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Charles “Cully” Stimson, deputy assistant secretary of defense for detainee affairs, ignited a firestorm when he condemned some of the nation’s most prestigious law firms for representing detainees at Guant�namo Bay. Stimson urged the firms’ corporate clients to take their business elsewhere. Pundits from every point on the political spectrum condemned Stimson for questioning the obligation of attorneys to represent unpopular clients, and even the attorney general pronounced himself pleased that the firms were representing the detainees. In the intense heat of the backdraft, Stimson apologized — and rightly so. But that should not end the story. Stimson crossed the line in questioning the propriety of law firms defending terrorism suspects pro bono, but he also raised a legitimate question, albeit clumsily. When are paying clients entitled to object to the pro bono activities of their law firms? Answering that question produces some surprises. HE SAID WHAT! Cully Stimson probably never suspected that an interview he was giving on Federal News Radio, a Washington, D.C.-based station aimed at government employees, would wind up the subject of national newspaper editorials, law-school pronouncements, and Senate statements. When asked about a Freedom of Information Act request for information on the identity of law firms representing Guant�namo Bay detainees, Stimson rattled off the names of some major firms and called the list “shocking.” Then he said that the corporate clients of those firms should “make those law firms choose between representing terrorists or representing reputable firms.” Condemnation was immediate. The Washington Post attacked him for failing to understand “the core principles of the American way.” The New York Times called his comments “appalling.” More than 130 law school deans signed a letter “deploring” Stimson’s views. And the criticism was by no means limited to the usual liberal suspects. Charles Fried, solicitor general in the Reagan administration, wrote that Stimson “showed ignorance and malice” and that the named firms, by undertaking the defense of unpopular clients, had “acted in the best traditions of the profession.” Sen. Arlen Specter (R-Pa.) condemned Stimson on the floor of the Senate. The Bush administration quickly distanced itself from the beleaguered official. And Attorney General Alberto Gonzales praised the law firms for taking the detainee cases. Stimson issued a public apology in the form of a letter to the Post. That seemed to end the story for everyone other than the Times. “Apology Not Accepted,” the Gray Lady sniffed in an editorial. In this case, the conventional wisdom actually was wise. Stimson was absolutely wrong. As a former criminal defense attorney for the Navy with a record of representing unpopular clients, he should have known better than to assail lawyers for the alleged actions of their clients. Rule 1.2(b) of the American Bar Association’s Model Rules of Professional Conduct states: “A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” The American bar’s tradition of representing the reviled goes back at least as far as John Adams’ courageous defense of the British soldiers indicted for their role in the Boston Massacre. But Stimson also raised another issue, one that has received less attention. When, if ever, is it appropriate for paying clients to object to the pro bono activities of their lawyers? Attorneys may bristle at the thought of anyone telling them to whom they may donate their time. But if lawyers may follow their conscience by taking on unpopular clients, why shouldn’t clients be free to follow theirs by moving their billable work elsewhere? LEANING LEFT The issue is more complex than stereotypes of corporate clients and pro bono work might suggest. To listen to Stimson and his critics, one might expect this to be a matter of conservative corporations and liberal lawyers. In fact, corporate law departments tend to be as liberal — if not more so — than their outside law firms. On the issue of providing a defense for the detainees, for example, the supposedly conservative clients rallied around their supposedly liberal lawyers. The firms named by Stimson were praised by their corporate clients when news of their pro bono work was publicized. No firm has lost a corporate client for representing the Guant�namo detainees. Corporate clients also tend to be more liberal than the general public on many issues. In the last decade, there have been three state referendums on racial preferences. In California, Michigan, and Washington state, the public voted, by decisive majorities, to ban such programs in public education and contracting. But in each state, the major corporations lined up in defense of the programs. Major corporations not only support such programs in the public sector; they often insist that their law firms adopt and implement such programs, and they threaten to move their business away from firms that do not. More than 500 corporations have signed a statement, originally drafted by the general counsel of BellSouth, entitled “ Diversity in the Workplace — Statement of Principle.” It says, “In making our respective decisions concerning the selection of outside counsel, we will