). Are you applying the 2006 HC-stripping? I'm not following your argument here.
1.23.2007 2:24pm
Davide:
Loki13,

Are you seriously arguing that Sullivan &Cromwell was assigned to this case by the United States government? If so, I believe you are in serious error. S&C does not work for the government and needn't represent any military detainee.
1.23.2007 2:25pm
Davide:
Loki13,

Thanks for the apology-- sorry if caps was disturbing- it's just that some seem unable to grasp simple points.
I express no opinion whatsoever on the Gitmo issue -- I am not versed in it.

My point is -- to go back to the beginning of this thread-- that lawyers who choose to represent clients may be criticized for their choice. Whe private lawyers chose to represent Gitmo detainees, they opened themselves up to legitimate criticism for so doing (I express no opinion on whether such criticism is deserved). My point is simply that lawyers cannot choose to represent a client and then say that the fact that they represent that client is a sort of sacrosanct, un-criticizable fact of life. I express no opinion on the merits of Gitmo: I have none.
1.23.2007 2:28pm
Loki13 (mail):
Davide,

No, what I am saying is that you're a little hard to follow because you're all over the place. The detainees are entitled to counsel for certain proceedings (both criminal and quasi-criminal in nature) that is provided either by the military or by private counsel. You wrote "There is no obligation for the State to provide lawyers to them"... but there is.

Did you have a problem with Al-Odah? Do you think the 2006 HC-Stripping bill changes things? What about the DOD-appointed lawyers? What, exactly, is your point? If they are entitled to lawyers (which they are), and if, for some proceedings, the government must give them the lawyers, do you just want to make sure the lawyers are funded by taxpayers?

Or do you just want worse pro bono lawyers than S&C is providing?
1.23.2007 2:34pm
Loki13 (mail):
Just read your post-

on this I agree with you. I support your right to criticize S&C for their choice, as you are not a lawyer involved in the case.
1.23.2007 2:35pm
Davide:
I defer to your knowledge, Loki13, on the detainees' right to counsel. I have no basis to comment on that and, to be honest, I have little interest in that issue.

I do, however, strongly object to claiming that a lawyer's intentional choice of whom to represent should be immune to criticism. When S&C, WilmerCutler, and whomever else stepped into the fray to represent these detainees willingly, that was an intentional politital act and may be criticized. What irks me is when lawyers such as Olson and Katyal come around on high horses and state that lawyers should not be held accountable for their decision to represent clients. I think lawyers should be open to criticism for choosing to accept clients (be they gitmo detainees, murderers, or enron) and that they shouldn't beg off by saying everyone has a right to counsel.
1.23.2007 2:40pm
Loki13 (mail):
Davide,

The concern is the confusion of the unpopular cause with the lawyer. If we continually subject lawyers to withering criticism for the actions of their clients, the adversarial system as a whole will suffer. As the saying goes- everyone hates lawyers, until they need one. If you wish to criticize a lawyer for representing a child molester, such is your right under the 1st. But, ass my hypo suggested, what happens when you get falsely accused of that unpopular crime. In the world where lawyers are assumed to carry their cleitns beliefs, no lawyer would take your case. Clients charged with unpopular crimes (such as terrorism) would never receive adequate counsel, lessening the benefits of the adversarial system. I'm not saying that this belief is beyond reproach, again, I urge you to find a copy of the Goldfarb editorial. This was a liberal attack on BigLaw from representing Credit Suisse in an attempt to escape from Holocause Reparation claims. But I believe that the issue is more complex than you are allowing.
1.23.2007 3:02pm
Jonathan H. Adler (mail) (www):
To quick points to clarify a few things. First, the Katyal-Olson article does not claim that lawyers should never be criticized. It says the contrary.
Working as an attorney for the government or on behalf of a detainee pro bono doesn't make an individual a hero, nor does it insulate the individual from criticism. But such criticism would be more constructive if it focused on the merits of the particular position being argued rather than personally on the advocate.
In other words, it is perfectly reasonable to criticize government attorney Y for adopting a strained reading of the Constitution or a treaty, or to criticize pro bono attorney X for making a frivolous argument -- and this is qualitatively different from criticizing either for agreeing to represent the client.

As for my claim that "it is generally accepted that the bar, as a whole, has an obligation to ensure that zealous representation is available to all parties in all cases," the New York rule that Davide cites proves my point. This ethical consideration posits an obligation that the bar has, as a whole, to ensure that "every person in our society should have ready access to the independent professional services of a lawyer with integrity and competence." This does not mean any given lawyer is required to take any given client that walks in the door (though lawyers can be assigned to cases by the courts). Nor does it mean that lawyers must advance frivolous or fraudulent claims on behalf of their clients. Those are straw arguments. It does, however, mean that lawyers should refrain from conduct that is likely to discourage the representation of certain classes of potential clients, and (to me) this includes blanket criticism of lawyers for agreeing to represent particular clients, particularly when such criticism is focused on the fact of representation, rather than on the manner or representation.

JHA
1.23.2007 3:16pm
Salaryman (mail):

Olson is saying, in effect, "it's okay to criticize individuals on the merits" as an implied contrast to the present situation, as though that's not what has been happening. As I said above, that IS what has been happening.

Olson's contrast of "proper" and "improper" criticisms omits the critical fact that previous criticisms of specific government lawyers meet his own test. He is falsely equating the legitimate with the illegitimate. And I think he's smart enough to know exactly what he's doing.


The kind of "previous criticism" Olson most likely referred to is exemplified by the campaign against Robert Delahunty's appointment as Dale Carpenter's temporary replacement as a law professor at the University of Minnesota. Delahunty was opposed because he and John Yoo had produced a draft memorandum (characterized by critics as a "secret (but later leaked) memo" as though to suggest that most draft legal opinions are a matter of public record and that the "secret" status of this particular draft were evidence of Yoo and Delahunty's nefarious nature) concluding that neither the federal war crimes act, nor the Geneva convention would apply to Guantanamo detainees.

Delahunty's critics (specifically eight U of M law professors who wrote an open letter against the hire) went on to state that "Robert Delahunty is likely to subjected to investigation in Europe and other parts of the world, if not the United States, for his activities which have made it more likely that the United States would engage in torture and ill-treatment of detainees. This conduct [i.e., writing a draft memorandum of law at a client's request whose conclusions were ultimately accepted by a federal court of appeal (unanimously) and three Justices of the US Supreme Court (four if you count CJ Roberts, who recused himself because he had been part of the unanimous DC Circuit panel)] may be considered by a prosecutor and a court to be a war crime or a crime against humanity." The 8 law professors went on to observe that "attorneys providing advice to a client on how to circumvent the law may be held complicit in the resulting criminal conduct," characterized Delahunty as "tainted" and concluded that the U of M should not hire, "even if on a temporary basis, a lawyer so directly implicated in what many in the international community regard as war crimes."

I don't know enough to opine on the legal "merits" of the position taken by Delahunty in the memo -- maybe he and Yoo are dead on and the Supremes screwed up, maybe his position was arguable but on balance, wrong, maybe the arguments in the memo are barely plausible and should have been unanimously rejected by both the DC Circuit and the Supreme Court. But I do know that Delahunty's critics implied pretty clearly that he was a likely war criminal by virtue of providing the draft memo and that this had "tainted" him, I would suppose irreparably. The clear implication of that letter was that no law school worth its salt should ever again hire Delahunty (presumably, no law firm worth its salt should either).

