The Criminal Defense Lawyer’s Duty, Social Justice Version

Back in 2009, the criminal law blawgosphere was atwitter with posts about the duty of criminal defense lawyers. Back then, the question was about whether it was acceptable for lawyers to neglect, no less throw under the bus, criminal defendants when it offended their personal sense of morality because they were GUILTY!!! Good times.

But those good old days, the simple, bucolic times when children confused their feelz with their duty, are now behind us, as Mark Bennett learned when he engaged with a young lawyer, referred to only as “David*,” who sought to school Bennett on the finer points of a criminal defense lawyer’s duty.

After taking a breath, I realize that we all do our jobs on a very slippery slope. I personally try to navigate that slope a little bit more than most, as I do everything in my power to avoid taking on clients I can’t empathize with (I represent guilty people, but not if they’ve done something I find indefensible).

Up to this point, it reeks of the old-school heresy that the duty of a criminal defense lawyer is tempered by his personal feelz, his empathy. Old news.

I personally find it appalling that it was appealed on that particular point, and the attorney who did this was being incredibly short-sighted at best and selfish to the point of being downright anti-social at worst, IMO. Many may line up to shake his and similarly acting attorneys’ hands for his zealous advocacy (and his successful? outcome) but I will never be one of them. That sort of me-first-I-don’t-owe-society-anything worldview is a pervasive societal sickness that is going to eventually lead to our collective, well-deserved demise.

And that is where the shift in perspective is revealed. This isn’t just about things one kid lawyer finds icky, but that the criminal defense lawyer should be guided by social justice, by the interests of society (at least how he perceives them) rather than the interests of his client.

That David thinks he “tries to navigate the slippery slope more than others” and sees himself as in a position to “judge harshly” those with less delicate sensibilities about doing the job reveals an ethical Dunning-Kruger Effect: Low-ethical-ability David mistakenly assesses his own ethics as superior.

Why is it not ethically superior to represent only people whom you judge deserving? This is just a form of The Question, to which there are lots of good answers,3 but if David, after seven years in practice, has not learned and internalized the axioms on which two thousand years of criminal-defense history are founded, I’m not going to change his mind.

Except this isn’t just about David, so changing his mind isn’t the point. And this is why Bennett writes about it, knowing full well that David is just the conduit for the issue, the subtle shift in ethical paranoia from things that “violate” a lawyer’s personal feelings to rationalizing the abdication of professional responsibility in the name of larger societal causes.

This delusion is at the heart of the ABA’s shift in politics from the duties owed by lawyer to client to the far grander role in promoting social justice, the Maurice Syndrome, the lawprofs selling their intellectual honesty for cheap partisanship. Somewhere along the line, it became fashionable for lawyers to forget why they exist as a profession and to wrap themselves up in some grandiose scheme of their flavor of societal welfare.

Judge Richard Kopf, in his listicle of observations about criminal defense lawyers, wrote:

1. Real criminal defense lawyers represent clients and not causes.

The intellectually challenged will be incapable of understanding how their causes, how society, isn’t more important than clients. Especially icky clients who committed the crime or a crime they personally find “indefensible.” There is an industry whose sole purpose is to manufacture excuses why these social justice issues are more important than anything else, why you should happily let your child starve for the good of the cause.

Hell, if you’re willing to sacrifice your own child, what’s the big deal about sacrificing a client to the cause? Even worse, a guilty client? And to bring it home, a client who’s not just guilty, but guilty of a crime you personally find “indefensible”?

David, I’m putting this up as a monument to your foolish unethical hubris.Your new ideas are bad, you are wrong, and you should be ashamed. If you call yourself a criminal-defense lawyer, I dissent.

Dissent, indeed, but that’s inadequate, both in response to David’s “foolish unethical hubris” and to the problem at large. Want to embrace social justice in your personal life? Be my guest. Don your pussy hat and walk around the forces of tolerance burning cars and smashing Starbucks’ windows, if that makes you feel special. Cry sad tears and quiver in the corner at every microaggression. Spend all night drinking chard while deciding on your personal pronouns. If that’s what makes you feel valuable, go for it.

But if you step foot in the well on behalf of a criminal defendant and have any hesitation in doing whatever is necessary to zealously represent your client;s interests within the bounds of the law. There is no pretty pink bow, no facile excuse, no ABA Model Rule, that will justify you putting your social justice feelings ahead of your duty to your client.

