Week Thirteen, Part 3 - Ethics: Representing Scumbags

In Legal Ethics, Dean David Link asks the class, “Do you as a lawyer have a moral responsibility to represent the person in your office?”

Without waiting for an answer, he presents a series of facts. “A group of Nazi sympathizers, the National Socialist Party of America, wanted to march in Chicago. They applied for a parade permit, but didn’t receive an answer. Next they petitioned Skokie, Illinois, a city with significantly less bureaucracy.”

We laugh.

“It was predominately Jewish and had a number of Holocaust survivors,” Link says. “When the Skokie Council refused to issue a permit, the Nazis sued. "

Link swings his foot up on the desk beside him.

"Now, suppose the National Socialist Party wants to retain you. What’s your response?”

Hands shoot up all over the room.

Link continues: “Before you answer, note that representation of a client does not constitute an endorsement of his or her point of view. And remember that according to our legal system, availability of counsel is a good thing.”

We discuss the Skokie case in light of the major theories of ethics.

“Utilitarianism seeks to maximize the social benefits and minimize the costs,” Link says. He calls on students to flesh out both sides. One benefit is that even Nazis can assert their civil rights, an evidence of strong democracy. On the other hand, there’s the pain of hate speech and the possibility of riots.

“As you can see,” Link says, “the benefits and costs are virtually impossible to value. You can’t put numbers on it very well.”

Rights theory has the basic issues of First Amendment speech and assembly. Link mentions that members of society have a right to privacy. And a right to live in peace. A student suggests “the right of lawyers to make sure no one misuses our skills.”

Link limits justice theory to “the fair distribution of the benefits and costs.” He says the problem with the theory is “depending on which choice you make, all the benefits or costs flow one way.”

Link says we as lawyers will have a responsibility to accept a fair share of unpopular case, sometimes pro bono, "for the public good.”

We look at theological ethics. “Christianity is based on a loving God. Ask yourself, ‘What is the most loving thing I can do here?’ This approach includes love for people you don't agree with.” He adds, “Notice that the religious perspective is a personal analysis. Mine may not apply to you because you have different values going on.”

Link asks us to raise our hands whether we would represent the American Nazi party in its attempt to secure a parade permit.

The vote is 34 yes, 30 no. I’m with the minority.

Link tells us that the earlier section voted 49 yes and 40 no.

A student asks Link what his vote would be.

“I would not represent the Nazi party in most cases,” he says. “Certainly not in Skokie parade case because my representation would lead to an unethical conflict of interest. Before coming to Notre Dame Law School, I was part of the Arlington County Human Relations Committee.” He tells a war story about his work there and the allegations of police dogs being set on workers.

“I still believe the Nazis have the right to a lawyer,” Link says. “In fact, their lead counsel from the ACLU was Jewish and quite anxious to be involved in the case.”

Amazing! How could a Jewish lawyer help anti-Semites further their cause and gain a platform to spread their doctrine? It seems beyond the pale. If the ability to separate emotionally and intellectually from a client’s point of view is necessary to think like a lawyer, I may be deficient.

I remember my grandma and how she fled from Turkey, her parents killed by the Turks. For me to represent a Muslim group advocating the Armenian genocide would be an insult to her memory.

Dean Link closes. “Unpopularity shouldn’t have any effect on you. Do what you know is right.”

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Week Thirteen, Part 2 - Immunity Days

In his continual quest to remind me how feeble my mind is, Professor Joseph Bauer steers the CivPro discussion into the murky waters of supplemental jurisdiction.

“Supp J” is an umbrella term for both pendant and ancillary jurisdiction. In the margin of my casebook, I’ve written, “how to get other issues or parties into fed court.”

Bauer’s explanation is more precise. He says that pendant jurisdiction allows plaintiffs to pursue additional state-law claims in federal court by appending them to a related, federal question. We learn in United Mine Workers v. Gibbs that there must be a “common nucleus of operative facts” between the claims.

Ancillary jurisdiction is similar, but applies to additional parties involved in the same transaction or occurrence.

We turn to Owen Equipment & Erection Co. v. Kroger, a Supreme Court case decided in 1978. Bauer scans his list of remaining victims, then reads my name!

I’m shocked, both to be called on and that the Evil Genius has pronounced tuh-loy-uhn exactly right. My hands freeze on the keyboard.

There is no way I can answer questions on Kroger. Sure, I’ve read the canned brief. I even skimmed the case. But I don’t understand the legal issues! Not at all.

I have no more ability to discuss “whether a federal court in a diversity case may exercise ancillary jurisdiction over the plaintiff's claims against a third-party defendant who is a citizen of the same state” than I do quantum physics.

Unfortunately, Professor Bauer doesn’t realize this fact. "Several years after plaintiff Kroger amended her complaint to include a third party," he says, "the Supreme Court dismissed the action.”

I can feel him closing in.

“The Court held that with respect to the non-federal claim, the federal courts could not exercise jurisdiction.”

Bauer won’t even give me the pleasure of answering the factual questions.

“So, Mrs. Kroger has to start all over again. But where? State court?”

Bauer looks at me, waiting.

My voice is shaky. “Isn't it Immunity Days?”

Bauer waits a good ten seconds. “Yes.”

“And you’re a participating professor?”

He nods.

All week I’ve seen posters in the law school lounge:

IMMUNITY DAYS
bought to you by
SOCIAL JUSTICE FORUM
Wednesday, November 15
Thursday, November 16

The small print explains that students can “buy” their way out of class participation by offering non-perishable food items to be used in Thanksgiving baskets.

“Brought two cans of SpaghettiOs,” I announce.

Bauer smirks. “Let’s have ‘em then.” He points to his right. On the floor I see a cardboard box the size of a small desk. It's empty.

“They're upstairs in my backpack. I wasn’t sure how immunity worked.”

“After class, make sure you get 'em here.”

“Yes, sir.”

Bauer looks back toward his list. All around the room, students rummage in their bags. Campbell’s soup. Del Monte corn. Ramen noodles. On each desk ledge across the lecture hall, we set our modern-day charms against Socratic torture.

“Looks like a supermarket,” he says.

We laugh.

“Okay, I’ll do the talking for a while,” Bauer says. “I was asking where Mrs. Kroger could file. In state court? The statute of limitations may have run.” He points us to a footnote in the decision. It says that Iowa law could bar an action in a state court, depending on the statute of limitations.

“In essence, the Supreme Court is saying ‘whether you proceed is not our problem.’” Bauer strokes his beard. “There’s something fundamentally troubling about this rule. Mrs. Kroger is S.O.L.”

We laugh. Sorry Outta Luck. Statute Of Limitations. Is he making a connection?

We look at the Court’s rationale again and Bauer finds it wanting. “Don’t give me a technical reason!” he says, apparently addressing the Supreme Court itself. “Give me something my sense of justice can understand!!”

Bauer concludes by telling us that if a similar situation happened today, a party would have at least 30 days to file in state court. “Of course, that’s no consolation to Mrs. Kroger.”

Class ends and as I shut down my laptop, students file past me. “Good job.” “Way to go.” “You’re the bomb.”

I walk back to my cube and fish out the SpaghettiOs. Terri bought them as a treat for Lauren’s lunch.

Sorry, Sugar.

By the time I make it back to the classroom, Bauer is gone. I drop my cans in the collection box, now full, thanks in small part to me.

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