Monday, April 25, 2011

Attacking the lawyers, not the clients

Via Sullyblog, we see that the law firm hired by the House to defend the Defense of Marriage Act (which, recall, DOJ said it would not defend in court) has backed out, apparently under gay-rights pressure.

I'm with Sullivan on this one. I thought it was wrong, wrong, wrong to attack law firms who provided counsel to Gitmo prisoners. That doesn't stop being wrong when you flip the +/- signs.


  1. I think there's a big difference between defending a person and defending a law.

    Our system of justice requires proof of guilt in order to avoid wrongful conviction and abuse of the system. As a general rule, we accept that however odious the defendant may be - rapist, murderer, mobster, terrorist (alleged, all) - our system requires a burden of proof which can only be established in the presence of a solid defense, so we accept that, at least for the most part.

    I'm not sure I see the same standard applying in this case. There is no burden of proof to avoid wrongful conviction, no unpleasant reality of necessary defense. That makes this a choice, which most people see as indicative of the positions and morals of the person taking that case.

    So the question then isn't just whether the wingers were wrong to go after anyone defending a Guantanamo prisoner, but WHY there were wrong. Essentially, should a lawyer be held neutral and absolved of any relation to what they're attacking/defending, in all cases? Or was it because of what they were attacking - that requirement of capable defense of the accused.

    I can certainly understand that you, as a lawyer, would look at this differently than I do. But in this case at least I see a difference that enables the double standard.

    It might be enlightening to expand the question a bit, too... Does it change if the lawyer is on the other side? Would the same forbearance apply to a lawyer suing to (for instance) overturn Delaware's new civil unions law on some ground?

  2. I don't like it and I wouldn't engage in it. Given the difference in the representations though -- one seeks to vindicate the rights of individual human beings allegedly imprisoned contrary to law, the other the validate a law designed to discriminate against individual human beings -- I don't think it make my top 100 list of things to be exercised about.

  3. Agreed re: top 100 list (maybe top 500). But of course, there are at least theoretically human beings on the DOMA side of the suit. (There's the standing question.)

    Comments over at Volokh suggest that the House required King & Spalding to forbid all its lawyers and employees from even advocating the repeal of DOMA, and that the shit hit the fan there around the same time as that e-mail hit the inboxes. So maybe not entirely an issue of pressuring the firm. But I doubt that was absent either. As another commenter noted, Coke is their client and probably did not want to risk any negative publicity.

    I despise John Yoo, but I wouldn't think worse of a lawyer who represented him, and I certainly wouldn't try to cause trouble for that representation.

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