Tuesday, October 16, 2018

The intersection of the movement and representation

When we took that oath and received our ticket to play we obligated ourselves to do everything within our power to represent our clients' interests. We agreed to set aside our own political beliefs when representing our clients.

I have represented many a client with whom I couldn't disagree more on questions of political, religious or racial beliefs or feelings. Not once did those disagreements prevent me from standing next to my client and forcing the state to prove its case beyond a reasonable doubt.

I have stood next to clients who have done things I find reprehensible -- but I'll be damned if I going to let my client face the wrath or the court or the state alone.

But not everyone feels that way. NYU Law professor Alina Das was awarded the 2018 Making a Difference Award. She is the co-director of the Immigrant Rights Clinic. She wants to be a "movement" lawyer. She sees the law as one tool of many to be used in the fight for social justice.

On a personal level, I have no problem with her stance. She is getting her hands dirty representing those who need representation the most.

However, when you make the decision to practice law, you make it with the understanding that you don't get to choose your clients. Your clients choose you. And if you expect to make a living in this profession, you have to take your clients as they are.

Ms. Das is a faculty member at a law school. She has the luxury of picking who she represents and what she does with her law degree. Attorneys carrying tremendous debt loads don't have that luxury.

They are also impressionable and naive when they walk in the doors for the first time. Some know what they want to do -- and they don't care who their clients are, so long as the check doesn't bounce. Others are still trying to figure out what they want to do with that degree when they walk out the door after graduating.

When they listen to a law professor talk about being a movement lawyer, do they really understand what that means and how that can be at odds with the profession they have chosen? Do they understand when they step foot in the courtroom that no one gives a damn who they voted for or how they feel about the latest issue of the day? Do they understand that when a client signs on the dotted line and hands over a fee that their loyalty is to that client and not to whatever cause motivates them?

And, as my colleague Scott Greenfield pointed out, what happens when a client's interest and the attorney's political interest collide? Who loses out?

If you're a criminal defense attorney and a supporter of the #MeToo movement, how does that square with the presumption of innocence? What about holding the state to its burden of proof? And if you proclaim that we should always believe the "victims," what about other cases involving testimony from a complaining witness? If you are representing a defendant accused of sexual assault are you going to tell the judge you have no questions when the prosecutor has finished with the complaining witness?

And what of the ACLU? From time immemorial the ACLU represented those who had no voice in First Amendment issues. They defended the indefensible. If a marginalized group was denied a forum that a popular group was able to use, the ACLU stepped in and defended their right to speech and free expression. Now if a group expresses views that align with the right, the ACLU won't even bother to answer the phone. Their legal mission has been subsumed by their political mission.

If you want to be an advocate for a movement or a philosophy, join an organization that works for your particular cause. Be active in politics. Hell, run for office. Work to effect change at city hall, the statehouse or in Washington.

But if you choose to be an attorney, advocate for that person sitting across the desk from you.

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