Olson wrote that "criticism would be more constructive if it focused on the merits of the particular position being argued rather than personally on the advocate" I can't believe Mark Field truly believes that suggesting that someone may well be a war criminal does not focus "personally on the advocate." I'm not sure how Cully Stimson's statements are more "personal" than the above.
1.23.2007 3:19pm
A.S.:
We're talking about the Guanatanamo deatinees, right? And the military commisions?

Not sure we're talking about the military commissions. Remember that the Combatant Status tribunals are separate from the military commissions.
1.23.2007 3:22pm
Davide:
OK, Loki13, we're coming closer, but not there just yet-
First, re your post of 2:35 pm, your statement: "I support your right to criticize S&C for their choice, as you are not a lawyer involved in the case" is a off. I am not criticizing S&C for representing anyone, including Gitmo.

With regard to the defense of the unpopular client: of course I understand this issue. It's happened over and over in our history. Nonetheless, lawyers should not get a free pass on the matter. I think it is interesting, and perhaps worthy of reproach, that, rather than use their free resources to help the elderly poor in NY (of which there are many) S&C chose to spend their considerable wealth on Gitmo detainees. Defending grandmothers being evicted from public housing might not be as press-grabbing, but I think those citizens should get legal access more than the Gitmo detainees (my personal view).

Your post offers a sort of false dichotomy: either give lawyers a free pass on client selection or the "adversarial system as a whole will suffer." Really? I doubt the veracity of this claim. Lawyers who frequently represent mobsters can and should be criticized: as I recall, Bruce Cutler, Gotti's recurring mob lawyer, was disqualified from representing Gottin in further trials precisely because of his constant choice of Gotti as a client. Gotti was then convicted? Do you think the "adversarial system as whole" suffered harm because of that? Or is it just gitmo detainees who solicit such concern?

I think defenses here are hypocritical and partisan. Gitmo detainees (a liberal shibboleth) are a cause celebre and their lawyers are anointed saviors, so their choice of representation cannot be questioned. Cutler (who represents mobsters) can have his representation impugned and be disqualified. I think all lawyers open themselves up to criticism for whom they choose to represent -- the answer to complexity is not silence but speech.
1.23.2007 3:22pm
Davide:
JHA,

Your "clarification" is a change of position.

You said, in your post, "I would add that there is a difference between criticizing a lawyer for the way she represents a client — that is, the arguments made, defenses raised, etc., — and attacking the mere fact of representation."

It is "the mere fact of representation" that I have been saying is open to criticism. To the extent that you are changing your position to agree with the fact that such "mere fact of representation" may be criticized, well, more power to you.

Second, I suggest you are misreading seriously the Ethical Consideration in the NY Bar Code of Professional Conduct. "Ready access" to objective counsel most certainly does not mean that "it is generally accepted that the bar, as a whole, has an obligation to ensure that zealous representation is available to all parties in all cases." Hardly.

It is proven by all of the issues you do not address: (1) the ubiquity of pro se representation in small claims court, traffic court and other small matters; (2) the fact that pro se representation is approved of and endorsed by the Supreme Court and is common in all 50 states; and (3) the fact that no lawyer has an obligation, under that consideration or any other, to represent anyone.
1.23.2007 3:28pm
Davide:
Also, I will add that there is no obligation -- certainly under New York law and likely anywhere else-- for any lawyer to represent anyone for free (as S&C is doing for Gitmo detainees). Pro bono work, as it called, is purerly at the lawyer's option. It is thus an unsupportable claim to states that "the bar, as a whole, has an obligation to ensure that zealous representation is available to all parties in all cases." That is simply untrue.

It is no "straw argument," further, to note that lawyers are obligated not to advance frivolous arguments and/or meritless cases. Many lawyers are sanctioned every year for such conduct. Just because someone thinks she has a case does not mean that she does. Prof. Adler ignores the part of the Ethical Consideration that states that the lawyer must use her "independent professional services"; i.e., she should not be a mouthpiece for a client to pursue "all cases" with unthinking acceptance. Moreover, she must have "integrity and competence," i.e. be responsible to the court to ensure that the case she brings is honorable and worthy of review. That is a far cry from "zealous" advancement of "all" clients' cases.
1.23.2007 3:41pm
Dilan Esper (mail) (www):
My understanding is nobody is calling anyone a war criminal simply because they represented the Bush Administration. So Olson is setting up a straw man here. But my limited understanding is that a government lawyer who advises a governmental agency that it may go ahead and violate fundamental principles of international law that apply to armed conflict could, possibly, be a war criminal.

I should note, however, that based on what I know about Jack Goldsmith, there's no way he actually qualifies under that standard. John Yoo, however, likely does.
1.23.2007 4:07pm
DJR:
Davide,

You clearly are not a lawyer, and your every post reeks with that ignorance. You should really stay away from opining about things you know so little about. With regard to your last two points:

1. There is an ethical obligation to provide pro bono service in general. No, I am not saying that any lawyer can be forced to represent anyone for free, but nevertheless, there is an ethical obligation. I refer you to D.C. Rule of Professional Responsibility 6.1:

"A lawyer should participate in serving those persons, or groups of persons, who are unable to pay all or a portion of reasonable attorney's fees or who are otherwise unable to obtain counsel. A lawyer may discharge this responsibility by providing professional services at no fee, or at a substantially reduced fee, to persons and groups who are unable to afford or obtain counsel, or by active participation in the work of organizations that provide legal services to them. When personal representation is not feasible, a lawyer may discharge this responsibility by providing financial support for organizations that provide legal representation to those unable to obtain counsel."

Other jurisdictions have similar provisions. For example, the preamble to the Illinois Rules of Professional Conduct provides:

"Timely, affordable counsel is essential if disputes are to be avoided and, when necessary, resolved. Basic rights have little meaning without access to the judicial system which vindicates them. Effective access to that system often requires the assistance of counsel.

It is the responsibility of those licensed as officers of the court to use their training, experience and skills to provide services in the public interest for which compensation may not be available. It is the responsibility of those who manage law firms to create an environment that is hospitable to the rendering of a reasonable amount of uncompensated service by lawyers practicing in that firm.

Service in the public interest may take many forms. These include but are not limited to pro bono representation of persons unable to pay for legal services and assistance in the organized bar's efforts at law reform. An individual lawyer's efforts in these areas is evidence of the lawyer's good character and fitness to practice law, and the efforts of the bar as a whole are essential to the bar's maintenance of professionalism."

This is what the other poster was refering to as the profession's responsibility to ensure that all parties have adequate representation. No, you can't be jailed for failing to represent a particular client for free, but that doesn't mean there is no obligation at all.

