Dangerous Identification: Confusing Lawyers With Their Clients

By Madeleine C. Petrara

I. Introduction

It may not have had the constitutional import of Watergate, but there was, nevertheless, that uniquely Washingtonian sense of high political drama on the first day of the Whitewater hearings before the House Banking Committee in late July 1994. A hot and humid day in the nation's capital was punctuated by sharp and often acrimonious exchanges between Democrats and Republicans. The first (and star) witness before the Committee, White House counsel and veteran Washington attorney Lloyd N. Cutler, "sought to set himself above this partisan fray," according to New York Times reporter Stephen Labaton.¹ Although a "senior appointee and confidante of the president," as Labaton put it, "Mr. Cutler presented himself as a detached investigator, and at several points in the day he bristled at the notion that his review was anything but impartial."²

Not surprisingly, Cutler's demeanor infuriated some conservative Republican Congressmen on the Banking Committee. Florida's Bill McCollum told Cutler point blank, "You have put the best face possible on this matter today, and that's what you're supposed to do when you represent your client who is the President of the United States." McCollum's insinuation, of course, was that lawyers generally, and Cutler in particular, are adroit at doing whatever it takes to "get their clients off"--to perform, at however high a level of skill, the job of hired gun. Getting the message, Cutler snapped back, "I am not here as a special pleader for the President of the United States."³

Another New York Times reporter covering Whitewater, David E. Rosenbaum, seemed to question Cutler's claim. "Mr. Cutler was predictably lawyerly," Rosenbaum observed, adding that his "demeanor and command of the case probably helped the Clinton cause, notwithstanding his offhand and dubious remark that .I'm not here to be a special pleader."'⁴ Rosenbaum, like McCollum, did not wish to appear taken in by the typical lawyerly ruse of objectivity. Representative Toby Roth of Wisconsin went so far as to compare the President's attorney to lawyers for O.J. Simpson, defendant in one of the most spectacular criminal cases in American history. Roth obviously was hoping to recruit some of the skepticism directed by the public toward Simpson and his defense counsel in order to discredit the Clinton administration and its legal representative.⁵

Roth, like "talk radio" hosts across the dial, sought to tap into a residual national suspicion of lawyers, especially when they sought to pass off zealous advocacy for common sense, defend the rights of those accused of notorious crimes, or offer the finest legal talent in the land only to the highest bidder. These are the kinds of issues which form a backdrop to relations between lawyer and client in the United States today, and it is to such issues and to the role of attorneys like Lloyd Cutler in defining how we perceive lawyers, to which we now turn.

Specifically, this Article will deal with the issue of whether, or to what extent, lawyers should be identified with their clients. Rule 1.2(b) of the Rules of Professional Conduct states: "A lawyer's representation of a client . . . does not constitute an endorsement of the client's political, economic, social, or moral views or activities."⁶ This Rule is written clearly and unambiguously. It is not vague. Thus, a lawyer's understanding of the Rule and its meaning should not be difficult, and adherence to the Rule should be inevitable. However, this is not the case in real practice. Many lawyers refuse to represent clients based upon the merits of the client's cause or the political ideologies of the client. It is understandable for the public to identify a lawyer with a certain client that he represents because, generally, the public is unaware of the rules of ethics to which a lawyer must adhere. It is hard to understand, however, why lawyers, aware of Rule 1.2(b), identify other lawyers with the clients they represent. Lawyers know, or should know, that pursuant to Rule 1.2(b), a lawyer represents only the client, as an individual in need of legal representation. The lawyer neither represents nor endorses the client's cause or the client's desire to change the existing social structure.

Part two of this Article will provide the reader with a complete descriptive analysis of four basic positions regarding the dangers of identifying lawyers with the clients they represent as well as the wisdom of representing clients based upon the clients' political, social, economic, or moral views. The first view discussed is that held by the professional elite. The elite bar, consisting of the conservative, mainstream, "Wall Street-type" lawyer, has historically been willing to identify lawyers with clients. The second position, espoused by an enlightened liberal minority within the elite bar, has sought to avoid identification of lawyers with their clients. The third position is that taken by the civil libertarian activist bar, which is committed to social reform, yet agrees with the liberal elite that lawyers and clients should be kept sharply separate in popular consciousness. The fourth and final position is espoused by the public interest and social movement activists who share with the conservative elite the view that it is appropriate to link lawyer with client.

Part three of this Article will illuminate the debate among the four positions. Drawn from this debate will be a distinction between substantive values and process values. Process values underlie arguments on behalf of separating lawyers and clients--that lawyers should be willing to defend anyone who needs a lawyer, including guilty clients in criminal proceedings, polluters in an environmental case, and so on. This process argument corresponds to positions two and three. Substantive values, on the other hand, underlie arguments on behalf of identifying lawyers and clients--that some lawyers refuse to defend unpopular or indigent individuals and condemn tactics used to protect guilty, immoral, or unfavorable parties. This substantive value argument is held by positions one and four.

