GPSolo Magazine - October/November 2005

Representing Repugnant Clients
Every Lawyer’s Choice?

Are a sense of justice and professional responsibility all that a lawyer considers in deciding whether to take on a case or to choose between Case A and Case B? In the glow of law school ethics or professionalism courses, this noble sense of fulfilling the right to representation appears admirable, even sometimes seductive. But it is often unrealistic.

This is not to say that seasoned attorneys are not idealistic. Many of us take cases when no one else will help or when the client cannot pay. But it is one thing to accept such a case by choice—and entirely another for a lawyer to be required to represent a specific client but have no say in the decision. Practicing law is challenging enough without having mandatory representation thrust upon us. Attorneys should be free to decide whether or not to represent a client or cause.

Satisfying and maintaining professional relationships with existing clients are extremely important to the success of a practice. One of the core problems with compulsory representation is the effect that the lawyer’s association with an unpopular client or a scandalous issue might have on an attorney’s existing clients. Intense media attention would likely accompany a high-profile case; that might raise awareness of the lawyer’s or firm’s practice, but it would focus only on that case and might even give the public a false impression about the types of matters the lawyer handles. Even if the case does not receive media attention, news about the representation may spread by word of mouth. Such concerns may not be a problem in New York or Los Angeles, but in a small community they could be the bane of a budding professional career.

In theory, attorneys are advocates for others. Many people understand that representing the person or issue does not equate with accepting or endorsing what a particular client does. In practice, however, even the most sophisticated client may have difficulty accepting your representation of a known pedophile or racist hate group.

Being concerned about how existing clients will react is a valid concern. I can recall several political campaigns in which an attorney was characterized as implicitly unfit to hold public office because of having represented criminal defendants. Here, opponents were attempting to capitalize on the public’s naïveté.

Attorneys also may face pressure from personal relationships—friends and family who may disapprove of the representation of an unpopular client. Some might go so far as to question the lawyer’s loyalty to friends and family and lose confidence in the lawyer’s overall judgment as a result. Personal relationships represent an important source of client referrals—and some people may no longer recommend a lawyer who represented a serial rapist.

The fact is that lawyers may often be called upon to be an advocate for a client who engaged in reprehensible behaviors or to advocate positions that the lawyer personally finds unacceptable. Part of advocacy involves bringing clarity to complex issues or neutralizing the emotional content of a case in seeking resolution. Effective advocates are able to put their personal views aside to represent clients with whom they may personally disagree. This is not always possible, however.

If a lawyer is repulsed by a client, can the lawyer really be an effective advocate? In such a case, it may be a greater disservice to the client to accept the case. Being forced to accept the case exacerbates this dilemma by preventing the attorney’s option to decline the case.

As attorneys, we do not give up our personal moral standards when we become members of the bar. Attorneys who are personally repulsed by the beliefs and actions of white supremacists should not be forced to represent them. Further, although the lawyer does not implicitly or explicitly endorse the client’s actions or beliefs by establishing a defense, that representation can unfortunately become a conduit for promoting those very beliefs. Ideally, attorneys would not let the moral or ethical status of a client’s actions or position impair their ability to be effective advocates; unfortunately, this is not always possible in the real world.

Taking on an unpopular case might even lead to a malpractice claim if the lawyer is unable to provide zealous representation. Although the competence of the lawyer’s defense may be intellectually intact, conflicting personal values may render the lawyer’s performance subpar.

Asa P. “Pete” Gullett, CEO of Lawyers Mutual Insurance Co. of Kentucky, frequently speaks at seminars on the ethical problems caused by procrastination, and how it can lead to a legal malpractice claim. Although he speaks in general of “dog” cases, his advice is equally applicable to attorneys’ representations of unpopular clients. Dog cases are those that are always bumped to the end of the lawyer’s to-do list or sit in the corner of the desk taking up space and collecting dust. A week turns into a month, and then six. Eventually, the lawyer’s lack of diligence in the case can become a malpractice claim. If the lawyer dreads taking the case in the first place, how strong will that defense be after six months or two years? A malpractice claim—and the effect even one claim may have on a career—is a serious consequence for something in which the lawyer had no choice.

