Representing the Reprehensible: Part 1 – Boozy Rambles

Good  morning, or afternoon, or whatever time of day it is! Look guys, I’m not only writing a blog, I’m a practicing attorney, and that means from time to time shit runs late, like it did today and last week and…shit, I mean…every week since I took that ill-advised trip to the mountains to remember what it felt like to unclench my asshole for a few days. But that’s well in the past now, and it’s time for me to start doing shit that I’m supposed to be doing again, like updating this thing and passing on profane wisdom to those who need a swift kick in their perpetually idealistic asses. Which…you know…include letting people know that sometimes you’re going to represent people you abso-fucking-lutely despise.

I’m not just talking about your run of the mill “Oh, clients just flat out suck” type of person you despise either. Nope, not today my merry little shitstains. Today I’m talking about the client who causes your skin to crawl and your brain to say “Nope, fuck you man, you want to take this case you can talk to your ass cause that’s the one making the arguments.” I’m talking about the representation of the world’s reprehensible folks. You know the type I’m taking about, the one’s who go on and on about the purity and strength of the “White Race” while looking like Skeletor and having someone they can call “Sister Momma” with a straight face.

“Fuck them, Boozy,” people who definitely are Muggles will say as they read that paragraph, “Tell us why they don’t deserve a lawyer!”

I’m about to piss a lot of those fucking Muggles off though, guys, because here’s the simple truth: Lawyers aren’t supposed to make moral or judgment calls about their clients (even though we totally do), and that doesn’t just apply to the fluffy, furry, fuzzy fun fuckers…it applies to the hardcore Neo-Nazi assholes as well.  Because that’s our goddamn job.

I can hear the sounds of the non-lawyers blocking me on Twitter and removing the site from their news streams even as I type that. Well, good fucking riddance.

So…you like Nazis?

Now, guys, let me be clear: I’m not a fan of these fuckers. I think they’re just about the worst of the worst, and I feel pity for the fact that their sad lives are so goddamn empty the only thing they can cling to when asked what they’re proud of is “I’m white and you’re not!” But that doesn’t negate the fact that the job of an attorney isn’t to make a judgment call about their clients, but rather to assess if the attorney can provide competent representation to the client and whether the client is actually in need of such representation. Shit, this role is so damn important we’ve enshrined it in the Model Rules of Professional Responsibility as follows:

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.

Model Rule of Professional Responsibility 1.2(b).

This is our “get out of jail free card” in the legal profession, and we’ll use it as frequently as we goddamn well need to. It’s the equivalent of saying “Look, I just work for them,” but with a bit more punch and pizzaz because we’re not saying “I just work for them,” we’re saying “I have a moral and ethical duty to make sure everyone has access to our courts, even if I think they’re the single worst goddamn person on the face of the fucking planet.”

I mean, c’mon, it’s right there in the Preamble to our Model Rules:

As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.

So…we have to represent Nazis?

No, of course not, you don’t have to represent people you don’t want to represent. You’re a goddamn lawyer, and that means your ass gets a certain amount of latitude in selecting clients and cases.  The fact that a Nazi needs a lawyer doesn’t mean they need you to be their lawyer. In fact, I have absolutely no problem with you flinging the fuckers out of the office with a jackboot right up their ass and then going back to listening to the soundtrack of Fiddler on the Roof while enjoying a nice latke. Lord knows I’ll do it.

I’m getting a little confused. When should I represent a Nazi?

When they’re absolutely hopeless and have no other options for competent representation, but still have a valid legal claim. I mean, that’s at least my litmus test for the whole goddamn thing.  Have they tried, and failed, to get other counsel despite being able to pay for it solely because of the reprehensible nature of their belief? Okay, so they are definitely socially unable to secure representation. Does their claim have merit, and if the person was not a Nazi would I take on representation? Yes? Alright. Let’s talk.

And this shit is important, guys. I mean, really goddamn important. Because some of our clients are going to come to us while in unpopular or unsupported positions that society has deemed as unacceptable, and whether or not we believe those positions to be reprehensible or not we shouldn’t be quick to dismiss them right out of hand. If we foreclose those whose opinions we hate from the courts because nobody will represent them, then what prevents a change in the tides from foreclosing those we support from the courts at a future date? Where is the administration and strength of justice if we only offer it to those that we agree with and refuse to aid those we dislike, vehemently disagree with, or feel the need to burn the office chairs after they sit in them?

If we allowed attorneys to only take on the cases we felt all warm and fuzzy about, there’d be a lot of child molestors out there who aren’t getting due process of law…and that’s a bad thing.  We can’t just have show trials, guys.

Plus, doesn’t it have a little extra punch when an asshole has a good lawyer and they still lose the case?

So we should throw the cases?

Nope. We have to provide diligent representation. In fact, I’d say the only time a lawyer should flat out refuse to take a case is when the attorney finds the position so repugnant that they do not feel they can competently represent the client no matter what.  This is the exact reason I won’t take on certain types of cases: my reaction to the case is so vitriolic that I don’t trust myself to provide diligent representation. I worry that, while I would never do so consciously, my sub-conscious mind may go all “Fuck this guy” and stop me from providing representation that I know I’m capable of.

Summarize this shit man…what are you saying?

Alright.

So, here’s the gist of what I’m getting at today:

We, as a profession, have to provide good and adequate representation to people even when we personally find their beliefs and positions reprehensible, indefensible, and flat-out idiotic. We have to do this because the moment we start decided who is and isn’t worthy of our representation based solely on their beliefs, we start down a dangerous path where justice can be denied to many people we agree with based on the moralistic position of the lawyer who refuses representation. However, this doesn’t mean we have to go out there and solicit these shitstains as clients. Let them go to every other lawyer in town first, but if they can’t get one…maybe you should consider taking the case, because this is a person who is destitute of legal representation, although they are reprehensible, and our duty is to foster equal access to the courts and provide zealous representation, not to endorse the views of our clients.

At the same time, you should be aware of yourself and your own limits in undertaking representation of the reprehensible fuckers that march around with torches and terrorize minorities. If their views are so abhorrent that, after some actual goddamn soul-searching, you believe that you may unintentionally provide poor representation, it’s perfectly acceptable to pass on the case. Some other guy won’t have the same protests. We practice this daily in the criminal arena, and we should apply it to the civil arena.

Wednesday I’mm talk more about WHY the representation of the reprehensible in the civil case is goddamn important, but today the main message to get across is “We have reasons why we may need to strongly consider representing the Nazi down the street.”

Look…I’m a little flustered today. Let’s just recognize the tone here is “We shouldn’t immediately reject the concept of representing people we find personally and socially repugnant,” and we’ll pick this up again Wednesday.

-BB

 

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