Since public attitudes about lawyers help to define lawyer-client relationships, part four of this Article will highlight, via the film industry, an examination of popular culture's reflection upon the lawyer-client relationship. This section will focus on the manner in which the lawyer- client relationship on film can be situated in the context of the four positions. Finally, this Article will conclude that Rule 1.2(b) of the Rules of Professional Conduct should be strictly adhered to, so that lawyers will not condemn, criticize, or look down upon colleagues who represent undesirable clients. The attorneys providing representation to unpopular clients are doing so in their professional capacity and feel it is their professional duty to provide zealous advocacy to ensure that the sanctity of the legal process is made available to all, regardless of the merits of the client's cause.

II. Descriptive Analysis of the Four Positions

A. The Professional Elite

In addition to many public interest or social movement lawyers, there is a professional elite within the bar that tends to identify attorneys with the clients they represent. This legal elite includes some Wall Street lawyers, conservative practitioners, and, for much of this century, the white, Anglo- Saxon, protestant (WASP) faction that has controlled the American Bar Association (ABA). These upper echelon attorneys have identified lawyer and client in two key respects. First, they themselves have declined to provide legal counsel to those clients with whom they did not wish to be publicly associated (and sometimes hounded other lawyers who did). Second, even beyond limiting their representation to those who could pay, they sought clients with whom association would prove financially or socially beneficial. Corporate lawyers stood in the shadow of the emerging powerful corporations.

The professional elite within the bar had considerable influence in the years following the Second World War. At the time, many conservative lawyers supported the House Un-American Activities Committee (HUAC), and the bar often joined in the crusade to rid America of alleged Communist subversion.⁷ "The professional elite . . . attempted to purge the profession of lawyers whose political and professional commitments deviated from Cold War orthodoxy."⁸ The ABA was often vigorous in condemning those lawyers who represented "undesirables."⁹ In fact, at an annual convention in 1948, the ABA declared that any attorney representing or giving assistance to the Communist Party, or to a person associated with the Communist Party, was not worthy of membership in the bar.¹⁰ The prevailing notion among the legal elite was that Communists, which included even those accused of left wing sympathies or of subscribing to the wrong magazines, were entitled to less legal representation than "loyal Americans," assuming they retained any entitlement to an attorney at all.¹¹

The ABA's attack on "proponents of foreign ideologies" escalated in 1950 when it demanded that all lawyers take an anti-Communist loyalty oath.¹² The real aim of the loyalty oath was "to intimidate lawyers for unpopular defendants and to discipline those whose beliefs or associations were adjudged subversive. Once political conformity determined the boundaries of justice, many unpopular defendants could not find lawyers--and some unpopular lawyers could not retain clients."¹³

Anti-Communist hysteria resulted in lawyers finding themselves the subject of disciplinary proceedings.¹⁴ "Lawyers who obeyed the ethical canon requiring them to engage in advocacy with zeal and courage, without regard for the unpopularity of the client or his cause, found that they had plunged through a trap door to disciplinary proceedings."¹⁵ Moreover, many attorneys found that, beyond advising their clients of basic constitutional rights, they were forced to assert their own constitutional rights, only to find that such an essential assertion of rights meant risking disqualification from practicing law ever again.¹⁶ Although some lawyers were spared disciplinary action, they suffered economic loss or damage to their reputations.¹⁷ Not surprisingly, as a result of such threatening behavior by the ABA, attorneys in fear of being disciplined or suffering "economic adversity" frequently declined to represent unpopular criminal defendants and similarly risky clients.¹⁸

The apprehension thus generated by identifying lawyers with their clients permeated the practicing bar as the professional elite assaulted those lawyers who were guilty of maintaining unpopular associations and beliefs.¹⁹ Even some lawyers otherwise known for their zealous advocacy of a client's interests or constitutional rights slumbered at a time when association with a particular client could prove to be detrimental to an attorney's reputation or professional self-interest. John W. Davis, the "lawyer's lawyer," remained silent during the period of Cold War crisis. Although Davis was, in fact, a socially prominent attorney who opposed the loyalty oath,²⁰ he nevertheless refused to represent a Smith Act defendant, Gus Hall. Davis stated, rather lamely, that he was just too busy.²¹ Davis was like many typical members of the legal elite who refused to provide counsel to people like Gus Hall who were in trouble. However, there were a few elite attorneys whose devotion to professional ideals and whose views of professional responsibility precipitated results dramatically different from the all-too-prevalent abandonment of unpopular clients.²² Although Davis and many other powerful members of the bar failed to separate particular clients (and their unorthodox views) from everyone's right to counsel in an adversary system, one tendency within the elite bar rejects the timidity of Davis and his cronies. For these lawyers, it is the process which counts, and the subordination of substance, whether political ideology or personal views, to process is critical. In their view, zealous advocacy on behalf of any and all clients, including the most unpopular, can be guaranteed only where lawyers separate their professional commitment to the client's case from their personal conception of the client's cause.