give significant weight to a firm’s commitment and progress in this area.” In March 2005, the general counsel of Del Monte, Gap, and Visa International signed a “Plan of Action on Diversity” in which they went beyond requiring that their law firms adopt and implement diversity programs. These companies announced that they would “monitor . . . the allocation of billing or origination credit for our matters to women and minority partners.” It would seem that Cully Stimson was right about the inclination of corporate clients to monitor the extracurricular activities of their law firms and to leave when they object. But he may have mistaken their political orientation. Corporate clients are often to the left of their law firms. They are as likely to leave over disagreements about diversity as they are over disagreements about habeas corpus. That corporate clients do not fit the stereotype is healthy. It makes it easier to approach the issue objectively. If clients are as likely to abandon their attorneys for being too far right as too far left, then no one can predict whose ox will be gored in answering the question of when corporate clients should legitimately object to the pro bono activities of their law firms. VALUES AT WORK Clients would seem to have a legitimate right to leave their lawyers over outside activities in at least three situations. First, even when there is no conflict of interest in the legal sense, lawyers should not expect corporate clients to remain loyal when they undertake pro bono work that runs counter to their clients’ vital business interests. Pro bono legal service is not free. Someone must pay for the office space, computers, Lexis accounts, and pens and paper used to conduct the work. Because most firms give credit for pro bono time, the lawyers handling the work are actually paid, to varying degrees, from general firm revenue. The money can come only from one source: the paying clients. This means that those clients pay, to some extent, for the time their lawyers devote to pro bono work. Corporations should not be expected to subsidize legal activity that harms their vital interests. If a law firm accepts tax work from a handgun manufacturer, it has no right to expect that client to remain loyal if the firm’s lawyers donate their time to draft a referendum banning the sale of such weapons. Second, although corporate clients should not object to their attorneys advocating constitutional rights for unpopular suspects, they may properly object if their attorneys are selective in choosing the clients for whom they will advocate those rights. Stimson was wrong to encourage corporate clients to walk away from their law firms because those firms were representing terrorism suspects pro bono. But what if those same firms had a strict rule against representing anyone suspected of firebombing an abortion clinic? There might be valid reasons for such selectivity. There might be no shortage of other lawyers willing to volunteer to defend the abortion clinic suspects. There might be different areas of forensic expertise involved. But what if the real reason for advocating the constitutional rights of one class of suspects but not the other lay in the law firm’s value judgment about the two suspected activities? A firm is clearly within its rights to make such judgments. But if it does, it must respect the right of its paying clients to exercise similar selectivity. Third, when law firms are selective in choosing which legal rights they will advocate, corporate clients should also be entitled to object and even leave. The firms criticized by Stimson were advocating the due-process rights of detainees under the Fifth Amendment. What if those same firms routinely rejected eminent domain cases under the Fifth Amendment? Again there could be legitimate reasons involving the availability of other counsel and the particular expertise needed for takings cases. But if the ultimate reason for the selectivity was the law firm’s value judgment that some constitutional rights are more important than others, the corporate client would seem fully entitled to choose a different law firm with a different set of values. These three situations cover a lot of territory and establish a wide domain in which paying clients might legitimately object to the pro bono activities of their law firms. This seems only fair. For an objection to pro bono activities is not censorship. It is instead the exercise by the client of the same kind of moral judgment that the law firm makes when it selects among competing pro bono projects. Clients should enjoy no less leeway in making such judgments than their lawyers do. Where clients should enjoy less leeway — in fact, no leeway — is when they challenge the obligation of lawyers to represent unpopular clients, or when they associate the activities of the accused with the lawyers representing them. Stimson’s comments encouraging them to do just that brought him universal condemnation. But he also raised, perhaps inadvertently, legitimate issues about the relationship between lawyers and clients. For that, at least, he deserves thanks from both.
Lawrence J. Siskind of San Francisco’s Harvey Siskind specializes in intellectual property law.

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