2. As to the rule against advancing frivolous arguments, there is indeed such a rule, but it is not in tension with the profession's responsibility to ensure competent representation. Zealous representation of a client who wishes to pursue a frivolous case means counselling that client that his case is meritless. After all, not bringing a frivolous case is in the client's interest. Lawyers are obliged to prevent their clients from abusing the judicial system.
1.23.2007 4:18pm
Mark Field (mail):

Olson wrote that "criticism would be more constructive if it focused on the merits of the particular position being argued rather than personally on the advocate" I can't believe Mark Field truly believes that suggesting that someone may well be a war criminal does not focus "personally on the advocate." I'm not sure how Cully Stimson's statements are more "personal" than the above.


I think you've misunderstood my point. Cully Stimson did NOT criticize any individual. His criticism was of a class: lawyers who, pro bono, represented the detainees.

There has been, as far as I know, no corresponding criticism from the other side. That is, nobody has criticized prosecutors as a class for prosecuting detainees. Thus, what Stimson did is NOT equivalent to what those on the "other side" have done.

I have objected to Olson's commentary on the basis that he conflated the two situations.

I have no problem with criticism, on the merits, of the position taken by lawyers on either side. If a defense lawyer goes overboard (Lynne Stewart), it's right and proper to criticize her. If John Yoo goes overboard on the other side, it's right and proper to criticize him.

What's NOT right is for Olson to compare those who criticized John Yoo (or Lynne Stewart) -- that criticism was individual and on the merits, regardless of how harsh it was -- with Stimson's comments, which were NOT individual and NOT on the merits.

By calling for an end to both types of criticism, both Stimson's and the protests against Yoo or Delahunty, Olson mixed apples and oranges. In fact, his argument borders on incoherent: Olson wants Stimson to shut up because his comments were not on the merits, but also wants Yoo's critics to shut up even though their criticisms are on the merits and Olson himself has approved criticism on the merits.
1.23.2007 4:19pm
Ragerz (mail):
If you can't take the heat, get out of the kitchen.

Davide is right on this. In a free society, one does not arbitrarily say that certain choices should be free from criticism. Adler is right that it is different to criticize the decision to represent a particular client, versus the particular position an advocate takes on behalf of that client. But this is a distinction without a difference. That a person decides to represent a particular client says something about them, just as a person advancing a particular argument says something about them.

By the way, government lawyers in terrorism cases have never been criticized for who their client was (which was the United States), but only for the positions they have argued. So, your distinction here hardly works to insulate government lawyers who are rightly declined certain job opportunities (like Court of Appeals Judge) after they take certain outrageous positions.

Of course criticism should focus on people personally. When you make bad choices, you should be ready for the criticism directed at YOU for making that bad choice. It is not merely the idea that is substantively bad. There is also the person that is the source of the substantively bad idea.

If you decide to represent child molestors, that DOES say something about you. I am not going to invite you to dinner. I am not going to let you near my kids.

If you really believe in the case of the person or organization you are representing, mere criticism should be no deterrent. I don't think we as a society should create norms, in contravention of First Amendment sensibilities, to protect the decisions of lawyers to represent whoever they want from mere criticism.

There are no guarantees in life that one will be protected from criticism. Even unjustified criticism. Maybe, the real issue is that people should have some balls and just take the criticism and be proud of what they have done if they think the criticism is unjustified. If you stop looking to others for validation, criticism isn't so bad.

Davide definitely has the better of this argument.
1.23.2007 4:29pm
Davide:
Well, DJR, you're a masterful lawyer, now, aint'cha? :)

Let's take your magisterial arguments one at a time:

(1) "There is an ethical obligation to provide pro bono service in general." As you are such a wonderful lawyer, I'll just take it at face value that you've researched the laws of the federal government and of all 50 states (surely you're aware that each state has its own code of lawyer conduct), but hell, you're so damn smart I'm sure your citation of DC is more than sufficient for the whole country. Heck, I'm trembling in my shoes just writing to you...

Even so, my intellectually brilliant friend, you seem to miss the point that DC's rule is just that -- the rule for DC. It doesn't apply to NY lawyers. So, for example, comment 5 to DC's rule that you so proudly cite makes it crystal clear that violating the rule should not be subject to discipline. Lawyers in DC may discharge their pro bono obligation by "(1) accepting one court appointment, (2) providing 50 hours of pro bono legal service, or (3) when personal representation is not feasible, contributing the lesser of $400 or 1 percent of earned income to a legal assistance organization that services the community's economically disadvantaged, including pro bono referral and appointment offices sponsored by the Bar and the courts."

That's it. Contributing $400 a year is hardly "an obligation to ensure that zealous representation is available to all parties in all cases," now, is it?

And, of course, since you're so uber-smart, you'll of course know that there is no such recommendation for NY lawyers, right? (who happen to be the lawyers acting in Gitmo). Oops, you didn't know that? Sorry to point out your ignorance of the laws of other states.

(2) Your post here is funny. JHA wrote (and I quote): it is generally accepted that the bar, as a whole, has an obligation to ensure that zealous representation is available to all parties in all cases. I noted: what if a party's case is meritless and/or sanctionable? Must a lawyer "zealous[ly]" represent such a person? Of course not. Since you're such a genius, you agree with me, and then karate chop me with a flying non-sequitur:

"Zealous representation of a client who wishes to pursue a frivolous case means counselling that client that his case is meritless. After all, not bringing a frivolous case is in the client's interest."

Really? So, it turns out that in the case of meritless cases, "zealous representation" is non-representation?!?! I'm amazed at your sagacity. I'm sure clients will be, too, when you tell them that, by refusing to advancing their case, you're actually zealously representing them. How about when you refuse to take their case in the first place because it's meritless? How is that zealous representation when you never even consented to offer them representation in the first place? Gosh, that's a head-twister, but you're so brilliant, I'm sure you'll come up with something... :)
1.23.2007 4:39pm
Kovarsky (mail):
JHA says,

Those are straw arguments. It does, however, mean that lawyers should refrain from conduct that is likely to discourage the representation of certain classes of potential clients, and (to me) this includes blanket criticism of lawyers for agreeing to represent particular clients, particularly when such criticism is focused on the fact of representation, rather than on the manner or representation.

The obligation would require an attorney to do (2), but not (1):

(1) Attorney A must represent CLIENT
(2) Attorney A must refrain from assaulting Attorney B on the basis of Attorney B's representation of CLIENT
1.23.2007 4:40pm
Ragerz (mail):
DJR writes:


Davide,

You clearly are not a lawyer, and your every post reeks with that ignorance.


First of all, that one has an obligation to provide services to a class of individuals that cannot afford them does not mean that one has an obligation to defend any particular individual, regardless of their repugnance.

Second, being a lawyer does not mean that you automatically agree with those who arbitrarily adopt the position that client choice should never be subject to criticism, while other decisions should be. Some laywers think this, others think something else.

You know, back in the day, John Adams defended the five British soldiers accused of shooting into a crowd of unarmed civilians during the Boston Massacre. This was a controversial decision, and John Adams put himself on the line. Do you think he wasn't criticized for his choice? He most certainly was criticized. But he took that criticism, because he believed in what he was doing.

I have no sympathy for those lawyers who want to be like John Adams and represent controversial clients, but unlike John Adams, are not able and willing to take the heat for doing so. Sometimes you have to take the bitter with the sweet.
1.23.2007 4:42pm
Kovarsky (mail):
Davide,

Point blank, are you a lawyer?
1.23.2007 4:43pm
Kovarsky (mail):
Ragerz,

Nobody is saying there's an obligation to represent a particular individual, the obligation is that you are not supposed to interfere with other lawyer's representation of that individual.

