On rare occasion, outsiders get a glimpse into the inner turmoil of a cult. Mark Bennett, the Texas Tornado, provides such a rare occasion as his pal, Daphne Silverman, took on the undoing of the representation of Ruby Montoya by National Lawyers Guild member and Civil Liberties Defense Center Executive Director Lauren Regan, who, it’s argued, was a movement lawyer who coerced Montoya to plead guilty to “a string of arson and sabotage attacks against the Dakota Access Pipeline (DAPL) in 2017.”

Bennett provides a deep dive into the background of the representation, the inherent conflicts raised and now the attempt to oust Silverman, also a National Lawyers Guild member, for putting her client before the movement. As Bennett spells it out as the Criminal-Defense Principle.

The Criminal-Defense Principle is that, within the bounds of law, the client’s legal interests are paramount. Other people have other principles, but what makes a criminal-defense lawyer is the Criminal-Defense Principle. We exist, professionally, only for the benefit of the Client Singular, the particular person whose matter we are dealing with at this moment. It is only by giving the full measure of our ability to the Client Singular that our profession creates a better world. We defend civil liberties by defending the civil liberties of the Client Singular.

We may want social justice or equity or the salvation of mankind, but all of these interests take a back seat to the interests of the Client Singular, or else we are being something other than criminal-defense lawyers.

As clear and obvious as this may be to most of us, this is heresy to the National Lawyers Guild, or at least the Federal Repression Task Force cohort, which issued a polemic in support of ousting one of its own.

MOVEMENT LAWYERING PRINCIPLES AND PRACTICES

All prosecutions are political. Some are more explicitly so than others. Some clients, particularly those arrested as a consequence of politically-motivated actions, perceive themselves as part of a social movement and define their legal strategy goals in terms of what is likely to protect or advance the welfare of their co-defendants or larger collective movement, rather than what is most likely to shelter them from individual legal risk or liability. The National Lawyers Guild has made explicit commitments to support such people and social movements, and it is on that basis that NLG members often identify as “movement lawyers.”

The argument is that the defendant is entitled to dictate her own strategy and the lawyer is authorized to do what is necessary to effectuate the client’s strategy. If her strategy is to put the movement before her own interests, who is the lawyer to disagree?

All attorneys have a duty to empower every client to define their own goals and the Model Rules acknowledge that a client’s goals may not be limited to legal goals. In a practical sense, this means working to both acknowledge and diminish the power imbalance between lawyers and clients. Because clients who identify with social movements often value collective welfare over their own individual comfort, acting as a movement lawyer requires being able to support the self-determination of clients who choose to engage in a collective legal defense strategy for any reason, including in the pursuit of purely political goals. Importantly, while collective defense is often the best political and social strategy for supporting movements, it is also very often the best legal strategy for individual movement clients.

It’s not inconceivable that a defendant believes so strongly in a movement that she is willing to sacrifice years of her life to it. To claim sacrificing self-interest to the cause is “also very often the best legal strategy” for the individual is nonsensical, but believers gonna believe.

But what difference does it make when the lawyer for the defendant is a “movement” lawyer in the first place, advising, pushing, reinforcing and validating her client’s sacrifice of her life to the cause? The difference is whether you’re still welcome in the club, both for defendant and counsel.

“We wrote this statement to respond to Daphne’s attacks on movement lawyering,” the group wrote, “and to assert that Daphne should resign from Guild membership because her professed values do not align with the Guild in crucial respects. If Daphne does not resign, we believe the Guild has a responsibility to expel her from Guild membership.”

In the motion, Silverman claimed that rather than approach the case with her client’s best interest in mind, Regan had coerced Montoya into accepting the plea for political reasons. “Ms. Montoya was coerced by attorney Lauren Regan,” the motion read, “to accept a packaged plea deal in ‘solidarity’ with her ‘comrade’ in the ‘movement’, co-defendant Jessica Rae Reznicek.” (Emphasis in original.)

As the Unicornriot post notes, Montoya is now presumed to be a snitch against the movement, and Silverman is now the lawyer for the presumed snitch.

“Ruby has broken her solidarity with the movements for change she claimed to support. More painfully, she has broken solidarity with and betrayed Jessica. I can’t imagine the hurt and heartbreak Jessica must be feeling.”

Garrett Fitzgerald, activist legal worker

As for Silverman, who has done exactly what her duty under the Criminal-Defense Principle demands and, ironically, in according with her ethical responsibility under the same section of the Model Rules, 1.2, upon which the NLG relies to justify its putting the movement before the defendant, the cult wants her exiled.

Our objection to Daphne’s motion here is limited to her attacks on the principles and history of movement lawyering, which she repeatedly impugns.The use of scare quotes* in Daphne’s motion around the words “solidarity,” “movement,” and“comrade,” for example, denigrates the legitimacy and importance of movement lawyering. Regardless of her intent, the motion implies that solidarity with co-defendants and concern for the impact to social movements are not legitimate client concerns.

To defend her client, Silverman was constrained to explain why, under the control of her Movement Lawyer, Lauren Regan, her plea was not knowing, intelligent and voluntary. This was more than the movement could take.

The question of expulsion is always a difficult one because it raises issues about the value of dissent, debate, and diversity of opinion and perspective within the Guild. However, we believe that Daphne’s actions here have crossed the line from internal dissent and debate among members within the organization to a public attack on some of the foundational values and practices of the organization and its membership. In light of this, in the event that Daphne refuses to acknowledge the irretrievable incompatibility of her values with those of the Guild, expulsion is both an appropriate and necessary action.

You can be a movement lawyer or you can be a criminal defense lawyer. What you cannot be is both. Silverman chose the Criminal-Defense principle over “solidarity” (these are scare quotes) with the National Lawyers Guild. Any lawyer who wouldn’t make this choice is not a criminal-defense lawyer. This is the sacrifice required of us.

*As Bennett notes, these weren’t “scare quotes,” but verbatim quotations. That they happen to be scary to the NLG is a separate issue.