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Defending the Indefensible

Aired September 3, 2001 - 12:31   ET



LIN WOOD, CIVIL ATTORNEY: The most important consideration for a lawyer, particularly in a small firm, is to understand that in a controversial case you are not only going to find yourself litigating in a courtroom, you're going to find yourself litigating in the court of public opinion. It literally is inseparable now.

ANNOUNCER: Law firms, large and small, fight for business every day. But taking on controversial clients can launch a different type of fight among the partners and rain makers within the firm.

JERRY FROELICH, CRIMINAL DEFENSE ATTORNEY: You could have a major client that provides very large income to the firm, that you know is very conservative, and wouldn't want you representing a very liberal type of issues, particularly if it's going to be high profile, before supreme court or in the newspapers.

ANNOUNCER: Today on BURDEN OF PROOF, how unpopular cases leave their fingerprints on the reputation of a law firm.

MICHAEL KANE, PLAINTIFF'S ATTORNEY: I think the cannon of ethics that lawyers ascribe to is pretty clear that a clients' views are not the lawyers' own. But those are just words in a book, and reality is lawyers very often become associated with their clients.


ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.

ROGER COSSACK, CO-HOST: Hello, and welcome to BURDEN OF PROOF. Now, each week on popular legal television shows like "The Practice" and "Law And Order," lawyers have to make tough decisions about defending unpopular clients. And in real life, the cases of people accused of child molesting, murder and fraud come across the desks attorneys every day. The constitution requires that all litigants, at least in criminal cases, be represented by counsel, and it's the lot of the lawyer to defend the client, no matter crime. Right? Well, maybe not.

Joining us to discuss this issue that lawyers face every day, in Miami, ethics professor Monroe Freedman. We're joined in New York by criminal defense attorney Gerald Lefcourt, and here in Washington, Kaelin Deblasio (ph), Irena McGrath, president of the National Association for Law Placement, and Gabriel Meyer (ph). In the back row, E. Edmunds (ph), Julie Guerlie (ph) and Ethan Oberman.

Jerry, you are a criminal defense lawyer in New York, have been one for many years, and have represented very many unpopular clients in your life.

Is that your lot, do you have to take them?

GERALD LEFCOURT, CRIMINAL DEFENSE ATTORNEY: I don't have to take them, and I don't think I should have to take unpopular clients, unless there is an obligation created by the fact that they can't find anyone else, and they are entitled to representation.

COSSACK: What difference -- let me just jump in on you.

LEFCOURT: I don't have to take them, but I don't think I ought to be...

COSSACK: What difference would it make -- if your position is you don't have to take them, what difference does it make if they can't find anybody else?

LEFCOURT: Well, I would feel obligated. This came up with McVeigh actually, when I was -- I guess I was president of the National Association of Criminal Defense Lawyers when the McVeigh case came about. And I was asked if there were no lawyers that step forward, would I take the case?

And even though I abhor the things that he stood for, I would feel obligated to make sure that he had the best possible defense that he could have. Because it was a death penalty case, it was a high- profile case, our system of due process was, in effect, on trial. And I think it's my obligation, but not that I would choose it.

I would turn it down if he came to me. And I think I should have a right to turn him down when he came to me, but I think we have to support the lawyers who did step forward for doing what they thought was a professional job. I don't think they should be subject to criticism because they chose to step forward and represent a McVeigh.

COSSACK: OK, Jerry, if you would accept an appointment to represent McVeigh, and I think everyone can agree that what McVeigh did was evil incarnate, what wouldn't you take?

LEFCOURT: Well, I'll tell you. There was a case that came to me involving arson, where these two incredibly wealthy arson brokers would have landlords pay them large sums of money so that they could set fire to buildings to get insurance proceeds.

And I heard a tape of the actual torch, the person who was going to set the fire, tell one of these arson brokers that he has to burn off the top and there are people with children in there, and the arson broker said, it's OK, they're only blacks. But he didn't use the word "blacks," he used the "n" word. It's that kind of case that so enflames you, that you should turn down, because I couldn't be zealous in my advocacy of those people. And I think when a lawyer feels that way, the lawyer has a conflict of interest and should stay out of it.

