The Volokh Conspiracy - Are an Attorney's Clients Relevant?

Some conservatives have attacked President Obama's pick for Deputy Attorney General, David Ogden, because he has represented some "controversial" clients, including Playboy and the ACLU. Former Reagan and Bush (41) Administration attorneys David Rivkin and Lee Casey think this is unfair. In the Legal Times they argue:

The premise of this opposition is a familiar one—that lawyers must be presumed to agree with, or be sympathetic to, the clients they represent or, at a minimum, that they should be held accountable for the arguments they advance on a client's behalf. In fact, of course, lawyers represent clients for many and varied reasons—for money or fame, out of a sense of duty, an interest in a particular subject matter, or for professional growth and development. Sometimes lawyers are motivated by all of the above, and more.

It is simply inaccurate to attribute to a lawyer his or her client's beliefs. That is just not the way our legal system works—at least not all the time.

Sometimes, of course, lawyers do personally agree with the client's substantive views and the legal positions they advance. There is no doubt that lawyers are often drawn to a particular area of practice, or undertake to represent particular clients—especially on a pro bono basis—because they do believe in the client's cause. It is possible, however, to believe in a client's cause—a broad application of free speech rights, for example—and not to approve of the client's personal behavior or business model.

And, just as a lawyer's character cannot be judged based on a client list, neither can a lawyer's policy preferences easily be divined by reading his or her briefs. Lawyers must represent their clients zealously, and this means they often must deploy legal arguments with which they personally disagree.

They also remind Ogden's conservative critics that the Right rightfully objected when the Left went after some of George W. Bush's nominees for having represented politically unpopular industries or conservative groups. As they note, if highly qualified lawyers are punished for representing unpopular or controversial clients, we all lose. A longer exposition of their views can be found in this 2002 article from Policy Review.

	[Jonathan Adler, February 24, 2009 at 11:58am] Trackbacks Are an Attorney's Clients Relevant? Some conservatives have attacked President Obama's pick for Deputy Attorney General, David Ogden, because he has represented some "controversial" clients, including Playboy and the ACLU. Former Reagan and Bush (41) Administration attorneys David Rivkin and Lee Casey think this is unfair. In the Legal Times they argue: The premise of this opposition is a familiar one—that lawyers must be presumed to agree with, or be sympathetic to, the clients they represent or, at a minimum, that they should be held accountable for the arguments they advance on a client's behalf. In fact, of course, lawyers represent clients for many and varied reasons—for money or fame, out of a sense of duty, an interest in a particular subject matter, or for professional growth and development. Sometimes lawyers are motivated by all of the above, and more. It is simply inaccurate to attribute to a lawyer his or her client's beliefs. That is just not the way our legal system works—at least not all the time. Sometimes, of course, lawyers do personally agree with the client's substantive views and the legal positions they advance. There is no doubt that lawyers are often drawn to a particular area of practice, or undertake to represent particular clients—especially on a pro bono basis—because they do believe in the client's cause. It is possible, however, to believe in a client's cause—a broad application of free speech rights, for example—and not to approve of the client's personal behavior or business model. And, just as a lawyer's character cannot be judged based on a client list, neither can a lawyer's policy preferences easily be divined by reading his or her briefs. Lawyers must represent their clients zealously, and this means they often must deploy legal arguments with which they personally disagree. They also remind Ogden's conservative critics that the Right rightfully objected when the Left went after some of George W. Bush's nominees for having represented politically unpopular industries or conservative groups. As they note, if highly qualified lawyers are punished for representing unpopular or controversial clients, we all lose. A longer exposition of their views can be found in this 2002 article from Policy Review.