B. The Enlightened Liberal Elite

For process-oriented attorneys, generally a minority of political liberals within the conservative legal elite, the morality of the adversary process must prevail. For them, "judgments of right and wrong . . . are to be made after the process is completed, not before it begins."²³ Needless to say, criminal lawyers tend rather easily to embrace this kind of process argument. The public at large may have difficulty understanding such an argument until, of course, John Q. Public finds himself accused of a crime which he feels he did not commit. Then, the popular belief in innocence prior to proof of guilt, including the constitutional guarantees of an opportunity to be heard and to be represented by counsel, comes into play.²⁴ Representation of a criminal defendant is not, in itself, generally seen as unethical, nor are lawyers who represent criminal defendants generally associated by other members of the bar with their clients or their clients' views. Liberal lawyers who have managed to find a place among the corporate elite point to the irony where law students, who readily accept the right of a criminal defendant to zealous counsel, nevertheless criticize corporate lawyers for their representation of purportedly antisocial clients. Why should large corporations, or Communists for that matter, be entitled to any less legal representation than criminal defendants accused of rape, murder, or child molestation?²⁵

Lawyers during the Cold War era had a tough time coping with the contradiction between serving their career interests while, at the same time, serving the public's interest in providing adequate legal representation. The bar's own canons of professional ethics could be viewed as presenting contradictory admonitions. On the one hand, there was Canon Two, which required that lawyers defend an accused, placing all personal opinion to one side while refusing to render any opinion as to their client's guilt.²⁶ On the other hand, Canon Five allowed lawyers to turn away clients where the lawyer felt so strongly about a certain matter as to be unable to provide adequate and zealous advocacy.²⁷ Formally, the lawyer may have had a shared obligation as zealous advocate and officer of the court. Practically, the dual obligation was to client and to conscience. The client is owed a vigorous legal defense, but the conscience must be heard. A particular client may be sufficiently distasteful that the lawyer is incapable of providing the kind of zealous representation the Canons of Ethics require.²⁸

As anti-Communist paranoia intensified during the 1950s, the defense of clients with civil liberties issues became more risky for lawyers subjected to the same social stigma as their unpopular clients.²⁹ It is one thing for an attorney to be willing and able to advocate a good cause, especially on a pro bono basis; it is another for the lawyer to take on a cause which is not so good, not so popular, or not so well regarded in the public realm.³⁰

During the loyalty oath crusade, a time when many lawyers declined representation of the politically suspect for fear of being identified with such unpopular clients, the law firm of Arnold & Porter remained committed to the representation of a wide range of private citizens, institutions, and government employees.³¹ The firm's provision of legal counsel was not based simply on the general goal of assuring representation to the public.³² Arnold & Porter based its decision whether or not to represent someone upon two factors: Could the firm effectively advise and represent the client, and if so, was that advice and representation sufficiently valuable to justify adequate compensation?³³ "Enlightened" elite attorneys, like those at Arnold & Porter, believed in an essential separation of the client's cause from the attorney's personal opinion of that cause.³⁴ Unlike John W. Davis, these lawyers represented even those persons with contrary and unpopular political views, regardless of the public's perception of the lawyer who provided such counsel.³⁵ The fight was for individual rights under the rule of law; how the client chose to use such liberty was not for an attorney to judge.³⁶

(T)here was no uncertainty as to the function and responsibility of a law firm. It was to serve and represent each client as an individual, whether the client was a corporate malefactor or a presumably saintly civil libertarian. Once a client had been accepted, the lawyer's course was clear. If the interest of the client required the lawyer to advocate a position or seek a result which he personally disliked or even which he considered contrary to society's welfare, it was the lawyer's duty to do so with all his mind and heart, subject only to the restrictions and proprieties which the rules and conventions impose.³⁷

Such lawyers were dedicated to the value of an adversarial legal process, not to the kind of substantive values which may have gotten their less popular clients into trouble in the first place. In this view, the legal profession has, as its primary loyalty, a certain deep commitment to process. The only way to achieve that main aim is to separate lawyer and client, and thus, in a sense, to separate the attorney from his own personal views, at least so far as the rendering of professional service is concerned. As a professional, the lawyer should demonstrate unflinching dedication to the advocacy of his client's best interests.³⁸

C. Civil Liberties Activists

Though likely to be serving quite a different set of clients, enlightened, liberal, large-firm lawyers share with an activist and civil libertarian bar this commitment to separating lawyers from their clients and their clients' politics. Included in this latter group of social reform attorneys would be ACLU member and Harvard law professor, Alan Dershowitz. In a nutshell, these civil libertarians provide legal representation to a varied collection of unpopular or notorious, unorthodox or mainstream clients who are in need of constitutional protection.³⁹ Notwithstanding a particular client's political ideology or moral sentiments, such activist lawyers will take on important cases involving issues of freedom of speech, religion, association, belief, and so forth.⁴⁰ The clients they represent have ranged from the Ku Klux Klan and Nazis, to flag burners and school children who refuse to join in graduation ceremony prayers or the pledge of allegiance.⁴¹

Although these activist attorneys, like their comrades within the liberal elite, betray a deep faith in client loyalty, it is beyond dispute that they are motivated to take cases which have social implications.⁴² Nevertheless, the civil liberties lawyer views his primary contribution as the representation of the Bill of Rights, a process value, in contrast to the kind of substantive values embraced by both the conservative elite and the radical movement lawyer. Since everyone deserves to have his or her constitutional rights protected, everyone should have access to an attorney. Civil liberties activists believe they have a paramount duty to represent unpopular clients,⁴³ and therefore, because it is a basic obligation which should be shouldered by the whole bar, it naturally follows that these lawyers think the public ought to be able to separate the lawyer from his client.⁴⁴ "It is a basic premise of our adversary system that the lawyer's role is to defend the client, not his deeds."⁴⁵

