When Government Speaks about Law Firm Patriotism

A high-ranking Pentagon official recently predicted that large corporations may withdraw business from law firms that represent Guantanamo detainees. According to an NYT article, “the senior Pentagon official in charge of military detainees suspected of terrorism said . . .

‘I think, quite honestly, when corporate C.E.O.’s see that those firms are representing the very terrorists who hit their bottom line back in 2001, those C.E.O.’s are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.’

(The Pentagon has since disavowed these comments.)

Stimson has come under withering criticism from legal ethics experts like Stephen Gillers, who believes that to “have a senior government official suggesting that representing these people somehow compromises American interests . . . is prejudicial to the administration of justice.” This comment reminds me of the Yudof classic When Government Speaks. On one level, bureaucrats don’t check all of their First Amendment rights at the door when they begin employment (though the Hatch Act does restrict their political activity). Yet it strikes me as bizarre to “want to watch” corporations corrode the quality of representation of detainees by withdrawing support from the firms that provide it. Certainly such activity would raise legal questions if the government itself withdrew business from the firms. But perhaps the idea is that the official, speaking in a personal capacity, has a right to advocate or anticipate courses of conduct by private parties that would advance his objectives.

Certainly many moves by the administration in 2006 may raise constitutional questions. I think this statement may be particularly worrisome–as a politicization of the legal process designed to deter good advocates from giving us the best possible “clash of views” before the courts that will answer those questions.

On the other hand, perhaps firms will ultimately wear this opprobrium as a badge of honor. My old firm, A&P, notes that its “tradition of pro bono work dates to the early days of the firm, when it stood virtually alone in representing the victims of McCarthyism.” Of course, some would argue that if firms hope to gain business by bragging about a pro bono record, they have to “take the heat” when they are on the unpopular side of an issue. On the other hand, I think that sort of logic more properly applies to civil disobedience than mere representation of the accused.

More at: AboveTheLaw, WSJ Law Blog, Prawfs, Volokh, TPM.

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