Week 10 - Government Lawyers – Special Responsibilities of Prosecutors; Pro Bono Work; Duty to Represent Unpopular or Repugnant Clients

Class Notes

Prosecutors and Prosecutorial Discretion

• Rule 3.8, cmt 1, a prosecutor has the responsibility of a minister of justice and not simple that of an advocate

Morality, Ethics and the RPC

• Rule 2.1 (Advisor) - In rendering advice, lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors

  • Cm 2 lawyer is not a moral advisor as such, however moral and ethical considerations still matter

Rule 3.8: Prosecutor’s Special Responsbilities

• Refrain from prseucting a charge that prosecutor know is not supports by probable cause

• make reasonable efforts to assur accused has been advised of the right to, and procedure for obtaining, counsel and has been given reasonable opportunity ortain counsel

• not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing

• make timely disclsoure to the defnse of all evidence or information known tot he proseuctor that tends to negate the guilt of the accused or mitigates the offense

• not subpoena a lawyer in a grand jury or other criminal proceeding to presetnt evidence about a prast or present client

Rule 6.1-.6.5: Public Service

• Rule 6.3 (membership in legal servies org (LSO)): Lawyer shall not knowingly participate in a decision or action of the orgianziation if violate 1.7, or could have a material adverse effect on representation of LSO’s client

• Rule 6.5 (Legal service programs): Short term limited legal service without client or lawyer’s expecation. of ongoin g rep subject only to known conflicts

• Rule 6.2- A lawyer shall not seek to avoid appointment by a tribunal to represetna person execept for good cause

  • represetning client is likely to result in violation of RPC or other law

  • represetnitng the client is llikely to result in a n unreasonable financial burden on the lawyer

Private Practice, Public Profession: Convictions, Commitments, and the Availability of Counsel: Can lawyers reject clients? Two sides of a the profession

Why the Legal Profession Exists The author argues that lawyers and their special privileges exist mainly to serve the public, not to benefit lawyers themselves. Lawyers do this in two ways: by representing people who can't represent themselves, and by promoting justice in society.

Both Purposes Are Public Representing clients and advancing justice both matter for peace, the rule of law, and a healthy democracy. Money and personal satisfaction may come with practicing law, but they are side benefits, not the reason the profession exists.

Personal Interests vs. Public Duties Lawyers are human and naturally want meaningful work and a decent living, which can pull against the profession's public goals. The author narrows this tension to one question: is refusing to represent a "repugnant" client purely a private choice, or does it have public consequences?

Setting the Stage With Two Stories To illustrate the tension, the author will tell two stories, one from his own law practice and one from Professor Jill Raitt. Her story involves medicine, and both show the conflict from slightly different angles.

Albert Jenner as a Model Lawyer The author describes Albert Jenner, his firm's senior partner, as a complete lawyer who believed deeply in the public interest. Jenner gave the same attention to big corporations, a professor who took on the House Un-American Activities Committee, and men on death row, and he helped found the Lawyers' Committee for Civil Rights Under Law.

Lunch With a Bar Leader The author ended up at lunch alone with a former American Bar Association president and described a death-penalty appeal he was handling for a young man convicted of killing two Chicago police officers. He explained the case's serious problems: claims of torture, an all-white jury, hypnotically induced identification evidence, and heavy publicity before trial.

"Someone Has to Represent People Like That" The author told his host he thought his client may have been framed, but the host just sighed and said someone had to represent "people like that". The author was deflated and realized he would have impressed his host more by talking about corporate deals.

Different Views of Being a Lawyer The author was stunned, because he believed representing "people like that" is central to what lawyers do. He saw that he and his host had very different ideas of a lawyer's role, and he felt his own view was more than personal preference.

John Adams and Access to Counsel His view was shaped by John Adams, who defended the British soldiers after the Boston Massacre because an accused person in a free country should never go without a lawyer. The U.S. has no British-style "cab rank" rule requiring lawyers to take whatever client comes along, but the principle that counsel should be available is just as much ours.

The Doctor and the Dying Patient Professor Raitt asked a young Christian doctor whether he would call an imam for a dying Muslim patient, and he said he would find that offensive. He felt his duty was to convert the patient, which led Raitt to ask whether his first duty was to the patient's comfort or to his own beliefs.

What the Stories Show Both stories show how strongly personal views shape whom professionals serve and how they serve them. The author notes how easily lawyers find reasons to turn away clients who can't pay or are unpopular, and how little stops them from doing so.

