The Cautionary Instruction: The lawyer’s duty to zealously defend

The Pittsburgh Post-Gazette/Ipso Facto
September 21, 2012

The American tradition of zealous representation of unpopular clients is grounded in John Adams's representation of the British soldiers charged with murder during the Boston massacre. In Adam’s trial summation he set the standard for law and order. He said of justice, “On the one hand it is inexorable to the cries and lamentations of the prisoners; on the other it is deaf, deaf as an adder to the clamours of the populace.”

Today, more than ever, the clamor of the populace -- through news media and social media -- can almost instantly accuse, try and convict a person in the court of public opinion.

As a result, this rush to judgment when it comes to certain types of crimes, causes lawyers no longer to be perceived as only representing the accused, but of siding with the reprehensible “monsters.”

A lawyer faced with the decision to take on a controversial client must legitimately ask herself, “Will I ever get any more law business in my community if I take this case?”

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

Attorneys are advocates for others. Many people understand that representing the person or issue does not equate with accepting or endorsing what a particular client does. In practice, however, many people have difficulty accepting that a pedophile, terrorist, mass killer or racist hate group is entitled to legal representation.

When Liz Cheney, the daughter of former V.P. Dick Cheney, publicly disclosed Obama Administration attorneys at the Department of Justice who represented Gitmo detainees, even her most conservative colleagues with law degrees lambasted her. Such a public listing– -- as if there was something wrong with providing a defense to detainees -- under minds the fundamental protections of the Sixth Amendment to the United States Constitution, “to have the assistance of counsel.”

The principles embodied in the Pennsylvania Rules of Professional Conduct as stated in the Rule’s preamble “include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests.”

Yet, every criminal defense attorney is asked this question, “How can you defend someone you know is guilty?”

Scott Greenfield, a New York attorney and blogger, put it this way. “The fundamental duty of a criminal defense lawyer is to zealously represent his client…Our function is to defend our client, no matter how horrific the crime or evil the defendant…Factual guilt plays no role whatsoever in our duty to zealously defend our client. There is never a moral dilemma once a lawyer assumes the duty to defend. Our function is not to judge, or impose our sensibilities or morality, but to defend.”

John Adams would be proud.

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