In defence of Hillary’s defence work

The conservative Washington Free Beacon dug into Hillary Clinton’s representation of an accused rapist during the mid-eighties, and posted this audio recording from an interview given a few years later:

The Free Beacon‘s Alana Goodman argues that Clinton’s representation of this man, and her subsequent discussion of the case, raise serious ethical questions about the presumptive presidential nominee.  And to be fair, the fact that she discussed the case publicly, in such detail, is indeed questionable conduct for a defence lawyer:

From a legal ethics perspective, once she agreed to take the case, Clinton was required to defend her client to the fullest even if she did believe he was guilty.

“We’re hired guns,” Ronald D. Rotunda, a professor of legal ethics at Chapman University, told the Washington Free Beacon. “We don’t have to believe the client is innocent…our job is to represent the client in the best way we can within the bounds of the law.”

However, Rotunda said, for a lawyer to disclose the results of a client’s polygraph and guilt is a potential violation of attorney-client privilege.

“You can’t do that,” he said. “Unless the client says: ‘You’re free to tell people that you really think I’m a scumbag, and the only reason I got a lighter sentence is because you’re a really clever lawyer.’”

Clinton was suspended from the Arkansas bar in March of 2002 for failing to keep up with continuing legal education requirements, according to Arkansas judicial records.

This really isn’t what she’s getting attacked for, though.  And The Volokh Conspiracy‘s Jonathan Adler is troubled by Ms. Clinton’s zealous representation of client accused of a serious crime – something the legal system needs people to do – being used against her all-but-declared presidential run:

Much, if not all, of the criticism of Clinton resulting from this story is misplaced.  She was asked (by the prosecutor, no less) to represent a criminal defendant.  Her client was accused of raping a 12-year-old girl.  From what I can tell, Clinton believed her client was guilty but was nonetheless able to obtain a favorable plea deal because the government had mishandled incriminating evidence.  A forensic lab performed tests on blood stains found on the defendant’s underwear, but discarded the relevant piece of clothing (literally leaving a pair of underwear with a hole cut out).  Lacking the necessary physical evidence to convict, the prosecution offered a plea deal.  Some of the relevant court documents are available here.  A previously unreleased interview with Clinton about the case is available here.

What should we make of this story?  Perhaps nothing more than that Hillary Clinton represented someone in need and fulfilled her duty as a member of the bar to provide a zealous defense of her client.  This is not something for which she should be attacked.  We are all the worse off if the message sent to young lawyers is that representing guilty or unpopular clients is likely to be a political liability down the road.  Ably and effectively representing a criminal defendant — even one you believe to be guilty — is not “scummy” or inappropriate. Forcing the state to prove its case before it deprives an individual of their life, liberty or property is a noble endeavor.  So while I think the story is newsworthy, I think most of the attacks on Clinton for this episode are misplaced, and a bit opportunistic. [Note that some attacking Clinton are also calling for more more due process protections for college students accused of rape.]

[…]

The bottom-line here is that Hillary Clinton’s work on this case as a young attorney 40 years ago is interesting and newsworthy, but that’s about it.  Unless and until more damaging evidence emerges, there’s no basis for the new attacks on her.  Anti-Hillary folks should look elsewhere.

Contra The Washington Free Beacon, there is nothing “scummy” or “semi-sociopathic” about what she did (and, no, I don’t find the uncomfortable laughter on the audio tape interview with Clinton a decade-or-so after the fact to be troubling either — listen to it for yourself.)  She engaged in able and (as far as we know) ethical defense work — and defense work is a noble calling.  The WFB may be correct that it’s not a winning political argument to defend the work that defense attorneys do.  If so, that’s a sad commentary on our political system, and not something thoughtful commentators should celebrate or exploit.

Adler and his libertarian Volokh Conspiracy colleagues aren’t Hillary supporters, and neither am I.  (Fact is, the more I look at both major parties’ potential nominees for 2016, the more I find myself wanting Mitt Romney to run again.  And I didn’t even back Romney last time around.)  But in this case, it seems like she did her job and did it well.

Related: in April Adler savaged the Republican Governors’ Association for a campaign ad against the Democratic nominee for South Carolina Governor, which attacked his criminal defence work, and bemoaned the growing trend of politicians and activists – not just conservatives and Republicans, for the record – going after lawyers for doing their work:

Representing unpopular causes or clients is never easy, but it is necessary.  Organized efforts to blunt the careers of those who take on such efforts are shameful.  It would be one thing if Sheheen were accused of unethical conduct in his representation of his clients.  It is quite another to attack him for defending those who, however horrific their crimes, needed a legal defense.  A lawyer is responsible for his or her own conduct, and is not responsible for the sins of the client.

The RGA is not the first to attack lawyers for having agreed to represent unpopular clients or causes, but that hardly makes the ad any more defensible.  Others on the right wrongly went after attorneys who agreed to represent Gitmo detainees.  Folks on the left assailed Bush nominees who represented corporations or defended administration policies and attacked King & Spalding and Paul Clement for agreeing to defend DOMA.  Some members of Congress are also currently attacking district court nominee Mark Cohen because he helped defend Georgia’s voter ID law.  All such attacks are misguided.  Left unchecked, they pose a threat to the adversary legal system.  As Paul Clement wrote when he resigned from King & Spalding:

Defending unpopular positions is what lawyers do.  The adversary system of justice depends on it, especially in cases where the passions run high. Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law.

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