Representing the Unpopular Client

This article appears in the Fall 2001 edition of Liberties, the newsletter of the ACLU of Eastern Missouri.

By Denise Lieberman
ACLU/EM Legal Director

                  When people learn that I am an ACLU lawyer I am often asked how I come to grips with our defense of morally reprehensible groups like the Ku Klux Klan. Many cannot reconcile their belief in freedom of speech with their repugnance towards the client. I respond that we donít advocate the clientís viewpoints, but the broader legal issue. The ACLU has stood up for everyone from Oliver North to the National Socialist Party, represented a fundamentalist Christian church, a Santerian church, and the International Society of Krishna Consciousness. Yet the ACLU has never advocated Christianity or Krishna beliefs, socialism or arms trading. What the ACLU has advocated is freedom of speech and the protection of civil liberties. While most people understand this on an intellectual level, many have difficulty internalizing our representation on a personal level, and a good number condemn it altogether. 

                  There are mixed messages about the representation of unpopular clients. We think itís a good idea in theory, but tend to pass judgment when the actual clients become too distasteful for our sensibilities. Retaliation often befalls attorneys who undertake unpopular causes. Anthony Griffin was terminated from his role as general counsel for the NAACP after he served as a cooperating attorney for the ACLU representing the KKK against efforts by the state of Texas to compel the group to turn over its membership list. An entire website, called the ACLU Rage Page, has been dedicated to condemning ACLU lawyers for the Massachusetts affiliateís representation of NAMBLA (North American Man-Boy Love Association) last year. After the ACLUís litigation locally to remove a government-sponsored crËche in Florissant several years ago, the public response was so threatening that a new security system had to be installed in our St. Louis office and the FBI were called to monitor our safety.

                  Why? People associate lawyers with their clients. We see this in many ACLU cases, -- our stance defending the offensive and the politically incorrect from burdensome censorship laws, defending the religiously and politically outcast, advocating in opposition to the death penalty for those convicted of ghastly crimes, fighting for expanded rights for gays and lesbians, and fighting laws enacted to restrict offensive material on the internet. In St. Louis, the ACLU affiliate has been accused of being anti-police for defending a police officerís right to speak out about racism on the police force and for our efforts to combat racial profiling; and for being anti-Christian for our litigation to remove nativity scenes from government buildings, and for being anti-safe schools for defending studentsí free speech rights.

                  The concept of ìguilt by associationî is particularly strong in the legal profession. Edward Bennett Williams, the famous trial lawyer who defended Jimmy Hoffa, Joe McCarthy and others, warned the New York Bar Association in 1957 that this ìinsidious identification would scare off lawyers from standing by the unpopular and degraded. When a doctor takes out Earl Browdenís appendix, nobody suggests that the doctor is a Communist. When a lawyer represents Browden (head of the American Communist party), everyone decides that the lawyer must be a communist too.î During a McCarthy-era American Bar Association convention, the ABA declared that any attorney representing a person associated with the Communist party was unworthy of membership in the bar, and even demanded that lawyers take loyalty oaths. Subsequently, when the civil rights movement highlighted that racial and political minorities were denied equal access to the courts, the bar promulgated rules stating that a lawyerís representation does not constitute endorsement of a client.

                  But the concept is better applied in theory than in practice. Despite the barís response that ìan advocate does not vouch for the justness of a clientís cause but only for its legal merit,î lawyers frequently consider the impact their association with the unpopular client will have on their law practice, and generally it is only public interest organizations like the ACLU that can take on unpopular clients without risking their livelihood, and even groups like the ACLU face many repercussions from these cases. But without organizations like the ACLU and lawyers willing to take on these causes many of civil liberties cases would not be taken at all.

                  A legal system that affirms rights for all of its citizens but then effectively denies the unpopular the ability to assert those rights is unjust and counterproductive to the ideals of justice. Stephen Jones, the court-appointed attorney who represented Oklahoma Federal Building bomber Timothy McVeigh, said that the treatment of attorneys who represent unpopular clients ìhas too often chilled the desire as well as the willingness of most attorneys to accept controversial clients. The inevitable, but unfortunate, result is a compromise of . . . constitutional rights.î 

                  If lawyers are vilified for accepting unpopular clients, then those most in need of representation might find it impossible to obtain counsel. And who we consider unpopular is but a reflection of societal bias and the existing flaws of the justice system. The mainstream litigant is not rejected as an unpopular client; it is those whose actions, speech, viewpoints or agendas are outside the mainstream. It is not those with resources; it is the poor. And, it is disproportionately people of color. It is precisely those we reject as unpopular clients who are most likely to face bias and suffer injustice in our imperfect legal system. Our legal system assumes that justice is accomplished within the adversary setting, but this is true only when everyone with a valid claim can be heard.

                  The bar extols a history ìreplete with instances of distinguished and sacrificial services by lawyers who have represented unpopular clients and causes.î Indeed, most of the cornerstone cases in history fall into this category. So many of us have been inspired by stories of lawyers who have undertaken in the face of popular and professional outcry, the defense of the legal rights of outcasts. Itís what brought me to the ACLU. Nevertheless, when the events that are now celebrated actually occurred, public opinion was often opposed to the lawyersí legal assistance. As long as there are inequities in the justice system, the unpopular will disproportionately be the victims. The protection of civil rights and civil liberties will be achieved only through representation of the unpopular client.

Click here Denise's legal paper on Representing the [Macro error: Can’t find a sub-table named “0000003”.] (you will need Adobe Acrobat Reader)

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