Why Both Cully Stimson - Who Suggested a Boycott of Firms Representing Detainees Pro Bono - and Some of His Critics Are Off-Base

By VIKRAM DAVID AMAR

Friday, Jan. 19, 2007

Last week, Assistant Secretary for Detainee Affairs Cully Stimson, a Defense Department official, suggested that corporate America's leaders should think twice about engaging law firms whose attorneys have been offering pro bono legal services to represent Guantanamo detainees in their habeas corpus proceedings. Since then, many lawyers, academics, and commentators have condemned Stimson's comments. In fact, the criticism of Stimson's remarks has been so steady and overwhelming that the Defense Department promptly distanced itself from his statements, and Stimson himself published an apology in this Wednesday's Washington Post.

Stimson was clearly wrong for saying what he said. But it is important to understand precisely why he was wrong, and how some critics of his statements may themselves be saying things that are, if not wrong, not completely right either.

Two Easy Reasons Why Stimson's Remarks Were Misguided

One reason why Stimson was incorrect for publicly criticizing the lawyers who represent Guantanamo detainees is that the Administration for which Stimson works -- indeed, the Agency in which he is an Assistant Secretary -- is a litigant in the very cases on which Stimson was commenting. Indeed, the defendant in many of the actions filed by the detainees is Stimson's boss, the Secretary of Defense, who in effect is the jailor against whom the writ of habeas corpus is sought.

Generally, the government, including the federal government, certainly has the authority to speak and make known its views on matters of public concern. Yet it is poor form for a litigant, or its lawyers, to publicly criticize the lawyers on the other side of the case. Whether or not any professional ethical rules are implicated by such out-of-court attacks on opposing counsel, we certainly can and should expect more from our nation's elected leaders.

Second, and more important, Stimson's remarks were out of bounds because they reasonably could be perceived to be an effort, perhaps part of a concerted effort - as argued in FindLaw's Monday column by Anthony Sebok and Spencer Weber Waller -- to pressure corporate decisionmakers to boycott firms that represent detainees, if the corporations want to remain in the federal government's good graces. And, of course, staying in the federal government's favor (especially the Department of Defense's favor) can count for billions of dollars in federally-awarded business. Just ask Bechtel.

The federal government as a general matter can use its power and its money in discretionary ways. Yet it should not allocate - or create the impression that it might allocate - public resources in a way that discriminates against persons or businesses who support particular causes or particular law firms (that in turn support particular causes).

One Not-so-Good Reason to Criticize Stimson: The Claim that All Attorneys Who Zealously Represent Unpopular Clients are Merely Doing Their Job, For Which They Should Not Be Judged

Some Stimson detractors have suggested that even if he were not a representative of the federal government, his criticism of "big firm" lawyers who represent Guantanamo detainees would still be improper. They argue that lawyers who zealously represent clients, even unpopular clients, so long as the lawyers stay within the bounds of statutes and the rules of legal ethics, are simply "doing their job" and should not be disparaged for doing so. Every litigant, the argument runs, has a right to engage representation in our adversary system, and lawyers who operate within that system are acting nobly - not shamefully - when they take on even the most despised clients.

I think some forms of this argument go too far. To my mind it is sometimes fair to judge a lawyer by the clients he chooses to represent, and the way he chooses to represent them. It is true that every client has a right to obtain representation from a willing lawyer. And it is also true that a lawyer ordinarily has an ethical duty to make all plausible legal arguments (whether he personally embraces them or not) on behalf of a client.

But it is not true that a client has a right to have any lawyer he wants; there is, of course, no requirement that a private lawyer accept every client. Indeed, outside the context of criminal defendants protected by the Sixth Amendment, the government has no duty to make sure a litigant can find a willing lawyer to represent her. Thus, even if criticism or boycotts of lawyers who do distasteful things make it hard for some clients to find willing attorneys, this might be an acceptable result.

I believe a lawyer or law firm can be evaluated - and, in some instances, criticized - for the decision to take on some clients. I myself, for example, would probably have a moral problem with representing tobacco companies in tort cases where there was evidence of corporate fraud or concealment of the health effects of cigarettes. (I might feel differently, however, about representing the same kind of company in a case that did not involve the way it ran its business, say an eminent domain case in which their factory was being seized.)

Other "unpopular" litigants/defendants I might criticize lawyers for assisting would perhaps include intentional polluters, and insurance companies that don't want to make public records of how they, or their predecessor companies, treated policies owned by Jews in Nazi Europe. And so forth. (Some people might rightfully criticize Davis, Polk for having chosen to represent school districts seeking to maintain racial segregation in the Brown v. Board of Education litigation.)

Nor is the choice to represent a particular unpopular client the only one that might legitimately expose the lawyer to being judged. Precisely how the lawyer chooses to zealously represent the client also informs whether criticism is warranted. In many situations, an attorney could, if she so chose, agree to represent a client only on the condition that certain kinds of arguments not be made.

Consider, for example, a lawyer representing an accused rapist who knows from his client's own statements that the rapist is guilty. The lawyer might be within formal legal ethical bounds to cross-examine the victim harshly and bring up her sexual past (if this evidence weren't barred by a rape shield law), but I think such tactics would be reprehensible. Thus, I believe that private censure by commentators of such lawyering would be fair, even if the lawyer involved were simply trying to advance the interests of his client.

(For those who remember the superb TV drama, "The Practice," think in this regard about whether aggressive use of the firm's "Plan B" tactic - the defense counsel's attempts to accuse even friendly witnesses on the stand of having committed the crime themselves, so as to create reasonable doubt as to the defendant, even where the defense counsel knew of the defendant's guilt -- was always laudable or sometimes contemptible.)

My point here is simply that it is not always noble, or always reprehensible, to represent "unpopular" litigants. Whether a lawyer or law firm's choice to accept a particular case is one for which they should be condemned, or praised, depends on the precise client, the precise issues in the case, and the precise ways in which the lawyer executes the representation. A bright-line rule in either direction is simply too imprecise given the complexities of the matter.

Yet Another Reason Why Stimson's Critique Was Wide of the Mark

All of that brings me to the biggest reason Stimson was wrong to condemn the law firms that represent detainees pro bono: Legal and political history will, I think, judge the lawyers who are challenging the Bush Administration's legal positions in the Guantanamo cases very kindly.

The habeas petitioners represented pro bono by the "big firm" lawyers are not persons whose factual guilt of anything has been established. The arguments the Department of Defense has made to maintain the detention in the handful of cases that have made their way to the Supreme Court over the past four years have been roundly rejected by a broad spectrum of the Justices. The lawyers whom Stimson criticized are donating their (economically) valuable time not to "spring" some adjudicated criminals on legal "technicalities." Rather, they are doing no less than helping ensure that the rule of law is respected in a time of substantial international conflict and domestic fear.

Indeed, when people look back and assess the decisions and judgments lawyers made during the so-called "war on terror," perhaps it will be various government lawyers who have to fend off (legitimate) criticism about the positions they chose to press simply because their client asked them to.

Thus, in my view, the question Stimson's remarks invite clients to consider - namely, whether the lawyers they are choosing to hire represent the kind of values and morals of which the clients can be proud - is one that is entirely legitimate to ask (and perhaps to ask more often than we typically do). However, Stimson certainly picked an instance in which we can answer that question with a resounding "Yes": The clients of lawyers for detainees should indeed be proud of what the attorneys have chosen to do.


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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