That's why the question is over Stimson's ethics, not those of the law firms'.
1.23.2007 4:45pm
Kovarsky (mail):
my sincerest apologies for poor use of apostrophes.
1.23.2007 4:46pm
Davide:
Oh, and by the way, DJR...

For such a genius, your post is a bit goofy. You cite DC's Rule 6.1 that asks lawyers to pay $400 (but does not demand and will not penalize a lawyer who doesn't do it), but then you cite Illinois' Rules (?!) which state specifically that they will not even include that pittance. As the preamble states in the part you didn't cite:

The absence from the proposed new rules of ABA Model Rule 6.1 regarding pro bono and public service therefore should not be interpreted as limiting the responsibility of attorneys to render uncompensated service in the public interest. Rather, the rationale for the absence of ABA Model Rule 6.1 is that this concept is not appropriate for a disciplinary code, because an appropriate disciplinary standard regarding pro bono and public service is difficult, if not impossible, to articulate.

You know what that means, don't you, Mister Genius DJR? Since I reek of ignorance of the law, as you say, I gotta guess at it, but here's my shot:

Lawyers in Illinois don't have to do jack squat regarding pro bono. Period. If they want to, fine. If not, fine.


A toothless "ethical" desire without compulsion or discipline may be nice, but it's certainly no "obligation" in the sense of the word anyone usually uses. You're obligated to pay taxes; this is just fancy talk. But, again, your deep knowledge of the law of all 50 states will stun one and all, I'm sure....
1.23.2007 4:48pm
Mark Field (mail):

"There is an ethical obligation to provide pro bono service in general." As you are such a wonderful lawyer, I'll just take it at face value that you've researched the laws of the federal government and of all 50 states (surely you're aware that each state has its own code of lawyer conduct), but hell, you're so damn smart I'm sure your citation of DC is more than sufficient for the whole country.


ABA Model Rule 6.1 does impose an obligation for pro bono service (50 hrs/year). I don't know how many states have adopted this; certainly, CA has not.

Ducking out of the way now.
1.23.2007 4:55pm
Davide:
Kovarsky,

Point blank, the statements you made in your post of 2:14 p.m. were baseless, right?

To refresh, you said:

(2) we also do not have much to talk about if you are going to reason from the premise that all gitmo detainees are terrorists before they are adjudicated as such pursuant to some judicial procedure.

I noted that I never said anything of the kind, despite your claim to the contrary (see my post of 2:24). You never answered: nor did you back up your clearly false post.

Your claim was baseless, yes?

Second, in my post of 2:24 p.m. I said:

1) Kovarsky: You're the person who doesn't know what he's talking about, I'm afraid. There is no professional norm "that requires lawyers to assure zealous representation to all individuals." The New York Rules of Professional Conduct, for example, in Ethical Consideration 1-1, states that "every person in our society should have ready access to the independent professional services of a lawyer with integrity and competence." That does not mean every person is entitled to force a lawyer to represent her. Nor does it mean that meritless cases must be prosecuted zealously-- far from it: that is sanctionable counduct. If you think there is such a foolish requirement, cite it next time you write.

You don't have anything, do you? Or do you, cause I sure didn't see it in the next post you cited.
1.23.2007 4:56pm
Davide:
On Mark's point,

As DJR should know, Illinois (for one) has not adopted any 50 hour rule. DC hasn't either, insofar as the rule is not subject to discipline, and one can in any event be in compliance by donating $400.

NY, to the best of my knowledge, has no such rule.

But really, Prof. DJR must know so much more-- I'm waiting to be stunned...
1.23.2007 4:59pm
Ragerz (mail):
Kovarsky writes:


Nobody is saying there's an obligation to represent a particular individual, the obligation is that you are not supposed to interfere with other lawyer's representation of that individual.


I don't think I would consider criticism to be interference. Nor do I think that declining to hire someone you think has made morally questionable decisions regarding representation interference. I don't think using someone's representation decisions against them politically is interference.

If your only point is that we should not physically harm the lawyer or obstruct their representation, then I agree with that modest idea. As long as "obstruct" is defined narrowly.

If your point is that lawyers should be immune from criticism for their choices, and that people should not consider their choices in terms of representation when issuing dinner invitations, then I disagree.

If and when I represent someone X does not approve of, and as a result X does not want to hire me and X doesn't want to invite me to dinner and X opposses me politically and X tries to prevent me from being appointed to the Court of Appeals, I am fine with that. I can and will take the heat for doing what I think is right. If you can't say that, then I have no sympathy. Those who are too psychologically weak to handle criticism from representing controversial clients, shouldn't represent controversial clients.

If I was a controversial client, I wouldn't want to be represented by a lawyer with a thin skin anyway.
1.23.2007 5:13pm
Kovarsky (mail):
Davide,

To refresh, you said:

(2) we also do not have much to talk about if you are going to reason from the premise that all gitmo detainees are terrorists before they are adjudicated as such pursuant to some judicial procedure.

I noted that I never said anything of the kind, despite your claim to the contrary (see my post of 2:24). You never answered: nor did you back up your clearly false post.


What is your malfunction dude?

On the issue of (2), you assuming the guilt of those for whom the propriety of representation is disputed:

It is no "straw argument," further, to note that lawyers are obligated not to advance frivolous arguments and/or meritless cases. Many lawyers are sanctioned every year for such conduct.

Moreover, the assumption that the detainees are in fact terrorists and therefore that the representation of them constitutes a reasonable basis for punishing law firms is fundamental to your "pedophile" analogy.

Your position on the meaning of the ethics rules has been refuted by enough people, including the author of the post. You can keep skipping from state to state (right now I think you're on Illinois, after you've been disproven under the model rules and New York), but you're not doing yourself any analytic good.
1.23.2007 5:14pm
Kovarsky (mail):
Ragerz,

THE POINT IS NOT THAT LAWYERS SHOULD BE IMMUNE FROM CRITICISM. IT IS THAT A DOD LAWYER SHOULD NOT BE THE ONE CRITICIZING.

Lee
1.23.2007 5:15pm
Ragerz (mail):
Davide,

Why I agree with you substantively, I don't approve of the way your posts seem to be dripping with disdain and sarcasm.

Sometimes I probably do the same thing too. But I think it is actually less effective and it definitely less pleasant than adopting an alternative, less sarcastic, more sincere, less disdainful, and more respectful tone.

Of course, this is all in theory... But I try.
1.23.2007 5:16pm
Ragerz (mail):
Kovarsky,

I disagree. If you don't like the criticisms of government lawyers, then may I suggest that you vote for a President who will hire lawyers with a different point of view.

By the way, we should be thankful that this idea is out in the open. Guess what, even if these lawyers usually don't say these things, they certainly think these things. Don't think that these sorts of considerations don't influence their actual decisions. We actually benefit from having this out in the open like this.