Attorneys should know how to deal with unacceptable clients in nonconfrontational ways. Often, it is easier to sugarcoat the reason for not taking a case: “I have a conflict and cannot represent you” or “I am simply too busy to take your case right now.” Why should attorneys feel compelled to give such answers? After all, one of a lawyer’s ethical obligations to clients is a duty of candor. We are not being candid, with ourselves or our clients, if we perpetuate these responses. Comment 1 to Rule 6.2 of the ABA Model Rules of Professional Conduct does not mandate the representation of a client who is regarded as “repugnant.”

We need to be honest with our clients and ourselves. Clients are better served if we can be candid about why we will not represent them, without fear of ethical violation or the burden of professional obligation.

Scott D. Laufenberg is an associate with Kerrick, Stivers & Coyle, P.L.C., in Bowling Green, Kentucky. He can be reached at slaufenberg@kgslaw.com.


Every Lawyer’s Duty?

Upon entering law practice, few attorneys, I suspect, aspire to represent clients whose conduct or actions are repulsive or violate the lawyer’s beliefs. Criminal defendants may be charged with morally revolting crimes, from serial murder to terrorism to sexual abuse. Certainly no respectable attorney would endorse this type of behavior.

Yet the Sixth Amendment dictates that all criminal defendants—even those charged with the most heinous crimes—are entitled to the right to assistance of counsel. Attorneys are the guardians of the legal system. When admitted to practice, lawyers take an oath to uphold the Constitution and to discharge their duties faithfully. That oath is not qualified by “only if I really want to” or “unless the client or case is unpopular” or “only if it won’t impact my ability to make my law school loan payments.”

Attorneys are morally and ethically obligated to take on difficult cases and clients exactly because the willingness to do so is fundamental to the integrity of our judicial system. Our democratic society depends upon the rule of law, which is itself based upon an effective and fair judicial system. Lawyers play a vital role in ensuring that the rule of law is followed and the system of justice, fair. If lawyers refuse to participate actively in that judicial system, or to participate only with those cases or clients they personally support, the entire system falls at risk.

The assumption that somebody else will take the case is no excuse for a lawyer’s unwillingness to get involved. Each attorney has an individual responsibility to live up to the expectations and duties of the profession.

Some may suggest that no attorney carries an obligation to take on personally upsetting cases. Surely, however, those attorneys who represent controversial clients or issues do not necessarily embrace the alleged conduct or endorse the alleged behavior. But they do embrace the fundamental principles underlying our justice system and Constitution.

It is the rule of law and our judicial system that sets the United States apart from much of the rest of the world. As Supreme Court Justice Sandra Day O’Connor warned in the recent Supreme Court decision in Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004), involving an American citizen who was detained as an enemy combatant, “It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.”

Naturally, a lawyer must be concerned about the financial impact of or public reaction to publicly sensitive representation. Yet if law school loans prevent an attorney from protecting the Constitution and the efficient administration of justice, then thatattorney is in the wrong profession and should never have incurred those loans in the first place.

It also seems too easy a way out for an attorney to decline representation under the theory that he or she cannot zealously advocate on behalf of the client. The ethics rules do provide this easy way out. The ABA Model Rules of Professional Conduct do not require attorneys to take on clients or causes that they find “repugnant.” Rule 6.2 provides that good cause will exist to avoid appointment by a tribunal to represent a person where the “client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client.” However, the comment to the rule goes on to state:

A lawyer ordinarily is not obliged to accept a client whose character or cause the lawyer regards as repugnant. The lawyer’s freedom to select clients is, however, qualified. All lawyers have a responsibility to assist in providing pro bono publico service. See Rule 6.1. An individual lawyer fulfills this responsibility by accepting a fair share of unpopular matters or indigent or unpopular clients. A lawyer may also be subject to appointment by a court to serve unpopular clients or persons unable to afford legal services.