Criminal defense attorneys are often asked how they can represent a client when they know the client may actually be guilty. Such legal advocates feel it is their job to represent the guilty, putting the government to its test. Can you imagine living in a society, as Professor Dershowitz has put it, in which most of those prosecuted by the state were innocent?⁴⁶ The key for these liberty-oriented lawyers is not the guilt or innocence of the client charged with a crime. As Dershowitz told an ABA conference audience, a lawyer who defends the innocent does not have a more important job than one who defends the guilty, he just has an easier job.⁴⁷ This observation proves ironically comparable to the view of prosecutors in Dallas, Texas, who, according to an appellate defender in The Thin Blue Line,⁴⁸ are fond of saying that any prosecutor can convict the guilty; it takes a great prosecutor to convict the innocent. In both cases, it is obvious that substance has been subordinated to process, and the "truth" (whatever that may mean) has been subordinated to the imperative of winning. It is not the substance of the legal claim which is at stake but, rather, the integrity of the process through which it is handled. This process argument is premised on two important assumptions: It is not the job of the lawyer to determine guilt or innocence, a matter which remains for judge or jury to decide; and, all persons are entitled to legal representation and an adequate defense--even the "guiltiest defendant."⁴⁹

D. Public Interest and Social Movement Activists

Both traditional civil libertarian lawyers and radical movement or public interest lawyers are aware of social implications arising from their legal work, but the latter feel the political activity of "ACLU-types" is inadequate.⁵⁰ The 1960s produced an era of radical lawyering in which many attorneys believed that the historical moment justified a more searching view of lawyer-client relations than had previously characterized the work of even liberal activist attorneys.⁵¹ Unlike the civil libertarians, whose clients are seen as individuals, the clients of radical and public interest lawyers tend to be groups and organizations.⁵² In many instances, the client may simply stand in for the community in order to make possible a mass assault on the dominant system of social relations.⁵³ In these situations, the individual client could be seen (rather starkly, to be sure) as little more than a puppet, little more than a device allowing the lawyer to get his or her feet into court to assert political goals.⁵⁴ The pro forma client is but a mere technical necessity; the real client is the invisible public interest, however concretely visualized by the individual radical attorney.⁵⁵ These movement lawyers are motivated by a commitment to social change, where legal work is not "client representation" but something quite different: "project-lawyering."⁵⁶ Such activist lawyers consider themselves to be advocates, not for a specific client, but for the cause behind the client and thus, the general community.⁵⁷ It is the cause itself which is the beneficiary of the lawyer's dedication and the inspiration for professional commitment, not the client.⁵⁸ These lawyers take cases which they regard as socially and strategically significant, given their own personal political views and values.⁵⁹ In a sense, the client can thus be regarded as an instrument or a means for furthering the lawyer's own social and political agenda.⁶⁰ In a widely discussed presentation on the lawyer's role and responsibility in modern society, Judge Simon H. Rifkind observed the rise of this new group of public interest lawyers who do not so much advocate the cause of a client who has retained them as they go about selecting clients for the specific purpose of advancing the social causes in which the lawyers believe.⁶¹ Similar, perhaps, to the professional elite (the conservative element within the ABA) and to those lawyers who identify themselves with the clients they represent, activist lawyer William Kunstler has associated and identified himself with his clients and has absorbed their political views and lifestyles.⁶² Kunstler went through a metamorphosis from a "conventional" commercial lawyer in the 1950s, to a public interest lawyer during the Nixon era, when he first began to show signs of an identification with his more radical clientele. He did not stop there: In the late 1960s, as a result of the cultural and social events of that time, Kunstler's views altered to the point where he became the lawyer who personified the counter-culture values that jeopardized the authority of the legal system . . . . As his professional austerity melted, his patterns of advocacy (and the identity of his clientele) began to disturb the guardians of professional propriety. Kunstler was berated in the American Bar Association Journal for declaring that he was "not a lawyer for hire" but would "only defend those I love."⁶³

III. Debate Between the Four Differing Views

The view held by elite, liberal, Washington lawyers--that the adversarial process is of great importance and that everyone, including corporations, deserves the right to counsel--is similar to the civil libertarian commitment to the adversary system. Nevertheless, civil libertarians place greater emphasis on the nature of their client's constitutional position and the social implications of guaranteeing legal representation. Unless counsel is provided on a pro bono basis, the corporate elite lawyer's emphasis remains on securing high legal fees. Many elite law graduates are burdened with having to choose between working for a Wall Street firm or working for an organization such as a labor union, the ACLU, or Legal Aid.⁶⁴ To those for whom salary is at least a key factor, big-firm practice may prove irresistible; to those for whom pay is secondary, personal satisfaction and moral rewards may be the decisive factor.⁶⁵ Perhaps part of the difference between corporate elite lawyers and the civil libertarians can be explained in generational terms. In the wake of the Depression years, during the 1940s and 1950s, big firms proved attractive as employers that could guarantee handsome incomes. These years produced a generation of young lawyers dominated by economic motivation.⁶⁶ The 1960s and early 1970s produced attorneys for whom economic concerns did not loom as large as they had for the previous generation. Many of these new lawyers began working for Legal Aid, for the ACLU, or as public defenders.⁶⁷