I agree that no law firm who has lawyers who represent Guantanamo detainees should lose corporate clients. But, that is because I don't think the pro bono decisions of lawyers in a law firm should be controlled by the law firm, absent a conflict of interest. (Hey, but if you aren't promoted to partner because you spend your pro bono time representing child molesters, tough.) Since law firms shouldn't be controlling the pro bono decisions of their members, they shouldn't be held accountable, as a firm, for those decisions.

However, I am glad that a government lawyer suggested this. If only to bring this sort of issue out in the open. Would you prefer more clandestine actions?

One last point. I personally would gladly represent a Guantanamo detainee. If anyone has a problem with that, government lawyer, private lawyer, Supreme Court Justice and wants to criticize me, I say bring it on.
1.23.2007 5:25pm
Davide:
Kovarsky,

No. Your post was baseless. When you wrote on 2:14, you claimed I was "reason[ing] from the premise that all gitmo detainees are terrorists before they are adjudicated as such pursuant to some judicial procedure."

I never said any such thing. I noted such to you in my post of 2:24. Point up any such post made prior to your accusation or concede it was baseless.

*********************

And I never did. In a subsequent post, made over an hour later, I stated, as a general fact, It is no "straw argument," further, to note that lawyers are obligated not to advance frivolous arguments and/or meritless cases. Many lawyers are sanctioned every year for such conduct. Just because someone thinks she has a case does not mean that she does.

That said nothing about Gitmo.

In fact, as I noted again and again here (see my posts of 2:28) "Whe private lawyers chose to represent Gitmo detainees, they opened themselves up to legitimate criticism for so doing (I express no opinion on whether such criticism is deserved)." And as I noted at 3:22: I am not criticizing S&C for representing anyone, including Gitmo.

Simply saying that there are meritless cases filed and that lawyers are sanctioned for it has nothing to do with Gitmo.

************

Oh, and Ragerz, my sarcasm for DJR, while heavy-handed, is is deserved. Anyone who writes; "You clearly are not a lawyer, and your every post reeks with that ignorance. You should really stay away from opining about things you know so little about" should have little qualm about sarcasm in response.
1.23.2007 5:26pm
billb:
Davide: I agree. No lawyer (unless required to by a court) has to represent any particular defendant in proceedings governed by the 6th Amendment. But (and it's a big "but")! Some lawyer must represent every defendant in cases so governed. Therefore, congruent with the interests of justice and the public good, there's no good reason that I can see to criticize lawyers who take up the cause of those detained at Gitmo. This is especially true considering the legal ambiguities involved (including the question as to whether these persons are entitled to rights under the 6th Amendment, other statutes governing the right to counsel, and the writ of habeas corpus).
1.23.2007 5:45pm
Ragerz (mail):
Davide writes:


Oh, and Ragerz, my sarcasm for DJR, while heavy-handed, is is deserved.


It might be deserved. But it also is probably less effective. Sometimes it doesn't make sense to go wrestle a pig in the mud, even if the pig deserves it. You end up getting dirty too.
1.23.2007 5:52pm
David M. Nieporent (www):
Davide,

To put it bluntly, the problem is that you don't know what the hell you're talking about. And putting the words in ALL CAPS doesn't make you any less wrong. As a lawyer in private practice, I can be -- or at least the state of New Jersey believes so, and they're the ones who license me, so they have the power to decide -- compelled to represent people.

To reiterate: I am not a public defender. I am a lawyer in private practice. I cannot "quit" when I am assigned to represent someone. I would have to resign from the bar entirely to avoid this legal obligation.
1.23.2007 5:53pm
Rick Shmatz (mail):
Sounds like billb is advocating involuntary servitude in violation of the 13th Amendment.
1.23.2007 5:54pm
Ragerz (mail):
billb:


Some lawyer must represent every defendant in cases so governed. Therefore, congruent with the interests of justice and the public good, there's no good reason that I can see to criticize lawyers who take up the cause of those detained at Gitmo.


That some lawyer has to do it, doesn't mean that those who want to do it shouldn't be criticized. They should be subject to criticism, because they are making an uncoerced decision.

And the "interests of justice" line is rather weak. There are plenty of people who need representation, but have a hard time finding good representation. They get worse representation. That is a fact. You might have a right to some representation, but you don't have a right to equal representation. Theory aside, we are talking real world. Do the "interests of justice" require ignoring how the real world actually works?

I think as long as the rich are able to buy better representation, we can say that representation is a scarce resource, and our decisions to allocate that scarce resource, to the extent we control that allocation, should and will be subject to criticism.
1.23.2007 6:02pm
Ragerz (mail):
David M. Nieporent,

When you are compelled to represent someone, then you shouldn't be criticized. That you theoretically can be, doesn't mean that you are in a particular instance.

In those instances where representation is not compelled, you can and should be subject to criticism for your choices.
1.23.2007 6:04pm
Davide:
David Nieporent,

Rather than argue the law in all 50 states (because, to be honest, I'm truly not interested in it), let's get back to the issue at hand, the one at the very beginning of the day:

S&C is representing Gitmo detainees. Are you telling me that they're required to do so? Really? I say no.

Since the answer is no, S&C chose to do intentionally. The "mere fact of their representation," therefore, is a concious choice of S&C's. It is one open to criticism as a result (note to Kovarsky: I'm not criticizing them- I'm saying they may be so criticized).

Prof. Adler said "the mere fact of representation" should not be an issue that one should criticize in his post this morning. I said no -- and still say no. A lawyer may be criticized for her choice in client. Absent compulsion (and there is no compulsion here), these firms may be subject to criticism for wading into a political thicket.

Clear?

*P.S.: Whatever the NJ Rules of Professional Conduct say, and whatever your requirements regarding pro bono, NJ law does not apply to S&C. S&C is not representing the Gitmo detainees pursuant to court order. Nor, to the best of my knowledge, is any other firm acting in the matter. So your point is quite irrelevant.
1.23.2007 6:05pm
David M. Nieporent (www):
S&C is representing Gitmo detainees. Are you telling me that they're required to do so? Really? I say no.
No; I'm telling you that you don't know what you're talking about. For instance, when you wrote:
My point is, was, and always has been, that AN ATTORNEY IS FREE TO DECLINE ANY POTENTIAL CLIENT.
That was wrong. If it wasn't actually your point, then you probably shouldn't have said that it "is, was, and always has been" your point.

Or, for instance, your claim that:
But if you still don't get it, Loki123, let's come back to Gitmo. There is no obligation to the State to provide lawyers to them -- and surprise! They aren't. The government is not paying for their counsel. So your hypo is just wildly, wildly off.
Which is wrong; the government is paying for their counsel, when necessary.

When you keep making arguments that show you don't understand basic facts, it's not hard to understand why people dismiss you as not knowing what you're talking about.
1.23.2007 6:21pm
Davide:
David:

Sorry, you're right. In some states -- which are not relevant to the Gitmo matter -- courts may, in limited cases, require an attorney to accept clients they do not accept. It follows logically that lawyers should not be criticized for compulsory service.

But of course, that issue is of no import with regard to Gitmo, correct? None of the law firms acting with regard to the Gitmo detainees have been dragooned into acting in that capacity, correct? Unlike the mandatory pro bono in NJ, that issue is not applicable here. But you're right with regard to NJ.

