Let Not the Sins of The Client Be Cast Upon the Lawyer

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Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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66 Responses

  1. Avatar PD Shaw says:

    Well said, and particularly want to second the notion that public defenders are not incompetent. I think that comes from examples of such being construed as representative of the class.Report

  2. Avatar Em Carpenter says:

    Another point I should have made is the role of the defense attorney in ensuring an airtight conviction. It sounds paradoxical, but error free trials mean denied appeals. A good defense attorney puts the brakes on improper actions by the prosecution. A trial full of errors by the prosecution leads to overturned convictions and sometimes, free-walking criminals.Report

  3. I have a good friend who is a criminal defense attorney. She took a lot of cases from the PD’s office that they couldn’t handle for whatever reason. She made her bones with the local criminal defense bar when she was assigned a murder for hire case. She almost got the guy off. It was a cold case that had been reopened, and the cops, who are not terribly competent, had a crap chain of evidence. So the defendant would likely have walked except that he also couldn’t keep his mouth shut and implicated himself to a fellow prisoner, who not only was a jailhouse snitch, but was wearing a wire at the time. So while the guy will spend the rest of his life in prison, she so impressed the more senior criminal defense lawyers that she was promptly offered a much better job as a result. Total win-win.Report

  4. Avatar Jaybird says:

    One of my high school sweethearts (the one who effed me up for the rest of my life, as a matter of fact) went on to become a lawyer that has commercials that you see on television. Way back at the beginning of her career, I asked her about her career choice and I asked about defending, oh, drunk drivers.

    She explained that it wasn’t so that they could necessarily get off the hook, it was so that they could get justice. One judge might throw the book at defendants another might be willing to agree that traffic school and probation was the best solution to the problem. As a lawyer, it was her job to know the best judges for her defendants to help them get the justice they deserved. (I think she was implying that she wanted her clients to get the good judges.)

    Which struck me then, as it does now, as an indicator that the justice system isn’t really a justice system… but that’s why having a good lawyer is important and it’s better to have those available to everybody rather than merely to people that we, as a society, agree shouldn’t be chewed up and spit out by the system.Report

  5. Avatar Road Scholar says:

    Agree with every word here. My best childhood friend works as a public defender, but he started his career in the prosecutor’s office. He’s seen it from the inside; cops lie on the stand, fabricate and plant evidence, etc. Not all prosecutors and not all cops but it absolutely happens. And a DA’s performance is evaluated on convictions, full stop. The actual guilt or innocence of the accused is mostly irrelevant.

    Then, for reasons I doubt that he was totally honest with me about but are entirely his own in any case, he switched to the public defender role. He described his role as such (paraphrasing), I know 95% of these people are guilty as sin, but my job is… Well you said it very well and it was almost verbatim, My job was to protect his constitutional rights, present facts and evidence in a light most favorable to him, and to make sure the state did their job fairly and were made to prove their case beyond a reasonable doubt.

    A system that provides a vigorous defense of the accused is absolutely critical to keeping the system as honest as possible.Report

  6. Avatar zanest says:

    Convenient that lawyers sit on both sides of the equation. No other profession is afforded such authority, the authority to sit in judgment of other professions. For engineers, the 737 MAX8 controversy currently comes to mind. Hell, they (the lawyers) sit atop the WA state medical board in judgment of physicians. Courts recognizing peer review protections for only two professions, lawyers and physicians, and 5th Amendment applies in both physician and attorney discipline proceedings Spevack v Klein (1967).
    So, where are the attorneys in Washington state willing to take up my case against UW Medicine and the WA Medical Quality Assurance Commission? After being assaulted by a “vulnerable” adult (22yo male nearly 300-lbs) and terminated after my employer was notified of a complaint by the Borderline Personality Disordered mother, the MQAC, while hastening my termination, managed to act on and dismiss the complaint against me in record time. However, it failed to inform my attorney or me of the dismissal for nearly 8 months, effectively blocking reemployment. So, this excessive preamble is prelude to this question. Where are the attorneys willing to take a case pitting my lawyer against the University of Washington behemoth, the WA State Attorney General, the WA State Department of Health and all wrapped in the public cross examination of an autistic “kid” and a woman with borderline personality disorder?
    Nowhere is the answer so far. The excuses include “it would be professional suicide” and “I don’t want my kids to lose access to an education at UW”.Report

  7. Wonderful piece, Em. Agree whole-heartedly. A way I think of it: the job of the defense attorney is to make sure the government hasn’t cut corners, that they’ve done everything by the book, that they’ve considered all the evidence. Defense attorneys keep the government honest (to the extent it can be kept honest). It’s a critical restraint on power.Report

  8. Avatar Aaron David says:

    Let me join the chorus of those saying what a great piece. Thumbs up Em!

