The ethics of cause lawyering: an empirical examination of criminal defense lawyers as cause lawyers.

Author:Etienne, Margareth
 
FREE EXCERPT

INTRODUCTION

In 1990, Jose Orlando Lopez retained a prominent criminal defense attorney, Barry Tarlow, to represent him on serious narcotics charges. (1) Mr. Tarlow's understanding with his client was that Tarlow would "vigorously defend and try" the case but that he would not negotiate on Lopez's behalf if Lopez decided to turn over State's evidence and become an informant in exchange for a reduced sentence. For moral and ethical reasons, it was Tarlow's general policy "not to represent clients in negotiations with the government concerning cooperation." (Indeed, later in the case when Lopez decided to enter into a cooperator's agreement with the prosecution, Lopez sought to negotiate the deal on his own without the assistance of counsel. These pro se plea negotiations ultimately failed). According to Tarlow, such cooperation negotiations were "personally, morally and ethically offensive" and he would no sooner represent a snitch than he would represent "Nazis or an Argentine general said to be responsible for 10,000 'disappearances.'" (2)

Whatever one thinks of Tarlow's policy, this case highlights an important truth. For Barry Tarlow and many other defense attorneys, the practice of criminal defense is about much more than helping individual clients achieve their individual goals. Criminal defense attorneys are often motivated by an intricate set of moral and ideological principles that belie their reputations as amoral (if not immoral) "hired guns" who, for the right price, would do anything to get their guilty clients off. (3) Some of the collateral causes advanced by these attorneys are laudable while others are not. But almost all of them raise ethical concerns that the rules of ethics and professionalism are not well-equipped to resolve. This is a noteworthy problem because cause-lawyering has played an important role in socio-legal movements in this country.

The cause-motivated approach to lawyering contradicts the traditional view of those in the legal profession as rights-enforcers or as neutral advocates of their clients' interests. (4) Weighing the virtue of neutrality in an advocate versus that of activism, the ethics and professional responsibility literature seems to embrace the former as the more appropriate of the two. Lawyers are strongly advised to be zealous but neutral advocates of their clients' interests. (5) They also have a duty of loyalty to clients that may prohibit them from representing clients in cases where the attorney feels the pull of professional, personal, or political interests distinct from those of the client. (6)

These conflicts raise significant ethical concerns for cause lawyers--activist lawyers who use the law as a means of creating social change in addition to a means of helping individual clients. These lawyers are known by many names in the legal and sociological literature, including radical lawyers, critical lawyers, public interest lawyers, poverty lawyers, socially conscious lawyers, visionary lawyers, and so forth. (7) The worry for the cause lawyer is that the pursuit of her "cause" may at times conflict with the client's interest. A lawyer's professionalism is measured in part by her ability to keep her personal and political agendas apart from (and secondary to) her clients' agendas. Accordingly, the repeated cautions against conflicts of interest when representing clients (8) suggest that lawyers ought to be wary of non-client-centered goals in lawyering. Tarlow's particular policy of not representing snitches is open to criticism on this ground, (9) but is merely one example of an overall approach to criminal defense lawyering in which the attorney's moral and political values play centrally in her advocacy decisions.

In this Article--the first to seriously evaluate whether criminal defense lawyers are cause lawyers (10)--I consider several examples of cause lawyering as described by defense lawyers during the course of forty interviews. Through their discussions, I explore the types of values or commitments that animate defense lawyers' approaches to the practice of law and the impact of such "cause lawyering" on the criminal defendant. I consider whether the cause lawyering approach in the criminal context is compatible with ethical and professional rules, and argue that it should be. Sometimes criminal defendants are better represented by defense attorneys who are "cause lawyers" passionately seeking to advance their political and moral visions through the representation of their clients than by attorneys who have no overriding "cause" other than the representation of the individual client. Ethical and professional norms should be more adaptive to these instances.

