The "Non-Endorsement Rule" and Military Justice

LawProf twitter is currently debating the propriety of a recent announcement by The Lincoln Project to shame Jones Day for representing the PA GOP in its election related litigation. In my view this is wrong, and further erodes the ever-weakening "non-endorsement" principle of legal representation: "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." ABA Model Rule of Prof. Conduct 1.2. The principle exists for obvious reasons, and takes on an especially important character in the practice of criminal law. If not for the non-endorsement principle, lawyers representing clearly guilty criminal defendants could be said to be "endorsing" the criminal conduct, with the result that no lawyers would agree to take on such a representation. A society that holds that legal representation in a criminal trial is a crucial bulwark against the oppressive use of government power, then, would accept the non-endorsement principle (at least for criminal cases). One of the unique and valuable aspects of the military justice bar is that it seems to take this seriously--lawyers are not "judged" or "shamed" for their client selection. Perhaps this is because uniformed lawyers are assigned/detailed to one side or the other, and they are often detailed to the opposite side at a later point. JAG resumes often read like this, and it is a good thing.

In the civilian criminal law bar--especially in large cities--public defender and district attorney offices have morphed into armed camps, each erecting professional walls preventing any flow of personnel either way. Unfortunately, many professors must now advise even 1L students to choose all their internships carefully so as not to signal disloyalty to the "side" they hope to work for in the end. This is not good for our profession.

N.B.

The LawProf twitter debate on this issue led to the surfacing of someone who once ran afoul of the non-endorsement rule in the context of Guantanamo detainees: Cully Stimson at the Heritage Foundation. He noted that he eventually signed on to a 2010 Brookings Institute letter reaffirming the principle. 

Brenner Fissell

EIC