GPSolo Magazine - January/February 2004

Unpopular Clients, Unpopular Causes

It is a moment that occurs often in my life. Every time I decide to take on a Larry Davis or a Yusef Salaam, I make a choice. While I’m hardly comparing myself to David, my choice is whether to take on the giant or to let it slide. No one will know. When I choose, I choose what I believe is the right thing, despite the odds against it. Over the years, my David moments have come more frequently. Do I dare? Do I dare? I usually do when I can take on the system or when I believe that a certain defendant won’t get a fair trial. So while the prevailing notion is that I never turn a case down, that’s not at all true.

The above is a quote by William Kunstler from his autobiography My Life As a Radical Lawyer, explaining why his law office contained a replica of Michaelangelo’s David—depicting David before he took on Goliath. Heroes, even humble ones, are ordinary people who overcome their fear to perform an act that is later regarded as heroic or courageous. Whether Clarence Darrow, William Kunstler, Mike Tigar, Lynne Stewart, or Gerry Spence, no great lawyer ever would refuse to admit being deathly afraid at some point before taking a famous (or infamous) criminal defense or civil case and representing an unpopular client or an unpopular cause.

Why? Lawyers are social beings who, although fiercely independent, still think frequently about how we are regarded by our peers and elders in the profession. In addition we often spend much of our careers building a well of capital with judges, opposing counsel, and the jury pool in our communities; that capital becomes part of our weaponry in the battle to protect our clients’ rights. Although we are charged with the responsibility to zealously represent our clients, we are reluctant to throw away that capital on one unpopular case when we know other clients may need it. Then there’s that Oh-no-I’m-naked feeling when all eyes are upon us at a social gathering of lawyers, even if that nightmare exists only in our imagination. Also, lest we forget, we have to run a business.

These are among the considerations solos and small firm practitioners ponder when deciding whether to take a case, no matter whether we’re hired, appointed, or referred by a public interest group. Our character may be sorely tested when confronted by the chance to take on that unpopular case. It can be a scary business.

Today’s Unpopular Causes

According to his former partner Ron Kuby, Kunstler’s representation of unpopular clients and causes always was about the struggle between individual conscience and group morality, individual rights and the notion of security and police power—“the idea of human freedom against tyranny.”

The parameters of our group morality—what is acceptable in our society—change over time. Representing individuals who avoided the draft in the 1970s was socially and politically dangerous; representing an American Muslim today who is accused of contributing money to a “terrorist organization” may be even more so. The cumulative effect of modern media, by default if not by intent, is to manufacture societal hysteria about the kinds of ills that used to be noncontroversial—parts of the panoply of ordinary social issues and crimes that society once routinely managed. The criminally accused, particularly those who fall within taboo or socially reprehensible categories, are now greatly amplified villains in the national theater staged in the coliseum of television news and entertainment.

As a result, when it comes to certain types of crimes, we no longer represent only the criminally accused—we are shown as siding with “monsters” and other undesirables painted as being outside the human family. Thus practitioners must ask themselves, “Do I risk the revulsion of my family, my friends, and my community by representing this person?” If a lawyer is able to get past this initial reaction, he or she still must ask, “Will I ever get any more law business in my community if I take this case?”

More often than not, declining such a case can be done in near anonymity, beyond the eyes of one’s peers. How many attorneys declined to represent Timothy McVeigh soon after the federal building bombing in Oklahoma City? (I personally know of at least two.) Once hired, we have a duty to zealously represent our clients, but few people seem to judge us harshly if we choose not take on the client in the first place.

A Lawyer’s Call to Duty

McVeigh’s attorney, Stephen Jones, had represented unpopular clients several times before; shortly after accepting McVeigh’s case, he was asked by a CNN reporter why he took it. He replied, “I have, throughout my professional career, believed it was a lawyer’s duty to defend unpopular cases.”

And Jones follows an illustrious trail. In the previous century, Clarence Darrow set many an example, starting with his resignation as general counsel for the Chicago and Northwestern Railway in 1894, choosing instead to defend labor organizer and later socialist Eugene Debs from charges arising out of the Pullman strike of unionized railroad employees in the nation’s rail center. Lawyers before and since have answered the call to duty that Jones described.

