In 1968 Ralph Nader led a group of my GW Law School students in picketing the law firm of Wilmer, Cutler, & Pickering, criticizing the lawyers for defending General Motors’ right to pollute the air that we all breathe. In a debate about the picketing with Mike Tigar, I took the position that lawyers shouldn’t be vilified for their choice of clients because it would make it difficult for unpopular clients and causes to get representation.
Tigar disagreed, arguing that it was entirely proper for the demonstrators to challenge lawyers at the firm to ask themselves: “Is this really the kind of client to whom I want to dedicate my training, my knowledge, and my skills as a lawyer? Did I go to law school to help a client that harms other human beings by polluting the atmosphere with poisonous gasses?” “What I am proposing,“ he added, “is a moral decision. Many of the people in that firm say that they believe in certain things, and I think that it is all right to ask them whether in fact their conduct belies the assertion that they believe in those things.”
I later came to realize that Tigar was right. Lawyers have always been vilified for taking unpopular cases, even by other lawyers and judges, and lawyers have nonetheless been found to represent the most heinous of clients. In the face of the harshest invective, lawyers have represented “The Meanest Man in New York,” American Nazis to advocate their constitutional right to march in Skokie, Ill., and Guantanamo prisoners. The issue is not whether General Motors should be represented. Of course they should, and there will always be lawyers who will do it. The real issue for each of us is: Should I be the one to represent this client, and if so, why?
The defense of a lawyer who is criticized for representing a criminal defendant should not be based on limiting the First Amendment rights of te critics. Rather, we should seize the opportunity to explain publicly why it is important for lawyers to represent even the worst criminal defendants. For arguments, see, e.g., Smith & Freedman, How Can You Represent Those People? (2010); Freedman & Smith, Understanding Lawyers’ Ethics, App. A (the Tigar-Freedman debate) (4th ed., 2010) and Chapter 3 (“The Lawyer’s Virtue and the Client’s Autonomy”).