History of Lawyers Avoiding Unpopular Clients While some lawyers proudly took unpopular cases, many avoided civil liberties cases in the McCarthy era and civil rights cases after Brown v. Board of Education. More recently, some lawyers refused to help people with AIDS, and few spoke up for Arab American men secretly detained after September 11.

Claims to Be Exempt From Anti-Discrimination Law Today, some lawyers argue that anti-discrimination laws shouldn't apply to them and that they should be free to reject clients for any reason. These objections sometimes rest on religious beliefs, and sometimes on racial hostility or other unfair bias.

The "Intimate Relationship" Argument Others argue that lawyers have total freedom over whom to represent, because the lawyer-client relationship depends on trust and respect that can't be forced. On this view, if a lawyer dislikes a client, a productive working relationship is impossible and the law can't change that.

Private Practice, Public Profession: Convictions, Commitments, and the Availability of Counsel: Refusal is an exception not a right in profession, how rules frame

Refusal Should Be the Exception The author agrees that a lawyer may sometimes properly be excused from taking a case. But he insists such refusals should be rare exceptions, because treating them as the norm ignores the public reasons the profession exists.

The Lawyer's Role Has Competing Parts A lawyer's role has several essential parts that don't always fit together, so they are always in tension. The core moral challenge of lawyering is to keep that balance while giving each part the weight it deserves.

The Three Roles in the Model Rules The tension shows up in the official ethics rules for lawyers, which open by describing three roles. A lawyer is a representative of clients, an officer of the legal system, and a public citizen with special responsibility for justice.

What the Three Roles Leave Out The opening statement speaks in loftier, more public terms than the specific rules, and only one of its three roles is about serving clients. It leaves out a fourth part: the lawyer's personal values and commitments, which the author calls the "self-realization" interest.

Why the Omission Matters The drafters may have left out lawyers' personal interests because it is hard to describe briefly or seemed improper to highlight. Still, ignoring something so important is like ignoring a large gorilla in a small room.

The Rules' Indirect Nod to Self-Interest A later passage of the rules admits that hard ethical problems come from conflicts among duties to clients, the legal system, and a lawyer's wish to stay ethical while earning a living. The author says this addresses personal interests only indirectly and could be read narrowly, so the "gorilla" stays in the room.

What the Specific Rules Say The rules clearly state when lawyers may not take a case, such as when there is a conflict of interest. But they never actually require a lawyer to take any case, and even the most relevant rules (6.1 and 6.2) say little on the subject.

Rule 6.1, Volunteer Work Is Only a Goal Rule 6.1 says lawyers should aim for at least 50 hours of free legal work a year, mostly for people with limited means. It is only a goal, not a requirement, and it treats civil rights and legal reform as lower priorities than helping the poor.

Rule 6.2, Court Appointments Rule 6.2 is formally binding: lawyers can't avoid a court appointment without "good cause," such as breaking the law, an unreasonable financial burden, or a client so repugnant it would harm the representation. Its official comment, though, opens by stressing the lawyer's freedom to refuse repugnant clients, while noting that all lawyers should take a fair share of unpopular cases.

Is the Appointment Duty Really Enforced? Critics point to a few cases where lawyers faced discipline for refusing appointments they found morally objectionable. The author doubts these cases are typical, because appointments of repugnant clients are rare and judges usually accept a lawyer's conscience-based refusal.

The Older Code Spoke More Strongly The older Model Code couldn't be enforced through discipline, but it pushed lawyers harder to serve the unpopular. It urged lawyers not to turn down work lightly or reject clients just because they were unpopular, while allowing refusal if strong feelings would hurt the representation.

Private Practice, Public Profession: Convictions, Commitments, and the Availability of Counsel: The idea of the “Moral duty” to represent by Wolfram

Wolfram's View, No Legal Duty In 1983, legal ethics scholar Charles Wolfram concluded that the Model Rules left lawyers largely free to accept or reject any case except court appointments. Outside appointments, a lawyer needs no reason at all to decline, even when representation would be workable.

Is There a Moral Duty? Wolfram recognized that ethical lawyers aren't guided only by rules that carry penalties. That raises two questions: is there ever a moral duty to represent someone, and does it ever cover a repugnant client?

The Duty-to-Rescue Comparison Wolfram compared the lawyer's duty to the moral duty to rescue someone in danger, which depends on ability, the level of danger, the risk to the rescuer, and whether that particular rescuer is needed. Rescue is clearly required when it is easy, like tossing a rope to a drowning child, but other factors can point the other way.

