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Legal blogs have been up in arms about the remarks of Deputy Assistant Secretary of Defense Charles “Cully” Stimson concerning pro bono representation of detainees at Guantanamo Bay. In a Jan. 11 show on Federal News Radio, Stimson spent considerable time criticizing law firms for representing these suspects and encouraging the firms’ clients to lean on them to drop the pro bono cases. He even implied that the representation may be financed by terrorists rather than being part of the firms’ pro bono ethical obligations. Presuming guilt in the same manner that has been standard in the government’s treatment of Guantanamo detainees, Stimson characterized the issue as one of supporting terrorists who hurt a CEO’s bottom line: “I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.” If online tremors from the legal community are any indication, the play this proposal is receiving is almost uniformly negative. The day after the interview, writing at Discourse.net, professor Michael Froomkin of the University of Miami Law School highlighted a New York Times editorial on the subject. He wrote that the elite law firms “representing the victims of torture, humiliation (and a total lack of due process) at Guantanamo . . . deserve credit for it.” He also speculated that, “the first firm to cave on this issue is going to find it awfully hard to recruit elite law students, as they will have demonstrated a serious lack of moral fiber. If you won’t stand up for your most desperate clients, what kind of firm are you?” (See http://www.discourse.net/archives/2007/01/white_house_tries_economic_pressure_on_lawyers_representing_guantanamo_detainees.html.) Froomkin has also posted to his blog a statement from 57 law deans calling on Stimson’s remarks to be repudiated. The deans explain that they teach their students the professional obligation to “ensure that even the most despised and unpopular individuals and groups receive zealous and effective legal representation.” Lawyers representing the unpopular and indigent defendant protect “our shared constitutional principles,” so that “[i]n a free and democratic society, government officials should not encourage intimidation of or retaliation against lawyers who are fulfilling their pro bono obligations.” (See http://www.discourse.net/archives/2007/01/statement_by_law_deans_on_stimson_remarks.html.) Most recently, Froomkin placed online a joint letter to President Bush from the American Association of Jurists, International Association of Democratic Lawyers, National Lawyers Guild and the Society of American Law Teachers, all demanding Stimson’s censure. These organizations noted that Stimson’s thinly veiled threat and implication that pro bono lawyers are terrorists stand in sharp contrast to the remarks of the judge who handled the habeas cases. Judge Joyce Hens Green has stated: “I do want to say we are very grateful for those attorneys who have accepted pro bono appointments. That is a service to the country, a service to the parties. No matter what position you take on this, it is a grand service.” (See http://www.discourse.net/archives/2007/01/stimson_getting_it_from_all_sides_deservedly.html.) Carolyn Elefant of Law.com’s Legal Blog Watch provided a more nuanced take. She agreed with Froomkin that firms would have a concern attracting top students “if they stop representing detainees under pressure from clients,” and agreed that “having decided to represent detainees, law firms are obligated to follow through on their commitment, irrespective of client objections.” However, she could “see nothing reprehensible about [clients] complaining about and potentially dumping a firm that chooses to represent detainees.” Because fees may subsidize a large firm’s pro bono program, Elefant believes “clients have a legitimate gripe when firms handle pro bono matters that clients don’t support.” She concluded that corporations upset about their firm’s other clients could always choose another firm, “[a]nd that’s basically all that Stimson was suggesting that they do.” (See http://legalblogwatch.typepad.com/legal_blog_watch/2007/01/should_law_firm.html.) Blogging at Balkinization, David Luban of Georgetown University Law School explained that this kind of pressure is, indeed, something that large corporations often engage: “Stimson’s suggestion that businesses muscle their law firms into dropping detainee clients is also a time-tested tactic.” Firms may refer to “business conflicts” when talking about “representations they avoid because they would antagonize their bread-and-butter clients, and it’s long been recognized that business conflicts are a major obstacle to pro bono work.” Luban provided examples of where this often occurs, but contrasted the problem of “business conflicts” with “genuine positional conflicts.” In the latter case, the concern is that taking on a new case may damage another client on an issue unrelated to their representation. Whatever the terms, large corporations are well aware of their power to create uncomfortable “business conflicts” for their attorneys and control their extracurricular activities, whatever the context. (See http://balkin.blogspot.com/2007/01/stimsons-attack-on-gitmo-lawyers.html.) Of course, the problem with Stimson’s statement is not that what he is suggesting is beyond the bounds of what a client may do, but that it is beyond the bounds of what a person in his position should suggest. Making a suggestion to dump an unpopular client would not be nearly so problematic if Stimson were just a person with a blog, an editorialist, or even a corporate officer recommending corporate policy. The problem is that Stimson is a lawyer with his own ethical duties; he is a high-ranking government official with responsibilities to the Constitution; and his employer, the Department of Defense, is legally responsible for the very people that he is attempting to deny representation. Further, he is baselessly charging other lawyers as being accessories to the still-unproven alleged crimes of their clients, itself a violation of ethical rules, and recommending interference with the attorney-client relationship, another violation. Regardless of a client’s raw power to coerce a firm into choosing between it and another client, the idea to do that should not be coming from the same government that has asserted, and lost, the argument that detainees do not even have a right to independent counsel. There is also the American bar’s historical respect for attorneys who assist the unpopular client. At the blog TalkLeft, Jeralyn Merritt reprinted some remarks from military law expert Donald G. Rehkoff on the matter. Rehkoff quotes from President John Adams in Key Figures in Public Trials, in which Adams referred to his defense of British soldiers after the Boston Massacre as “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.” On the merits, Merritt noted that while the Pentagon “already is distancing itself from Stimson” by issuing a statement contradicting his views, Stimson “is but one cog in the administration’s wheel of injustice at Guantanamo.” She continues: “Let’s try to keep our eye on the larger issue – that for five years, the Bush administration has kept people imprisoned without a trial and without a reliable basis to believe that the vast majority of them are terrorists. Just as bad, the Bush administration has refused, despite Supreme Court law to the contrary, to allow the detainees to raise challenges in our federal courts. It pushed Congress to pass a law obliterating habeas corpus for the detainees.” (Seehttp://www.talkleft.com/story/2007/1/13/193124/251.) At Fables of the Reconstruction, the host, a Philadelphia lawyer who goes by “Mithras,” condemns Stimson’s sentiments as not just offensive, but “un-American.” He calls for censure from both the bar and the government: “No lawyer should hold the views that Stimson has expressed and not be censured. Absolutely no lawyer like Stimson should have any government position where he can put his opinion into policy. And Charles D. Stimson himself should be immediately removed from his post at the Pentagon.” (See http://mithras.blogs.com/blog/2007/01/charles_stimson.html.) This attorney agrees. LUKE E. DEBEVEC is an attorney at Anderson Kill & Olick in Philadelphia, where his practice is concentrated on insurance recovery, exclusively on behalf of policyholders. His personal blogmay be found at http://blogbrief.blogspot.com.

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