The First Thing We Do, Let’s Slime All The Lawyers…

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In election years I tell all my legal ethics seminar classes to start teaching their non-lawyer neighbors and relatives ABA Model Rule 1.2 b, which reads,

(b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.

This, combined with the principle of zealous representation of one’s client, as expressed, for example, in D.C. Rule of Professional Conduct Rule 1.3…

(a) A lawyer shall represent a client zealously and diligently within the bounds of the law.
(b) A lawyer shall not intentionally:

(1) Fail to seek the lawful objectives of a client through reasonably available means permitted by law and the disciplinary rules; or
(2) Prejudice or damage a client during the course of the professional relationship….

…means that lawyers represent clients, and are bound to seek those clients’ objectives when those objectives are legal whether the lawyer likes or agrees with those objectives or not.

It means that it is ignorant, wrong and dangerous to the rule of law as well as the right of citizens to be the beneficiaries of laws in a democracy and not the servants of them, for unscrupulous political opponents to attack lawyers for the positions, objectives and needs of the clients they represented. It means that it is disgusting for maleducated journalists to misinform the already disturbingly confused public by using a matter that a lawyer-turned-candidate’s client needed legal advocacy for as an excuse to impugn the candidate’s character.

Lawyers do not have to agree with or like their clients’ positions, objectives or character, is that clear? Everybody? Lawyers are not to be held accountable for their client’s motives, conduct or legal objectives. Bill Cosby’s lawyers do not approve of rapists. Johnnie Cochran did not support the hobby of ex-wife knifing.

Yet this happens every election cycle, without fail: cheap shots directed at candidates who are lawyers based on one or more of their unsavory clients.  There are two lawyers left in the current primary competition, and guess what?

You guessed it.

Hillary’s ancient defense of a rapist was used to slime her all the way back in 2014. The unfair attack raised its misshapen and empty head last week on CNN, when a Trump supporter brought it up. What we know about Clinton is that she defended a child rapist she was appointed to represent pro bono in 1975, and did an excellent job. She used all the tactics that she was allowed to use. She attacked the credibility of the twelve-year-old victim, and threw sufficient doubt on the the chain of evidence that Clinton got an advantageous  plea bargain for her client, who served just ten months in prison. Sure, he was guilty, and Hillary knew it.  It was her job to make the prosecution prove its case with sufficient evidence, and they failed. The victim, we are told, has had a hard life because of the experience. That is not in any way Clinton’s fault or responsibility.

Now it’s on to Ted Cruz. Here is Slate’s click-bait, misleading, deceitful headline to further the “Ted Cruz is a some kind of sexually repressed weirdo” trope the left-biased media is peddling:

Ted Cruz Once Argued That Selling Dildos Should Be Illegal

The headline doesn’t clarify that in this instance “argued” is a term of art, and that it wasn’t Ted Cruz personally making the argument, but attorney Ted Cruz  arguing in a brief and before an appellate court on behalf of his then client, the state of Texas, in defense of a Texas law, duly passed by the legislature and signed by the Governor. Selling dildos and other sex toys was illegal at the time, and it was not up to Ted Cruz to decide otherwise. Some Austin-based sex-toy companies sued Texas to challenge its law banning sex toy sales, and Cruz defended the law, which was his job.

The progressive news media has a starry-eyed preference for state and national attorneys—like Eric Holder— who decide they should oppose laws they don’t like and thus undermine the legislative system and the orderly process of court challenges while defying the stated will of the public. Cruz doesn’t think that’s being an ethical lawyer. Neither do I.

Mocking Ted Cruz for the arguments he made on behalf of his client, Texas, in defense of a stupid law that Texas chose to pass, shows either intentional or shocking ignorance of what lawyers do. His arguments are not his personal opinion, but rather the best arguments he felt were available to defend that stupid law. (Texas’s law lost 2-1. Dildos won. )

So there’s the answer to a fun 2016 campaign trivia question to amuse your friends. What do Hillary Clinton and Ted Cruz have in common?

Answer: They are both lawyers, and they are both being slimed for being good ones, by people who either don’t know what lawyers have to do to keep us free and living in a democracy, or who don’t want you to know.

27 thoughts on “The First Thing We Do, Let’s Slime All The Lawyers…

  1. Agreed that Cruz and Hillary should not be smeared for what the did in the past as attorneys as long as it was legal and ethical. However, Cruz defending Texas’s stupid law about sex toys seems pretty minor league compared to what Hillary did as an attorney in the child rapist case. There must be some ethical principle regarding puting an adolescent on the stand and attacking his credibility. This is one of the reasons people hate criminal defense attorneys.

    • Why? If someone is facing life in prison based in part on the testimony of a minor, the minor should be as subject to being challenged as an adult.

      Remember the Salem witch trials? Remember who the witnesses were at the beginning?