Applying Rescue Factors to Lawyers Under this test, a lawyer must be competent to help, and may weigh risks to herself, her family, and her finances. A duty also exists only if the client would lose something important specifically because this lawyer won't help.

A Meaningful Moral Duty Wolfram concluded that the moral duty to represent is "not an inconsiderable one," because only lawyers can practice law and refusing help can cost people what the law allows them. Morally, then, lawyers aren't completely free to refuse, though a stricter "rescue with bite" test may apply to repugnant clients.

Who Counts as "Repugnant"? Defining a "repugnant" client is crucial, since that label can decide whether someone gets a lawyer. Wolfram admitted the question needs more thought and said not every disagreement can count, because some objections are trivial or show poor judgment.

Obvious Cases and Hard Cases Wolfram gave examples where repugnance seems obvious, such as a Nazi, a remorseless murderer, or a maker of cheap handguns. But many cases aren't obvious, which raises the question of who decides and by what standard.

The "Rescue With Bite" Test A lawyer's disgust may affect her ability to argue well, but flawed representation, disclosed to the client, may still be better than none, as John Adams showed. Wolfram also allowed lawyers to weigh harm to themselves and others, and required that the client's claim be morally compelling before any duty arises.

A Duty in Few Cases Under Wolfram's view, there may be a moral duty to represent a needy but repugnant client. Such cases would be rare, though, and would depend on the lawyer's own judgment of the client's moral claim.

When Every Lawyer Says No Wolfram admitted that important rights may be lost if no lawyer will help, but he found that morally acceptable because each lawyer may follow his own conscience. He would not find it unjust even if every lawyer in a community refused a client, calling this a "lawyers' trump" that only society, through law, could override.

A Sharp Public/Private Divide Wolfram's view rests on a strict line between legal duties and private moral choices. It leaves no room for "professional morality" unless written into law, treating ethics as purely about the individual's state of mind.

Private Practice, Public Profession: Convictions, Commitments, and the Availability of Counsel: Critique of Moral duty analysis

The Author's Critique The author finds Wolfram's analysis useful but unsatisfying, because it offers a purely private answer to a partly public problem. It ignores the profession's public role, professional values, and the public's interest in access to lawyers.

Lawyers Aren't Mere Strangers The rescue analogy assumes the rescuer is a stranger, but more is expected of parents, police officers, or firefighters than of passersby. Wolfram treats lawyers as strangers with no special responsibilities, which assumes being a lawyer carries no extra duties.

Moral Duties Tied to Being a Lawyer That may be true for legal duties that can be enforced, but lawyers have moral duties that come from being lawyers. These include their role as public citizens responsible for the quality of justice.

The Unexplained "Normal Moral Instincts" Wolfram refers to a "lawyer of normal moral instincts" but never explains what he means. His overall approach suggests professional values play no part in his moral test.

Professional Values Must Be Weighed The author argues that becoming a lawyer means accepting certain professional values, even unwritten ones. These values don't automatically override others, but they must be seriously weighed when lawyers make decisions in their professional role.

The Problem of Defining Repugnance Being labeled repugnant has serious public consequences, since the client must then show a compelling moral claim and the individual lawyer decides whether it is met. If all local lawyers share the same views, unpopular voices, such as Communists or advocates for contraception information, could be silenced.

No Shared Standard Some cases, like certain Nazi claims, may be obvious, but most aren't, and Wolfram offers little guidance. He may be relying on a "reasonable person" consensus, but the author doubts such agreement exists today.

Rise of "Be True to Yourself" Thinking Since Wolfram wrote, scholars have focused heavily on lawyers' personal values and fulfillment, responding to widespread lawyer unhappiness. Much of this work is careful, but some simply tells lawyers to be true to themselves without accounting for how complex their role i

Private Practice, Public Profession: Convictions, Commitments, and the Availability of Counsel: Religion impact on representation

Religious Limits on Representation Some scholars, writing from religious traditions, argue that faith may forbid certain cases. For example, some Christian scholars say representing a woman seeking an abortion, or parties to a divorce, would be a serious sin.

Religion as a Powerful Trump Others might refuse gay clients, people of other faiths, or suits against the church, and similar points apply to other religions and to non-religious beliefs. The author focuses on religion because the literature is extensive and the fear of sin can end any further reflection about professional duties.

