Attacking Firms That Represent Guantanamo Detainees
At the Volokh Conspiracy, Jonathan Adler notes a Washington Post editorial discussing an interview given by Deputy Assistant Secretary of State Cully Stimson. According to the report, Stimson pointed to a recent FOIA request seeking the names of law firms representing detainees in Guantanamo, adding, "You know what, it's shocking . . . . 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 . . . ." Not content to rest there, Stimson suggested that while some firms would "maintain" that they were taking these cases "out of the goodness of their heart," "others are receiving monies from who knows where, and I'd be curious to have them explain that."
Adler expresses the hope that Stimson was "shooting from the hip, rather than expressing official policy." So do I -- although I would note a piece of the story Adler misses: that the Wall Street Journal ran a column today by a member of its editorial board, in which "a senior U.S. official I spoke to" toes a similar line. The writer, in his words, says the official "speculates that this information [about white-shoe firms representing detainees] might cause something of [a] scandal, since so much of the pro bono work being done to tilt the playing field in favor of al Qaeda appears to be subsidized by legal fees from the Fortune 500." (emphasis added) Of course, the nameless official might be Stimson yet again. Still, let us hope, again, that this is not someone's idea of a government talking point, or a device to rally hardcore supporters.
I admit to flirting with the view that big firms should either cease doing pro bono work, while effectively paying others to do it for them, or at least limit themselves to pro bono work closer to their areas of specialization. And I certainly think there are reasons of self-interest, having to do with training, associate hiring and retention, and the need to ease cognitive dissonance, that are involved in firms taking on pro bono work of particular kinds; those reasons have nothing to do with the dark motives Stimson suggests, but are not exactly about "the goodness of their heart[s]" either. But I can only share Adler's view that Stimson's attack is just plain wrong. As Adler says: "All individuals, even suspected terrorists, are entitled to a capable legal defense when subjected to legal process, and it is wrong to impugn attorneys on the basis of the clients they represent."
Adler notes one irony in Stimson's insinuating attack on those firms representing the detainees: that this administration has defended its judicial nominees from similar attacks by arguing that an attorney should not be judged by the position of his clients. I would add a second, targeted particularly at views like that of the WSJ editorialist above, who glibly describes these firms as working to "tilt the playing field in favor of al Qaeda." That suggests that providing counsel within the legal process to a person accused of acts of terrorism is nothing more than a collaboration with wrongdoing. Presumably, then, when a lawyer or law firm represents a "reputable firm" that is similarly accused of wrongdoing, it is again nothing more than an agent of wrongdoing, never mind that the process has not yet reached any final conclusion about the wrongness of the underlying conduct. Yet I doubt the editorialist, or the Wall Street Journal, would take a similar position with respect to law firms representing white-collar defendants. Indeed, that paper has been vociferous in attacking government tactics, like the Thompson Memorandum, aimed at undermining the provision of legal defenses for individuals and firms accused in white-collar cases. Of course, the alleged conduct at issue with respect to the Guantanamo detainees is much graver than that at issue in the white-collar cases. But so, too, the hurdles to the provision of legal process are far graver in the detainee cases, and papers like the Journal have been outraged by even the far more limited obstructions of legal process involved in the white-collar cases.
No, the principle remains the same either way. One believes that people are entitled to legal counsel or one does not; one believes that lawyers are entitled to provide that counsel without the taint of association or one does not. I would have thought that Mr. Cully, a lawyer, was fully familiar with Rule 1.2(b) of the ABA Model Rules of Professional Conduct and similar state provisions, and would side with the former views. I see now that I would have been mistaken in thinking so.
Adler expresses the hope that Stimson was "shooting from the hip, rather than expressing official policy." So do I -- although I would note a piece of the story Adler misses: that the Wall Street Journal ran a column today by a member of its editorial board, in which "a senior U.S. official I spoke to" toes a similar line. The writer, in his words, says the official "speculates that this information [about white-shoe firms representing detainees] might cause something of [a] scandal, since so much of the pro bono work being done to tilt the playing field in favor of al Qaeda appears to be subsidized by legal fees from the Fortune 500." (emphasis added) Of course, the nameless official might be Stimson yet again. Still, let us hope, again, that this is not someone's idea of a government talking point, or a device to rally hardcore supporters.
I admit to flirting with the view that big firms should either cease doing pro bono work, while effectively paying others to do it for them, or at least limit themselves to pro bono work closer to their areas of specialization. And I certainly think there are reasons of self-interest, having to do with training, associate hiring and retention, and the need to ease cognitive dissonance, that are involved in firms taking on pro bono work of particular kinds; those reasons have nothing to do with the dark motives Stimson suggests, but are not exactly about "the goodness of their heart[s]" either. But I can only share Adler's view that Stimson's attack is just plain wrong. As Adler says: "All individuals, even suspected terrorists, are entitled to a capable legal defense when subjected to legal process, and it is wrong to impugn attorneys on the basis of the clients they represent."