Without a doubt, part of human internal calculation is some desire for public affirmation of the self, but the underlying motivation to represent underdogs and unpopular clients seems to be ingrained in the heart, for many going as far back as childhood. This motivation, and many different influences as we grew up, likely propelled many of us toward choosing a career as an attorney in the first place. For example, what lawyer of the last couple of generations can claim not to have been moved in youth by the morality and decent courage shown by Atticus Finch in To Kill a Mockingbird?

“Crusaders” also must possess a deep sense of public morality. Professional duty must meet moral duty within the self to properly fuel the decision to represent someone on the fringes of or excluded from mainstream society. This kind of public morality is rare these days, following several decades in which self-interest seemed the predominant force in our society. Indeed, old-fashioned public morality for many is the source of courage in facing both real and imagined opposition to such representation.

This type of commitment of necessity is deeper than the desire for publicity. Well before he became famous during the Chicago Seven trials and other civil rights cases, William Kunstler was slugging it out in the trenches all across the United States, representing unpopular clients. Kunstler joined my father, James Abourezk, in a low-profile criminal case in South Dakota during the 1960s, representing a black airman accused of shaking a baby to death—hardly a juicy marketing case for either of them.

Lawyers also must recognize their duty within the legal system in our democracy to represent unpopular clients. Stephen Jones said, before McVeigh’s trial, “The world is looking at Oklahoma City. If there is an international perception that our client is being railroaded, or that there is a rush to judgment, not only will Oklahoma suffer, but the United States will suffer.” There may be no higher calling in our profession, no greater patriotic duty, than taking on an unpopular case or client or accepting that burdensome appointment.

Making the Decision

1. When considering whether to take an unpopular case, the first place a lawyer must look is within. Such a decision has little to do with political leanings and a lot to do with conscience. You must be able to determine and to consult with the internal moral influences that function in your life. It is a lonely business, confronting the status quo; support from the heart and head, if not the flesh, is an essential provision for venturing off to battle.
2. Accept that you will not be liked by everyone in your community. We make enemies in law practice, and sometimes it is worthwhile making the right enemies. People caught up in the emotions of the moment will forget—and those who don’t, have bigger problems than just you. Also, as former President Ronald Reagan’s handlers understood, eventually people remember only that you were on television and in the newspaper, and the details of why tend to recede in their memories. Trust this process.
3. One of the most important considerations in making the decision is that a lawyer must be able to find something human in a client. Atticus tells Scout in To Kill a Mockingbird, “You never really understand a person until you consider things from his point of view . . . until you climb into his skin and walk around in it.” The inability to do this is like trying to write a novel when you hate your own protagonist—the result will be emotionally flat and uncompelling, and so will your work for your client. We must be able to empathize with clients and then communicate that empathy to others.
4. Discuss all possible implications of taking the case with your partners, associates, family, friends, and mentors. Ultimately you must look within to form your own decision, but their perceptions and feedback are important to the decision-making process.
5. If you decide to take the case, begin to humanize your client to the public immediately, and at every chance you get. The Timothy McVeigh that the government was able to instill in the public’s mind was dressed in an orange jumpsuit, glancing furtively, surrounded by men in bulletproof vests and guns. In criminal cases, do not let something like that be the only image of your client available to the public. Get an order from the court regarding the “perp walk” and allowing your client to dress in decent clothes before taking him or her before the cameras. The dehumanization machinery is powerful, and if you get behind the curve, the demonizing of your client will succeed long before you ever face a jury. This is essential to your representation, along with good old-fashioned hard work.

Taking on an unpopular case or client is the material of which great lawyers are made. Every famous lawyer in the past few centuries had moments of doubt and fear in that first venture into the unknown, but each discovered a potential for greatness within, whether or not the case itself went public. Before that case, each of those lawyers looked a lot like you. And as each of them might advise, the real treasures in this life always lie on the other side of incalculable risk.

Charles Abourezk is a South Dakota trial attorney and a member of the board of directors of Gerry Spence’s Trial Lawyers College. Before going to law school, he represented indigenous peoples on human rights issues within the United Nations. He is a retired justice of the Oglala Sioux Nation Supreme Court and can be reached at abourc@rushmore.com.

 

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