Repugnance Has Become Cheap In today's deeply divided society, finding others "repugnant" has become easy and common. People don't just disagree; they genuinely despise those who hold opposing views.

Why This Matters for Lawyers The issues people fight over most bitterly are exactly the ones that end up in court. Lawyers have their own views, so they need a shared commitment to professional values strong enough to check their personal feelings.

Private Practice, Public Profession: Convictions, Commitments, and the Availability of Counsel: Repugnant-client problem a problem even in private practice

Big Firms and Client Preferences Law firms have grown into large businesses focused on short-term profits, so they screen clients partly by what their paying clients might find repugnant. As a result, the preferences of major clients likely shape which free cases firms take on.

Danger of Community-Wide Shunning The author is also troubled that Wolfram seems to accept every lawyer in a community refusing a repugnant client. That could let lawyers collectively decide, for their own reasons, that certain challenges, such as to bans on contraceptive or church advertising, would never reach court.

The Profession as Part of the "Public Domain" The repugnant-client problem shows that the legal profession is justified by the public purposes it serves. Drawing on David Marquand, the author places the profession in the "public domain" of citizenship, fairness, and service that democracy depends on.

The Public Domain Is Fragile Marquand calls the public domain "priceless and precarious," because its values don't come naturally and must be learned. Unlike private life and the marketplace, it needs careful, ongoing care to survive.

"The Revenge of the Private" Marquand warns that public-mindedness is declining, partly because people push back against the demands of public duty in the name of authenticity. The author concludes that practicing law brings duties as well as privileges, that these go beyond written rules, and that they must be given proper weight.

Private Practice, Public Profession: Convictions, Commitments, and the Availability of Counsel: Footnote 3 Private v Public Lawyers

Legal Aid Lawyers Treated as Outsiders Lubet recalls that legal aid lawyers were seen as unwelcome intruders in these courtrooms, and judges treated them only slightly better than the poor tenants they represented. The courtrooms badly needed reform, and one day, while Lubet waited for his usual mistreatment from the bench, something unexpected happened

Jenner Enters the Courtroom A well-dressed downtown lawyer stepped up and introduced Albert Jenner, then probably Chicago's best-known and most respected lawyer and famous for his Watergate role. Jenner was instantly recognizable and widely admired for his integrity and power, and he seemed to have come to this courtroom as a favor to a friend or employee.

The Courtroom Is Transformed Once Jenner was introduced, the courtroom changed completely: the lawyers quieted down, clerks helped tenants who had no lawyer, and the judge actually engaged with the facts and the law. It felt like a real court where justice and people mattered, and the effect lasted all day, long after Jenner left.

Wilkins, "Should a Black Lawyer Represent the Ku Klux Klan?": Background

The Griffin Controversy Anthony Griffin, a Black lawyer working with the ACLU, agreed to represent Michael Lowe, the head of the Texas Klan, against a state demand for the Klan's membership list. Taking the case cost Griffin his job as general counsel for a local NAACP branch.

Personal Identity Versus Professional Role The case raises the question of why a lawyer so committed to civil rights would help a group that has terrorized Black Americans for more than a century. The facts make the question sharper because the dispute grew out of efforts to integrate public housing in all-white Vidor, Texas.

Wilkins, "Should a Black Lawyer Represent the Ku Klux Klan?": Legal Standards and questions surrounding representation

Is Griffin Helping Racism? The state said it needed the membership list to prosecute Klan members who were intimidating the few Black residents of Vidor while hiding behind hoods. By opposing the state, Griffin seemed to be helping the very racism he had fought as an NAACP lawyer.

The First Amendment Answer Griffin's defense was a legal principle: the First Amendment protects people's right to associate freely, which includes keeping a membership list private. The irony is that this principle comes from NAACP v. Alabama (1958), which protected the NAACP's own membership list.

An Old Debate People saw Griffin either as an apologist for the Klan or as a defender of free speech. This split is just the latest version of a long debate about how to view lawyers who represent clients whose views they oppose.

No Duty to Take Any Particular Case The old Model Code asks lawyers to help make legal help available, but it has never required any lawyer to take a specific case. A lawyer can turn down a case for any reason, including the most common one: the client can't pay.

The Rules Encourage Taking Unpopular Clients The rules urge lawyers not to turn away unpopular clients, and they say that representing someone doesn't mean endorsing that person's views. Lawyers who take such cases are celebrated in the profession's stories, most famously through the fictional Atticus Finch in To Kill a Mockingbird.

