Guest post by Michael Ariens:
This is the fourth 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).
Philip Graham, the newspaper publisher trained in law at Harvard, spoke to the members of the Association of the Bar of the City of New York in late 1951. He reminded his audience that they were crucial to protecting individual liberty. That duty included representing those accused of conspiring to overthrow the government, as in United States v. Dennis, and those accused of associating with Communists. Graham concluded “the legal profession has substantially failed to meet its proper obligations of supporting individual freedom.” Graham lay the blame on the commercialization of the legal profession, as too many lawyers considered themselves “a part of his client rather than a part of the law.” If this was the route lawyers were going to take, Graham argued they needed to dispense with the charade that they were “guided by a sense of public responsibility higher than the ordinary self-interest of the business men and merchants.”
A year before Graham spoke, the American Bar Association (ABA) had unanimously adopted a resolution encouraging lawyers swear an “anti-Communist oath.” Though no state lawyer licensing entity adopted this oath as a criterion for admission to the bar, those allegedly tied to the Communist Party or considered sympathizers to communism found it difficult to find lawyers to represent them. While serving as Attorney General in the late 1940s, Tom Clark twice stated that lawyers who “carry out Communist missions” were likely unfit to practice law. By 1952, elite lawyer John P. Frank concluded, “It is now as I can personally vouch from some observation, almost impossible to obtain ‘respectable counsel’ in the political cases.” One union labor lawyer explained the practical reason why he could no longer take political cases: “his law practice vanished” after he agreed to represent a client tied to communism.
To foster adoption of the anti-Communist oath, the ABA had created a committee on Communist Tactics, Strategy, and Objectives. That committee also proposed the ABA expel any member “who advocates Marxism-Leninism.” Though its proposal succeeded, it was a pyrrhic victory. Another committee, on Individual Rights as Affected by National Security, was created as a result of debate about the expulsion proposal. Its chair, Whitney North Seymour, an elite New York lawyer, led the committee to successfully propose to the ABA several resolutions in 1953, the most important of which “reaffirms the principles” that the constitutional right to counsel generated a duty among lawyers to “aid even the most unpopular defendants.” The ABA urged other bar associations to promote this and other resolutions, for they were “declarations of principles.”
In early 1954, Wisconsin Senator Joe McCarthy was interviewed by Newsweek magazine. McCarthy was asked to respond to criticisms of him by lawyer and Nuremberg trials prosecutor Telford Taylor. McCarthy dismissed Taylor’s remarks in his usual manner; he claimed Taylor had been influenced by his work “defending Communists.” One unnamed client of Taylor’s was the labor leader Harry Bridges. The government sought to deport Bridges for lying about his membership in the Communist Party. In early 1955, Taylor’s book Grand Inquest was published. It was a no-holds-barred attack on congressional efforts to link pleading the Fifth Amendment’s privilege against self-incrimination with criminal behavior. By then McCarthy had been condemned by the Senate. The slow ebbing of the Second Red Scare made it easier for unpopular clients to hire lawyers.
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