Moreover, Rule 1.2 provides that a lawyer’s representation of a client “does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”

As attorneys, we are obligated not to let our opinion of a client or cause impair the lawyer-client relationship or our ability to represent the client effectively. The “escape clause” provided by Rule 6.2 should never come into play; our personal feelings should not influence our ability to effectively advocate on behalf of a client.

Is this simply idealistic rhetoric? It is by no means easy to prevent personal standards or experiences from influencing one’s view of a particular case or client. But the question can arise whether it is the repugnant nature of the client or case that is influencing the attorney not to take the case—or, more practically, the negative impact such representation would have on the lawyer’s practice. No professional likes being criticized within a community—but an attorney would be an extremely ineffective advocate indeed to choose cases based upon the perceptions of others. A lawyer with an acceptable reputation in the community likely would not have to worry about clients being turned off by the choice to represent a controversial cause or individual.

Indeed, lawyers seem to be obligated to take on difficult cases—and, as importantly, to defend our peers who have done so and explain why only the bravest and most admirable lawyers do. If negative public reaction to the simple fact of representation arises, then we as attorneys have not done an effective job of educating the public and our clients (and, perhaps, other lawyers) about the constitutional right to representation guaranteed to all. Not to include this in our role as lawyers simply pays lip service to the concept of justice.

Many people easily recall one of the best-loved characters in fiction, Atticus Finch in Harper Lee’s To Kill a Mockingbird, who decides to represent Tom Robinson, a black man accused of raping a very poor white girl named Mayella Ewell. Facing harsh criticism, which ultimately threatens the life of his children, Finch nonetheless defends Robinson against the racist society’s presumptions of guilt. Finch takes the case because his conscience would not let him do otherwise.

Or consider the real-life hero John Adams, second president of the United States. Long before he rose to such stature in our country, Adams agreed to represent British soldiers accused of intentionally killing Boston residents during the Revolutionary War’s Boston Massacre. Agreeing to represent the despised redcoats could hardly have been considered good practice development. But attorneys who refuse to become embroiled in the difficult case, who do not act because of fear of retribution, will not leave their mark on society.

Although the need for adequate defense counsel is self-evident in a criminal case where implications of the Sixth Amendment’s right to counsel come into play, the underlying principles of right to counsel are no less applicable to the civil arena. Whether a case is civil or criminal, our country has but one justice system; as attorneys, we are its servants.

In fact, at least one court has determined that the failure to represent a client can, under certain circumstances, constitute unlawful discrimination. In Nathanson v. Commonwealth of Massachusetts, 2003 WL 22480688 ( Mass. Super. Ct. 2003), the Massachusetts Superior Court upheld a decision by the state Commission Against Discrimination in an unlawful gender discrimination case. The court found that a female attorney had discriminated by declining to represent a male client in a divorce action. The attorney argued that her commitment to representing women in divorce proceedings precluded her from advocating zealously on behalf of men, but the court rejected her attempt to cloak discrimination in the canons of legal ethics:

While an attorney’s ability to advocate zealously for a client is a relevant consideration in determining whether an attorney is legally required to provide representation, it is not permissible for an attorney to assert a discriminatory agenda as grounds that she is unable to advocate zealously for a client. This is because an attorney is required to adhere to and follow the law.

Our profession is filled, at times, with difficult decisions. But lawyers are trained to take two sides. It is the brilliant lawyer who can take any side of an issue and advocate effectively on behalf of any client. In the words of the British novelist Charles Dickens, “If there were no bad people, there would be no good lawyers.”

Elizabeth A. Wolford is a partner with the litigation firm of Wolford & Leclair LLP in Rochester, New York. She can be reached at ewolford@wolfordleclair.com.

 

 

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