True Believers Redux

 Posted on February 23, 2014 in Uncategorized

Six and a half years ago Scott Greenfield wrote The Fallacy of True Believers, about the danger of true believers:

But Bill [Kunstler] was a scary guy. Bill was a true believer in the cause, not that I was ever quite clear what the cause was because abject liberalism is an ever changing line. Bill existed for the cause, not the client. If the cause demanded that the client burn, so be it. He took a long range view of the world, and the cause was far more important than any individual, with their petty problems. So us stupid kids who found ourselves in his orbit learned quickly that our focus, the client, was mere canon fodder to Bill. And he could be far more dangerous (because he was far smarter, quicker and stronger) than any prosecutor we had ever met.

More recently Charles Thomas's Don't rape started a discussion of lawyers putting their own feelings above the effective representation of their clients. Some more contributors to the string: me, Max Kennerly, me again, and Matthew Wright.

Wright describes a CRA (Civil Rights Attorney) and a CDA (Criminal Defense Attorney) and their differing views on what appellate issues should be pursued for the client:

The broader question is what consideration, if any, should be given to "the Cause" when deciding which issues to press on behalf of a client?CRA, like most attorneys involved primarily in issue advocacy, believes that an advocate should give careful consideration to the broader legal landscape and other plaintiffs/ criminal defendants/ immigrants / [other marginalized group] before raising a "longshot" issue....CDA, on the other hand, ignores the rest of the world when evaluating issues for a legal challenge, be it an appeal, pretrial motion, or petition for judicial review.

He asks:

What about you? How much consideration do you give to "the cause" when deciding which cases to take or which issues to argue? Do those considerations only come into play when the issue under consideration is a probable loser?

For the CDA, the client-not "clients generally" nor "society" nor "the lawyer's feelings-must be The Cause. If making an argument will help the client more than leaving it out, the lawyer makes the argument. Any interest other than the client's best interest is a conflicting interest, and cannot be acted on without the client's informed consent.

Maybe the client presented with the opportunity to give informed consent-

Mr. Schmoe, we could make this novel argument that the search in your case was bad, and we might win and keep you out of prison. It won't cost you anything if we lose. But the facts in your case are pretty bad, so we will probably lose. It'd be better for society-but won't help you-if someone else with better facts makes the novel argument.

-will take one for the team: clients do all sorts of stupid things. But absent client consent to put some other interest ahead of the client's, the CRA is way out of bounds doing so. She can consider "the cause" when deciding what cases to take, she can't do so without the client's permission when deciding how to achieve the client's goals.