And, with regard my claim that the State "is not paying for their counsel," I'm mostly right, aren't I? That's wh you say the government is paying for their counsel, "when necessary." So, none of the firms we're discussing -- the large NY law firms -- are getting paid by the US government, right?

So, what's your point? That I'm wrong? Granted-- you've got me on NJ, with regard to a few hours of pro bono. That a court has held the gitmo detainees have a right to counsel? Ditto. I concede.

But on the core issue -- from this morning, you've said nothing of substance. Let me repeat it:

I see little reason to give lawyers a free pass in client selection. Absent compulsion, no lawyer needs to represent any client. Who a lawyer chooses to represent says something about the lawyer.

Thus, the "mere fact of representation" says quite a lot about the attorney. It says that the lawyer chose to represent that client, for a reason. The decision was voluntary, and it was intentional. Why did the lawyer choose to do so? Does the lawyer believe his client's case has merit? Does the lawyer wish (as many do) to further her client's cause?

People can and should be held responsible for their intentional acts. This is one such. In many cases, it might be unobjectionable, but in others, it may. I see no reason that criticism should be out of bounds.

Arguing the contrary seems, rather, to lead to a view of lawyers' work as noblesse oblige: the work of aristocrats in the service of the 'public' (defined at the lawyer's whim) whose choices should not be questioned. I see nothing to recommend this approach.

************

Every word still applies.
1.23.2007 6:32pm
Davide:
sorry- typo in last post: first sentence should read: courts may, in limited cases, require an attorney to accept clients they would not otherwise wish to accept.
1.23.2007 6:33pm
Salaryman (mail):


I think you've misunderstood my point. Cully Stimson did NOT criticize any individual. His criticism was of a class: lawyers who, pro bono, represented the detainees.

There has been, as far as I know, no corresponding criticism from the other side. That is, nobody has criticized prosecutors as a class for prosecuting detainees. Thus, what Stimson did is NOT equivalent to what those on the "other side" have done.



Your point doesn't make much sense to me (although I guess I may again be misunderstanding it in your view). Olson and Katyal (for some odd reason, probably related to scoring rhetorical points, a lot of people in this thread ignore that Hamdan's attorney co-wrote the article in question) suggest that critics of lawyers' actions focus on the merits of their alleged wrongdoing rather than engaging on personal attacks.

You seem to be saying that the salient distinction is that Delahunty's critics singled him out instead of assailing a class of lawyer/war criminals generally. I don't see any great importance in whether the "personal attacks" are made on a class ("all lawyers representing detainees are traitors and you shouldn't send them your legal work") or on an individual ("Jane Doe represents detainees. She's a traitor and you shouldn't send her any legal work").

Your point may be that the criticisms of Delahunty were "on the merits," and not a "personal attack." As an initial matter, I would take someone writing "Salaryman is a traitor/war criminal" as a personal attack, and I'm sure you'd feel the same way if your name was put in place of mine. I would feel the same even if they introduced some argument "on the merits" about why I was a war criminal. Thus, Olson/Katyal's statement that "criticism would be more constructive if it focused on the merits of the particular position being argued rather than personally on the advocate" is not to my mind "inconsistent" or "incoherent." (Maybe it's incorrect -- maybe criticism in fact is more constructive the more you accuse specific individuals of awful misdeeds and the less you address the specific deficiencies in, say, draft memoranda they've written, but I doubt it.)

More interesting to me than whether Olson/Katyal are being inconsistent (you say yes, I don't see it) is whether you are saying it is worse (a) to accuse specific lawyers who draft legal opinions whose conclusions are accepted by six federal judges (3 on the DC Circuit and three on the Supremes) of complicity in war crimes for having done so, or (b) to say generally that corporations should rethink sending work to lawyers who represent detainees who might turn out to be terrorists. I agree with Olson/Katyal that we'd be better off without either (although I think both corporations and (private) law schools should generally be able to hire and fire attorneys for whatever reasons they deem appropriate). What do you think?
1.23.2007 6:39pm
Davide:
Oh, and by the way, other than NJ, I believe no other state in the country enforce mandatory pro bono like NJ does. Sorry for your dilemma, David Nieporent.

On the other hand, David, I think you should be a bit more charitable. When you claim "I'm telling you that you don't know what you're talking about," you basically refuse to note that my point -- a lawyer needn't take anyone for a client she doesn't want -- is true for every state in the nation other than New Jersey. So it's a bit of a stretch to claim that this unique circumstance is the yardstick relevant to judging the accuracy of my statement, which -- for all other states than yours -- remains true.
1.23.2007 6:46pm
Mark Field (mail):

Olson and Katyal ... suggest that critics of lawyers' actions focus on the merits of their alleged wrongdoing rather than engaging on personal attacks.


If this was all they were saying, I'd agree. The trouble is, if this were all they were saying, there's no reason why they would have mentioned Stimson. Stimson did not engage in what I would consider a personal attack. To me, there's a real difference between saying "Politicians are liars, therefore X" and saying "George Bush is a liar and therefore X". Only the latter qualifies as a personal attack.


You seem to be saying that the salient distinction is that Delahunty's critics singled him out instead of assailing a class of lawyer/war criminals generally.


Not quite. The salient distinction is (or should be) that
the accusations against Delahunty focused on the merits of his specific legal position (I'm assuming for now the criticism is justified). Stimson did not address the merits of any legal argument or conduct. He didn't say, for example, "Lynne Stewart is in league with terrorists because she did X". Again, because Stimson did not do what Delahunty's critics have done, there was no reason to mention Stimson -- because the two situations are different, it's possible that Delahunty's critics are right and Stimson is wrong, or vice versa. One does not logically follow from the other.


Your point may be that the criticisms of Delahunty were "on the merits," and not a "personal attack."


I agree that there's a fine line here, but as I explained above, Olson's mention of Stimson makes be believe this was not really his point.

As a side note, if I think OJ Simpson is a murderer, I guess I can make a factual statement to that effect and not intend it as a personal attack. He, of course, is hardly likely to appreciate the distinction.
1.23.2007 7:12pm
Kovarsky (mail):
David Nieoporent,

Just ignore him.

Lee
1.23.2007 7:18pm
Loki13 (mail):
davide,

Just wanted to mention a quick thing. When you state your personal belief that law firms may be criticized for their choice of clients, others may disgree (such as myself) but you're in a reasonable space occupied by others (including some lawyers.

When. on the other hand, you make statements to lawyers about their obligations to defend cleints when appointed by a tribunal (yes, even in states other than NJ) or the rights of detainees to counsel in Guantanamo, you are wandering from your area of expertise. It would behoove you to confine your lines of argument to areas that you can support.

I try to not argue with doctors about AMA licensing rules, or with mathematicians about np-complete problems. Or, at the very least, I listen for a while first.
1.23.2007 8:04pm
Salaryman (mail):
Mark: Thanks for your cordial responses. That said, I'm going to disagree again.


If this was all they were saying, I'd agree. The trouble is, if this were all they were saying, there's no reason why they would have mentioned Stimson. Stimson did not engage in what I would consider a personal attack. To me, there's a real difference between saying "Politicians are liars, therefore X" and saying "George Bush is a liar and therefore X". Only the latter qualifies as a personal attack.


