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Lawyers should not be punished for merely doing what ethical rules require of them

Michael Hupy is the senior partner at Hupy and Abraham overseeing 11 offices in three states.

Michael Hupy is the senior partner at Hupy and Abraham overseeing 11 offices in three states.

In all the years I have practiced law I have seen many lawyers run for public office and often win. These professionals come from diverse backgrounds spanning practice areas from civil litigation to criminal defense. They practice with one over-arching goal: to zealously represent their clients while adhering to the ethical rules set forth by the ABA and state and local governing bodies. But does that mean that lawyers always agree with the clients they represent, or that the views of an unpopular client are imputed to the attorney working for that client?

The sins and character of the clients whom lawyers represent have no bearing on the status of lawyers as ethical professionals. Quite the opposite; If lawyers were required to turn down unpopular clients or causes there would be a system of justice in this country in which people would be unable to find a lawyer to represent them.

The British soldiers charged with killing Americans during the Boston Massacre were represented by John Adams. Adams was already a leading patriot, and was contemplating running for public office. He agreed to represent the defendants in the interest of ensuring a fair trial. Does anyone think that Adams was in favor of the Boston Massacre?

Every criminal defendant and civil litigant has the right to be represented by a lawyer. The lawyer is not required to endorse an unpopular opinion or an opinion he doesn’t believe in. That is not his job. His job is to zealously advocate for his client.

“An accused’s right to be represented by counsel is a fundamental component of our criminal justice system. Lawyers in criminal cases ‘are necessities, not luxuries.’” United States v. Cronic, 466 U.S. 648, 653 (1984). To suggest that Matt Flynn should have dropped out of the governor’s race because of whom he represented in the past is not only embarrassing for those making the accusations; if it had occurred, it would have set a dangerous precedent for the future of political races.

I believe that it is for political reasons that Scott Walker, whom I support, and one or more Democratic candidates for governor called on candidate Flynn to drop out of the governor’s race because Flynn represented the Catholic Church. On the heels of calling on Flynn to withdraw from the governor’s race, our current governor appointed a former criminal defense lawyer to be a prosecutor. Wait a minute? Isn’t it probable that this former defense lawyer represented alleged murderers, rapists, child molesters and armed robbers who committed crimes just as heinous as the acts that people in the church were alleged to have committed?

Should lawyers assume that disgusting allegations are true and the alleged perpetrator shouldn’t be entitled to legal representation? Should a criminal defense lawyer therefore be disqualified from ever holding public office or a prosecutor be barred from becoming a judge? Should Flynn be required to withdraw from the governor’s race simply because he represented the church?

To allow such pressure to continue is not only dangerous for the future of our democracy; it is in direct conflict with the duty that lawyers swear to uphold.

The ethical rules state that lawyers, although free to choose their clients, have a moral and ethical obligation to take on clients who may be unpopular. In the United States, the ABA Model Rules of Professional Conduct, as well as the ABA Model Code of Professional Responsibility, state that a lawyer is free to choose his clients. However, he is nonetheless expected to exercise thoughtful discretion and “not lightly decline proffered employment from unpopular people who are prone to experience significant difficulties in obtaining competent representation.”

Tchia Shachar, The Ethics of Client Selection: A Moral Justification for Representing Unpopular Clients, 6 DePaul J. for Soc. Just. 1 (2012) Available at http://via.library.depaul.edu/jsj/vol6/iss1/2. ABA Model Rule 1.2, comment [5] states that legal representation should not be denied to those “whose cause is controversial or subject of unpopular disapproval,” and Rule 1.2 (b) states that representation of a client “does not constitute an endorsement of the client’s political, economic, social or moral view or activities.”

Rule 6.2(c) states that lawyers should not turn down court appointments unless “the client or the cause is so repugnant to the lawyer as to likely impair the client-lawyer relationship.”

As attorneys in the state of Wisconsin, we all also swore to “never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay any person’s cause for lucre or malice.” Our duty as zealous advocates extends beyond our own personal beliefs to ensure that those who are unpopular in the court of public opinion have access to an advocate throughout the adversarial process who can make sound legal arguments to prevent those uneducated in the ways of the legal system from being subjected to injustice in the courts, whether that is a criminal attorney seeking a sentence commensurate with a crime a defendant has been found guilty of, or a civil attorney seeking a settlement that is in line with injuries suffered by a plaintiff.

The Wisconsin Lawyer’s Assistance Program helps lawyers who are having difficulty with alcoholism, drug addiction and other disabling afflictions. The program has been run for years and helped many people. Recently, a lawyer who had some legal trouble 13 years ago was given an award for his hard work and success in the program.

Unbelievably, Attorney General Brad Schimel — whom, in the interest of full disclosure, I support and have discussed this matter with — ripped WisLAP for awarding Stephan Addison for the good work he did recently in supporting other lawyers though WisLAP programs. Embarrassingly, WisLAP voted to back down and rescind the award.

Schimel is not a member of WisLAP and frankly has no business weighing in on whom they choose to honor. His criticism and the subsequent withdrawal of the award do nothing but discourage others from coming forward and volunteering to help, whether they have had troubles themselves or not.

Please, do not let the personal interests of candidates or the representation of unpopular clients by lawyers running for public office deter us from continuing to uphold the best legal justice system in the world.

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