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Lawyers have an obligation to those who need them most

[ UniNews Vol. 15, No. 10  12 - 26 June 2006 ]

“A law degree is a remarkable thing, a powerful thing,” visiting US Fulbright Senior Scholar Professor Abbe Smith told a recent University of Melbourne Law School awards night audience. “It may feel to some that, especially in the Western world, there are too many lawyers. Right-wing radio commentators in the USA often complain about this. I have a different perspective. I believe there are too few lawyers – too few where they are needed most.”

Professor Smith’s area of expertise is criminal law and legal ethics. Her Fulbright award has enabled her to work for a year at Melbourne (2005–2006) pursuing research into the culture and ethics of Australian lawyers who represent ‘unpopular clients’. Her Australian work extends an ongoing study of the defense of unpopular criminal clients in the USA. Professor Smith says that as criminal justice becomes a global issue – with high profile, unpopular cases gaining international significance – an understanding of how rules and culture affect representation is increasingly important. Her research is expected to make a significant contribution to the understanding of international legal ethics. This is an edited version of Professor Smith’s awards night address.

Let me share an experience I had this past September in Cambodia. I was invited to Phnom Penh to teach in a training program for lawyers, law students, and community leaders for the upcoming Khmer Rouge Tribunal. The program included law students and community leaders because there are too few lawyers in the country to merit a lawyer-only training program.

The attendees ranged in age from 20 to 80, and virtually everyone in the room had lost a family member during the reign of terror under the Khmer Rouge. It was my task to teach those in attendance about the rights of the accused and the role of the criminal defense lawyer.

It was a very challenging teaching assignment because many of the legal principles I have long considered fundamental were completely foreign to those assembled. They were not familiar with the presumption of innocence, the burden of proof being on the government, and the evidentiary standard of proof beyond a reasonable doubt in a criminal trial. They were uncomfortable with the idea that those who were likely guilty of crime – and truly heinous crime – should still be afforded counsel and given their full array of rights.

They had a particularly hard time with the maxim attributed to English jurist Sir William Blackstone that “it is better that 10 guilty people go free rather than one innocent person suffer”.

This was an especially memorable teaching – and learning – experience for me. In order to get Blackstone’s idea across in Phnom Penh – and to assist the inexperienced translator with whom I was working – I drew a jail cell in which I placed 10 stick figures. Then I drew an innocent stick figure, complete with halo, outside of the jail cell. I explained that, rather than putting this innocent figure behind bars, it is better to have rigorous procedures in place that might result in the release of these 10 guilty figures (here, I erased the bars) in order to make absolutely certain that no innocent person is wrongly convicted.

There was almost universal condemnation for this idea.

Many argued that, indeed, it was better for one innocent person to suffer so that we might all be protected from the 10 guilty criminals.

It seems to me this has broader resonance than Cambodia.

No doubt many of the things I feel most strongly about as a criminal defense lawyer and a civil libertarian are not shared by fellow citizens in my own country – or here in Australia – especially in these increasingly fearful times. Many people have come to think of basic civil liberties as luxuries we might not be able to afford in light of our rising desire for security and order.

Yet, thoughtful people (and hopefully especially lawyers) would agree that the growing acceptance of the idea that liberty must give way to security in times of strife – is just as frightening as the threat of terrorism, and maybe more so.

When one speaks of ‘the Australian way of life’, liberty is surely at the heart of it.

Things are getting so bad in the USA – security is so tight – that not only must you pass through metal detectors in every airport, courthouse and government building, often being physically searched in the process, but those same machines let the operators know the weight, in pounds or kilos, of each person walking through. (Just kidding. But, it is my own personal nightmare.)

I think those of us who have the privilege of being lawyers have an accompanying responsibility to make a contribution in the world, to make a difference.

I don’t want to sound sanctimonious here, or like a leftist scold. I have nothing against money, which affords all kinds of pleasures and comforts. But there are very few impoverished lawyers in the world. I believe you can do well and do good.

There are many people and communities here in Australia and all over the world whose need for legal services remains largely unmet: asylum seekers and migrants; the poor and homeless; Indigenous people; the mentally ill; abused and neglected children; battered women; the indigent accused; prisoners.

These sorts of clients are not terribly popular, and the lawyers who represent them are often misunderstood. As a criminal defense lawyer who has been asked what criminal lawyers call the Cocktail Party Question – How can you represent people you know to be guilty? – probably thousands of times, I sometimes feel that I am mistaken as my clients’ apologist, or worse, their accomplice.

In a climate in which the popular culture is dominated by television shows like Law and Order and CSI and their many spin-offs – honestly, even in Australia, it seems that one or the other of these shows is on the air 24 hours a day – it’s no wonder so many law students want to become prosecutors or work for immigration enforcement.

Gone are the days when Perry Mason and Atticus Finch were role models.

Of course, it’s not just criminal defense lawyers who are misunderstood. When a classmate of mine in law school told his uncle that he would be practising poverty law, the uncle said, “Poverty law? There’s no money in that.”

My own 10-year-old son seems to have taken on this same view. When my partner was recruited for a top position with a preeminent American public interest law organisation, my son said, “That’s good, but how much money will you make?”