    An old friend of mine from high school has gone into Criminal Defence after working for the ACLU. I have always deeply respected her career choices.Report

  9. Avatar Pinky says:

    I don’t see any reason that Sullivan should be pressured or disciplined. But at first glance, I can understand if his personal reputation suffers. This article said that he’s joining Weinstein’s team of lawyers. So apparently Weinstein is not unrepresented. I haven’t heard anything indicating that Weinstein’s case will involve difficult issues of law, necessitating the presence of an elite team. So the only reason I can imagine a lawyer joining this team is money.

    If a rich person is drowning, and shouts out that whoever saves him gets $1 million, I would applaud the courage of the first lifeguard who dives in to save him. The second one, however…Report

    • Avatar Em Carpenter in reply to Pinky says:

      Why are lawyers wrong for doing their job for money? Maybe the team felt they needed additional manpower. Do we complain about doctors paid for second opinions, or actors paid for joining an ensemble cast? It seems to be mostly attorneys who are criticized for wanting to earn money for their work. This site has plenty of great writers; why should I have bothered to join? I just must be in it for the exposure and therefore I bring nothing to the table.Report

      • Avatar Pinky in reply to Em Carpenter says:

        Any time a big-name actor appears in a lousy summer blockbuster, I think less of him. It’s not the number of other actors that bothers me; it’s the sense that he’s part of a project that offers him nothing other than a paycheck. If he talked about how the latest Michael Bay project allowed him to hone his craft, that wouldn’t hold water. Likewise, if a lawyer joins a team for a wealthy client and someone defends him on the grounds of the need for all people to be represented, it’d seem like a weak position. I don’t deny people the right to earn money at their careers, but I’m not going to laud Sean Connery for participating in Highlander II. (That is, if there were a sequel to Highlander, which is something I will never acknowledge.)Report

        • Avatar Jaybird in reply to Pinky says:

          Highlander II takes place in the same universe as The Matrix.

          Remember when Morpheus said “we’re the ones who scorched the sky”? He was talking about The Shield.Report

        • Avatar greginak in reply to Pinky says:

          Lots of actors have taken big money roles so they have the freedom to open a theater of their own ( william peterson of csi did this i think) or so they can make smaller indie pics. It seems like a lawyer taking a big money case allows them to then take plenty of indigent cases if they wish.Report

          • Avatar CJColucci in reply to greginak says:

            Makes me think of the movie Solitary Man, with Michael Douglas, Susan Sarandon, Danny DeVito, and Parker Posey. Nice movie, glad I watched it, but no commercial movie producer could have put it out paying this cast what it could normally command. I’ve often wondered what the deal was.Report

      • Avatar Stillwater in reply to Em Carpenter says:

        Why are lawyers wrong for doing their job for money?

        As Pinky said, a lawyer is wrong to take a job “only* because of the money rather than *in addition* to the money. Granted, no lawyer will directly say that that’s why they took the job – instead, they’ll say they believe in the client’s case and that everyone deserves adequate representation and so on. As an analogy, consider the the following in the context of accepting PAC money: “Why are politicians wrong for doing their job for money?” The most obvious answer, seems to me, is that politicians, like lawyers, are *supposed* to act on higher ideals than merely satisfying their own financial self-interest.

        Maybe that’s a quaint notion which won’t survive the Trump era. 🙂Report

      • Avatar Pinky in reply to Em Carpenter says:

        BTW, yes, this is a good piece, and I’ve enjoyed the comment thread as well. There are a lot of issues here that I’d never thought about. I usually don’t say that something is a good piece unless I can’t think of anything else to say about it. (Andrew, if you happen to be reading this, I enjoyed your piece about the rock drummer. There was no heated debate in the comment section, but it was a good read. We seem to have a new core group of writers on this site, and you guys have kept things interesting. This really is one of my favorite internet sites.)Report

    • Avatar PD Shaw in reply to Pinky says:

      “I haven’t heard anything indicating that Weinstein’s case will involve difficult issues of law, necessitating the presence of an elite team.”

      Of course it will involve difficult issues of law, that’s why he was hired. The prosecution doesn’t get to decide what all of the issues are.Report

      • Avatar Stillwater in reply to PD Shaw says:

        One reason to pay big money to get big-time lawyers is to precisely to *make* issues of law more difficult to resolve. I mean, for some reason people just don’t want to go to jail.Report

        • Avatar PD Shaw in reply to Stillwater says:

          Just to back it up a bit, the reason for a team of lawyers, preferably with different backgrounds, is to have more brains spotting issues. Given the Professor’s background in reversing wrongful convictions, he’s probably there primarily to, to give attention to the appellate angle.Report

  10. Avatar pillsy says:

    Great piece, Em.