Neither elite Washington lawyers nor civil libertarian attorneys hinge their representation of a client upon their own particular view of the client's cause.⁶⁸ Both groups stress the sanctity of the legal process itself, which they see as "basic to the preservation of our liberties."⁶⁹ It is this process argument which places civil liberties organizations and big city law firms in the same category.⁷⁰

An especially useful incident revealing the nature of the debate between varying perspectives on attorney-client identification was a law student demonstration staged in the nation's capital, Washington D.C. Activist students associated with consumer advocate and crusading attorney Ralph Nader picketed the law office of a prominent Washington lawyer, Lloyd Cutler. The source of the students' dissatisfaction with Cutler was his representation of the Automobile Manufacturers' Association ("AMA") in a motor vehicle fuel pollution case.⁷¹ The Justice Department, alleging "product fixing," had filed a civil antitrust suit against the AMA and four major car companies, asking for an injunction prohibiting the AMA and its members from further delaying or preventing the production of antipollution devices.⁷² Instead of going to trial, the Justice Department and the AMA settled. A consent decree issued in the case represented, in effect, a refusal on the part of the automobile industry to admit it had done anything wrong.⁷³ Lloyd Cutler was the lead attorney who sought a negotiated settlement.⁷⁴

Irate students publicly picketed Cutler's office, claiming that, due to the national stake in finding real solutions to the pollution problem, Cutler had an obligation to the public to urge the AMA to go to trial for a "public airing of the charges."⁷⁵ According to the students, if the AMA refused to accept such advice of counsel, then Cutler should have ended his representation of the car association simply because the AMA's interest and the public interest were at odds.⁷⁶ On the other hand, big-firm lawyers, somewhat like civil libertarians, contend that Nader and his allies tend to determine prematurely just what the public interest may be.⁷⁷ Furthermore, Nader's view puts lawyers in the position of becoming judge and jury, deciding the client's case without ever going through the apparently tedious formality of a trial.⁷⁸ Nader, on the other hand, insists that the "lawyer has a .duty to balance the private interest of his client against the public interest of society,' and if the two interests do not coincide, he should then urge his client to take a broader view of its best interest."⁷⁹

Although the picket line was quiet and the demonstration uneventful, the students certainly managed to stir up debate over the lawyer's role in society.⁸⁰ Activist students urged that, by virtue of the lawyer choosing the client,⁸¹ lawyers are bound up with the system and, as such, they can neither separate themselves from the clients they represent nor render themselves immune from the judgment of others.⁸² It is on the basis of this necessary and candid association of lawyer and client that the picketing students identified Lloyd Cutler with his clients, the Automobile Manufacturers' Association and the big car companies.

Big-firm lawyers cannot have it both ways. On the one hand, they want to be sufficiently associated with their clients to be able to boast of who they represent, promoting the highest possible fees for their services, but, on the other hand, they deny any association with their clients when it opens them to risk of criticism, or even responsibility, for their clients' deeds.⁸³ From this view of things, Washington lawyers like Lloyd Cutler and Abe Fortas, and high-powered Wall Street firms, cannot hide behind the image of the lawyer as guardian of our liberties while at the same time collecting handsome fees for protecting the profitable, yet socially harmful, operations of their corporate clients. Legal representation does not operate in a vacuum, and moral judgments can and must be made in the choice of clients.⁸⁴

Some contend that Nader and his picketing students wish to deny legal representation to the AMA and the car companies, clients whom they personally happen not to like.⁸⁵ However, the students assert they are not contesting the right of advocacy itself but merely what specific tactics should be allowed.⁸⁶ Nader and his "raiders," from this perspective, are simply proposing a more rigorous ethical code than the one enforced by the ABA. Must we agree with Nader's self-critique? How can you place limits on vigorous advocacy (within the law, to be sure) without at the same time reducing the effectiveness of that advocacy and thus, in a sense, limiting the right to counsel?

Cutler responded to his student critics through a press release and an article published in the Harvard Law Review. The press release stated in part:

Today's picket line is a prime example of McCarthyism--1950 style. The late senator from Wisconsin also believed he had a divine monopoly on knowing where the public interest lies. His zeal led him as it now leads Mr. Nader, to assail his fellow lawyers for defending the targets of his attacks . . . . The public interest is best served when all sides of such a controversy have the benefit of skillful advocacy . . . . It is a basic premise of our constitutional system . . . that where the public interest lies can best be determined by the presentation of opposing views in the proper forum.⁸⁷

