Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Though the Judge Advocate General’s Corps is back on most law school campuses for this fall’s recruiting season, the controversy over military recruiting has just entered a new, and potentially more bitter, phase. A group of law schools, joined by a liberal association of law professors, filed suit last Friday in New Jersey federal court challenging the constitutionality of the Solomon Amendment, a 1996 federal law that threatens to cut off funding to universities that bar the military from on-campus recruiting. The time is ripe to consider a new solution to the recruitment controversy, one that can be embraced by lawyers of all ideological persuasions. A few elite law schools began barring the JAG Corps from recruitment in the late 1980s because of the military’s discrimination against homosexuals. The ban was adopted by most schools in the early 1990s, prompted by the Clinton administration’s much-publicized “Don’t Ask, Don’t Tell” policy. In 1996, the Connecticut Supreme Court even upheld an injunction that barred public law schools from opening their doors to military recruiters. Over the past few years, however, many schools ended the ban because of concerns that the Pentagon would begin enforcing the dormant Solomon Amendment. Nonetheless, institutions that formally bowed to the law continue to resist military recruitment in other ways, with professors and students picketing or holding teach-ins during interview sessions, and now with federal litigation. Law schools seem doomed to an annual ritual of campus protests and court battles against the government. SHARED VALUES There is room for neutral principles to resolve the recruitment debate in a way that would satisfy both sides — without sacrificing the nondiscrimination principle. The debate over military recruiting at law schools looks like this: One side argues that allowing recruiting makes schools complicit in bigotry and invidious discrimination. The other camp argues that banning recruiting is unpatriotic, an instance of law schools biting the gauntlet that defends them. Ironically, both sides have ignored a source of common ground: the shared values of the legal profession. One of the most important ethical values of lawyers is that everyone has a right to qualified legal counsel. Indeed, the profession prides itself on ensuring representation to all parties, no matter how foul their crimes or how strange their views. An important corollary of this principle, codified in Rule 1.2(b) of the American Bar Association’s Model Rules of Professional Conduct, is 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.” This is what separates law from politics. This also allows lawyers to view themselves as professional officers of the court, serving the legal system itself, rather than as mere shills and mouthpieces for their clients. These principles have a long history in the profession and are enshrined in the leading statements of lawyers’ ethical responsibilities. As the ABA’s Model Rules puts it, “legal representation should not be denied to people . . . whose cause is controversial or the subject of popular disapproval.” Similarly, the older Model Code of Professional Responsibility (still used in some states) provides that “regardless of his personal feelings, a lawyer should not decline representation because a client or a cause is unpopular or community reaction is adverse.” Moreover, there is a constitutional guarantee to counsel in criminal cases. This right could hardly be realized if attorneys collectively turned their backs on repugnant clients. Thus it is up to the profession — and in the first instance, the law schools — to inculcate prospective attorneys with the attitudes that would allow them to defend odious and unpopular clients. THE ABANDONED CLIENT Keeping the military off campuses because of its policies contradicts the doctrine of representation for all. To be sure, individual lawyers are not obligated to take clients they disagree with. The duty of representation lies on the profession generally. But schools’ resistance to military recruiting, officially encouraged by the American Association of Law Schools, represents an organized, collective abandonment of a particular client. When the military comes to campus, it is looking to hire lawyers, not to solicit endorsement of its policies. Thus on-campus recruitment falls clearly within the right-to-representation principle. The military’s discrimination against homosexuals may be odious, but it has at least a colorable constitutional basis. And if lawyers stand for anything, it is that there is no disgrace in advocating nonfrivolous constitutional arguments. Indeed, these arguments deserve to be made, and by the best possible lawyers. Law schools have a duty to instill these ethical principles, not to hold themselves above them, as the professors’ suit does. It challenges the Solomon Amendment on free speech grounds, arguing that the amendment prevents schools from “decid[ing] what lessons to teach their students,” according to a statement by the plaintiffs. Whatever the constitutional merits of the argument, law schools should not feel free to “decide” to teach “lessons” congruent with their political views but at odds with the profession’s notions of duty. Teachers can only confuse students by not practicing what they preach. Worse, the schools might make students think that perhaps everything they were taught in their legal ethics class should be taken with a grain of salt. Schools that have only reluctantly allowed military recruitment because of the Solomon Amendment imperil the ethical principle in other ways as well. For example, the administration at Chicago-Kent College of Law has placed signs expressing its disapproval of the military’s policies in front of interview rooms, according to The Boston Globe. Lawyers should set aside ideological considerations; by insisting on them, the schools continue to obscure the ethical principle. Can picketing interview rooms be anything other than a creation of the adverse “community reaction” that the Model Code says should not dissuade a lawyer from representation? By parading “popular disapproval,” the picketers imply that students should in fact buckle to it, despite what the rules of professional conduct state. Ironically, by neglecting the profession’s core principles, law schools disserve gay servicemen, the very people they wish to help. When the military seeks to discharge a soldier for homosexual activity, it puts him before a court-martial. The prosecutor is a JAG officer — but so is the gay soldier’s defense lawyer. Thus schools that chase off military recruiters — and these are disproportionately elite schools — prevent gay soldiers from having access to the best possible lawyers for their defense. These gay servicemen are the “collateral damage” or “friendly fire” victims of law school resistance to military recruitment. Beyond that, barring military recruitment keeps the students from representing any soldier accused of anything. COMING TOGETHER America’s increased respect for the military since Sept. 11, 2001, may help law schools finally see the military recruitment issue through the lens of professional ethics and, thus, realize that the current litigation is ill-advised. The ABA has recently called for civilian attorneys to provide legal services for the military on a pro bono basis. The ABA wants lawyers to volunteer their time helping soldiers with credit, estate, and other legal problems that could arise from an overseas deployment or a reserve call-up. In other words, the ABA itself is recruiting for the military, showing that the principle of the right to counsel trumps policy disagreements. It also hints at the broader costs of keeping young lawyers away from the JAG Corps. As the military’s role in society becomes more prominent due to the war on terror, the denial-of-counsel effects of opposition to recruiting can only become more severe. Eugene Kontorovich is an assistant professor at George Mason University School of Law, in Arlington, Va.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.