Why the Profession Worries Standing up to public pressure is hard, and a lawyer who argues for an outcast is more closely tied to that person than, say, a doctor who treats one. Lawyers also depend on their community's goodwill to make a living, so few will take on both of these risks.

Why Not Make It Mandatory? Not every unpopular client is innocent like the defendant in To Kill a Mockingbird, but even guilty people and those with hateful views deserve a lawyer. That raises the question of why the profession relies on honor and doesn't simply order lawyers to take these cases.

Wilkins, "Should a Black Lawyer Represent the Ku Klux Klan?": Voluntary Representation a necessity

Two Reasons to Keep It Voluntary The usual reason focuses on the client: a lawyer may refuse a case they find so repugnant that it would hurt the quality of their work. The second reason, offered mostly by commentators, is that lawyers have a moral right to control their own work.

If It's About the Client, the Client Decides If poor service is the only reason to say no, a fully informed client should be able to accept that risk. A client with no other options would rationally prefer a reluctant lawyer to no lawyer at all, so the lawyer should take the case.

Why the Klansman Wanted a Black Lawyer Lowe was happy to have a Black lawyer because, he said, if Griffin lost, people would assume he had been "sold down the river". So even a client who has other options might want a particular lawyer for strategic reasons.

The Lawyer's Right to Control Their Own Work Courts and bar groups are unlikely to give clients total power to force a lawyer to take a case. Just as people who sincerely oppose killing can be excused from military service, a lawyer shouldn't be forced to do what they believe is morally wrong.

Limits on Refusing The state or the profession can attach some costs to refusing, such as requiring the lawyer to help provide legal services in other ways. Severe punishments like disbarment, however, would be wrong for a lawyer whose only "offense" is a sincere moral objection to one client.

Taking a Case Is a Moral Choice If lawyers have a right to refuse, then choosing to take a case is also a moral decision they are responsible for. A lawyer can't justify that choice just by pointing to their professional role, so they have to weigh the specific legal and moral issues in each case.

Griffin's Self-Imposed Limits Griffin said he would not defend Klan members against criminal charges for threatening Black residents, and he would not become friends with Lowe. He kept criticizing the Klan, took no fee, and said his only goal was to protect the constitutional right of association.

United States v. Reid (D. Mass. 2002) Background

Terrorism Cases and Unpopular Clients The "war on terror" created special problems for lawyers representing accused terrorists. In these cases, defending unpopular clients is set against national security and patriotism.

The Shoe Bomber Case Richard Reid allegedly tried to blow up an American Airlines flight from Paris to Miami in December 2001 with bombs hidden in his shoes, and the plane was diverted to Boston. A grand jury indicted him, and the court appointed the Federal Defender Office because he couldn't hire a lawyer.

What "SAMs" Are Federal rules let the Attorney General put "Special Administrative Measures" (SAMs) on a prisoner whose contacts could lead to death or serious injury. The Attorney General imposed SAMs on Reid under that rule.

How SAMs Work and Where the Power Comes From SAMs take effect when the Bureau of Prisons is notified in writing, and they can last up to one year with renewals allowed. The Attorney General's power to impose them comes mainly from federal laws on running executive departments and controlling federal prisons.

SAMs Are Tailored to Each Prisoner Each prisoner gets their own set of SAMs based on the facts of their case. The court's opinion explains Reid's SAMs and the court's orders in response.

SAMs Imposed Without the Court's Knowledge Without asking the court, the Marshals Service imposed SAMs on Reid on February 19, 2002. One rule said his lawyer could share what Reid said only with third parties, and only to prepare his defense.

Who Could Meet With Reid Only pre-cleared defense team members who passed an FBI background check and signed onto the SAMs counted as "staff". Translators, witnesses, and experts such as a psychiatrist could not meet Reid unless his lawyers were present.

Rules on Documents, Calls, and the Signed Promise The SAMs limited the documents Reid could share or see, banned passing his mail to outsiders, and required that his privileged calls not be overheard. They also required each of his lawyers to sign a statement confirming they had received the SAMs and would follow them.

Procedural Posture

Lawyers Refuse to Sign On March 4, 2002, Reid's lawyers told the government they would not sign the statement. About six days later, the government completely cut off their contact with Reid.

The Emergency Order On March 25, 2002, the lawyers asked the court to stop the government from blocking their access, and the court issued an emergency order the same day. The order gave the lawyers reasonable access, banned monitoring of their meetings, and required that what Reid said be kept confidential.

