- If your revulsion is very strong, must you decline the assignment? Lawyers may occasionally face these questions because litigation can be morally and politically fraught.
- Two Model Rules may assuage the lawyer’s conscience.
Suppose your law firm assigns you, a junior lawyer, to work on election litigation for a particular candidate or political party, even though you supported or even campaigned for the other side. If you find the client distasteful or the cause offensive, do the Model Rules of Professional Conduct offer any help?
The Model Rules instruct lawyers that they are ordinarily “not obliged to accept a client whose character or cause the lawyer regards as repugnant,” but that is more useful to the partners initially deciding whether to take the case than to the associate wondering whether to turn down work.
If your revulsion is very strong, must you decline the assignment? Would prioritizing your own ideological or moral commitments signal that you are not cut out for this line of work? Or would abandoning them in favor of a litigation position that offends you mean that you are a bad person or lack integrity? Lawyers may occasionally face these sorts of questions because litigation can be morally and politically fraught.
The bar often invokes John Adams’s defense of the British soldiers who fired on civilians in the Boston Massacre. Years after he demonstrated the colonists’ dedication to fair process by securing six soldiers’ acquittals and saving two others’ lives, Adams called this “one of the best Pieces of Service I ever rendered my Country.” With examples like this in mind, the rules encourage lawyers to “accept a fair share of unpopular matters or . . . unpopular clients” as a public service. Model Rule of Prof’l Conduct 6.2 cmt. .
Although contemporary litigators may feel less noble than John Adams, one performs a useful service by helping achieve just resolutions of civil disputes. The problem comes when matters of principle or social policy are at stake, and the lawyer is convinced that the firm’s client is on the wrong side.
Two Model Rules may assuage the lawyer’s conscience. The first, Rule 2.1, lets lawyers express their views. It says lawyers may advise their clients about “moral, economic, social and political factors that may be relevant to the client’s situation.” This may encourage senior lawyers to counsel clients about their social responsibility even if they must then defer to their clients’ lawful decisions. But this rule has little practical significance for associates from whom clients are not soliciting advice.
The other, Rule 1.2(b), has no practical significance at all because it does not tell lawyers what to do. It is just a declaration of principle. It says: “A lawyer’s representation of a client . . . does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” Perhaps this is meant to let lawyers hold their heads high when friends and neighbors wonder why they squander their time and talent on the wrong side of a lawsuit.
These two rules seem to absolve lawyers from moral or social accountability for the cases on which they work. But if lawyers are passionate about their beliefs, the conflict-of-interest rule points the other way. Rule 1.7 says that a lawyer has a conflict of interest if “there is a significant risk that the representation . . . will be materially limited . . . by a personal interest of the lawyer.” The rule applies to lawyers whose strongly held political, social, philosophical, or moral commitments will undermine their effectiveness.
A federal prosecutor raised this concern two decades ago in Mendoza Tora v. Gil, 110 F. Supp. 2d 28 (D.P.R. 2000), after she was assigned to prosecute protestors for trespassing on the naval base at Vieques. She told her supervisors that she had a moral conflict with prosecuting the case, and when they ignored her, she sought to enjoin the office from assigning her the case. The district judge was dismissive, asserting that Rule 1.7 “is intended to address conflicts of pecuniary or professional interests, not a conflict between the attorney’s personal beliefs and the client’s legal position.”
Today, the district judge could not so easily brush off the prosecutor’s concern. A comment to Model Rule 1.10, which covers “imputation of conflicts of interest,” acknowledges that lawyers’ personal beliefs may give rise to conflicts. It offers the example of a lawyer who “could not effectively represent a given client because of strong political beliefs.” That lawyer must not work on the case, although others in the law firm may do so if their work will be unimpaired. The message is that if your strong philosophical or political objection would lead you to work ineffectively, you must decline the assignment.
Most often, though, associates will be able to work competently for objectionable clients and causes. They will simply feel bad about doing so. If so, these lawyers face larger questions about how they want to lead their professional lives—questions the Model Rules do not answer.