Justice Systems. Reversal of Roles on Access to Courts

• Author: Daniel Small
• Pages: 9-10

Published in Litigation, Volume 48, Number 2, Winter 2022. © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not

be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 9

The other, Rule 1.2(b), has no practical

significance at all because it does not tell

lawyers what to do. It is just a declaration

of principle. It says: “A lawyer’s represen-

tation of a client... does not constitute

an endorsement of the client’s political,

economic, social or moral views or activi-

ties.” Perhaps this is meant to let lawyers

hold their heads high when friends and

neighbors wonder why they squander

their time and talent on the wrong side

of a lawsuit.

These two rules seem to absolve law-

yers from moral or social accountability

for the cases on which they work. But if

lawyers are passionate about their be-

liefs, the conflict-of-interest rule points

the other way. Rule 1.7 says that a law-

yer has a conflict of interest if “there is a

significant risk that the representation...

will be materially limited... by a personal

interest of the lawyer.” The rule applies

to lawyers whose strongly held political,

social, philosophical, or moral commit-

ments will undermine their effectiveness.

A federal prosecutor raised this con-

cern two decades ago in Mendoza Tora v.

Gil, 110 F. Supp. 2d 28 (D.P.R. 2000), af-

ter she was assigned to prosecute pro-

testors for trespassing on the naval base

at Vieques. She told her supervisors that

she had a moral conflict with prosecut-

ing the case, and when they ignored her,

she sought to enjoin the office from as-

signing her the case. The district judge

was dismissive, asserting that Rule 1.7 “is

intended to address conflicts of pecuni-

ary or professional interests, not a conflict

between the attorney’s personal beliefs

and the client’s legal position.”

Today, the district judge could not so

easily brush off the prosecutor’s concern.

A comment to Model Rule 1.10, which cov-

ers “imputation of conflicts of interest,”

acknowledges that lawyers’ personal be-

liefs may give rise to conflicts. It offers the

example of a lawyer who “could not effec-

tively represent a given client because of

strong political beliefs.” That lawyer must

not work on the case, although others in

the law firm may do so if their work will

be unimpaired. The message is that if your

strong philosophical or political objection

would lead you to work ineffectively, you

must decline the assignment.

Most often, though, associates will be

able to work competently for objection-

able clients and causes. They will sim-

ply feel bad about doing so. If so, these

lawyers face larger questions about how

they want to lead their professional lives—

questions the Model Rules do not answer. q

JUSTICE SYSTEMS

Reversal of Roles

on Access to

Courts

DANIEL SMALL

Daniel Small is a partner at Holland & Knight in

Miami and Boston.

For almost 10 years, I have been involved

in Uzbekistan’s journey from its old,

Soviet-based justice system to a more open

system, working with lawyers and judges

there and speaking at Tashkent School of

Law. The concept of transparency did not

exist in Uzbekistan, and reformers looked

to the United States, among other coun-

tries, as a guiding star. While Uzbekistan

has made extraordinary progress, there

is still much to be done. Yet, ironically, as

Uzbekistan moves from a closed judicial

system to an open one, our system in the

United States has moved in some respects

in the opposite direction, toward closure,

as national security and privacy are in-

creasingly becoming excuses for secrecy.

Recently, I was asked to give a presen-

tation at a conference sponsored by the

Uzbekistan Ministry of Justice on expand-

ing public access to courts. While going

through some of the history and argu-

ments in favor of transparency, it struck

me that we in the United States could use

a reminder of why openness is so essential

to our judicial system.

Around 40 years ago, the Supreme

Court issued a landmark opinion,

Richmond Newspapers v. Virginia, 448 U.S.

555 (1980). Chief Justice Burger, writing

for the Court, carefully analyzed the his-

tory and arguments demonstrating the

value of open courts.

First, open courts improve the fact-find-

ing process, by involving the public. For ex-

ample, public trials can alert key witnesses,

previously unknown to each party, to come

forward with relevant testimony.

Second, transparency increases judicial

accountability by shining a light on the

judicial process. As stated in Richmond

Newspapers,

[p]ublic access to trials acts as an im-

portant check, similar in purpose to the

other checks and balances that are in

our system of government. The knowl-

edge that every criminal trial is subject

to contemporaneous review in the fo-

rum of public opinion is an effective

restraint on possible abuse of judicial

power.... Open trials assure the public

that procedural rights are respected,

and that justice is afforded equally.

Closed trials breed suspicion of preju-

dice and arbitrariness, which in turn

spawns disrespect for the law.

Third, openness increases the legiti-

macy of the courts. In Cowley v. Pulsifer,

137 Mass. 392, 394 (1884), Oliver Wendell

Holmes stated:

[T]he trial of causes should take place

under the public eye... because it is of

the highest moment that those who ad-

minister justice should always act under

the sense of public responsibility, and

that every citizen should be able to satisfy

himself with his own eyes as to the mode

in which a public duty is performed.

Finally, open courts increase public ed-

ucation and trust in the judicial system.