Judging Liz Cheney's Values

Critics of Liz Cheney's silly campaign have emphasized that lawyers should not be criticized for representing unpopular clients.  For example, ABA President Carolyn Lamm cites ABA Model Rule of Professional Conduct 1.2(b), which states that a "lawyer’s representation of a client does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”

In my view, the issue is a bit more complicated.  Although it is certainly true that a lawyer's representation of a client does not -- and should not -- be considered an endorsement of the client's views or behavior, I don't think we can say that a lawyer's client selection decisions are completely devoid of value judgments, particularly in the pro bono context.  The problem with Liz Cheney's ads is not that they make value judgments about the so-called "al-Qaeda 7;" it's that they make the wrong value judgments. 

We should explicitly acknowledge and embrace the idea that lawyers who represent unpopular clients are endorsing a particular set of values.  Those values happen to include (among others) safeguarding foundational procedural protections, the need for quality representation in an adversarial system, and ensuring that the government pursues its important work within the bounds of the law.  Lawyers who endorse those values should be praised, not criticized.  In fact, those lawyers are ideally suited to work in a government department that is supposed to be committed to the cause of justice. 

Liz Cheney, therefore, is right about one thing: the work of the "al-Qaeda 7" lawyers does reflect their value judgments.  By criticizing those lawyers, however, Liz Cheney is really criticizing the values that those lawyers embraced.  And by criticizing those values, which are so foundational to America's system of justice, Liz Cheney (ironically) is the one who appears to be endorsing anti-American ideals.   

Comments

[Andrew Perlman]

I'll offer the first comment to my own post and say that Monroe Freedman has long made a similar point, and he makes it again in the comments to his post below: http://www.legalethicsforum.com/blog/2010/03/explaining-the-importance-of-legal-representation.html#comments

[Monroe Freedman]

Thanks, Andy. But you said it better.

[SEO]

Layers, sometimes is really hard for them, because they just stand between the task and ethics.

[Jack Marshall]

That really is a deft explanation of what is so wrong with the attacks on these lawyers, Andrew. I've written a lot on this too, but you nailed the issue in fewer words, and better. Thanks.

[Andrew Perlman]

Thanks, Jack. John Adams is often cited as precedent on this issue. Here is a great excerpt from his diary about his decision to represent the British soldiers who were involved in what became known as the Boston Massacre:

"The part I took in defense of captain Preston and the soldiers, procured me anxiety, and obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country. Judgment of death against those soldiers would have been as foul a stain upon this country as the executions of the Quakers or witches, anciently."

[Patrick S. O'Donnell]

OK, I agree with this:

"We should explicitly acknowledge and embrace the idea that lawyers who represent unpopular clients are endorsing a particular set of values. Those values happen to include (among others) safeguarding foundational procedural protections, the need for quality representation in an adversarial system, and ensuring that the government pursues its important work within the bounds of the law. Lawyers who endorse those values should be praised, not criticized."

Now notice how the values here are not values peculiar or exclusive to lawyers AS INDIVIDUALS, i.e., with the particular moral beliefs and judgments they have as individual human beings, some of which allow or encourage their commitment to the aforementioned values when they assume their professional role and its attendant obligations (both formal and informal, the latter self-imposed). Rather, they are values that lawyers qua lawyers, in their legal role and capacity, could be expected to embrace given their commitment to our legal system, including a belief in its political and moral legitimacy.

In the post below, Monroe gives us an example of his criticism of a friend for representing a Nazi mass-murderer. Yet how can one entertain such criticism in the first instance if one presumes a lawyer is committed to the values summarized by Andy above? Indeed, there's no presumptive space for making any such criticism, assuming the lawyer's commitment to those values. The only target for criticism would be an attorney who expressed the belief that a defendant is so beyond the pale (for whatever reason) that he or she does not "deserve" competent legal representation. The moral decision does not come at the moment of deciding to represent an unpopular client but rather in deciding to be a criminal defense lawyer in a regime with due process, with a premium placed on zealous representation within an adversarial system, and so forth and so on. Given the (prior) commitment to these values, we expect at least some lawyers to behave in a manner consistent with this commitment to the values enshrined in the legal system.

Monroe asks his friend to justify himself? Why? Did he expect his friend had come to endorse or find a soft spot for fascism? In other words, I hardly think a lawyer should be compelled to explain himself or herself for performing their duty or obligation as a lawyer (that some lawyers fail to appreciate the nature of the obligation is beside the point). Indeed, given the fact that motives are often highly mixed and inscrutable to those on the outside looking in, I would think we should refrain from questioning these motives, given the fact that we have no presumptive reason for doing this in light of what it means to embrace the prominent values incarnated (in varying degrees) within our legal system. In other words, and for example, that William Kunstler was a self-described "radical lawyer" is in many if not the most important respects, irrelevant. What counts is the provision of legal representation, full stop. Someone who did not share his political views might just have well come to the defense of a Black Panther Party member or a prisoner involved in the 1971 Attica Prison riot (that they many might have been disinclined or unlikely to, given THEIR political beliefs, well, that's the scandalous thing).

Monroe writes: "I welcomed the criticism by the Liz Cheney group because it might induce that kind of public explanation." Hmmm. A reductio: "I welcomed the execution of the innocent man because I knew the resultant outrage would prompt us to re-dedicate our efforts toward assuring that in future cases we've done everything possible to make sure an innocent person is not condemned to death." Surely this cannot serve as an ex ante justification or rationalization but rather only as an ex post appreciation of what is a by-product or spillover effect. Similarly, in the case of the Liz Cheney group, we might be glad, after the fact, that this affair has prompted the sort of discussion that the educated public might benefit from, but that hardly means I should positively welcome red-baiting, slander or libel because they're capable of having such (unintended) beneficial effects! If the problems is one of widespread ignorance among the citizenry and even the legal profession itself as to the values of our criminal justice system then surely we can imagine more acceptable, civil and ethical means for achieving public education and dialogue. Problems with Toyotas may have salutary effects on the relevant regulatory agencies and the company's corporate culture and future behavior, but I doubt we welcome accidents because they directly contribute to achieving such ends.

[Patrick S. O'Donnell]

What Monroe might (should?) have said" "Regrettably, unfortunately, alas, it takes something like the Liz Cheney affair for us to have a public discussion of the values intrinsic to our criminal justice system, values that, seemingly, few understand or appreciate...."