CAAFlog
  • Home
  • About
    • CAAFlog 2.0
  • Masthead
  • Contact / Submit Guest Post
  • NIMJ.org

CAAFlog

The "Non-Endorsement Rule" and Military Justice

11/11/2020

10 Comments

 
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

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.

Reply
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.

To your related point about JAGs transitioning between prosecution and defense - I think this is one of the most valuable training tools for any criminal attorney, both in terms of perspective and sharpening one’s skills.

Reply
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.

Reply
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.

Reply
Poster
11/12/2020 09:16:33 am

Let's not all be so indignent.
The reason U.S. v. Stellato happend was that a COJ got religion with private practice.

Reply
Scott
11/12/2020 03:14:17 pm

What do you mean?

Reply
Poster
11/12/2020 04:23:33 pm

New trailer for Top Gun Two has a scene:
Mav: I didn't expect an invitation back.
Adm: They're called orders Mav.

Haven't seen a single bit of the film. But the sentiment is clear. This is about doing what you are told, for your own self interest.

The miliary doesn't have all that parade music without a few dance moves. So the things that haven't been voiced still can influence. No endorsement required.

Poster
11/12/2020 04:33:15 pm

Sorry Scott,
I didn't realize that the comments made it look like I was replying directly to your Weinstein message. It was meant to for the general audience.
No, I completely agree with you.

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.

Reply
Poster
11/14/2020 02:31:59 pm

We get out of it what we put into it.

Reply

Your comment will be posted after it is approved.


Leave a Reply.

    Picture
    Home
    About
    Masthead
    Contact/Submit Post
    CAAFlog 1.0 Archive 


    ​Links

    CAAF
    -Daily Journal
    -Current Term Opinions
    ACCA
    AFCCA
    CGCCA
    NMCCA
    Joint R. App. Pro.
    Global MJ Reform
    LOC Mil. Law Resources

    Archives

    January 2021
    December 2020
    November 2020
    October 2020
    September 2020
    August 2020
    July 2020
    June 2020

The views expressed on this website are expressed in the authors' personal capacities.
Proudly powered by Weebly
  • Home
  • About
    • CAAFlog 2.0
  • Masthead
  • Contact / Submit Guest Post
  • NIMJ.org