In support of attorneys who defend unpopular clients

Former U.S. Attorney General Eric H. Holder Jr. writes in The National Law Journal in support of attorneys who defend unpopular clients:

There is an increasing and disturbing trend of criticizing lawyers for the clients they represent and for advancing arguments that are well within the bounds of zealous advocacy. Former acting Solicitor General Neal Katyal is the latest such target. Having first been attacked from one side of the political spectrum for representing alleged enemy combatants held in Guantanamo, he is now being hit from the other for representing Nestle in a suit alleging that Nestle aided and abetted abhorrent child labor practices abroad in violation of international law. In both cases, the criticism is equally misguided. Katyal was neither defending the waging of war on America nor defending child slavery. Instead, he was ably advancing detailed and somewhat technical arguments about the scope of federal statutes. The idea that in doing so in this latest matter he was defending child slavery is simply wrong.

I write not out of friendship but because this kind of criticism poses real risks to the health of our legal system, which depends on the zealous representation of both sides in a controversy. Simply put, without able lawyers willing to represent both sides of a legal dispute, our legal system cannot function at its best. And without lawyers willing to defend unpopular clients, litigants cannot receive the due process that our Constitution guarantees them.

Criticism that conflates lawyers and their clients and distorts the arguments made in court is particularly disturbing when it comes from lawyers. Nonlawyers might be forgiven for failing to distinguish between a lawyer and his client or for treating an argument that a particular statute does not reach a particular actor as a sign of indifference to wrongdoing. But lawyers know better. They have been steeped in a tradition that goes back to John Adams’ defense of British soldiers in the Boston Massacre. They have seen more recently a capable lawyer unfairly denied the opportunity to lead the Civil Rights Division of the Justice Department. Lawyers should not only refrain from such criticism but make affirmative efforts to explain that when it comes to lawyers, details matter and you are not necessarily who you represent. If it were otherwise, too few people accused of a notorious crime could obtain quality representation.

Critics also ignore the role a responsible lawyer can play in winnowing out frivolous arguments, conceding untenable points, or advocating for settlements where warranted. None of this is to say that lawyers should be above criticism for aiding clients in wrongdoing, making factually incorrect arguments, or representing a client poorly. And companies that operate in countries that tolerate human rights abuses open themselves to fair criticism. But criticism of a lawyer merely for representing a client accused of wrongs or for making successful arguments in defense of such clients on valid—but seemingly technical—grounds is misplaced.

One final problem with criticism of lawyers for the underlying actions of their clients is that it often distorts the issues before the courts beyond recognition. Katyal’s representation of Nestle is a case in point. Katyal’s defense of Nestle was never that child slavery was permissible in any place or form. Indeed, Nestle maintains that it did not engage in or promote such hideous practices. Importantly, Katyal told the Supreme Court that Nestle “unequivocally condemns child slavery. In all its forms. Everywhere,” and that it did not seek “corporate impunity.” But too many of those critical of Katyal’s argument never acknowledged any of this. What was actually before the court was a narrow issue of law that had divided the courts on the circumstances in which corporations can be held liable for the actions of others in foreign nations under a relatively obscure statute that dates back 200 years. This was ultimately a dispute about an interpretation of statutory law and not an examination of alleged conduct that endangers the lives of children. It is important to understand what issue was joined before the court. And it is important to understand how unfounded criticisms of what lawyers ethically do in one case can have a chilling effect on other lawyers in other situations where they are even more needed.

When lawyers rise to the challenge and defend that which may be unpopular, they are following the best of our profession’s traditions and affirmatively helping the courts discharge their responsibilities. Attorneys who deviate from what is best about our profession deserve the criticism they receive. But in this instance, the criticism of a man who has been an outspoken critic of the lawless administration now departing is simply wrong.

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