How Can You Represent the "Guilty"? - Pt. 2

Several years ago, a 33 year-old man was arrested. It happened in secret, without probable cause. No due process would be afforded to this young man: No grand jury  was convened, no indictment issued. As was the tradition of criminal justice in this era, speculation & mob justice had its way. The accusations were all hearsay. His trial, a sham. It lasted one day. No lawyer. No jury. Just a judge, appointed to that position through the political process. And though no credible evidence could be found, the fix was in. Despite the fact that he was a civilian, this military judge sentenced him to that punishment reserved for the most heinous, feared, & perverted members of our society: The death penalty. The charges were for Treason & Sedition.

From this judgment there would be no appeal. He was drug out into the streets, taken to the outskirts of town. There before him, on two separate trees, hung two men also condemned to die. They were displayed there to send a message: this community is tough on crime. There, in a public spectacle too horrific to describe, they stripped him down and carried out the sentence. Crucifixion.

How many of us know this story?

"How Can You Represent the Guilty?"

As a lawyer, the question I get most often is some variation of  “How can you represent the guilty?”: 

- "How can you take on those types of cases?”,
- “How can you represent those people?".

It is that question that inspires me to write today. I tried to tackle this topic before here, but was unable to give it the time it deserved. Thus, I've taken it up again. In doing so, I borrow heavily from Joseph Allegretti, who wrote a wonderful book called "The Lawyer's Calling". The premise is simple & true: most of us struggle with integrating our faith in a worldly (even adversarial) profession. We're conditioned to believe that the dilemma is even greater for lawyers, who may be called upon to take on those types of cases. Perhaps it is. Regardless, there may be a way to harmonize our convictions with the seemingly contradictory expectations of our practice. So, how do we do it?

Ground Rules

Allegretti submits that there are four models embodying the struggle that lawyers have to balance their convictions against their ethical obligations as attorneys. However, before delving into this topic, there are some things that have to be addressed.

First, I hope that the story above makes the Constitutional significance of the Presumption of Innocence and the government's Burden of Proof in criminal cases painfully clear. Law and Order are essential concepts in civilized society. Yet as we demand justice, we (people of faith in particular) have to grapple with the fact that at the core of Christianity is the wrongful arrest, conviction, and execution of an innocent man in a criminal prosecution. 1. Jesus was a victim of injustice in a society that demanded expediency over due process.

While not every person accused is wrongfully accused, representation is a vital part of the system. It probably would not go well if I were hired by a client, took his case to trial, and after the jury found him guilty, stood up and declared, "Your honor, I don't represent guilty people. Now that Mr. Jones has been found guilty, the Court should allow me to withdraw and appoint someone else to handle the punishment portion of this trial". Mr. Jones is entitled to representation despite guilt, & (as we will discuss later) more so in the face of guilt.

Second, no lawyer fits snugly into the following models. In fact, at different times a lawyer may inhabit one or more models simultaneously. Moreover, what follows is merely a summary of those models. There are more benefits and detriments to each which could be explored.

Lastly, Allegretti does not judge. Nor do I. Lawyers, & non-lawyers alike, may recognize themselves or their colleagues in these models. Hopefully, discussing these roles will help us recognize our point of origin and cause us to consider our trajectory.

If We're Honest, We All Struggle With the Morality of Representing the Immoral

1. "The Either/Or" Approach

If you're driven by a moral code, like Christianity, this model creates the greatest problem. From time-to-time, we're asked by our clients to do things that are clearly within the ethical bounds of our profession. There are no restrictions against the behavior which is expected of us. However, we don't feel right about doing those things due to our convictions. For example, in a divorce case, a client desire a "scorched earth" approach to dissolving their marriage. No holds barred.

Here, the lawyer feels like a hired gun - or a prostitute - whose only loyalty is to the client, regardless of justice or morality. The chasm between morality & ethical obligations is too wide & deep to be bridged. Either I can be a good attorney or I can be a good Christian, but I can't be both.

An example of this model can be found in Allegretti's book. There, he recounts meeting a woman in seminary who had been a lawyer but gave up law after deciding she couldn't be both a Christian & a lawyer. Conversely, I know lawyers who grew up with strong religious beliefs - some whose fathers were pastors. Yet, because they were unable to reconcile their work & their faith, their faith took a back seat to the expectations of their profession & the code to which allegiance had been sworn.

The benefit to this approach is that it creates single-minded devotion to being an attorney or being devout. The detriment is that the lawyer can't be both.

2. "The No Distinction" Approach

This lawyer does not see a distinction between his moral code & his ethical obligations as a lawyer. He has a moral code. However, it is found beneath the umbrella of his legal/ethical obligations. Morals have a place, but that place is separate from his professional duties. So what the professional rules of ethics say he can do, he can do; what they say he must do, he must do. Thus, he doesn't recognize a tension between the demands of work and the demands of conscience.