    I liked that interview a lot when it came out. Recently, after some idiot went and let himself be interviewed by Chotiner, and of course came off like a huge idiot, someone asked why people are interviewed by Chotiner. But the thing is when someone is able to do a good job accounting for themselves, Chotiner really brings that out, too.

    That’s exactly what I thought happened in the interview with Prof. Sullivan. There was some stuff there that came across as weird [1], but where before I’d had some doubts about the whole faculty dean thing as a good idea, I was impressed at how he seemed really interested in the students, even the ones who were mad at him, and wanted to take this as an opportunity to teach them.

    Contrast that with his comments about the administration, which were scathing.

    I wish we would get more of that in these Campus Culture War blow-ups. Yes, students should learn how to deal with a diverse range of views and to understand things like the distinction between a lawyer and their client.

    But they’re students. If they knew that already, they wouldn’t have to learn it.

    [1] Was his caginess about why he joined Weinstein’s defense a typical lawyer thing?Report

    • Avatar Em Carpenter in reply to pillsy says:

      I think his caginess was appropriate. What could he have said there? “I took the case because I believe in his innocence,” would not have played well. “I took the case because they want to present xyz defense, which I happen to be an expert at,” would give away strategy and be highly inappropriate. “I took it for the money/prestige/publicity…” would get him excoriated (see: this comment section).
      And yes, I do think lawyers speak in vague terms. We have to be so careful with our language, not to violate privilege, not to put words in our client’s mouths (Hi Rudy G.!), not to make a representation we are not authorized to make, to follow our rules of professional responsibility regarding making public statements about cases, etc.Report

    • Avatar InMD in reply to pillsy says:

      To me the issue with the campus blow-ups has never been the kids, it’s been the adults who enable, encourage, and fail to correct the kids.Report

      • Avatar pillsy in reply to InMD says:

        Yes. I (obviously) think that’s a much more sensible view, and also why so much of the back-and-forth over seems moral-panicky to me.

        There’s so much focus on the kids today and their shortcomings, and so little on the fact that the kids today are kids today and if their education is lacking, we should be asking questions of their educators.Report

      • Avatar Oscar Gordon in reply to InMD says:

        This.

        Kids always be kids. Part of being an adult is helping kids to understand what they are doing wrong and why it is wrong.Report

  11. Avatar LeeEsq says:

    There is a lot of heat on Richard Sullivan representing Weinstein because of the very political nature of the accusations against Weinstein. Weinstein is seen not only as an individual, powerful man who did these reprehensible and atrocious crimes against women but as a representative of an entire system against women. The belief is that if Weinstein walks, the entire MeToo movement is lost. Therefore, the goal is to make things as hard as possible on Weinstein.Report

  12. I truly enjoyed this piece, Em. When I studied CRJ law, one of the biggest complaints from attorneys is the back log of cases, and judicial discretion. Everyone has the right to an attorney, and I think now with outspoken detractors, activists our presumptions on how the law works, whether on social media or out in the real world-we tend to get carried away with dramatic effect before facts.

    Twitter law isn’t real law so I’m told unless it comes from the experts. I’m not a lawyer, but I do write about them in my books. And to this day, how all of you breeze through a one thousand page contract within ten minutes just fascinates me to no end.

    This is why I couldn’t become a lawyer. The defense of the guilty is too difficult for me to comprehend. I hold mad respect for anyone that can do so.

    Even the ambulance chasers of Nevada. 👍🏻Report

  13. Avatar North says:

    A fine piece and I agree with it unreservedly. Young people being idiots, alas, is heightened in visibility and potency by todays trends.Report

  14. Avatar Michael Drew says:

    All lawyers should be allowed to represent their clients in peace, full stop. (Well, maybe certain stops.)

    But I have seen this argument extended to where the choice of whom to represent and tactics used have been extended to being out-of-bounds for consideration in even *relative* fitness/preferability for office. “He’s a lawyer, he was just doing his job!”