I want to share with you some of the Australian lawyers I’ve met while here who I think embody the very best in the legal profession. A few years ago, Anthony Kronman, the former Dean of the Yale Law School, wrote an influential book called The Lost Lawyer, in which he laments the lack of lawyer-statesmen of the sort that used to be a presence in American life. Although I think there is some truth to Dean Kronman’s views – with the rise of specialised legal practice, the rise of high finance commercial law practice, the increasing perception of the law as more of a business than a profession, and the loss of a certain statesman-like ethos – I mourn instead the lack of lawyers who act where there is a need.

Commercial lawyer turned human rights lawyer Julian Burnside, for example, when asked why he undertakes asylum and refugee cases, said: “I do refugee work because it cries out to be done. I was deeply offended by the way this country was treating refugees. I wanted to make amends for the country and try to make things better for [the refugees]. It was the simple fact of locking up innocent people…holding them indefinitely on the deck of a ship in the tropics…that hit me like a thunderbolt.…”

Burnside explains that he gets as much out of his work as he gives. He says, “It makes me feel better doing this work rather than sitting by. The law is stacked against these clients.”

Lawyers like Lex Lasry and Rob Stary and Robert Richter, who are criminal lawyers, willingly take on the defense of alleged terrorists, no matter their own personal feelings. As Lex Lasry says: “The worse the defendant, the more reason to represent them.”

Lasry explains that it’s not always easy: “There’s a dilemma. I’ve watched how extremists conduct themselves and I find it appalling…. I get irritated by the hatred and antagonism of these clients. It’s not the client…it’s my belief in the system…. I want to ensure a fair trial when [the government] is under pressure to take shortcuts. The pressure is significant but unspoken in terrorism cases – especially since 9/11, Bali, and London.”

Elizabeth Dowling has devoted her law career to representing troubled kids, disadvantaged parents, and the criminally accused. She sees herself as “hard-wired” to represent unpopular clients and those at the margins of society, people who need good representation most, because, as she says, “I’m Irish Catholic. Anti-authoritarianism is in our mother’s milk.”

Dowling recognised in herself the makings of a criminal lawyer from her earliest school days. She says, “Early reports noted that I could not stop talking in class. I was a malcontent. I was opinionated. I was always at the back of the bus making smart comments.”

Career public defender Suzan Cox, in the Northern Territory, says that “ultimately, a good criminal defense system is in everyone’s interest…. [because] issues are fairly raised, [including] police illegality…and the Government is put to the test. This is in the public’s interest”.

Cox also notes that it is important to have lawyers who “can see people as people even though they [may have] done some dreadful things”.

Career poverty lawyers Pauline Spencer in Victoria and Susan Bothmann in Queensland, both specialise in prisoners’ rights. As Bothmann says: “I do [this work] because it’s important to do. It’s not just because someone has to do it – that’s superficial. I don’t go out of my way to talk about why I do this kind of work – I don’t want to be evangelical – but it is more important to represent people who need good quality advocacy than to represent a large commercial firm.”

Although Susan Bothmann is not evangelical, I admit I can be. There are so many reasons to be lawyers in the public interest rather than lawyers who help those who already have money make more.

I have a brother-in-law who practises what used to be called tax law and estate planning but who now calls himself a “wealth-protection” lawyer!

The reasons to consider a public interest practice are not just altruistic. Many of the reasons are selfish:

• You wake up in the morning feeling good about yourself and the work that you do;

• You get many more interesting opportunities – to work directly with clients and their communities, to litigate, to create and have an effect on policy – than in large commercial firm practice;

• You get to hang out with a very cool group of people who enjoy their work. Everyone who has ever done public interest work reports that the time they spent at Fitzroy Legal Service or Aboriginal Legal Service or the Legal Aid Commission was the best they ever had, with the best group of lifelong friends;

• You can live a very nice life, have a good music and DVD collection, drive a late model car, and drink plenty of $3.00 espresso while still doing good;

And every once in a while you get invited to speak before a captive crowd of young, impressionable law students!

Before I conclude, I want to share with you the advice of Monroe Freedman, a prominent American law professor and legal ethics scholar, to those beginning a career in law:

First, your family comes first. Maintaining and nurturing a loving relationship with each member of your family should be your highest priority. Keep that uppermost in your mind and heart every day as you strive for professional success.

Second, you are a member of a profession that exists to serve the public, and you will do that best by… dedicating yourself to the maintenance and defense of your client’s rights, and by the exertion of your utmost learning and ability on your client’s behalf.

Third, insofar as you [are able to do so], represent only those clients and causes that, in your system of values, are worthy of your…service.

Fourth, the client, not you, has the right to make the ultimate decision as to what his or her interests are. Part of your job is to help the client to make that decision with regard to all relevant legal considerations, but also to make that decision in light of any moral and societal considerations that may be relevant.

Fifth, dedicate at least a significant portion of your professional time, even if it is only five or ten per cent, to clients who otherwise would not have access to legal services….

I stand before you a humble American. I come from a country that only 150 years ago permitted slavery, that as recently as 50 years ago decreed that educational apartheid was lawful, and that currently allows capital punishment.

I come from a country that presently detains hundreds of so-called “unlawful combatants” without affording them the most basic human rights, such as the right to counsel and to know the charges against them.

I understand the power and violence of law.

But, I also know the good that law can do. It is the responsibility of lawyers to make sure that law is not simply a tool of the powerful – to keep people out, keep them down, and render them submissive.

Lawyers must make sure that law is more than a set of rules and prohibitions, but is about justice. Lawyers must not allow injustice and inhumanity to occur in the name of law.

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