COSSACK: All right. Let's go to Monroe Freedman now. Monroe, we've heard Jerry describe the things that he could do, and we've heard Jerry describe the things that he can't do. But doesn't that leave a gap in our judicial system, particularly for criminal representation, when you have lawyers making individual decisions about who gets representation and who doesn't?

I'm not saying that these people weren't horrible that Jerry was talking about, but what I'm saying is it seems to me that they're entitled to representation, too.

MONROE FREEDMAN, LEGAL ETHICS PROFESSOR: Yes, I agree with everything that Jerry said, I agree with what you said. They're entitled to representation. The question is, are they entitled to Gerald Lefcourt? And the question is, no. Unless, as he says, he is what has been referred to as the last lawyer in town, the only one that is going to be available to represent those people.

The fact is that those people are going to get representation. I bet they did. They paid somebody a good fee who was very happy to take it. In McVeigh's case, this was supposed to be the most horrendous crime of the past century, whatever. Lawyers were fighting to represent McVeigh. Stephen Jones even lied to the judge so that he could represent McVeigh.

The notoriety that a lawyer gets, or the fame, or whatever you want to call it, the exposure that a lawyer gets is important to a lot of lawyers.

COSSACK: Well, Monroe, let me just jump in a second. Aren't you in some way kind of copping out with that argument? Let me just tell you why.

If you take the presumption that yes, don't worry, they're going to get representation. You're, first of all, assuming that they will, and let's assume they will, but they may not get the same kind of representation that they could get from Jerry Lefcourt, who we both know is a terrific criminal defense lawyer.

And as Jerry sits there, shouldn't he have an obligation -- I mean when he hangs his shingle out and says, I'm a criminal defense attorney, I'm here to defend the constitution, I'm here to do those things and represent people, and I'm putting my own personal -- I'm not a supporter of arsonists, but I am a supporter of the constitution.

Shouldn't he then say to make sure that we're consistent across the board, I will take this case?

FREEDMAN: No. I think that one of the things you have to recognize is that when a lawyer takes on a case, that lawyer commits him or herself to represent that client and that cause zealously. To give that client every right that the law entitles the client to. That can put you in the position of fighting, using your skills, your talents, your commitment as a lawyer for causes and for people that you do not approve of and find repugnant.


FREEDMAN: Lawyers don't have to be in that position. And my answer to you is not a cop-out, because the question you asked me was a rhetorical question. Doesn't that mean, doesn't Jerry's position mean, that some people are not going to be represented? The answer is no. They will get representation. Are they...

LEFCOURT: Monroe, but there's one thing. I think that I might slightly differ -- sort of differ with you on, and the notion that lawyers should be criticized, or can be criticized for making the moral judgment to represent somebody, I don't like that.

Because the average criminal defense lawyer that I'm associated with, and when I was president of NACDL saw day to day, were people who were, you know, public defenders, who were fighting for clients as they should, as zealously as they could, and you know, people and judges would often criticize criminal defense lawyers for becoming a drug lawyer or becoming a mob lawyer. I think that's a very dangerous thing if we don't support lawyers in their attempts to do a professional job, because then, the whole profession is diminished, and the whole role of the Sixth Amendment is also diminished.

COSSACK: Jerry, I've got to take a break. Monroe, I will obviously give you a chance to respond.

And when we come back, let's talk about civil cases on the docket, which stirs more controversy within firm. You know there are some tough, tough decisions to make. Are you going to represent tobacco? Stay with us.

LIN WOOD, CIVIL ATTORNEY: Large firms probably do have some concern about taking on a controversial case. I think you're going to find that controversial cases, high-profile cases, usually have the genesis in a criminal-related matter.


Rule L2(b) says: "A lawyer's representation of a client does not constitute an endorsement of the client's political, economic, social or moral views or activities."