        • Well, thaaaaaaat’s HILLARY! But her ugly tone after the case shouldn’t reflect on the ethics of her handling of it. Lawyers, especially criminal defense lawyers, get cynical almost inevitably, and it’s ugly.

          • That case was in ’75, and that interview was in ’80 She’s….6…8? Now, I think? 67? That would have made her 30 when she tried the case and 35 when she laughed about it. Assuming graduation at 18 and passing the bar at 25, her inevitable cynicism took 5 years. Joy.

      • I don’t think the Salem Witch Trials are a good analogy. A bunch of hysterical adolescent girls complaining that they had been bewitched (which they probably believed in) and a community that believed that witchcraft was real.
        Sexual abuse has been prevalent in the USA throughout it’s history and sexual predators exist in just about every community unlike witches. I’m not suggesting that the US should change to a Napoleonic legal system of guilty until proved innocent or that criminals should be deprived of a vigorous defense. But, we should pay more attention to the rights of children and adolescents who fall victim to these monstrous crimes.

        • Sexual abuse of children is real but can be subject to the same sort of hysteria as witchcraft inspired. Something about alleged child victims can short circuit our suspension of disbelief, as with the Satanic Ritual Abuse witch hunt.

        • Except that we know, as in the modern equivalent of the Salem case, that children can be manipulated, are very suggestible, and are NOT reliable witnesses.

          To “pay more attention to the rights of children and adolescents who fall victim to these monstrous crimes” cannot allow giving children more credibility when in fact they warrant less. Careers and lives have been ruined by vengeful kids concocting accusations against teachers. One prominent false rape case involved a daughter falsely accusing her father out of spite.

          • Don’t know much about that particular case, but I do know about the McMartin trial in California. That was an injustice perpetrated by poorly trained children’s protective service investigators who asked the children inappropriate leading questions and suggested events that never happened. I believe that prosecutors and investigators have learned from that fiasco. Still, I believe Hillary acted unethically even if everything she did in representing her client was legal. Hopefully, the law profession will learn from her shameless behavior.

            • Do you just believe this, like, say believing in fairies. or are there specific aspects of the reppresentation you want to argue are unethical? Because there weren’t any, and her representation would be as ethical today as it was then. But by all means, take your best shot, and I’ll explain, nicely, I promise, why you are absolutely wrong.

              • I clicked on your link re: Hillary’s defense of a child rapist and the story about Ted Cruz popped up. It is not possible from the information you provided to determine whether Hillary acted unethically or not in this case. However, considering Hillary’s past activities to protect her husband from the multiple instances of well documented accusations of sexual harrassment and worse, I think that it is safe to conclude that she may well have acted unethically. And your snarky comment about “like believing in fairies” is not appreciated.

                • I didn’t intend it to be appreciated. I meant it to suggest that you were suggesting out of whole cloth a belief in something without any evidence to support it.

                  What is being called unethical by Clinton’s critics is that she 1) defended a rapist at all, when she has been an advocate for believing victims of sexual assault, and 2) challenged the credibility of the child victim, plus 3) managed to get a relatively easy plea deal for her client. None of this is unethical, as I explained. “Hillary’s past activities to protect her husband from the multiple instances of well documented accusations of sexual harassment and worse, I think that it is safe to conclude that she may well have acted unethically” makes no sense at all, any more than assuming that Richard Nixon was an unethical lawyer because he was an unethical President. How a wife behaves protecting her own ambitions while married to her career meal ticket, and how that individual practices law are not necessarily related. Moreover, the conduct at issue occurred long before she even met Bill Clinton. As I suspected, you are saying she was unethical in her defense based on nothing, and unless you can point to a specific instance in the defense itself and defend it, the accusation has no substance or merit, and puffing indignantly doesn’t change that.

  2. An important point, and well made; thank you.

    It indirectly raises another question – what are the implications of putting defense of client so high on the list of ethical obligations for attorneys?

    You know better than I, but I believe in the UK, the highest ethical obligation is NOT the defense of one’s client, but rather the furtherance of justice. The lawyer (barrister, solicitor) is expected to be an agent of the justice system, rather than an agent of the client.

    Nothing right or wrong about either system, they’re just different. But here’s what it means. As one lawyer friend of mine puts it, in the American system there is no such thing as truth – there is only evidence.

    And in every Gallup or Yankelovich poll you see on most and least trusted professions, you’ll find lawyers right near the bottom, jockeying for position with used car salesmen and politicians (most of whom are, of course, lawyers). This is not, however, the case in the UK, where lawyers rank a bit below half way, but clearly distinct from politicians (who are always, everywhere in the world, bottom-ranked)

    I think the explanation is clear: people don’t trust those who they see as making arguments not from principle, but from a temporarily alliance. That definition fits politicians (who by definition must seek compromise, and thus have limits to how ‘principled’ they can be) and lawyers (who must tailor their arguments to the client – as you note in this blogpost).