Leftist political lawyers, public interest lawyers, and progressive students pose this question: Why do lawyers represent clients with pro malo causes when there are plenty of pro bono cases available? Why not, at least, choose causes which are without damaging social implications?⁸⁸ Cutler asserts that the students "misconceive the essence of the adversary process and the role of the lawyer in making that process work."⁸⁹ Without an adversary process, who can really assert confidently and in all fairness the goodness or badness of a particular cause?⁹⁰ Judgment of pro malo or pro bono can be rendered only after all sides to a controversy have received the best defense.⁹¹ A zealous advocate can illuminate sides of an issue which have never been considered before, and after illumination comes persuasion. An "at first blush" pro malo cause can be viewed in another light-- maybe even as pro bono--subsequent to its careful assessment throughout a rigorous adversary process. Cutler eloquently concludes his powerful law review argument by stating, "(g)ood lawyers can usually be found to advocate the pro bono side of any worthwhile cause."⁹²

At the time when Nader and his activist following picketed Cutler's law firm, the ACLU, believing that the adversary system comes first, sided with Cutler and defended his conduct.⁹³ The ACLU believed that Cutler was paid to represent his client, the Automobile Manufacturers' Association, and that zealous advocacy required him to secure the "best possible deal" for his client.⁹⁴ That meant, in this case, that Cutler should negotiate and settle outside of court the dispute between the government and the AMA. Cutler did exactly that; therefore, the ACLU, not surprisingly, believed he had done nothing wrong.⁹⁵

The civil libertarians fear that some new movement lawyers will have a deleterious effect on the health of the adversary process.⁹⁶ Although Nader and his legal allies claim to believe in the importance of the process, they sharply distinguish the type of advocacy appropriate to litigation involving private parties from the kind of advocacy which should be practiced in the context of litigation pitting private interests against the Legislature or regulative bodies.⁹⁷ Like Louis Brandeis, Nader believes the adversary system is served when zealous advocacy on behalf of one private party is balanced by similar advocacy for another private party.⁹⁸ However, both Brandeis and Nader argue not only that the situation changes when the litigating parties are private interests and a legislature, but also that the ethical rules governing this type of situation are different.⁹⁹ "(A) very different condition is presented, . . . a condition of great unfairness to the public,' when highly capable lawyers representing private interests deal with the legislature .while the public is often inadequately represented or wholly unrepresented."'¹⁰⁰

Radical movement attorneys have a political orientation different from that of traditional civil libertarian lawyers.¹⁰¹ The radical activist centers his legal practice around the representation of political and cultural dissidents.¹⁰² Such representation may itself be further circumscribed by a refusal to represent particular varieties of dissident or outsider.¹⁰³ For example, the National Lawyers Guild vigorously opposes right-wing and white supremacy groups. At a time of national debate over the right of Nazis to march in Skokie, Illinois, the Guild's National Executive Board passed a resolution stating: "Members of the National Lawyers Guild should not represent (r)ight wing white supremacist groups or individuals in legal proceedings which would advance their (r)ight wing white supremacist ideology."¹⁰⁴

While civil libertarians believe it is their duty, as lawyers, to represent individual clients, radical lawyers believe that their obligation is to the values and political ideologies that stand behind the individual represented. Thus, from the radical lawyers' perspective, civil libertarians do not go far enough, and their sense of duty merely to represent individuals is inadequate.¹⁰⁵ Activist lawyers believe that the bar should not only require the provision of counsel to individuals but, more significantly, guarantee adequate legal representation for progressive changes in such areas as environmental regulation, civil rights, and other antiestablishment causes.¹⁰⁶ Nader and his followers claim that some civil libertarians are naive in that they do not take notice of the "seamless web" which binds together a wide range of social relationships.¹⁰⁷

Views May Sometimes Overlap

Although it is relatively easy to carve out a particular stance on the kinds of questions discussed here, strict adherence to that one view--the steady practice of that one perspective at all times--may be rather difficult. For example, Washington attorney Charles Rhyne maintains that a lawyer should not be associated with his client or his client's position.¹⁰⁸ How does one explain, then, the fact that Rhyne posted on his outer-office wall a victory cartoon celebrating his involvement in the Baker v. Carr reapportionment case, thus demonstrating that even he, in this instance, was willing to identify himself with his winning clients?¹⁰⁹ At about the time Baker v. Carr was decided, Rhyne also represented the city of Richmond, Virginia, in an annexation case--a case which many viewed as the city's attempt to thwart development of a black electoral majority.¹¹⁰ It is highly unlikely that Rhyne, at that time, would have posted a cartoon or news clipping revealing the commonly held view that Richmond's annexation case was but a mask for the city's real concerns.¹¹¹ Where such association appears favorable to him, Rhyne seems willing to ignore his own contention that a lawyer should not be associated with his client.¹¹² If Rhyne is going to criticize others for identifying lawyers with their clients, should we not hold him to this position and require him to stick to his guns on all occasions? He cannot associate himself with his client when he deems it in his interest and yet dissociate himself when he finds identification less than flattering--at least not if he wishes to appear honest as well as logical in his approach. "(L)awyers cannot have it both ways: Either they are to be associated with the merits of their client's case, or they are not."¹¹³