JERRY FROELICH, CRIMINAL DEFENSE ATTORNEY: It's a business, so a big law firm, you know, you have 400 or 500, 600 lawyers, and when you're generating, you know, a couple hundred million dollars in revenue a year, and everybody wants to make money, and the only way you make money is off of the profits, and the associates and off your clients. So it's strictly revenue-generated, though in big firms. Smaller firms, what we call boutique firms, have a little bit more freedom.


COSSACK: It is an age-old debate, whether everyone is entitled to legal representation, or whether lawyers should refuse clients based on their own personal feelings. Law firms are often faced with the issue of taking on unpopular clients, and I want to talk to Irene about that in a second. Monroe, I want to give you an opportunity to respond to what Jerry said -- Go ahead.

FREEDMAN: Yes, let me say preliminarily, Roger, that I have had a number of unpopular clients and causes. In one case, it was a man who called in the press the meanest man in New York. I was Dean of Hofstra Law School at the time, and the students at Hofstra Law School asked me why I was representing the meanest man in New York. And people said to me, don't you resent that kind of impertinent question? And I said no, on the contrary. I'm proud of students for asking it. And I spent...


FREEDMAN: ... in the moot courtroom at the law school, and the reason I did was because lawyers have a monopoly to perform a public service, a constitutional service, of representing people in cases. And because of that, and because of the fact that we live in a Democratic society, I think we are morally accountable. I think we are accountable to the public for whom we represent and how we do it. And I think that if people like Jerry, for example, Jerry Lefcourt, for example, were to spend more time -- and he's one who does spend time on this -- would spend more time explaining...


FREEDMAN: ... and why we represent them in the way we do, there would be more respect not less for the legal profession and for individual lawyers.

COSSACK: Let me -- Monroe, jump in for a second. I want to talk to Irena.

Irena, law students graduating law school now, it is a buyers market for the law students.

IRENA MCGRATH: It sure is.

COSSACK: And one of the things that come up now and that you find that young law students are now more than ever, or are they more than ever more interested where they go to work, and finding out what kinds of cases that the firm they may be joining handle?

MCGRATH: I think there is so much information that is available to students and young lawyers today. They can find out everything about a particular organization, and I think the students with the most opportunity are really making judgments about who the firm represents and whether this is a place that they would feel comfortable working.

COSSACK: So in other words, one of the things students may want to know besides, how much am I getting paid, and how many hours do I have to work, and how long before I have opportunity to make partner is, what exactly is the kind of work that I'm doing, and who exactly am I doing it for?

MCGRATH: Absolutely. That is so central to a student's choice. What will I be doing? Is it something I believe in? is it something I can be proud of when I tell people where I work, who I work for, on behalf of which clients I work?

COSSACK: And is that something in that, in terms of your history, that you have seen a greater appreciation for now, as students become more interested and have more information?

MCGRATH: I think because there is so much more information, it factors into their decision-making. But I also think that it relates to the market. If students have a lot of opportunity, it may be one of the factors they look at to help them make a judgment about whether one organization is a better fit for them than the other. I think students have always been concerned about it, but I think now they just have much more information for which to make an informed choice.

COSSACK: Let's see if we can be a little more specific. For example, what are the kinds of things students are concerned about? I mean, what would be the kinds of clients? And let's talk not so much about criminal, but since we're talking about civil. I'll give you example, and see if I'm right, obviously, tobacco is not high on the list right now. Lot of lawsuits against tobacco. Suppose there is a law firm that represent tobacco or one of the corporations, would be that something students may be interested in?

MCGRATH: I think that's definitely something that students would be interested in. And for some, it may make -- it may affect their decision to go to that employer. For others, it may just be a situation where they want to make clear to the firm that that's something they don't want to work on. So the level that it bothers people, I think, really varies across the board.

COSSACK: Jerry Lefcourt, what do you think about this, about young law students now standing up and saying, you know, not only do I want to know how much I -- the only questions you and I ever asked, how much are we going to make, and how hard do we got to work. But the other question now, saying exactly who am I doing it for?