Adler notes one irony in Stimson's insinuating attack on those firms representing the detainees: that this administration has defended its judicial nominees from similar attacks by arguing that an attorney should not be judged by the position of his clients. I would add a second, targeted particularly at views like that of the WSJ editorialist above, who glibly describes these firms as working to "tilt the playing field in favor of al Qaeda." That suggests that providing counsel within the legal process to a person accused of acts of terrorism is nothing more than a collaboration with wrongdoing. Presumably, then, when a lawyer or law firm represents a "reputable firm" that is similarly accused of wrongdoing, it is again nothing more than an agent of wrongdoing, never mind that the process has not yet reached any final conclusion about the wrongness of the underlying conduct. Yet I doubt the editorialist, or the Wall Street Journal, would take a similar position with respect to law firms representing white-collar defendants. Indeed, that paper has been vociferous in attacking government tactics, like the Thompson Memorandum, aimed at undermining the provision of legal defenses for individuals and firms accused in white-collar cases. Of course, the alleged conduct at issue with respect to the Guantanamo detainees is much graver than that at issue in the white-collar cases. But so, too, the hurdles to the provision of legal process are far graver in the detainee cases, and papers like the Journal have been outraged by even the far more limited obstructions of legal process involved in the white-collar cases.
No, the principle remains the same either way. One believes that people are entitled to legal counsel or one does not; one believes that lawyers are entitled to provide that counsel without the taint of association or one does not. I would have thought that Mr. Cully, a lawyer, was fully familiar with Rule 1.2(b) of the ABA Model Rules of Professional Conduct and similar state provisions, and would side with the former views. I see now that I would have been mistaken in thinking so.
posted by Paul Horwitz @ 12:47 PM
4 Comments:
At 2:09 PM,
Jamison Colburn said…
What a shocking thing for the WSJ and that "official" to say. Shocking to the conscience, that is. I hope that principled conservatives like Jonathan keep calling them on slime like this because it is almost certainly a strategic move designed with specific ends in mind. Only if part of their own party/political base make them pay the requisite political costs, though, will it be changed. Much as I am persuaded by Paul that these people are both misguided and unprincipled, I don't think my vote matters very much in their calculations.
At 3:59 PM,
David C. said…
At the risk of offering nothing but partisan opinion, I can't say I'm too suprised by the Stimson comment, nor would I be surprised to learn that it was a widely shared belief in the Administration. After all, the Administration has labored to prevent the detainees from receiving anything more than a modicum of process.
An additional reason I'm unsurprised is that conservatives are typically quick to attack judges whose decisions they disagree with, even in cases in which judges seem to be engaged in fairly straightforward application of the law. E.g., Schiavo. (Contrast Schiavo with constitutional issues or "hard cases" of statutory construction, where the realist in me admits that there is some validity to the claim that judges impose their personal views, although I think the rabid hostility towards judges is unacceptable. I know that Prof Dorf has an interesting chapter addressing the legal issues from the Schiavo case in his book, No Litmus Test.) If conservatives are happy to attack judges, then why not lawyers? If they are willing to blame the judge for releasing a criminal defendant on a "technicality," then why not go after the lawyer who presented the case?
However, Bush & Co. seem to be much more willing to engage in debate about Iraq now, as compared to their pre-war arrogance and intransigence. This is probably because the mid-terms revealed that public opinion is strongly against them, but it is still refreshing to see them act as if they have some burden of persuasion, and to see that they have stopped viewing disagreement as per se un-patriotic. It would be wonderful if this new, healthy respect for contrary views affected their attitude on debates about legal issues more generally.
At 6:43 PM,
Caleb said…
I sometimes wonder whether the view that those comments represent is more widespread than we (in the "legal" community) think it is.
Whenever I tell friends and family that I'm in law school the inevitable question is "What would you do if you had to defend someone who was actually guilty of something bad?"
I'm always a bit taken aback because the answer seems self evident to me; I would represent them to the best of my ability in order to further our adversarial system.
But the mere fact that I'm asked that question so often suggests to me that there's some sort of cultural blindspot about the nature of our legal system which might be worth paying attention to.
At 6:33 PM,
Adam P. said…
This is interesting to me because I've spent a lot of time trying to encourage firms to do pro bono work. There is hypocrisy involved, because many big firm associates generally do not support the political agenda of their clients- multinational, Bush-lovin' corporations. But the associates are willing to suck itup because they figure "law is law", and the corporations pay their salaries which allows them to either a) do pro bono work for causes they believe in or b) have a golden parachute to leave with in a few years for nobler pastures. The corporations know this, though, and are willing to suck it up, because they get damn good lawyers out of it. Stimson's comments are asinine, because no corporate leader would be willing to effectively reject the services of EVERY top law firm in the country because of the commitment to social and political justice of their associate, when they're getting high-quality work out of them.
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