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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