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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 FissellEIC
10 Comments
William Cassara
11/11/2020 04:07:57 pm
Thanks for posting this. Regardless of politics, this action by the Lincoln Project is wrong. In 30 years of criminal defense I have represented some of the worst offenders. I don't "endorse" what they do. I endorse the constitution and the rule of law. Big difference.
Scott
11/11/2020 05:25:00 pm
An important post. I thought this principle was nearly beyond dispute. I heard about the issue with Jones Day and the Lincoln Project earlier today from another source and had a similar reaction.
Lee
11/11/2020 07:21:14 pm
Scott, I couldn't agree more. As a sitting civilian trial judge, the experiences I had as both a prosecutor and defense attorney in the military serve me well in being a fair judge. The judicial nominating committee specifically cited my JAG Corps service as a reason to appoint me. JAG Corps service prepares us well for civilian practice.
Scott
11/12/2020 08:12:01 am
If I remember correctly there was a similar attempt to blacklist a Harvard law professor who was involved in representing Harvey Weinstein.
Poster
11/12/2020 09:16:33 am
Let's not all be so indignent.
Scott
11/12/2020 03:14:17 pm
What do you mean?
Poster
11/12/2020 04:23:33 pm
New trailer for Top Gun Two has a scene:
Poster
11/12/2020 04:33:15 pm
Sorry Scott,
Poster Response
11/14/2020 09:48:54 am
Poster--can you explain what you are referring to in Stellato? Sounds interesting but movie references not helpful or amusing.
Poster
11/14/2020 02:31:59 pm
We get out of it what we put into it. Your comment will be posted after it is approved.
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