    Again – nothing good or bad about our system per se, but it does come at the cost of low trust for the profession of lawyering.

    • 1. It isn’t a temporary alliance, you know: It’s forever. A lawyer can’t reveal a client’s privileged information even after the client is long dead. See: Lizzy Borden

      2. The British barrister’s alliance is with the STATE, not justice. Justice is defined in the US as never depriving a man or woman of life or liberty unless the jury is very nearly certain. Thus the defense counsel’s duty is not to free the guilty, but to force the state to make its case.

      3. We have a lot of innocent people convicted with our insistence on a high standard of proof. Imagine what would happen in the defense’s loyalties were compromised!

    • I don’t know this for a fact, Charles, but anecdotally, I believe personal injury lawyers are responsible for the vast majority of this negative perception. A quick perusal of Google seems to support this proposition, but I don’t have stats to make a strong argument.

      I know the only two legal professions I disdain are personal injury lawyers and attorneys general — the former for their vast advertising and apparent (if not actual) “greed” and the latter for their twisting of the law to suit their politics.

      I think the explanation is clear: people don’t trust those who they see as making arguments not from principle, but from a temporarily alliance. That definition fits politicians (who by definition must seek compromise, and thus have limits to how ‘principled’ they can be) and lawyers (who must tailor their arguments to the client – as you note in this blogpost).

      While this sounds plausible, I don’t think it’s right. I believe most of the bad feelings toward the legal profession have to do with only one “principle” — greed.

      Regarding Jack’s point, and I agree it is an excellent one, we all know from experience that some political partisans will demagogue anything and everything. Something like a state attorney general’s defense of a bad law, where there is quite a bit of “inside baseball” stuff to the average Joe, is just way too easy and effective not to happen. That doesn’t make it good or right, of course, just sadly inevitable.

      • One of the most vile lawyers are the lawyers who support the lawsuits against gun manufacturers for the criminal misuse of guns by third parties. Those were nuisance suits solely to put gun manufacturers out of business.

        • The Court has sanctions to client and attorney available if it deems the lawsuit abusive. One such suit just survived a motion to dismiss, and all a lawyer has to be sure of is that a lawsuit isn’t frivolous. Calling for a change in how the system views gun-maker liability isn’t frivolous, and such anti-gun litigants should be able to find competent legal representation.

          There’s nothing unethical about taking such a case. Or vile.

          • Calling for a change in how the system views gun-maker liability isn’t frivolous, and such anti-gun litigants should be able to find competent legal representation.

            It is frivilous if made before a court absent legislation that redefines product liability to make manufacturers liable for criminal misuse of their products by third parties.

            Liability arises from legislation, after all.

            • Have you read the theory of the lawsuit? It claims that Bushmaster should not have sold their firearms to civilians, despite the lack of legislation prohibiting such sales.

              That alone is why the lawsuit is indefensible.

              • Still, the theory that manufacturers should pay damages at all was once considered absurd. I think it is a bad theory, but a lawyer on behalf of a plaintiff can bring a previously rejected theory for reconsideration, and that’s not frivolous.

                  • Isn’t what we have in this liability case a suit in equity? The courts are really the only place for suits in equity to be adjudicated. The question at issue is a claim by the plaintiffs that the gun was unsuitable for civilian use. That kind of claim can only be adjudicated by a court, seems to me, and is a novel legal theory.

                    The judge, unfortunately, permitted the suit to go forward. there are only two conceivable reasons why:

                    1. She is ignorant of the fact that virtually all such long guns of similar caliber in the military are automatic weapons, and on the modern battlefield, a semiautomatic AR-15 would be vastly inferior as a military weapon and would never be used by a military that could afford automatics. My supposition is that she has a poor understanding of the difference, and since it looks similar to the M-16, it must perform similarly.

                    2. She allowed her politics or feelz to bias her ruling.

                    Occams razor suggest we accept #1, which I do. I expect a jury, after hearing expert testimony from actual military men and women, will reach a correct decision, which is against the plaintiffs.

                    The AR-15 at Sandy Hook was not unsuitable for civilian use, it was simply not designed to be used in an act of mass murder. Military weapons are designed to kill a lot of people very quickly, but as we know, any gun can do that when it is aimed at children and nobody is shooting back.

  3. It seems that all’s “fair” in politics regardless of morals, ethics, the whole truth, reasonable common sense, etc, etc. When it comes to political propaganda, “the ends justify the means” reigns supreme as long as it’s legal in the eyes of the law. It’s all bull shit and ignorant voters are like heroin addicts, they need their fix of smears and they’ll just swallow it whole regardless of the consequences.

    This election cycle has proven beyond any doubt that the dumbing down of america is nearly complete; we’re screwed.

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