You are not a criminal defense lawyer. You are a disgrace.

No matter what your personal values, and how passionately you feel about them, and how many people rub your tummy because they, like you, feel deeply, when you walk into that courtroom as a criminal defense lawyer, your only duty is to defend your client.

This didn’t change when it was because you felt squeamish when the crime didn’t appeal to your personal feelz. It doesn’t change when all the other social justice kidz say it should. If you can’t agree to put your client first, you are no criminal defense lawyer. Get out.

*Bennett originally used only David’s first name. David has since asked him to include his full name, I will honor David’s request as well. His full name is David C. Hardaway.

21 thoughts on “The Criminal Defense Lawyer’s Duty, Social Justice Version

  1. B. McLeod

    The ABA faithful have come to view themselves as Plato’s Philosopher-Kings, who need to be running all of society and defining the thoughts, words, attitudes and beliefs that are acceptable for the ignorant masses. They miss the nearer analogy of lawyers to Plato’s artisans, whose usefulness lies in understanding a necessary trade and performing it well.

    1. anonymous coward

      I think you are on to something here. My father always described himself as a lawyer, rather than an attorney, on the grounds that lawyer meant one who worked on law while attorney meant a stand-in. Further ammunition against the David attitude can be found in the romance languages, where the word for lawyer is literally advocate, French avocat, Spanish abogado, etc. which implies an expectation of zealously representing one’s client.

      1. ExpatNJ

        An ‘Attorney-AT-LAW” [EMPHASIS mine] is an officer of the court. Their allegiance is NOT to their ‘Client’, or ‘Defendant’, but to The Court. Hence, this conundrum.

        1. SHG Post author

          Damn, I love it when someone says something this idiotic but with feelz. Got your UCC 1-308 handy?

  2. Captain Smugglewash

    If my lawyer ever suggested I go under the bus for the good of society then the search would begin for a lawyer who would defend a client accused of assaulting his lawyer[s].

    Is the meaning of “zealous” not taught and tested for?

    1. Patrick Maupin

      Unfortunately, many are not likely to discern exactly where their lawyer has placed them until they have the tread marks to show for it.

      And there are so many ways to get the tread marks and so few ways to avoid them. It should go without saying that not being willing to throw clients under the bus is a necessary quality in a lawyer, but apparently it needs to be said to at least some Davids, Mr. Meyer-Lindenberg notwithstanding.

      Those Davids who lack that understanding might not even realize that, though necessary, the mere unwillingness to sacrifice a client is still insufficient to make a great lawyer. A great lawyer must exhibit the ability and willingness to actively yank the client out of the way of the bus if at all possible.

      A flawed human being can certainly be a great lawyer, but it is hard to imagine that a human being who is flawed deeply enough to opine to the world that he manages to be “a little bit more” moral “than most” could even be counted among the ranks of the good lawyers.

      He’s certainly not one I will call if I’m ever in trouble. Bennett, on the other hand, will be asked to either drive to Austin or get me a referral…

    2. B. McLeod

      I think it is a “sense of the fiduciary” that is not taught or tested for. That was true when I was in law school as well. I had several classmates who made no bones about their aspirations to get out in the world to hose their own clients for high fees. They never should have been licensed nor ever allowed within a mile of a real client. However, beyond the one mandatory exam on the professional rules (as to which, they simply had to know what answers to give on the exam) there was no mechanism but later disbarment to screen them out. There still isn’t. This is where we get the lawyers who steal money, ignore conflicts, and don’t even half-ass try to do anything to help their clients.

  3. Robert Fickman

    I think a lot of people have mush for brains. One can zealously represent one’s clients and one can zealously represent causes. The two are not mutually exclusive. If you do the former you will likely encounter needs for the later. But you never allow the later to interfere with the former.

    Jefferson said do not do things in half measures. When A lawyer accepts a criminal case, he is agreeing to give that client his all. There are no half measures In defending that client. There are no half measures based on some perceived larger societal need. That ain’t part of the equation. If a lawyer tempers the zeal of his representation to meet the needs of someone or something other than his client, he is no lawyer. He is many things,but he is no lawyer.


    1. SHG Post author

      Gerry Spence gave me his cowboy hat, which made up for the fact that you were too selfish to give me yours. You can keep the pussy hat, though. And use the friggin’ reply button, old man.

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