Two-hundred and fifty years ago, a young lawyer named John Adams risked professional and economic ruin when he defended British soldiers who were accused of firing into a crowd of protesters, killing five of them, in the Boston Massacre. Adams’ representation saved all nine soldiers from murder convictions and execution.
Today, both conservatives and progressives are disregarding Adams’ example and organizing campaigns to intimidate law firms who work for the Trump election effort. These efforts ignore lawyers’ role in our legal system as advocates for clients, including those who espouse unpopular positions, and confuse representation with approval of the clients’ actions or views. Regardless of how one views the Trump lawsuits, bullying the lawyers undermines the fair administration of justice.
The Lincoln Project – a group of Republican Never-Trumpers who campaigned against Trump and other Republican candidates this past election – has been urging lawyers at two firms representing Trump in election challenges (Jones Day and Porter Wright Morris & Arthur) to resign and has been calling on the firms’ clients to change their representation if the firms continue working on the lawsuits. At the other end of the political spectrum, ShutDownDC has organized protests outside offices of Jones Day, Porter Wright and a third firm, King & Spalding, and circulated the names, phone numbers, and email addresses of lawyers at the firms so they can be harassed.
The efforts appear to be succeeding. Late last week, Porter Wright announced it is withdrawing from a lawsuit it filed in federal court in Pennsylvania on behalf of Trump just a few days before, and a Jones Day partner was quoted as saying the firm would refrain from taking on additional election litigation.
Ironically, in 2011, the third firm being pressured, King & Spalding, succumbed to a similar pressure campaign from gay rights groups and withdrew from its representation of the Bipartisan Legal Advisory Group of the U.S. House of Representatives in defense of the Defense of Marriage Act. The withdrawal prompted King & Spalding partner and former U.S. Solicitor General Paul Clement, who was leading the litigation, to resign from the firm and take the case with him to another firm. Clement’s resignation letter stated,
a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. Defending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high. …being on the right or wrong side of history on the merits is a question for the clients. When it comes to the lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism.
Two days later a New York Times editorial concurred with Clement:
We strongly oppose the federal statute known as the Defense of Marriage Act which bans recognizing same-sex marriage. …But the decision of those lawyers, the law firm of King & Spalding, to abandon their clients is deplorable. … it was obliged to stay with its clients, to resist political pressure from the left that it feared would hurt its business.
Today’s intimidation tactics are uncomfortably reminiscent of the McCarthyist, Red Scare tactics of the early 1950s. Lawyers were pressured to not defend people in anti-Communist proceedings and often suffered economically for doing so, losing clients who feared associating with defenders of communists, their jobs, and even their ability to practice law.
The American Bar Association’s Model Rule of Professional Conduct 1.2(b), comment 5, states that, “Legal representation should not be denied to people …whose cause is controversial or the subject of popular disapproval. By the same token, representing a client does not constitute approval of the client’s views or activities.” One need not agree with the validity of the president’s fraud claims or the merits of the lawsuits to realize there is something seriously wrong with trying to intimidate lawyers and obstruct the legal process. It is up to the courts to determine the merits of the legal claims, and courts always have the option of sanctioning attorneys who make frivolous or fraudulent claims.
Despite severe criticism and damage to his home by angry neighbors, Adams went on to become our second president. A few years after the massacre, Adams wrote in his diary that his defense had “procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country.” Regardless of political allegiances, we should all hope that today’s lawyers are as brave and principled.