The Ethics of Client Selection: A Moral Justification for Representing Unpopular Clients

Masthead Logo DePaul Journal for Social Justice Volume 6 Issue 1 Fall 2012 Article 2 January 2016 The Ethics of Client Selection: A Moral Justification for Representing Unpopular Clients Tchia Shachar Follow this and additional works at: https://via.library.depaul.edu/jsj Recommended Citation Tchia Shachar, The Ethics of Client Selection: A Moral Justification for Representing Unpopular Clients, 6 DePaul J. for Soc. Just. 1 (2012) Available at: https://via.library.depaul.edu/jsj/vol6/iss1/2 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Journal for Social Justice by an authorized editor of Via Sapientiae. For more information, please contact , . Shachar: The Ethics of Client Selection: A Moral Justification for Represe THE ETHICS OF CLIENT SELECTION: A MORAL JUSTIFICATION FOR REPRESENTING UNPOPULAR CLIENTS TCHIA (TIA) SHACHAR* INTRODUCTION Lawyers fulfill a unique and indispensable role in a democratic society. Albeit the obvious consensus in this matter, lawyers who take on the task of representing unpopular or unorthodox clients and causes are frequently the subject of heated debates and controversies.' At one end of the spectrum, are those who vigorously assert that representing the 'man-introuble' at his worst time is the highlight of the legal profession, and its source of pride. On the other end, are those who preach for moral accountability and vigorously maintain that there is nothing noble in dedicating one's knowledge, skills and scarce resources for the sake of helping reprehensible people or advancing harmful or immoral goals. 2 * LL.B., LL.M., Ph.D., Faculty of law, University of Haifa, Israel. The author is a lecturer in the fields of legal ethics and criminal law, and an Advocate, member of the Israel Bar Association. Comments and responses may be directed to: . I am grateful to my dear family for their love and support. 1 The concept of 'unpopular' or 'unorthodox' client cannot be exhaustively defined, since it is an amorphous amalgam of individual as well as collective cultural values. For the purposes of this essay, this concept will be roughly defined as to include all cases which attract negative public reaction (in contrast to public sympathy or indifference) either due to the client's deeds or ideology. See Charles W. Wolfram, A Lawyer's Duty to Represent Clients, Repugnant and Otherwise, in THE GOOD LAWYER: LAWYERS' ROLES AND LAWYERS' ETHIcs 214, 225-226 (David J. Luban ed., 1983). 2 For a comprehensive introduction of the moral debate regarding client selection see, e.g., Monroe H. Freedman, Must You Be the Devil's Advocate? I Published by Via Sapientiae, 2016 1 DePaul Journal for Social Justice, Vol. 6, Iss. 1 [2016], Art. 2 DePaul Journal for Social Justice 2 Such debates and controversies usually produce a destructive "chilling effect" on the availability of counsel.3 Unpopular or unorthodox clients, which are often already situated at the oppressed and neglected margins of society, are thus prone to experience much greater difficulties in implementing the constitutional right to representation and finding a lawyer who will agree to represent them. Notwithstanding the core principle of democracy, which provides that every person has an equal opportunity to competent representation, most lawyers, at some point in their careers, find themselves being forced to publicly justify their decision to represent certain clients. Common examples include the criminaldefense lawyer, who so (too) often confronts the question how can he sleeps at night after representing notorious criminals murderers, rapists, child molesters and the like; the civil-case attorney, who often confronts the question how can he look himself in the mirror after zealously representing evil-doers who use the law in order to advance goals which harm society; or the civil-rights attorney, who frequently confronts the question how can he silence his conscience after enlisting to his aid the Constitution or other fundamental norms so as to promote morally wrong causes and ideologies while society is overwhelmed with "real" and pressing injustices. LEGAL TIMES (August 23, 1993) in NATHAN M. CRYSTAL, PROFESSIONAL RESPONSIBILITY - PROBLEMS OF PRACTICE AND THE PROFESSION 630 (1996); Michael E. Tigar, Defending 74 TEX. L. REV. 101 (1995); Abe Fortas, Thurman Arnold and the Theatre of the Law, 79 YALE L.J. 988 (1970); Murray L. Schwartz, The Professionalism and Accountability of Lawyers, 66 CAL. L. REV. 669, 693-695 (1978); W. Bradley Wendel, Institutional and Individual Justification in Legal Ethics: The Problem of Client Selection, 34 HOFSTRA L. REV. 987 (2006). 3 The cold war period provides us a striking example to that effect. Lawyers who agreed to represent suspected communists were vigorously persecuted by both the general public and the American Bar Association. The subsequent reluctance of most lawyers to represent such clients was, thus, an inevitable result. See: JEROLD S. AUERBACH, UNEQUAL JUSTICE: LAWYERS AND SOCIAL CHANGE IN MODERN AMERICA 231-262 (1977). Volume 6, Number I https://via.library.depaul.edu/jsj/vol6/iss1/2 Frall zoiz 2 Shachar: The Ethics of Client Selection: A Moral Justification for Represe ) THE ETHICS Or CLIENT SELECTION From a philosophical point of view, criticism or praise of those lawyers who undertake the task of representing unpopular clients or causes stems from the unique nature of the lawyer-client relationship.4 At the core of a lawyer's role lies the action of representation.5 In essence, this means that a lawyer's consent to represent a certain individual supposedly obligates the lawyer to enter the client's shoes, adopt the client's problem as if it was his own; and from that inside and intimate stance, do his best in order to provide an optimal solution for the client, within the boundaries of law and ethics. Hence, the conception of the lawyer's role differs from the conception of the roles society assigns to all other professionals. For example, a physician neither enters his patient's shoes at any stage of the treatment, nor takes upon himself the patient's illness as if it was his own; and it is from that outside and remote stance that he aspires to implement his medical skills to aid the patient. A lawyer, unlike a physician or other professionals, has a distinct and unique role in a way that only he "becomes one" with the client, as a direct result of the action of representation. Hence, it is the lawyer - and not the physician or any other professional - who is prone to attract public attention due to decisions regarding the choice of clients. The unique nature of the lawyer-client relationship raises the question whether the action of representation, which distinguishes the lawyer's role from the roles of all other professionals, necessarily creates an unbreakable correlation between the personal morality of the (...truncated)