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The news of Republican presidential candidate Fred Thompson’s involvement in the legal representation of two Libyans charged in the Pan Am 103 bombing, which killed 270 people, is not about a lawyer’s ethical choice to defend an unpopular client. That issue has been around for centuries, from John Adams’ defense of British soldiers charged with killing American colonists during the Boston Massacre, to Clarence Darrow’s defense of “thrill-killers” Leopold and Loeb, to Cravath, Swaine & Moore’s defense of Credit Suisse bank’s alleged laundering of plundered Nazi gold. Thompson justifies his brief personal involvement � his law firm, Arent Fox Kintner Plotkin & Kahn, billed close to $1 million for its work on the Libyan case � on the truism that every client deserves competent and professional representation. And of course he’s right. It’s a principle of democracy that even the American Bar Association sort of endorses in its Model Rule 1.2(b), which states 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.” The problem is not that Thompson behaved unethically in lending his expertise in the defense of morally repugnant people. Nor is the issue whether an attorney has an ethical obligation to represent any particular client, or may pick and choose which clients to represent. Attorneys plainly have the discretion to make those choices. And Thompson made just such a choice. Moreover, as a presidential candidate on the campaign trail, Thompson justified his representation by arguing that he and his partners, all upstanding members of the bar, were somehow keeping faith with great constitutional principles that all defendants, no matter how despicable, have the right to legal representation. He even suggested that if he and his firm did not step up to the plate, no one would have � meaning, these alleged terrorists would have been denied their constitutionally guaranteed right to counsel. The real question is whether Thompson and his partners had any affirmative obligation to represent the terrorists, and whether the public has a right to consider that choice of representation � and subsequent justification � in evaluating Thompson’s character, judgment and fitness to be president. Is Thompson correct that he and his firm had an ethical obligation to represent the terrorists? When examined closely, Thompson’s argument appears to convert a truism into a canard. Indeed, it is inconceivable that effective representation of the terrorists was not available if Thompson’s law firm had declined the invitation. To be sure, one can make a case that there may be a moral obligation to take on the representation of an unpopular client when there is essentially no other competent lawyer willing to do so, or when a court has assigned an attorney to represent an accused. But Thompson’s situation is hardly comparable. Consider, by way of contrast, the situation faced by our second president, John Adams, a founding father of the American Revolution. When, in 1770, before the Revolution, eight British soldiers were charged with killing five civilians during the Boston Massacre, the enemy soldiers desperately claimed that they needed Adams to represent them since they were unable to find any other qualified lawyer willing to stand up for them in Boston, a tinderbox of the oncoming war. Adams plainly recognized the impact the representation might have on his political career � in fact, all of the accused were later acquitted of murder and only two were convicted of manslaughter � but took on the case anyway, for nary a fee, as have countless lawyers since. Why shouldn’t Thompson’s involvement in the “Pan Am” case be considered by the voting public? Why shouldn’t the public have a right to consider Thompson’s choice of clients if it wants to, as well as his somewhat specious justification, just as much as the public might properly consider a candidate’s multiple marriages, or whether a candidate has an unduly expensively groomed head of hair? The sad reality that inescapably emerges from this story is the skewed system of legal justice whereby indigent defendants often lack competent representation while the wealthy have the best representation that money can buy. As well, there is the ethical hypocrisy of some lawyers attempting to rationalize their representation of the powerful elites by reference to high-sounding moral and constitutional principles. As long as the attorney wasn’t appointed by a judge, or his shingle is not posted in a one-horse town, a lawyer has complete discretion to accept or refuse any representation. And if he has accepted representation of repugnant clients while a lawyer, if he later runs for office, the public clearly has a right to consider whether he was motivated by greed or fame, or was simply carrying out what he saw as his moral and constitutional responsibilities. Joel Cohen is a partner at New York’s Stroock & Stroock & Lavan. Bennett L. Gershman is a professor at Pace Law School and the author of Trial Error and Misconduct (Lexis Law Publishing 1997). Both are former prosecutors.

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