This paper challenges the well-established view that neutrality (or at least client-centrality) is the only ethical approach to lawyering. I provide empirical evidence supporting the contention that in many instances the cause lawyer's approach is not only defensible but preferable. My conclusion provides no quarrel with the notion that the defendant's goals should take priority over the attorney's personal or political goals. Rather, I illustrate that the common formulation of the conflict-of-interest problem is oversimplified and unrealistic for the many criminal defense lawyers who are also cause lawyers. The real conflict lies not between the client and the lawyer's political interests but rather between this client's interest and the interests of other clients that better embody the attorney's larger moral or political cause. (11) "Other clients" can be other current clients, other future clients, or the class of criminal defendants generally. This conflict, one that criminal defense attorneys and other cause lawyers face regularly, is the focus of this paper.

The Article proceeds in four parts. In Parts I and II, I make the case that many criminal defense attorneys are in fact cause lawyers--lawyers who use their legal skills "to pursue ends and ideals that transcend client service." (12) Part I presents empirical evidence from a qualitative study of forty criminal defense attorneys. Following a brief description of the project design and methodology, I describe the attorneys' practices and attitudes about criminal defending and the reasons they choose it. The interview data from this qualitative study reveal that many defense attorneys are motivated by a range of moral and political beliefs and that they practice in a manner consistent with those beliefs. Part II provides a brief review of the scholarly literature on cause or public interest lawyering and its application to the criminal defense enterprise. Read together, Parts I and II leave little doubt that although criminal defense attorneys represent, almost by definition, individual clients in individual and unrelated cases, many are cause lawyers for whom law practice is "a deeply moral and political activity." (13) As Scheingold and Sarat put it in their recent book on cause lawyers, these are lawyers who "have something to believe in and bring their beliefs to work in their work lives." (14)

Parts III and IV consider the ramifications of having cause lawyers practicing criminal defense. In Part III, the heart of this paper, I consider the types of conflicts encountered by criminal defense attorneys precisely because they are working on behalf of causes in addition to working on behalf of individual clients. The focus of this section is on conflicts encountered by criminal defense lawyers when the goals that they "believe in" are different and possibly (though not necessarily) incompatible with the goals of their clients. I explore in detail three conflicts mentioned repeatedly by the respondent attorneys: their decisions regarding whether to file Anders briefs informing the court that the defendant has no viable issues, the use of collective action by attorneys to challenge unfavorable Government policies, and decisions to forego making certain arguments on behalf of particular clients. Part IV considers the question of whether criminal defendants are better off with cause lawyers or with non-partisan attorneys operating under the conventional approach of neutrality. I conclude that contrary to conventional beliefs, defendants are not always better off when represented by criminal defense lawyers guided only by the formal dictates of the professional responsibility and ethics rules. I argue that the formalistic approach to conflicts of interest embodied by the ethical and professional rules fails to account for the realities of cause lawyering in general and criminal defense lawyering in particular. While the paper ultimately raises more questions than it can answer given the limited data, its purpose is to contribute to an important dialogue regarding the ethical regulation of cause lawyers.

  1. EMPIRICAL EVIDENCE OF CRIMINAL DEFENDERS AS CAUSE LAWYERS

    This project emanates from an empirical study involving lengthy interviews of forty criminal defense attorneys. An earlier component of this study had as its central aim the exploration of how the federal sentencing guidelines affect these lawyer's perceived abilities to be successful advocates. (15) Despite my own experience as a criminal defense attorney, I quickly learned that in constructing my inquiry, I had made certain assumptions about what it means to be a successful advocate and that these assumptions were not necessarily shared by many of the attorneys being interviewed. For many of the lawyers with whom I spoke, the requirements set forth by the ethics rules (that lawyers zealously pursue their individual clients' interests and objectives) were viewed as baseline or minimum requirements. (16) Many of these lawyers had goals and motivations that were distinct from their client's immediate objectives. My interest is in these extra-curricular commitments and their effect on the enterprise of criminal defense lawyering.

    Understanding these lawyers'...

To continue reading

FREE SIGN UP