In Defense of the Devil’s Advocate
Among the many controversial positions for which Monroe Freedman advocated during his illustrious career, the one that I find most surprising and uncharacteristic is his contention that lawyers who undertake morally questionable representations have a duty to explain or justify their choice of client. Specifically, in 1993 Professor Freedman penned a well-known column in the Legal Times—titled “Must You Be the Devil’s Advocate?”—in which he took Professor Michael Tigar to task for his representation of reputed Nazi war criminal John Demjanjuk. Professor Freedman tacitly criticized Professor Tigar for his client choice and expressly called upon him to justify publicly why he was willing to dedicate his training, knowledge, and “extraordinary skills as a lawyer” to someone as universally reviled as Demjanjuk. Such an inquiry was appropriate, according to Professor Freedman, because a decision regarding whom a lawyer is willing to represent is one “for which the lawyer can properly be held morally accountable, in the sense of being under a burden of public justification.”
In this Article, I argue that Professor Freedman’s call for a public accounting with regard to client choice, though undoubtedly well-intentioned, has the potential to undermine profoundly the attorney-client relationship and to compromise fundamentally a criminal defendant’s ability to obtain a fair trial, in both perception and reality. The decision to represent a controversial client can be extremely difficult, requiring an attorney to grapple with issues concerning personal morality, practical impact, and the concept of justice itself. Once the decision has been made, no attorney should have a right to question it and the lawyer who made the decision must resist the urge to publicly explain or rationalize his or her choice. If a public explanation or defense is needed, it should come from fellow members of the bar not engaged in the representation, as occurred, for example, in the aftermath of the public attacks on attorneys who undertook the representations of Guantanamo detainees. Detached attorneys possess the necessary moral distance and perspective to more credibly and effectively explain to the public why a lawyer would accept an ostensibly reprehensible client. Moreover, aspects of the very rules that govern the profession strongly support, at least by implication, an affirmative ethical duty to speak out in defense of the devil’s advocate.