Jonathan Adler, at Volokh and Paul Horwitz at Prawfsblawg are commenting on the news that some within the Bush administration are attacking biglaw firms for representing Guantanamo detainees. That's a perennial issue, of course.
Whether the biglaw firm's client is a tobacco company, or a Catholic charity that won't participate in adoptions by gay couples, or death row inmates, or gun manufacturers, or Gitmo detainees, there is no shortage of people from the left or right who condemn the law firms and try to shame them. I'm appalled to see my tax dollars going for that purpose, but I've gotten over the fact that scolding lawyers for their clients is so popular. If mentally condemning lawyers is what floats your boat, don't let me stand in your way. If publicly condemning them is your idea of fun, then by all means flex your free speech muscles. I think you're acting against your own best, fully enlightened self-interest, but I will cut you some slack since bashing lawyers on this point is a nearly irresistible impulse. But I wanted to make a few comments about the issue.
1. While I don't take this issue too seriously when most people engage in it, we ought to take it very seriously when the government does it. If we believe in checks and balances, a legal profession that is independent of the federal government is an important part of liberal constitutionalism. Please remember this incident, and other acts by the Ashcroft and Gonzales DOJs, whenever you hear of new initiatives by the federal government to regulate the lawyers.
2. Likewise, whether you're from the political left, the political right, or somewhere in between, do you really want corporate America calling all the shots for the legal profession? (Recall that this is the theory behind the current shaming campaign; corporate America is being asked to exert pressure on law firms that represent Gitmo detainees.) It might be argued (and has been argued by Norman Spaulding and others) that we should all want more distance between lawyers and their powerful clients.
The bar has a long history of taking stands that might be unpopular with some of its powerful clients. Morrison & Foerster represented the so-called American Taliban, John Walker Lindh (and thereby brought honor on themselves and the bar, in my view). The Association of the Bar of the City of New York supported civil rights at a time when much of corporate America was opposed to civil rights legislation. The list could go on. Aren't we better off if the bar can be a counter-weight to the federal government and corporate America?
And before I go too far in insinuating that corporate counsel within large corporations are all conservative -- which is not true and is not my point -- bear in mind that inhouse counsel have quite publicly pressed for progressive social policies on a number of fronts. Would they really oppose the notion that Gitmo detainees be represented by competent counsel? Would they really pull business from their established counsel on that basis? It's highly unlikely, if only because inhouse lawyers are likely to share the profession's general preference that accuseds get lawyers.
3. How strong is this notion of lawyer "independence" in the US? It's probably weaker than in our peer nations, such as the UK and Western Europe. The concept of professional independence is much stronger over there, probably due to historical battles between the lawyers guilds on the one hand, and the monarch and church on the other. Geoffrey Hazard and Angelo Dondi's book, Legal Ethics: A Comparative Study, has a nice chapter on it.
4. If we ultimately decide to permit lawyers to represent a range of clients without recrimination, it's probably because we're committed to creating a widely accepted forum for resolving disputes where reasonable people differ. Brad Wendel has repeatedly written on that theme.
5. In a more technical vein, what is the purpose of Model Rule 1.2(b)? Is it really a rule in the normal sense? First, here's the rule subparagraph and the pertinent comments:
1.2(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.
[Comment 5] Legal representation should not be denied to people who are unable to afford legal services, or whose cause is controversial or the subject of popular disapproval. By the same token, representing a client does not constitute approval of the client's views or activities.
We probably should also take note of the traditional lawyer's oath, which came to us via centuries-old Swiss and French lawyers guild oaths, which were translated almost word for word into the Field Code, and from there into the 1909 ABA Canons, and from there into various ethics codes and statutes:
I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed.
So, what's the function of rule 1.2(b)? Notice it's a rule that can't really be broken. There's no fact pattern under which we could say, "given that act, that lawyer should be disciplined for breaking rule 1.2(b)." I read the rule simply as a rhetorical shield that formally protects lawyers from criticism that is inevitable, perennial, and often ideological.