This is probably the nub of our disagreement. I understand the underlying controversy here to be between people who believe either of two general propositions: (1) that lawyers who assist detainees are inevitably aiding terrorists in being released and ultimately causing more harm to innocents outside Guantanamo than the harm caused to innocent detainees in Guantanamo; and (2) that lawyers who advance the position advanced by the government in Hamdan and similar cases thereby are complicit in grievous moral offenses in the name of the United States. Without arguing either proposition, let's assume that those who hold these beliefs hold them sincerely and "on the merits."

I don't see this as analogous to the "Politicians are liars/George Bush is a liar" example you posit. I don't see any substantive difference between saying "anyone who by his actions supports the detention without trial of the people in Guantanamo is complicit in war crimes" and saying "Peter Keisler argued for the government in a case involving detention in Guantanamo, and is therefore complicit in war crimes." Once you have defined a class as precisely as "people who by their actions seek to help detainees (who may be terrorists) gain release from Guantanamo" or "people who support the detention without trial of the people in Guantanamo" and conclude that "those kind of people are traitors/war criminals," well, it's not all that hard to fill in the blanks: at some point someone in that class is going to come up for a judgeship/professorship/plum legal assignment and the damage will have been done. Maybe you judge this to be a huge and meaningful distinction, and believe the step between defining the class and making the rather cut-and-dried determination that a particular individual falls within the class to be a huge and meaningful step. If so, I can't say much more than "I respectfully disagree".

I'd still be interested in what you think generally of attacks like the ones on Delahunty and Keisler -- they espoused positions on behalf of their client that convinced a half dozen federal judges. Even if their position ultimately lost on what, but for Roberts' recusal, would have been a 5-4 vote in the Supreme Court, is this kind of representation really a crime against humanity? Is it really productive to argue that it was (as opposed to pointing out why their position was incorrect)? Should these guys be viewed as "tainted"? Would it be OK, should the political/judicial/intellectual winds change, to view persons who took the opposite positions as forever "tainted"?
1.23.2007 8:04pm
Davide:
Loki13,

Are you implying that S&C, WilmerCutler, Paul Weiss, or any other large, private NY firm representing the Gitmo detainees required to do so by law or by court order? If so, please tell me. Otherwise, my comments stand.

None of these firms were required to take those representations. Nothing you have cited (nor anything anyone else has cited) suggests or dictates otherwise. If you have specific expertise noting the contrary, state it. Otherwise, I don't see your point.
1.23.2007 8:39pm
Steve:
All this bickering about whether one has a "right" to criticize lawyers for their choice of client completely misses the point that there is simply no basis on which to do so.

What is the theory here, that it's contemptible to represent someone because of the heinous nature of the accusations against him? It's bad to help sort out the guilty from the wrongfully accused? Absurd.
1.23.2007 8:57pm
Mark Field (mail):
I understand your point about "group libel", but I do think there's a distinction there. Actually, two distinctions.

First, and most important, even if I agreed with you that Stimson had made "personal" comments, that was not what was wrong about what he did. What was wrong was that

1. He is a government official
2. who tried to discourage legal representation of those held by the government.

Making matters worse, he holds a position in government which directly affects those whose representation he tried to discourage.

If Stimson had been a private individual who expressed the same opinion, then and only then could his behavior be comparable to that of Delahunty's or Yoo's critics. The commentary elides this important distinction.

Second, saying someone is a war criminal is potentially factual -- there is a legal standard which is open to proof. Saying someone "is aiding the terrorists" is not really a factual statment at all because there's no way to test it. It's really just name-calling.


I'd still be interested in what you think generally of attacks like the ones on Delahunty and Keisler -- they espoused positions on behalf of their client that convinced a half dozen federal judges. Even if their position ultimately lost on what, but for Roberts' recusal, would have been a 5-4 vote in the Supreme Court, is this kind of representation really a crime against humanity? Is it really productive to argue that it was (as opposed to pointing out why their position was incorrect)? Should these guys be viewed as "tainted"? Would it be OK, should the political/judicial/intellectual winds change, to view persons who took the opposite positions as forever "tainted"?


Except in cases of actual conviction (or, rarely, overwhelming evidence), I don't think there's much to be gained by calling people "war criminals" even if I think they are. I'd make the arguments on the merits and leave it to the listeners to draw their own conclusions.

If I thought that Delahunty, just to take an example, failed in his ethical obligations in his advice on a subject of this importance, I wouldn't hire him and I'd probably protest his hiring. On the merits, though, not by calling him a war criminal.
1.23.2007 8:59pm
Randy R. (mail):
Steve -- you naive little one. Don't you know that if the government accuses of terrorism, you are by defintition guilty of a something? And that that you don't deserve even basic human rights?

(End of sarcasm) Wake up and smell the coffee -- Orwell was off by only a few decades, as is evidenced by many of these posts.
1.23.2007 9:01pm
Loki13 (mail):
Davide,

No, but what I was saying is that if go to mathforums.org, and join their discussion, and write,

"Hey, (a) I have this great idea, and (b) BTW 2+2=7.29 and (c) people in any state other than New Jersey can factor extremely large near-prime numbers (greater than 500 digits) using a slide rule in under two seconds....

Then I might expect a few math PhDs to ignore A when they see B and C in my post. Not saying that I don't have the right to do so, or even that A isn't valid, but maybe I should learn to restrict my argumentation to areas I'm more familiar with... or, not make sweeping statements.

The question is (since no one will be persuaded by what another poster has to say) do you really want to know what the rules that govern lawyers are? And the rules for counsel in light of the SC decisions handed down in the last few years? Or have you formed an opinion of what you believe them to be and will continue to insist upon them regardless of evidence to the contrary? I've already stated that I agree you have the right to criticize an atorney's 'choice' of clients (even though I think this is a short-sighted view that is ultimately harmful). However, all of your assertions regarding lawyers, and the right to counsel, show a lack of understanding of the core issues involve.

There are some truly fasciniating issues involved here. Most of this comes back to issues of inherent executive power. This is an issue that could be the object of endless debate. What is the executive's inherent power to detain them? What Youngstown test would you like to use (probably not Black -slight snark). What about due process? Do you believe in 'due process light' (Hamdi due process) for American citizens? These are issues that you could really sink your teeth into. And these issues (and the larger issues framed by them) require both a normative and a sustantive analysis. I look forward to your normative analysis. I have come to distrust your susbstantive reasoning where the law is involved.
1.23.2007 9:49pm
Elliot123 (mail):
I suspect much of the public distrust of lawyers and their clients stems not from their noble representation of clients, but from their solicitation of clients for class action suits designed to make a fortune for themselves.

Who wants to argue that the the trial lawyers concern with fair representation outweighs their concern for their one-third cut of jury awards? Who thinks we would see the same level of fair representation if the lawyers got 5% rather than 33%?

Given that environment, is it reasonable to think some of the lawyers representing detainees are more concerned with their own self promotion than the rights of the client?