Another paradoxical situation arose as a result of litigation in the famous case of Gideon v. Wainwright.¹¹⁴ After the U.S. Supreme Court had concluded it was to time to change, or at least reconsider, limits imposed on the constitutionally protected right to counsel set forth in Betts v. Brady, the Court appointed Abe Fortas, the quintessential Washington lawyer, to represent Clarence Earl Gideon in what turned out to be a high-stakes, high- profile case.¹¹⁵ The issue under consideration was whether the case-by- case approach of Betts v. Brady should be maintained or whether an absolute right to counsel in felony cases should be imposed on the states.¹¹⁶ Although some of the Justices knew Fortas personally, the Court appointed Fortas based upon his reputation. Fortas was known for his exceptional skill at appellate advocacy and was also a leading member of a committee to recommend changes in the Federal Rules of Criminal Procedure.¹¹⁷ It is entirely within the Court's discretion to appoint lawyers to represent indigent petitioners.¹¹⁸ It is often asserted that the Court, or at least its Chief Justice, must have believed it was time to change the rules governing right to counsel in criminal cases and thus, not surprisingly, the lawyer appointed to represent Gideon was the one man the Justices knew could argue most persuasively for that change.¹¹⁹

The transformation of any constitutional principle will bring in its wake a host of surprises. First, consider the Supreme Court's about face. "There are few things Supreme Court justices like less than a lawyer who puts his client's interest aside in the zeal to make some great change in the law."¹²⁰ So, what was the Court doing when it appointed Fortas? By the time the case was argued, Clarence Gideon was of little or no importance. The cause, rather than the man, was the object of dedication. Unrepresented indigents should not find themselves sentenced to long prison terms.¹²¹ In a sense, Fortas's client was a mere "technical necessity" in getting this idea, whose time had come, before the Supreme Court.¹²² Although many prominent attorneys who argued before the Court would later claim to frown upon "project lawyering," is this not exactly to what the Supreme Court had lent itself? What about Fortas himself, a lawyer who boldly proclaimed the importance of zealous advocacy and representation for all felony defendants, regardless of speculation about guilt or innocence? What about Abe Fortas, a man who represented clients, not causes? Abe Fortas, a lawyer whose clients chose him, not the other way around? Fortas, of course, later criticized Ralph Nader for project lawyering--for representing issues rather than individuals. Nevertheless, when Fortas considered an issue to be of great importance (accepting an assignment from the Supreme Court) he arguably turned into a Ralph Nader himself. It is fascinating to compare Fortas's attack upon Nader, his critique of the radical lawyers of the anti-Vietnam War period, with his own statements regarding his responsibility in the Gideon case:

An advocate usually thinks about winning a case and doesn't give a damn whether he wins by five-four or some other vote. But in this case--a constitutional case of fundamental importance, and with political overtones in terms of federal-state relations--it seemed to me the responsibility was not just to try to win the case but to get as many justices as possible to go along with what I considered the right result. If you assume Betts v. Brady was going to be overruled, it was right for the institution of the Supreme Court, and for the law, to have as much unanimity as possible.¹²³

Consider, as well, what Fortas thought about his hero, Supreme Court Justice Louis Brandeis.¹²⁴ Brandeis was well known for his liberal views and intense social commitment.¹²⁵ Some, including an associate of Fortas, considered Fortas to have much in common with his hero and asserted that Fortas "works for reform of the criminal law because he thinks it is right for society."¹²⁶

The point here is simple. It is not so much that Cutler and Fortas were wrong when they criticized the subordination of client to cause or of process to substantive values. Rather, the point is that all lawyers may be guilty of this sin at one time or another.¹²⁷ For Cutler, perhaps, the sin was fighting back against HUAC and McCarthy. For Fortas, it was securing the right to counsel for all felony defendants. For Nader it was, and is, removing from our highways cars that pollute or are unsafe. For the radical students of the 1960s, it was resisting the draft or fighting against nasty landlords and unscrupulous corporations. Perhaps the important thing to remember is that lawyers have at least one cause for which they will fight at some point in their lives, and that they have at least one season of youth sufficient to annoy the comfortable middle age of corporate liberals like Fortas and Cutler.

IV. Film

Because popular perceptions of the lawyer-client relationship have a direct impact on how lawyers may look at clients and weigh the advantages and disadvantages of representing particular individuals or institutions, it is worthwhile to take a brief look at how popular culture--specifically motion pictures--has represented the main themes discussed above. Are there films which have presented to the viewing audience lawyers who fit into our first group of attorneys, those elite lawyers who have tended to identify lawyers, including themselves, with their clients? The elite, large-firm attorney played by James Mason in The Verdict¹²⁸ would seem to belong in this first category. He is not only a high-powered advocate retained by wealthy and influential clients (e.g., the Catholic Church hierarchy, affluent and highly regarded physicians), but he identifies himself socially with those clients and, simultaneously, tends to regard with some disdain the malpractice plaintiff's bar. The contempt he manifests for lawyers like the one played by Paul Newman almost conceals his dislike for the clients they represent--hapless victims of malpractice or working class clients who themselves, at times, mistrust Newman's motives.

