Legal Research

Lawyers and Their Clients? Values

By Simon Fodden

A couple of days ago, the New York Times feature “Room for Debate” began commentary (“Attacking Lawyers From the Right and Left“) on a story involving a group called Keep America Safe. (I hate the power we give to “proper nouns,” letting them force us to say words that we’d never otherwise utter. But that’s another story.) This excerpt from their “about” page will give you the flavour:

The United States remains a nation at war. We face a growing threat from rogue regimes that seek or have already obtained nuclear weapons. America?s interests are challenged by an authoritarian China, a resurgent Russia, and dictators in our own hemisphere who ally themselves with our adversaries. Amidst the great challenges to America?s security and prosperity, the current administration too often seems uncertain, wishful, irresolute, and unwilling to stand up for America, our allies and our interests.

The Board members are Elizabeth L. Cheney, Debra Burlingame, and William Kristol.

This group released a video via YouTube that strongly criticized U.S. Attorney-General Eric Holder for hiring to the Justice Department seven lawyers who at one time had represented terrrorist suspects, and who, the video implied, therefore had suspect “values.” These lawyers were labelled the “Al Queda Seven” in the video.

The question asked by the Times editors was “Is it fair to criticize lawyers for the actions of their clients?” Answers have been supplied by a number of prominent law professors and legal commentators, all but one or two supplying the obvious answer of no. All are worth reading, because the issue is nuanced around the edges, it seems to me. 

For example, Stephen Gillers, legal ethics prof at NYU, moves the question to whether any of the criticism is right, pointing out that “When a lawyer is free to choose, the choice can be criticized because the freedom gives the lawyer moral agency.” But he treates litigation differently from, say, corporate work “[b]ecause litigation happens in public, it educates us and enables the law to grow.”

I think there’s some merit in that distinction, particularly if litigation is understood to mean actions involving the government. One gross oversimplification I use from time to time gives lawyers two main social functions: that of creating new wealth and that of supporting the weaker against the stronger. The latter, in my view, is the obligation the profession assumes in return for the right to the monopoly on practice. However thought of, though, the professional duty to represent those accused by the state of wrongdoing means necessarily that lawyers will associate with folks whose values they likely don’t share. 

But that doesn’t stop some people from conflating lawyer and client, from recoiling in distaste: how can you get a rapist off on a technicality? how can you defend murderers? and so forth. Most difficult of all for some people are the politico-criminal cases such as those involved in this current American right wing brouhaha. Larger forces than run of the mill human venality are at play and even lawyers can be swayed by the wieldings of power that may occur.

I remember a case that occurred in Canada just as I was beginning my career ? nothing so extreme as terrorism ? just a small matter of social activism and strong language. The account is written up in what I think is an essay by a student at St. Thomas University ? I found it as a .doc file via a Google search. It tells the story of Tom Murphy, who, in 1969, wrote an article for The Brunswickan, the student newspaper at the University of New Brunswick. (See also Canada’s Rights Movement: A History.)  Murphy’s article was harshly critical of the judge who sentenced Murphy’s mentor and physics professor to 30 days in jail for violating the terms of his suspension from UNB, which, in turn, was imposed on him for having taken part in a protest. Murphy said, among other things, that the courts of New Brunswick were “simply the instruments of the corporate elite,” and that the judge was biased and unfair, because “[c]ourt appointments are political appointments. Only the naive would reject the notion that an individual becomes a justice or judge after he proves his worth to the establishment..”

Murphy was cited by the judge for contempt of court as a result. The difficulty, as I remember it, and as this piece recounts, was that no New Brunswick lawyer would represent Murphy. In the end, Murphy wrote to John Diefenbaker, who in turn arranged for Canadian Civil Liberties Association lawyer, Alan Borovoy, to be Murphy’s lawyer. Murphy was sentenced to ten days in jail.  ( R. v. Murphy (1969)  N.B.J 53)

Wouldn’t happen now.

Full post as published by Slaw.ca on March 11, 2010 (boomark / email).