Charles D. “Cully” Stimson, the deputy assistant secretary of defense for detainee affairs, caused quite a stir last week when he told a radio interviewer that maybe corporate clients would be interested in the fact that some of the law firms they retain have been doing pro bono work on behalf of detainees at Guantanamo Bay—the hint being that maybe corporations would want to take their legal work elsewhere. (If you missed this flap, just do a search on “Charles Stimson pro bono” or similar terms. There’s plenty out there.) Not surprisingly, it took less than a week for Mr. Stimson to take himself to the woodshed, writing to the Washington Post today to pledge his allegiance to the “foundational principle of our legal system . . . that the system works best when both sides are represented by competent legal counsel.” (For a related Post story, see here.)
I don’t see anything particularly wrong with what Stimson said last week, except that it was he who said it. A public official in his position should not sound off in this way about the causes to which lawyers choose to attach themselves. Think of it as a political intrusion into the marketplace for legal work. To that extent, the reaction of 130+ law school deans to Stimson’s remarks is partially justified, though just a tad overwrought.
But what a public official like Stimson shouldn’t say, others can—so I will. Competent legal counsel ought to be available to anyone who needs it, but lawyers as individuals or firms can’t represent everyone and anyone, and are not ethically obliged to. They have to choose. Politically driven choices, attachments to causes of various kinds, are perfectly natural and acceptable. But there’s a free market for legal work, and current and potential clients are perfectly free to choose their legal counsel with their attorney’s pattern of pro bono work in mind (though it will be just one factor among many, surely). If I needed and could afford high-powered representation, it would be perfectly legitimate for me to prefer a firm that has done pro bono amicus work against the habeas corpus claims of Gitmo detainees (as I know one D.C. firm has done), over another firm whose lawyers have represented those detainees and attempted to ensnare the prosecution of a war in the tangles of civilian judicial process.
After all, how is this different from patronizing or shunning other businesses based on, say, the TV shows or publications where they advertise?