Thank you for sharing!

Your article was successfully shared with the contacts you provided.
If there were an encyclopedia of North Dakota politics, the entry for “gadfly” would probably feature a photograph of Martin Wishnatsky. A New Jersey native who holds a Ph.D. in political science from Harvard, Wishnatsky arrived in North Dakota in 1991 on a mission to block the entrance of an abortion clinic. He’s been in the state ever since and has become a high-profile anti-abortion activist. Wishnatsky’s greatest success, however, has come in the context of an unusual First Amendment suit against a legal clinic at the University of North Dakota School of Law. Wishnatsky claimed he had been unfairly rejected as a client, and surprisingly, the U.S. Court of Appeals for the 8th Circuit backed him up. In January 2006, the court ruled that Wishnatsky had stated a sufficient cause of action for viewpoint discrimination — and thereby hangs a tale. HAIL, THEMIS In 2003 the legal clinic’s Civil Rights Project represented the plaintiffs in a challenge to a Ten Commandments monument outside the city hall in Fargo, N.D. The case was tremendously controversial, drawing the wrath of North Dakota legislators upset that the litigation was being financed by a taxpayer-supported clinic. Wishnatsky expressed his own outrage in a letter to the Grand Forks Herald, in which he charged professor Laura Rovner, director of the Civil Rights Project, with engaging in “ideological warfare.” Rovner was not deterred. But neither was Wishnatsky. While the Ten Commandments case was pending (it was dismissed last year, leaving the monument intact), he sent Rovner a letter seeking help in developing a lawsuit against Grand Forks County “for having a statue of the Greek goddess Themis on top of the Grand Forks County Courthouse.” Themis is the toga-clad woman holding the scales of justice who adorns countless courthouses. The image does not evoke religious establishment for most people, but Wishnatsky saw it differently. In language that might have been intended to satirize an American Civil Liberties Union brief, he claimed that “as a Christian, I find such representations of pagan religious figures in public places very disturbing,” and indeed, “I feel like a second-class citizen when subject to such governmental displays.” He requested the clinic’s assistance “on the same basis” as that granted to the Ten Commandments plaintiffs. No one could have blamed Rovner for questioning Wishnatsky’s motives. He also sent the letter to the local press and then published an op-ed piece in which he suggested Rovner was “abusing her position . . . to further her own political agenda.” TAKING THE BAIT Unfortunately for Rovner, she took the bait. She wrote Wishnatsky that due to limited resources, the Civil Rights Project was “unable to accept any new cases at this time.” That probably would have ended the ironic pas de deux, but Rovner went further. Even if they had sufficient resources, she continued, “our independent professional judgment is that your persistent and antagonistic actions . . . would adversely affect our ability to establish an effective attorney-client relationship with you.” Thus, she concluded, “our ethical obligations . . . prohibit us” from accepting the case. As an inveterate pro se litigator, Wishnatsky took that as an invitation to sue. In early 2004 he filed a federal case alleging viewpoint discrimination in violation of the First Amendment. He alleged that Rovner’s stated reasons were pretexts and that she actually had spurned him because of his public criticism of the clinic and the Ten Commandments case. In fairly short order, the U.S. District Court for North Dakota granted the defense motion for judgment on the pleadings. At that point, Wishnatsky enlisted the American Center for Law and Justice — a D.C.-based nonprofit law firm founded by religious broadcaster Pat Robertson — to appeal the case to the 8th Circuit. Wishnatsky’s appellate counsel raised a single, elegant point: “The government may not categorically refuse services to a person just because that person dared publicly to criticize the governmental provider.” Rovner and the legal clinic, represented by the North Dakota solicitor general, briefed the case quite differently. The dispute was about academic freedom and legal ethics, they argued. Law school clinicians must be free to select cases for educational reasons, and the choice of client “plays an essential role in whether the clinic is able to properly and effectively educate law students.” Thus, it was reasonable (and lawful) to reject a disruptive client because his antagonistic speech hurt the clinic’s ability to “effectively achieve its goals.” Indeed, Rovner maintained that she was ethically required to decline Wishnatsky’s request because his “demeaning and attacking” statements destroyed the trust essential to an attorney-client relationship. The 8th Circuit ruled in Wishnatsky’s favor, reinstating his suit and remanding it to the District Court. According to the appellate court, the clinic’s argument amounted to a claim “that it may exclude persons from the program solely on the basis of their viewpoint.” Taken to its logical conclusion, the court observed, that position would allow the publicly funded program to “accept as clients only persons who belong to one political party.” Having read the briefs, however, I think that unfairly characterizes the clinic’s defense, which was based on the potential for disruption rather than on Wishnatsky’s viewpoint. But the court was on firmer ground when it held that mere fear of disruption could not support a rule that permits discrimination “on the basis of viewpoint” in running a clinical legal program. For that reason, Wishnatsky had to be given a chance to prove he had been turned away for speech-related reasons. (As of this writing, the case remains pending in the trial court, and Rovner has relocated to the University of Denver.) The 8th Circuit also rejected Rovner’s broader claim that she was ethically prohibited from representing a client who had attacked her in the press. Rovner should have considered whether “a fresh start, common purpose, and agreement to bury the hatchet might overcome previous discord,” the court opined. That was a judicial fantasy, indulging the unrealistic assumption that Wishnatsky was sincerely interested in challenging the Themis statue. Yes, the motion for judgment on the pleadings required the court to “accept as true” all of the plaintiff’s allegations, but there still ought to have been some reality check. It was painfully obvious that Wishnatsky was trying to make a political point and that no amount of “burying the hatchet” would satisfy him. He acknowledged as much in a phone interview, when I asked if he was truly offended by the statue. “If [the Ten Commandments plaintiffs] can be offended, then I can be offended,” he said, adding that their case was “conjured up for political purposes,” and “in all equity, they should make up a case for me, too.” A MISTAKE There was no reason for Rovner to allow the clinical program to be manipulated, especially to the detriment of her existing clients. But I still think she made a mistake — and not just a tactical error — by claiming that Wishnatsky’s criticism created an ethical rift. The legal profession is at its best when we represent unpopular or distasteful clients, including those who have bitterly insulted us. It is true that deep animosity can fatally undermine the attorney-client relationship, but lawyers should be extremely hesitant to pull that trigger. In fact, we should do our utmost to overcome such barriers in the case of people with whom we disagree. The question wasn’t whether Wishnatsky was antagonistic, but whether he had a viable case. Academic freedom is an essential value in clinical legal education, but there is an important distinction between counseling a potential client and accepting a case. It would be ridiculous to require a publicly funded clinic to represent all comers, but it is not unreasonable to expect every hopeful to get an objective review. You don’t have to represent everyone who walks through the door, but you do have to keep the door open. Rovner could have avoided the whole contretemps simply by agreeing to evaluate Wishnatsky’s case on the merits. Then she could have told her students that First Amendment claims deserve to be taken seriously, even if they seem like gimmicks. After all, improbable causes of action can sometimes succeed. A few hours of student research would have revealed that there is no significant contemporary cult of Themis and certainly none that has any likely influence over the Grand Forks County government. That would have been sufficient to reject Wishnatsky’s establishment clause claim while upholding the principle of access to counsel. In fact, Rovner could have used the experience to show her students the difference between a religious display and a work of art, and, more important, between a legitimate case and a frivolous one. That would have been a great teachable moment — for everybody.
Steven Lubet is a professor of law at Northwestern University. This commentary first appeared in The American Lawyer , an ALM publication.

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.