Guest post by Michael Ariens:
This is the fifth and final post 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).
In a sympathetic 1970 magazine portrait of lawyer William Kunstler, he declared, “I am not a lawyer for hire. I only defend those I love.” The editors of the ABA Journal opined that Kunstler’s position was “anti-professional.” The profession’s “ideal is to provide competent counsel for any person with a legitimate cause.” A lawyer’s decision to represent the unpopular client to the best of the lawyer’s ability was “a badge of honor,” as it demonstrated independence from the community which the lawyer served. This independence from the passions of the community demonstrated lawyers served as “guardians of the law” who “play a vital role in the preservation of society.” Representing only those one loved tied the lawyer to the views and values of one’s client, a position lawyers traditionally rejected.
The editorial received mixed reviews from lawyers, a number of which were published in letters to the editor. Some argued that the profession’s ideal was largely rejected in everyday practice. This was due in significant part to the focus of lawyers on monetary rewards rather than concern about “the public good.” Others embraced the ideal.
This division among lawyers was partly a result of one’s interpretation of recent historical events. Not long after the crisis of representing the unpopular client during the Second Red Scare dissipated, a similar crisis arose in finding lawyers to represent those arrested for pressing issues of civil rights, particularly in southern states. A 1961 report of an ABA committee hostile to the civil rights movement acknowledged, “persons under criminal charges in certain sections of the South have been deprived of their right to effective counsel because of the refusal of lawyers of the Caucasian [sic] race to appear in the defense of colored [sic] defendants.” In June 1963, President John F. Kennedy hosted a gathering of a number of lawyers regarding this problem. The result of this meeting was the creation of the Lawyers’ Committee for Civil Rights under Law.
The creation of the Lawyers’ Committee had no effect on the inability of civil rights proponents to find lawyers to represent them in Mississippi in 1963. Hundreds unsuccessfully sought lawyers in order to vindicate their first amendment rights; all “local lawyers refused to represent black activists.” Local lawyers refused to defend the unpopular client because they feared for the physical safety of themselves and their families, as well as economic ruin.
The following year, Freedom Summer in Mississippi, the Mississippi bar and the Lawyers’ Committee reached an agreement by which the members of the former agreed “to be faithful and true to their duties and oaths in according to every person …, popular or unpopular, respected or despised, and regardless of race, color, or national origin, a fair and impartial trial, with assistance and protection, where sought, of competent counsel.”
A ten-year retrospective found this promise unkept. The Lawyers’ Committee simply failed to understand the depth of antipathy of many white Mississippians to the civil rights movement. That misunderstanding led it to downplay “the threat of economic and physical reprisals against white lawyers who might consider stepping forward to help.”
The debate among lawyers regarding Kunstler’s cry led to claims and counter-claims regarding who really represented the unpopular client. Kunstler’s supporters argued they represented persons who mainstream lawyers “would shun like the plague.” Mainstream lawyers claimed they made “legal counsel available to all.” Interestingly, both sides charged the other with acting as “hired guns,” lawyers who believed their sole duty was to achieve the goals sought by their clients.
During the 1970s and into the early 1980s, the “hired gun” model (a phrase first used legal print in 1969) was contrasted with the “servant of the law” model, also known as social trustee professionalism. In theory, the hired gun acknowledged only the client’s interests. This model worked if the community lacked the ability to punish the lawyer for zealously representing the interests of clients, and only those interests. The social trustee considered the interests of the public when representing one’s private clients. This model worked best as long as issues of “profit pressures” were minor. By the mid-1980s, public pressure urging lawyers not to represent the unpopular was greatly diminished in effectiveness, and profit pressures were perceived as significant in the profession. The result was a “professionalism” crisis, the belief that lawyers had failed to “subordinate business concerns to professionalism concerns,” the duty of lawyers, especially private practice lawyers, to devote themselves to both public and private interests.
The professionalism crisis has continued, in some form, through the present. The dependence of lawyers on keeping their clients satisfied was paramount in an age in which much legal work was commoditized, including in large law firms. Those firms concluded success was founded on maximizing profits, best obtained by narrowing one’s focus to client interests. These law firms “managed to compare (envy) lawyers and law firms (pride) on the metric of money (greed),” a perceptive critic noted in 2014.
This dependence led to a transformation in keeping dear the “apogee” of the American legal profession, the lawyer who represented the unpopular client. Some law firms refused to do so not when the public complained, but only when other (corporate) clients complained.
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