JURIST Contributing Editor Nancy Rapoport of the University of Houston Law Center says that lawyers who provide free legal representation for poor and/or unpopular clients - including detainees at Guantanamo Bay - should be thanked for their efforts, not shunned or sanctioned at the behest of government officials...
harles Stimson, the Deputy Assistant Secretary of Defense for Detainee Affairs, recently excoriated several large law firms, suggesting that the firms' pro bono representation of Guantanamo detainees rendered them unfit to continue their for-profit representation of corporations. Apparently, Mr. Stimson has missed the recent renaissance of Harper Lee, Truman Capote's friend who wrote To Kill a Mockingbird
. In that famous book, lawyer Finch represents Tom Robinson, an African-American man falsely accused of raping a white woman, at a time when such accusations typically resulted in public lynchings. Suffice it to say that Atticus Finch represented a very unpopular client.
Before someone accuses me of equating innocent Tom Robinson with alleged terrorists, let's get one thing straight. It's a professional obligation for lawyers to represent indigent clients, even highly unpopular ones, and that obligation is necessary for the administration of justice. The Preamble to the Model Rules of Professional Conduct provides that
A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel.
Now look at Mr. Stimson's suggestion about lawyers who take on this particular type of pro bono work:
I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.
In fact, my guess is that those corporate CEOs already know about their law firms' representation of the accused at Gitmo. I'm reasonably certain that the firms are not undertaking the representation of Gitmo detainees if there is a conflict of interest between the Gitmo representation and the representation of the firms' other clients. The law firms â and the list of those firms reads like a Who's Who of major firms â are justifiably proud of their pro bono work. Some of those CEOs (and their general counsel, who likely are key determinants of which firms the corporations use) want to be represented by lawyers who use their considerable skills for paying and non-paying clients alike.
What troubles me most about Mr. Stimson's remarks is the same thing that troubles me when I hear law-trained members of Congress complain about judges whose decisions they don't like. (I believe that the phrase "activist judges" is the one most bandied about.) Representing an unpopular client is not the same thing as endorsing the client's views or actions. Making an unpopular judicial decision is not the same thing as rewriting the law.
Lawyers get enough bad press (and some of them deserve it). But when we see good lawyers doing the right thing for the legal system as a whole, we should thank them, not shun them. Nancy B. Rapoport is a professor of law and the former dean of the University of Houston Law Center. In July 2007, she will become the Gordon & Silver, Ltd. Professor of Law at the William S. Boyd School of Law, University of Nevada, Las Vegas.