Guest post by Michael Ariens:
This is the third of five posts related to the idea that American lawyers have a duty to representing unpopular clients, for the sake of both those clients and in the interests of a public that despises those clients. These stories come from my book, The Lawyer’s Conscience: A History of American Lawyer Ethics (2023).
The January 1948 issue of the ABA Journal re-published a December 2, 1947 letter to the editor of the Boston Globe by Supreme Court Justice Felix Frankfurter. Frankfurter wrote praising the professional life of the recently-deceased Boston lawyer, Arthur D. Hill. Frankfurter wrote to clarify in the public record the circumstances of Hill’s decision to agree to serve as counsel to Nicola Sacco and Bartolomeo Vanzetti during “the final stages of that affair.” (They were executed in 1927.) Frankfurter, then a Harvard Law School professor, believed the defendants were innocent. In Frankfurter’s rendition, their lawyer William Thompson needed to withdraw because he “had exhausted his energy in his powerful devotion to the cause of the men.” Some appellate process could be taken on behalf of Sacco and Vanzetti, and Frankfurter was asked to inquire whether Hill would be willing to represent the convicted defendants. Frankfurter recounted that when he approached Hill, he informed him that his work “would have to be solely as an exercise of the public profession of the law, for it would have to be done without a fee.” Hill agreed it was “a perfectly honorable thing” to assess the record and determine whether a lawyer might proceed to press any remaining legal issues. The unpopularity of Sacco and Vanzetti in Massachusetts was irrelevant to his assessment.
Hill looked at the record and agreed to represent the men. In The Legacy of Sacco & Vanzetti (1948), the authors conclude that, though the record is fragmentary, Hill spoke “with great force” in requesting a new trial. He was unsuccessful.
Frankfurter believed the lesson of Hill’s decision to represent two very unpopular clients demonstrated the best of the American legal profession. His letter ended with a long quotation of what Frankfurter said Hill told him: Hill declared that he would take a $50,000 retainer to represent a wealthy person convicted of murder who sought some legal relief. In this case, “I do not see how I can decline a similar effort of Sacco and Vanzetti simply because they are poor devils against whom the feeling in the community is strong and they have no money with which to hire me. I don’t particularly enjoy proceedings that will follow, but I don’t see how I can possibly refuse to make the effort.”
Frankfurter’s romantic celebration of the professional actions of Arthur D. Hill was contradicted three years later by Boston lawyer Charles P. Curtis Jr. in his controversial article, The Ethics of Advocacy (1951). In Curtis’s telling (largely repeated in his book, It’s Your Law), Arthur Hill’s representation of Sacco and Vanzetti demonstrated why the public should embrace a lawyer’s decision to represent the outcast: any society that failed to test the belief that an accused was guilty only harmed itself. Where Curtis and Frankfurter departed ways was in the extent to which Hill’s behavior was to be romanticized. Curtis, like Frankfurter, knew Hill. And in his story, Hill was paid to represent Sacco and Vanzetti. That was important because it made his representation of the two men a case, not a cause. Hill thus served as an advocate, not as a partisan. Curtis also contradicted Frankfurter (again, without mentioning him) when discussing William Thompson, the prior counsel for Sacco and Vanzetti. Curtis said Thompson asked out of their case because his representation of them had been an economic “catastrophe” for his law firm. The public, the clients, and the lawyer were all better off when the lawyer acted as a detached, paid advocate.
In 1949, federal district trial Judge Harold Medina issued criminal contempt specifications against the five lawyers representing the eleven members of the Communist Party tried and convicted of conspiracy in the case titled United States v. Dennis. (In Eugene Dennis’s case, he represented himself.) The Supreme Court eventually upheld the specifications. In doing so, Justice Robert H. Jackson’s opinion indicated it would protect “persons identified with unpopular causes,” especially those “counsel in fearless vigorous and effective performance” as an “advocate on behalf of any person whatsoever.” The Court’s words came as lawyers were charged, by fellow advocates and the public alike, with wrongdoing in agreeing to represent those ensnared in the Second Red Scare.
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