As an example: This individual doesn't see any problem with trying to make a witness look like a liar even when he knows the witness is telling the truth. Why? Because it's his job; he's hired to win.

The benefit to this model is an unmitigated devotion to the client or the cause without doubts. This lawyer will march with his client to the gates of hell and back. The detriment is compartmentalization. The lawyer can be an S.O.B. Monday through Friday, but goes to church on Sunday morning as though nothing ever happened & sees no hypocrisy in it.

More worrisome is the threat of creating a culture where anything goes. The newly licensed lawyer begins his practice with fresh eyes. He sees the practice of law optimistically until he encounters this attorney in an adverse proceeding. In that setting, he realizes that his opponent's "scorched earth" tactics are not unethical, but nevertheless they seem immoral. The younger attorney despises the hypocrisy of his opponent. However, he soon finds that several attorneys operate within this model and that there is no consequence for doing so. Even worse, it seems these attorneys are rewarded for their paradigms. Consequently, he asks, "why be moral?" Meanwhile, the lay citizenry looks down on our profession with contempt as we fulfill the worst stereotypes of lawyers.

3. "The Tension" Approach
This is a dualist approach that attempts to "Render unto Caesar what is Caesar's & to God what is God's". The problem is that there are often stark inconsistencies between our convictions and the professional ethical code. This creates a Moral Schizophrenia. There is an unsettling realization that work is divorced from, and sometimes opposite to, our deepest personal values. Whereas a Model 2 attorney believes he can be both a good lawyer & a good person, the Model 3 attorney hopes it is possible to be both but fears it is not.

If the second attorney's life was compartmentalized, this lawyer's is more so. The only way to give due to God & Caesar is to put personal convictions aside at work, doing everything our ethical obligations want/expect of us there, but then taking those convictions back up at home. In place of an umbrella, he utilizes a shelf. At 7:59am, he places his moral code on the shelf & takes on the practice. At 5:01pm, he trades hats again. He may be very involved in his church & in the community. Yet, colleagues and co-workers would never know how deep his convictions run. Unless they caught him after 5pm. 

Over time, Model 3 may slide slowly and imperceptibly into Model 2.

While this attorney's sincerity is clear, he fails to realize that Christ, our moral authority, is the authority of every part of our lives, & so his claim is on us always and everywhere.


4. "Transformative Model" or "Missional Living"
This model challenges us to live an integrated life. It recognizes that nothing is more relevant to our work than our faith. These convictions have a claim on us that exists in all our actions & relationships - especially work relationships. Thus, the attorney is a moral agent whose actions have consequences for which he is accountable,not just to himself & to others, but ultimately to God.

This prompts the lawyer to bring his personal values into the workplace with hope that those values will work through him to revitalize his life as a lawyer, his profession, & ultimately the community as well.

But how do we do this?

 

The Question Isn't How Do We Represent The "Guilty"?

 

The Question Is Why Do We Represent The "Guilty"?

Professions vs. Vocations
Attorneys are professionals. Allegretti highlights that the word "profession" is derived from the Latin "to profess", to take a vow or make a public declaration. Historically, there were only three professions: law, medicine and ministry. That is not to say that other disciplines cannot be professions. Professions are simply defined by their goal to provide a service to persons and communities. Any work can be a vocation, but professionals exist to serve others. As attorneys, our reason for being is tied up with the satisfaction of basic human needs such as health & justice.


Professionalism means investment

As lawyers, we meet people in their greatest crises. We meet the mother of three heading into divorce, the family filing for bankruptcy after putting everything they had into a failed business, or the accused in a criminal case. Not every client will be receptive to us. However, as ambassadors of the cross, we can use our professional relationship, whenever possible, to walk with our clients through the darkness and show them the light. We have the opportunity to speak truth into our client's lives. This is a prophetic role. The role of the prophet is to afflict the comfortable & comfort the afflicted. 2
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If we are called to serve the lowly & the outcast, who could need our help more than the accused in a criminal trial? Lawyers do not so much "represent" the guilty as minister to the guilty. We are not so much advocates as companions. If the three crosses on Calvary mean anything, they mean that no one is so repulsive, or so condemned, that he is not entitled to have a companion in his misery, and that none of us - not even the Son of God - is too good to be chosen as the companion.2

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Even still, relationships are not formulaic or scientific. There are no classes taught to lawyers regarding how to integrate your faith into your work through personal relationships. Since relationships involve dynamics that can't fit neatly in a box, a mission-based view of our profession will not work the same way twice and cannot happen overnight. However, Allegretti believes, as do I, that it is possible.

The point is that the question of how we integrate our morals & our profession should remain open ended. We should constantly be asking the questions that prod us to the embodiment of the best of the system we serve and the values and God we honor and worship.3 If we can do that, we will transform our clients, our profession, and our communities.,4

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1. Mark Osler, Jesus on Death Row

2. Allegretti, The Lawyer's Calling
3. Mike Russo, Dear Friend and Mentor
4. Allegretti, The Lawyer's Calling;