Another illustration might be the lawyer hired by Hollywood moguls to ingratiate themselves with the House Un-American Activities Committee in the recent Robert DeNiro film, Guilty By Suspicion.¹²⁹ As we have seen, during the anti-Communist witchhunt of the 1950s it was commonplace for the organized bar to persecute attorneys who represented alleged subversives.¹³⁰ In the film, the studio's lawyer (played by Sam Wanamaker) provides initial representation to those film company employees that Darryl Zanuck feels are worth trying to protect. Once director David Merrill (played by DeNiro) makes the crucial decision to stand up to the HUAC investigators, however, "his" lawyer promptly abandons him, claiming falsely that he has been dismissed by his client. Just as some blacklisted Hollywood artists no doubt will be bitterly reminded of their experience with the film industry and its McCarthy-era politics, some lawyers will see in Felix Graff, Wanamaker's character, those kingpins of the ABA who led the campaign to rid the legal profession of left wing lawyers during this same period.

How about movie lawyers exhibiting that "noblesse oblige" which Jerold Auerbach suggests typifies lawyers in our second category,¹³¹ the liberal minority of socially elevated attorneys willing to discharge the basic duties of the bar and to make real the guarantee that even the least popular should receive representation? In To Kill A Mockingbird,¹³² Atticus Finch (portrayed by Gregory Peck) is, in a sense, an elite and socially prominent lawyer. He has a nice home and a housekeeper, and he is respected by everyone in his community. He not only can afford to engage in pro bono legal service (he accepts payment in kind, a basket of fruit, from an impoverished client early in the film), but he also has the willingness to do so. Indeed, Finch's representation of a black man accused of raping a white woman in the South often is regarded as popular culture's most famous example of legal heroism--a lawyer willing to risk all to guarantee a defendant his constitutional rights. Atticus Finch is unusual, though. Perhaps the absence, within popular culture, of elite lawyers willing to represent the poor or disfavored accurately reflects reality--the unwillingness of prominent American lawyers to step out of their class role, however briefly. Perhaps, as the movies suggest, there simply are not that many Thurman Arnolds and not enough lawyers like Abe Fortas or Simon Rifkind, who are willing to put their prominent clients temporarily on hold while they do the work for which so many of their colleagues have refused to accept responsibility.

Eddie Dodd (portrayed by James Woods) is a radical leftover from the 1960s who gradually rediscovers his sense of values in True Believer.¹³³ Dodd could provide a popular culture entry in either our third or fourth categories. On the one hand, Eddie retrieves his political orientation, defending a young Korean-American and scrapping with Nazi skinheads, yet, on the other hand, he certainly symbolizes the kind of client loyalty which is the hallmark of those civil libertarian and criminal defense lawyers who place process above all else. Eddie is a "true believer," especially in the rule of law and the adversary system. The fact that his client turns out to have been framed is discovered almost after the fact as a fortunate byproduct of a system designed to work against all odds.

V. Conclusion

A lawyer's primary obligation is zealous advocacy of his clients' best interests.¹³⁴ His job is to present and argue each case to the best of his ability.¹³⁵ This is the role and duty of a professional attorney.¹³⁶ To be sure, it is difficult to blame the public for its perception of attorneys as committed, both personally and professionally, to clients and their causes.¹³⁷ After all, the public may think lawyers take only those cases in which they believe.¹³⁸ Lawyers are considered "hired guns" because of the "widespread identification of lawyers with the flawed character and reprehensible actions of their clients."¹³⁹ Some observers suggest that the public's tendency to identify lawyers with clients inevitably will grow as the number of lawyers representing powerful clients increases.¹⁴⁰ Writing on the future of the legal profession, Richard Abel asserts:

Lawyers must stop denying the identification and embrace it. Instead of seeking to justify their actions by reference to process values that allegedly produce truth and justice, lawyers must concede--indeed, affirm-- that they actively promote the objectives of their clients and justify their own behavior in terms of the substantive justice of their clients' goals.¹⁴¹

While this may be a popular sentiment, lawyers are agents, not principals, and they should not be criticized for the clients whom they represent.¹⁴² The lawyer's job is to make the legal system work. That happens when legal services are afforded to all, including cigarette manufacturers, car companies, murderers, and so forth.¹⁴³ This is not merely a noble view but a "fundamental basis of our constitutional system."¹⁴⁴ A lawyer's representation of the undesirable is premised upon a professional sense of duty to the legal system and the law.¹⁴⁵

How can we expect the public to effectively separate lawyers from their clients and see the two as distinct when even members of the bar confuse these roles or functions? Nevertheless, some lawyers may feel so strongly about a particular social or political issue that they cannot resist identifying themselves with their clients or openly endorsing their clients' causes. In that event, lawyers should not be discouraged from doing so. However, even these committed attorneys should extend to other lawyers the courtesy of not identifying them with their clients. Activist lawyers should refrain from criticizing colleagues who, in accordance with the Rules of Professional Conduct, have not only the right, but the duty, to provide legal representation to all. It is important that lawyers be regarded, by the public as well as members of the bar, as independent professionals who provide zealous advocacy without being influenced by personal opinion of client and cause. When the public or the legal profession itself identifies lawyers with their clients, the professional character of the bar is diminished.¹⁴⁶ Also diminished, it can be argued, is the notion of justice.