I support the free market, and the remuneration is a private matter between lawyer and client. However, it's also fair game to comment on it.
1.23.2007 10:04pm
ed o:
would we not be allowed to criticize lawyers who, in the Civil Rights era, worked to defend the Klan and actually sought out Klansmen to defend versus those who worked to extend voting rights to minorities. after all, wouldn't those Klansmen be deserving of a vigorous defense as much as the poor detainees in Gitmo? perhaps one and all here should reread Tom Wolfe's old essay about radical chic.
1.24.2007 11:01am
JosephSlater (mail):
Ed O.:

Your hypo glosses over two important points critics of Stimson have made.

First, the difference between a private citizen criticizing a lawyer for pretty much anything, as opposed to someone who is both a government official AND a lawyer calling for an economic boycott of lawyers representing parties in litigation against that very same government.

Second, your hypo assumes the lawyer sought out folks the lawyer KNEW were in the Klan, and thus were at least morally guilty and could well have been legally guilty as well. The point people keep repeating about the Gitmo folks is that we DON'T KNOW if they are guilty, and giving them representation is actually one of the best ways to figure out if they actually are.

Not to mention that there may be legal principles involved beyond the guilt and innocence of someone. I might be willing to critize, on some level, folks that voluntarily sought to help the Klan defend segregated lunch counters. I would be more sympathetic to folks who were willing to defend the Klan's free speech rights to have a (peaceful) rally. Somewhat similarly, assuming some folks at Gitmo are actually guilty, there is an arguably significant legal principle in determining the type of rights/hearing they are allowed.

So, to take another issue much in the news these days, imagine if D.A. Nifong has said something like, "you really have to wonder about the firms representing these RAPISTS, and wonder why upstanding citizens and companies would use these same firms. I would like to see less of that."

That's different from me saying the same thing, in part because I'm not representing the government involved in the case. Plus, maybe not everybody that has been accused is actually guilty.
1.24.2007 1:39pm
ed o:
no response including this one has yet answered why these prominent firms are choosing these detainees out of the menu of pro bono options available. is it ideological-I do not see how one can argue otherwise. it seems to be a left wing cause celebre that we have randomly locked up a bunch of innocent goat herders at Guantanomo, an easy assumption if you start from the point that we are the evil ones. we don't know, from my hypo, if the klansmen are guilty. they deserve a vigorous defense-would you judge a firm negatively if they sought out such defendants for their pro bono "obligations"? how about a pro bono policy that we will represent anyone charged with a hate crime for murdering gays or blacks? it's all "pro bono" and therefore unassailable, is it not?
1.24.2007 3:09pm
JosephSlater (mail):
Ed O.:

The firms that are representing the Gitmo detainees are doing other pro bono work as well. You would have to ask the lawyers themselves about why they included Gitmo work. But to assume that big corporate lawyers are generally eager to back "left wing causes" or that big corporate lawyers assume Americans "are the evil ones" is not a promising start to trying to figure out their motivations.

As to the rest, you don't seem to have read what I wrote. I specifically said -- in the context of your Klan hypo -- that sometimes, it's appropriate for some folks to criticize choice of clients. I never said anything like choice of pro bono work is always "unassailable."

You also ignored the part about Stimson being a government official -- laywer, specifically -- who was trying to discourage folks from representing clients in cases against the government -- surely something about that should give conservatives some pause.
1.24.2007 3:51pm
ed o:
No denial that Gitmo representation is a left wing cause celebre-much more glamorous and likely to earn you plaudits at those cocktail parties than defending a white supremacist who firebombs a black family. you never said that choice of pro bono causes is unnassailable but that has been the general tenor of the amen chorus here-we can't question the judgments of the lawyers, why, they are doing it pro bono, they are doing it for a cause. well, with a choice of causes, let them be called out on it by anyone who would like to do so. if attorneys would like to position themselves as junior Lynne Stewarts, they deserve the bricks thrown at them.
1.24.2007 5:11pm
Colin (mail):
you never said that choice of pro bono causes is unnassailable but that has been the general tenor of the amen chorus here

Really? Who said that?
1.24.2007 5:19pm
ed o:
see kovarsky, adler and a whole lot of quotes from bar worthies on this issue-how dare anyone question the motives of a lawyer in defending detainees. certainly, no non lawyer could even understand their noble motivations. after WWII, I would not have considered someone noble, worthy of praise or deserving of any special consideration if they had gone to Europe to defend accused (ie. not convicted) Nazi war criminals, no matter if they chose to call it "pro bono" or not. why would anyone consider the voluntary defense of their ideological heirs today any more worthy? maybe it's "pro bono", maybe it's a good way to establish some bona fides with the Saudis on cases where real money gets paid out. I wouldn't discount the latter.
1.24.2007 6:01pm
Colin (mail):
Kovarsky: "THE POINT IS NOT THAT LAWYERS SHOULD BE IMMUNE FROM CRITICISM. IT IS THAT A DOD LAWYER SHOULD NOT BE THE ONE CRITICIZING." (emphasis original)

Adler: "[Ethical considerations] mean that lawyers should refrain from conduct that is likely to discourage the representation of certain classes of potential clients, and (to me) this includes blanket criticism of lawyers for agreeing to represent particular clients, particularly when such criticism is focused on the fact of representation, rather than on the manner or representation." (emphasis added)

I can't find anyone here, or elsewhere, saying that "choice of pro bono causes is unassailable." The nearly universal response to this incident from the professionals has been that lawyers should refrain from criticism with certain aggravating factors, such as (A) where the critic is connected to the case or (B) where the criticism is intended or highly likely to preclude effective representation of a class of defendants.

The professional concern arises from the understanding, drilled into us in ethics classes and by practical experience, that the adversarial system does not work if certain people just can't get good representation. That leads the profession to frown on conduct likely to scare away such representation, even if there is a fallback. In other words, if no one is wililng to represent a certain type of defendant, then we're all worse off, even if--and this is an important point--that defendant is suspected of being a very bad person.

No one, and I mean no one, has said, or is likely to ever say, that "choice of pro bono causes is unassailable." Lawyers are subject to special ethical considerations that limit how they can express their opinions on the "choice of pro bono causes" in this matter. Those considerations are complex and sophisticated. If you don't show any familiarity with them, you should be aware that most attorneys will--rightly or wrongly--gloss over your comments as irrelevant to the actual issues at hand.
1.24.2007 6:36pm
ed o:
what is so complex or sophisticated about these "choices"? what are these special ethical considerations that only the great intellects of the legal profession can understand? saying the words does not make it so. no post here encapsulates more thoroughly why the legal profession is held in such disrepute by its lessers in society.
1.25.2007 9:39am
Colin (mail):
what is so complex or sophisticated about these "choices"?

Plenty, but what I actually said was that the ethical considerations are complex.

what are these special ethical considerations that only the great intellects of the legal profession can understand?

It's not brain surgery--you don't have to be a "great intellect." But it helps if you read the rules and, at least, the earlier comments. It sounds like you're upset that no one is allowed to criticize pro bono work, but that's not the case, and no one here has advanced that position. The restraints on lawyers preclude certain types of criticism that tend to prevent the adversarial system from operating properly.

no post here encapsulates more thoroughly why the legal profession is held in such disrepute by its lessers in society.

I agree. Your post shows that most of the criticisms of lawyers are founded on egregious misunderstandings.
1.26.2007 9:43am