LEFCOURT: I think that it's a good thing, I think it's important for people to believe in what they're doing. I mean, they can't really be effective, I think, unless they have some sympathy with the clients they're going to be representing. And if you are a young student -- it's always true. I went to work as a public defender because I wanted to do that, that's something I carried about. It wasn't only about money, and a matter of fact, it was so little money it was ridiculous.

So I think it's a good thing that, you know, people can make choices and then could feel good about what they're doing and fight harder for their clients because they may believe them or like them. And I think that's an important part of being an effective lawyer.

When I was representing the Black Panthers I was totally committed to them. And I really was -- you know, I couldn't sleep nights because I worried that I wasn't doing the best I could or there was something else I could think of doing that I wasn't doing. I think that's a good thing in the clients' interest.

COSSACK: You know, let's take a break.

When we come back, let's discuss a little bit more about what happens if you're not totally committed to your client but you still have to go ahead and defend that person, and whether you should.

Stay with us.


COSSACK: We're back.

And we've been discussing when lawyers, either civil or criminal, should say no to the representation of clients because they personally just do not agree with what these clients have either done or are accused of doing or are espousing of doing.

Monroe, let me -- I'm supposed to be the questioner on the show, but let me for once jump in and tell you what I think. I am of a school that believes that lawyers really don't have much choice, that my door was open pretty much without exception to whoever came in and wanted to retain me. And let me also say that I represented from time to time people that I absolutely abhorred and disliked and went through great internal conflicts about.

But I kind of felt that was my job. And that I felt that once I start make value decisions, everybody makes value decisions, and there's may not be as good as mine. So that's when I felt that my consistency was necessary.

FREEDMAN: Well, I can't agree with you, Roger, that because you're make moral decisions, other people may be making moral decisions that are bad, therefore, you shouldn't make moral decisions. I don't think it's -- it follows, and I don't think it's a good attitude.

I'm not condemning what you did, it's a common thing in the practice, but a rule has been pointed to that says that lawyers should not be held accountable for the political or social views of their clients or what their clients have done. There is such a rule, whatever it means to call that a rule. There is also a rule that says that a lawyer is free to turn down any client he or she chooses to turn down. LEFCOURT: Roger, you know, one of the problems with what you said was, you know, along comes an Aryan group that believe in white supremacy...

COSSACK: That's right.

LEFCOURT: ... and, you know, you're duty bound to try to help them achieve objectives. And if one of their objectives is to get their politics into the public arena forcefully and clearly, are you going to be in a position to be able to do that?

COSSACK: Jerry, let me just say, this is -- obviously, this was a very, very tough, tough time of my life when I practiced law and believed that, because from time to time I would have people come into my office who I abhorred. And the question I kept having to ask myself was, you know: What is my obligation here? Is my obligation to defend the constitution? The constitution says free speech, it says representation, it says Sixth Amendment. And what kind of obligation do I have to go forward and do the best I can? And I will tell you, thank goodness not very often, but from time to time I found myself in situations where I hated the situation I was in, but I felt an obligation to have to go forward. Nothing as quite as horrible...


LEFCOURT: You are entitled to sympathetic counsel, somebody who will try to achieve their objectives, even if they don't quite agree with them, who don't have a problem with helping them achieve objectives. And you know, you're not the person in that situation, and really, in effect, you're not providing them with the kind of zeal to their cause that they're seeking. And I don't think that you would be appropriate in those circumstances.

COSSACK: And I think that's the best criticism, and I think that's something for another show someday. The question is whether or not I was able to or anyone would be able to under the circumstances I described to do -- give the kind of representation that was necessary. I like to think that I did, because I was so concerned about it. But it's -- I'm afraid it's time for another day because that's all the time we have for today.

Thanks to our guests. Thank you for watching.

Join us again next time for another edition of "BURDEN OF PROOF."

we'll see you then.



4:30pm ET, 4/16

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