    If you’re just trying to do your job, great, just do your job. If you want to be my DA, mayor, governor, president — no, if you defended *those guys* when you could have done this other, better work, and meanwhile your opponent *did the better work*, I’m going to take that into account, even if it was all lawyer work.Report

    • Avatar Em Carpenter in reply to Michael Drew says:

      Why? Why does my choice of client mean I shouldn’t be in one of those positions? It is a vital job. A thankless job. It doesn’t mean I am a bad person, a morally corrupt person, or a villain. I am not my client. I am not condoning the alleged actions of my client. I am not a criminal. Why am I unfit for office, in your opinion?
      Maybe the prosecutor’s office wasn’t hiring and the PD’s office was. It does not make the former prosecutor a better person or a better candidate than the former defense attorney. (FWIW, I’ve done both. I started out an assistant prosecutor.)Report

      • Avatar Michael Drew in reply to Em Carpenter says:

        So you really think that *no matter what an attorney’s career has consisted of* it should be treated the same in assessing the contributions that make him *particularly* fit for being entrusted with the few roles of power and leadership that people compete for the privilege of holding that purely for the purpose of serving the public?Report

        • Avatar Em Carpenter in reply to Michael Drew says:

          If a doctor runs, will you check into how many times he healed or saved the life of a murderer or other terrible person?
          You haven’t yet articulated for me how a career of representing accused criminals makes me (defense attorneys generally) unfit for office. Why you think it reflects on me (them) personally.
          If they did their job unethically, illegally, dishonestly, fine. But that’s not what we are talking about.Report

  15. Avatar PD Shaw says:

    In the 19th century, there was a view, at times the majority view, that lawyer’s were empowered only as moral agents for their clients and it was unprofessional for a lawyer to advance legal positions that fail to do justice to all parties. The commonplace expression of this view was that a lawyer must not assert a statute of limitations defense against an honest debt, for to do so would make the lawyer “a partner in his knavery.” In essence, the lawyer was expected to pass moral judgments on potential clients, determining whether they were worthy of access to the legal system.

    The opposing view, associated with Whig lawyers, came to dominate. That view was that lawyer is to suspend personal judgment of the potential client, and permit the court seems to decide the matter. The most important function of the legal system was to resolve disputes in an orderly fashion. The Whig lawyer’s view appeared self-serving in taking any and all business, and utilizing tricks (like statutes of limitations) to wreck injustice. But the Whig view won out.

    Lincoln was obviously an example of a Whig lawyer; he took a case on behalf of a slave-owner (who already had an attorney) seeking to maintain his peculiar property interest. He lost, but it was a hard case and it ended up establishing a point of law going forward.Report

  16. Avatar InMD says:

    Just chiming in to support the piece. My days doing CDL were short but I still consider the experience formative. Among them was helping a senior partner write an appeal on behalf of a defendant convicted of a brutal murder. I have no regrets. Our system is better for having people zealously representing even the most reviled and no lawyer who does it ought to be ashamed or cowed by mobs, whatever their motivation.Report

  17. Great piece. I think criminal defense lawyers do all of us a great service.Report

  18. Avatar Jaybird says:

    I admit, if I found out that there was a lawyer who defended corrupt DAs, I might make some snap judgments in my head about them.Report

  19. Avatar Mike Schilling says:

    If he defends Weinstein in court, he’s doing his duty to the law and the justice system. But what if he makes a public statement about how Weinstein is a perfectly innocent man, the victim of a smear campaign, and all his accusers are lying or deluded? I’ve heard the attorneys for the high-profile accused make similar claims many times. From my point of view, that’s reprehensible and just gives lawyers a bad name.Report

    • Avatar Oscar Gordon in reply to Mike Schilling says:

      Normally, I’d agree with you, but since DAs like to try cases in the court of public opinion, the accused should get to do the same.Report

      • Avatar Stillwater in reply to Oscar Gordon says:

        A defense attorney going before the camera’s to proclaim the innocence of their client the way Mike describes doesn’t serve any legal purpose. The motivation is either PR for the client, or self-promotion on the part of the lawyer. Both are unseemly, regardless of whether prosecutors try cases in the court of public opinion. Of course, Weinstein hired Lisa Bloom to protect/defend his reputation, so obviously the line between a lawyer being advocate before the judge and advocate before the media has already been blurred.

        Come to think of it, why isn’t Lisa Bloom defending him???Report

  20. Sullivan’s claim that he is unaware of any criminal defendant who has power in the system is an odd one given how much power rich criminal defendants enjoy. Jeffrey Epstein comes immediately to mind.

    That isn’t to say that Sullivan should be attacked for defending Weinstein, but it does seem odd to suggest that all criminal defendants are treated equally.Report

  21. While I agree with this post and find it well written, as always, there’s the unfortunate fact that most of those who in theory agree with you will change their minds when the wrong client is defended. For them, it’s an argument of convenience.

    I shouldn’t say “for them,” because I’m guilty of it, too. I have, done it in the past.

    It’s the type of argument that people will use when it’s convenient and abandon when it’s not. You’re not doing that. But some do. And, again, I may very well do that, too.Report

  22. Avatar Burt Likko says:

    I know I’m late to the game here, and perhaps a bit under the influence of a mood enhancing chemical or two.

    But.

    FUCKIN’ A.Report

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