Ethics

Critics of Liz Cheney's silly campaign have emphasized that lawyers should not be criticized for representing unpopular clients.  For example, ABA President Carolyn Lamm cites ABA Model Rule of Professional Conduct 1.2(b), which states that a "lawyer?s representation of a client does not constitute an endorsement of the client?s political, economic, social or moral views or activities.?

In my view, the issue is a bit more complicated.  Although it is certainly true that a lawyer's representation of a client does not -- and should not -- be considered an endorsement of the client's views or behavior, I don't think we can say that a lawyer's client selection decisions are completely devoid of value judgments, particularly in the pro bono context.  The problem with Liz Cheney's ads is not that they make value judgments about the so-called "al-Qaeda 7;" it's that they make the wrong value judgments. 

We should explicitly acknowledge and embrace the idea that lawyers who represent unpopular clients are endorsing a particular set of values.  Those values happen to include (among others) safeguarding foundational procedural protections, the need for quality representation in an adversarial system, and ensuring that the government pursues its important work within the bounds of the law.  Lawyers who endorse those values should be praised, not criticized.  In fact, those lawyers are ideally suited to work in a government department that is supposed to be committed to the cause of justice. 

Liz Cheney, therefore, is right about one thing: the work of the "al-Qaeda 7" lawyers does reflect their value judgments.  By criticizing those lawyers, however, Liz Cheney is really criticizing the values that those lawyers embraced.  And by criticizing those values, which are so foundational to America's system of justice, Liz Cheney (ironically) is the one who appears to be endorsing anti-American ideals.