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John J. Zefutie Jr.DON’T JUDGE A LAWYER BY HER CLIENT

November 12, 2020

Now that election season is entering the litigation phase, I’ve seen several news stories and social media posts that seem to pass judgment on lawyers for representing certain clients—mainly Republicans.  Some have criticized attorneys for representing clients who hold opposing political views, and others have demanded those attorneys be “unfriended” and that connections with them be severed.  But these are not just passing musings.  It’s more troubling.

The New York Times reported “[g]rowing discomfort” at Jones Day and Porter Wright—two mega firms—regarding their representation of the Trump campaign in the election results.  Jones Day previously represented the Bin Laden family.

The now-infamous “Lincoln Project” has launched a $500,000 advertising campaign targeting those same firms for representing President Trump and the Republican party.  The Lincoln Project even went so far as to share the contact information of attorneys representing the Trump campaign, tweeting: “Make them famous,” with an emoji depicting a skull-and-crossbones.  Twitter removed the tweet.

And, apart from the election, the New Jersey Law Journal reported a story about how representing controversial clients has impacted recruiting young lawyers.  That story referenced an associate at a large New Jersey law firm who, apparently thinking he was Edward Snowden, posted confidential firm and client material on the Internet and threatened to post more confidential information unless certain firm leaders resigned.

This is a dangerous and troubling trend that goes beyond typical cancel culture shenanigans.  Cancel culture warriors are bullying lawyers into giving up their clients and undermining the attorney-client relationship in order to gain a political advantage.  Society, however, should not judge a lawyer based on the clients she may choose to represent.  Clients are entitled to diligent and competent representation in both civil and criminal proceedings.  A lawyer who undertakes to represent a client—any client—does not automatically endorse that client’s beliefs or moral precepts.  ABA Model Rule of Professional Conduct makes that abundantly clear.  “A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”  (Emphasis added).   Many states have adopted a rule similar to Model Rule 1.2(b).  New Jersey adopted it word-for-word.

To be sure, lawyers are free to turn down a representation or to refuse to work on a particular matter based on a moral objection to providing legal services to a certain client.  In the Big Law context, if an associate is troubled by a particular case, that associate should be permitted to turn down working on the matter without fear of retribution.  Those lawyers, however, are not free to breach the Rules of Professional Conduct

Public defenders and criminal defense attorneys regularly represent murderers, rapists, and robbers.  Those defendants are entitled to legal representation—free legal representation in the appropriate case—and we should not assume their lawyers share the moral or social positions of their criminal clients.  Lawyers are not their clients, and they generally are not unscrupulous hired guns.  Lawyers are professional advocates who are governed by strict rules            of ethics.

Under those rules, clients are entitled to competent and diligent representation.  They also are entitled to attorney-client confidentiality.  And yes, a “client” includes President Trump and the Republican party.  In the 2000 presidential election, before the birth of cancel culture, Republicans and Democrats alike were represented by highly skilled and well-respected attorneys.  Then, there were no widespread efforts to undermine the attorney-client relationship.  The same should be true now.

 

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