The Order Goes Beyond the Request No one appealed, so the lawyers got nearly unrestricted access, but the court ordered more than they asked for. The judge later said the ban on monitoring was unnecessary because the government had never tried to listen in on those meetings.

oo Strict a Gag on the Defense At an April 22 hearing, the defense objected to the court's own rule barring them from sharing Reid's statements with anyone, and both sides agreed the government had never sought a rule that broad. The judge agreed it blocked normal trial preparation, such as talking ideas over with other lawyers, which he has long taught lawyers to do.

A Narrower Protective Order Reid asked the court to lift the limits on sharing his information, and the defense attacked the blanket ban at a June 3 hearing. The government didn't defend the blanket ban, and the court adopted the government's narrower proposed order.

The Fight Over the Signed Promise The government wanted the lawyers to sign the statement as a condition of seeing their client. The defense argued that this would violate Reid's Sixth Amendment right to a lawyer, and the court took the issue under consideration.

The June 3 Order The court let the lawyers have confidential talks with Reid and share information only with people helping prepare his defense. It applied the jail's normal pre-SAMs rules and barred the government from demanding any promise from the lawyers without the court's approval.

Government Revises the SAMs On June 19, 2002, the government told the court it had changed Reid's SAMs to match the court's order. The signing requirement now applies unless a court excuses or bars it.

Legal Reasoning

Constitutional Limits on SAMs The judge said Reid's SAMs are presumed valid, but the government's control over him is not unlimited. Pretrial restrictions cannot unfairly burden Reid's constitutional right to a strong defense by an independent lawyer.

The Constitutional Question Disappears The judge expected a major constitutional question, but sixteen days later the government backed down. Because the government made its rule subject to the court's decision, the constitutional issue went away.

Why No Signature Is Required The judge still explained why, as a matter of discretion and not constitutional law, he would not make Reid's three lawyers sign. He stressed that in Western legal systems, people facing the state are entitled to independent lawyers fighting on their side.

The Promise Interferes With Defense Lawyers Forcing lawyers to vouch for themselves to the government interferes with their job of defending Reid vigorously. As officers of the court, they answer only to the law, ethics rules, and the court's orders, so the government should ask the court if it wants special rules.

The Lynne Stewart Prosecution The judge noted that the government had charged lawyer Lynne Stewart with making a false statement for signing a similar promise and then breaking the SAMs. Whatever the merits of that case, it discourages brave lawyers from representing society's most hated defendants.

The Final Ruling The limits on what the lawyers could share were removed, and the court said Reid's Sixth Amendment rights were fully protected. Otherwise the SAMs and the jail's earlier rules still apply, but the lawyers do not have to sign any promise.

Mixing Reputation with Repugnant Clients

Stimson Attacks Detainee Lawyers In January 2007, Pentagon official Charles Stimson named major law firms that were representing Guantanamo detainees. He suggested corporate clients would make those firms choose between representing terrorists and representing reputable businesses.

The Backlash Newspapers and bar groups widely condemned Stimson's remarks as an attack on lawyers upholding the profession's highest ideals. He apologized, but three weeks later he had lost his job.

Stimson Was Not Alone Many others believed the normal rules didn't apply in wartime, including Bush administration lawyers who approved harsh interrogation standards. After 9/11, a national trial lawyers' group called for a pause on lawsuits, and some well-known civil liberties lawyers supported measures like profiling, military tribunals, and even "torture warrants".

A Law Firm Keeps Its Distance When former ABA president James Brosnahan agreed to represent John Walker Lindh, the "American Taliban," his firm made him state that the firm was not involved. This shows that even major firms worried about being linked to unpopular clients.

The Profession's Mixed Record Individual lawyers from John Adams to Thurgood Marshall have bravely defended rights, but the profession as a whole has done much less, especially in times of crisis. Few lawyers would represent accused Communists in the McCarthy era, and bar groups stayed silent about blacklisting and the internment of Japanese Americans.

he Supreme Court Has Gone Along The Supreme Court has often accepted the government's claim that emergencies call for extreme measures. In Korematsu, the Court upheld the Japanese American internment, saying it could not judge the military's wartime decision with hindsight.

Pride and Open Questions Given this history, the bar should be proud that Stimson could name so many leading firms representing detainees. The authors ask whether the duty to take unpopular clients really applies only to trial lawyers, and whether that leaves most lawyers with no real role as officers of the legal system.