I received a fairly aggressive request from a woman named Stef at a blog called Forward Movement, and in a moment of weakness, decided to take a look. The blog bills itself as a home for wayward youth.
This general interest blawg is a collection of young professionals and their efforts to move their careers forward. Authors may be developing a side interest apart from their practice area, writing to enhance their name recognition, or searching for new employment. All authors are Attorneys or MBAs, and are within several years of having graduated.
I admit to having smirked at the “several years of having graduated” (how many years are there in a “several”), but I have a soft spot for kids and decided to look deeper. So I took a look at what was posted under “Criminal Law” to see what the kids had on their mind. I wish I hadn’t.
The latest post was by Keyana, who describes herself as “an aspiring criminal defense attorney” who has “not begun practicing law yet.” One might suppose that either or both of this factors might influence her to remain silent. One would be very wrong. Not only does Keyana feel the need to express her thoughts, but on a subject of some significance. Her post was entitled, How Attorneys Can Represent Their Guilty As Charged Clients In Good Conscience.
As an aspiring criminal defense attorney, the moral dilemmas that I will inevitably face trouble me. Especially in the arena of litigation, it seems to me all attorneys experience some degree of moral conflict at one point or another regardless of whether the trial involves a criminal or civil matter. And so the ultimate question is how does a criminal defense attorney in good conscience represent the guilty? And by the same token, how does a civil attorney in good conscience represent the wrong?
Like every tough question, there is no bright line answer. However, after given these questions much thought and reading what other people have to say about this issue, I believe litigators can align their professional duties with their moral responsibilities by (1) Seeking justice and (2) Thinking creatively.
If anything, it’s a Rorschach test. If you have to ask the question, then you shouldn’t be a criminal defense lawyer. Probably not a lawyer at all. And if it troubles you, then perhaps a career in waste management would be best. And what did her criminal law prof at Pepperdine teach her that she arrived at this understanding?
It’s my belief that you can seek justice and be a zealous advocate simultaneously even when you believe your client is in the wrong because justice is a multifaceted concept. Justice encompasses not only traditional notions of morality and fairness but due process. As far as morality and fairness are concerned, even the guilty is entitled to a fair outcome. It’s the attorney’s duty to present their client’s side of the story to help facilitate a fair outcome. In terms of due process, this entails constitutional protections. And so, if for example a case is won on a constitutional technicality, such as evidence being inadmissible because it is fruit of the poisonous tree, that too is justice. My point is justice is complex and it does not come in one-size-fits-all. And so even if you are certain your client is guilty or was in the wrong, in some aspects of the case justice may be on your client’s side and it’s an attorney’s duty to bring those details to light.
It pains me to read this. Not just because Keyana, who I’ve no doubt means well, has so little understanding of the role of defense lawyer, but that she felt the need to express her thoughts publicly. Why would you do this? You’re young. You’re new. You’re barely a lawyer who has never actually done anything yet, and still you expose your thoughts to public scrutiny. It’s crazy.
In fairness to Keyana, my sense is that she doesn’t mean what she writes. She simply doesn’t know better, and harbors the childlike comprehension of criminal defense that so many do as they step out of the classroom but before they ever step into the courtroom. She may well make a wonderful criminal defense lawyer some day, after someone explains to her why her thinking is so far off base. Some day, she may deeply regret having posted this. But posted she did, and forever it will remain, like a dark, ugly spot on an otherwise distinguished legal career.
So Stef, the perpetrator of this misbegotten blog, wants me to notice it. And I did. And I bet she now wishes that she never sent me an email, because I’m not being nearly as supportive of her efforts as she would hope. While I credit her for her effort, that counts for far less in the real world than it does in school.
And Keyana, if you feel a moral dilemma at defending the guilty, perhaps you should consider being a prosecutor, for whom “seeking justice” is a more appropriate standard. Defense lawyers cannot harbor such “troubles”.
I offer this bit of advice to Stef and Keyana, budding lawyers endeavoring to find their place, and a job, in the legal world. Not every thought that pops into your head is something you want to expose to the world. And when you jump around, waving your arms screaming “look at me, look at me,” don’t be surprised if someone does, and isn’t impressed. You can’t control what they see, and they may very well see things that you don’t. I wish the both of you the best of luck in your legal careers.
Update: While it comes as no surprise that this post enraged some of the slackoisie, who have never before felt the sting of criticism. Upon reflection, I would be remiss in not helping them to understand why this post was written (as they clearly haven’t grasped it on their own) and why their opinion on whether this post is appropriate is of no consequence. While it’s unlikely that they will agree with me, at least until they are more seasoned, at least this might plant a seed that will ultimately grow into understanding.
The “young professionals” want a forum to promote themselves publicly, and there is certainly no shortage of social media gurus telling them that this is the wave of the future, the way that the un- and under-employed can showcase their talents. But these same “young professionals” incautious, opining on subjects they don’t as yet understand. In the world of the Slackoisie, ignorance presents no problem. They are entitled to opine, right, wrong or otherwise, and others are obliged to forgive them their ignorance.
We’re not their mommies and daddies. They are no longer being graded by their lawprofs, where a well-written but wrong answer will net them a passing grade. By making the decision to post your thoughts publicly, you invite public scrutiny. Do not expect a pat on the head when your thoughts are wrong. Do not expect to be forgiven your error because you’re a “baby lawyer.” You are a lawyer. You are expected to either get it right or demonstrate sufficient restraint not to post. You do not get a free pass. Those days are over.
Of course, but for Stef’s provocation, Keyana’s post would never have come across my screen. This might be best viewed as adding insult to injury, as I didn’t go looking for some “baby lawyers” post to pick on, but merely accepted Stef’s invitation. You can’t have it both ways, screaming look at me and then, when I do, expecting me to turn away.
And finally, the gist of this post was to teach a lesson, about playing the role of public pundit when one lacks the ability, or authority, to do so. The lesson wasn’t directed solely at Stef or Keyana, but to any young lawyer inclined to think that they can mess around in the blogosphere without suffering the consequences of their actions.
I’m chastised by commenter, third year lawyer Olga Wayne, for writing this post, told that I should be “ashamed” of myself, told that there were a thousand others things I could have done if I didn’t like Keyana’s post. While true, it’s irrelevant. This post isn’t about liking what Keyana had to say, but about making a point about public posting by young lawyers. If they don’t know what they are talking about, they shouldn’t post.
More to the point, Olga, a fairly typical representative of the Slackoisie, argues that my post is inappropriate (and I am a laundry list of bad things, from thin skinned to pathetic) because it fails to meet with her approval. This is a critical lesson for the Slackoisie, and for Olga in particular, who otherwise grasped nothing from this exercise. No one, but no one, in the big, real world needs to meet with your approval. That you would even consider your sensibilities so significant is sheer narcissism, which unfortunately is epidemic amongst the Slackoisie. The recurrent theme of entitlement amongst children, that their opinions are paramount, is a very dangerous thing.
It’s time that young lawyers, whether 3 minutes or 3 years out of law school, learn about the responsibility that comes from expressing themselves publicly. Someday, you may well prove yourselves to be brilliant and accomplished lawyers. Until that day, be cautious about what you post publicly. If you don’t know what your talking about, or you don’t grasp your relative place in the world, control the impulse. It may result in someone, like me, writing things about you that you would prefer not be written.