I thought it might be a good idea, it being a recurring disagreement with SHG and there now being a judge involved, to flesh out this “role of the criminal defense lawyer” thing a bit more.
None of us is writing on a blank slate. Indeed, a fairly recent law review article deals specifically with differing ideas about the role of lawyers representing clients. The article is entitled “Lawyering at the Extremes: the Representation of Tom Mooney”, the author is Rebecca Roiphe, and it can be found at 77 Fordham L. Rev. 1731 (2009)
Briefly, according to the article “scholars” have described a few categories of thought: the “libertarians” or “neutral partisans”, who argue that a lawyer must do whatever is legally permissible to help the client (this is the SHG position); the “moral activists”, who argue that a lawyer must work with the client to define and pursue his goals in a moral way; and a middle ground, staked out by the Model Rules of Professional Conduct (of course) where a lawyer must serve his clients zealously but also guard the integrity of the courts.
For what it’s worth, the author doesn’t seem to come down on the side of any particular view, just notes the shortcomings of all of them. Nevertheless, reading the article I get the impression that the “libertarian” or “neutral partisan” approach – that is, SHG’s approach – is the most defensible.
But where he and I part company is at the margins, I guess. I think in the majority of cases you don’t have to overthink the neutral partisan position; it just works and that’s what you do. But there are unusual situations where it doesn’t work, and it seems to me you can’t evade responsibility for your representation of a client by blaming everything you do on your duty to the client. There are tactics and strategies that are objectionable and you shouldn’t pursue them. You shouldn’t make arguments you think are invalid or unwarranted. You shouldn’t mislead, ever. I short, there are limits to the “neutral partisan” approach that vary from lawyer to lawyer and that are probably the product of, well, too many factors to delineate in a blog post. The judgment and temperament of the lawyer, and/or the client; the nature of the case; the qualities of the forum; the strength of proof for and against. I mean there are just too many things to consider.
I suspect that despite the bluster, SHG is largely – not entirely, but largely – on the same page. But there is still room for big and serious disagreement, especially in a given case. And in that sense disagree we do. More than that, though, the bluster itself is harmful, to him and other lawyers. I wish he’d cut it out. Judge Kopf (and other judges) should not be led to believe that criminal defense lawyers would knowingly mislead them, or that they’ll argue anything they think they can get away with if it benefits their client. It isn’t so.
Lawyers on Strike 