Legal View: Representing unpopular clients: What are the ethics?

By Thomas Spahn

The Daily Record Newswire

The U.S. House of Representatives isn't what most lawyers would usually think of as an "unpopular client," but recently the law firm of King & Spalding was pressured into dropping its representation of that body in a lawsuit over the Defense of Marriage Act.

Just six days later, the American Bar Association celebrated Law Day, with the chair of the program stating that a key focus of the observance was "defending the unpopular client."

Most lawyers believe that defending the social outcast is a badge of honor for the profession -- think of John Adams representing British soldiers in cases arising from the Boston Massacre.

But few lawyers actually know the ethical rules when it comes to clients who are unpopular or with whom the lawyer has deep disagreements.

ABA Model Rule 1.2 states that legal representation should not be denied to those "whose cause is controversial or the subject of popular disapproval." ABA Model Rule 1.2(b) itself assures lawyers (although they probably already know it) that representation of a client "does not constitute an endorsement of the client's political, economic, social or moral view or activities." Although the Model Rules do not force lawyers to take on unpopular clients, ABA Model Rule 6.2(c) states that lawyers should not turn down court appointments unless "the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship."

Apart from these statements, the ABA Model Rules contain a logical approach to an individual lawyer's disagreement with a client's character or conduct. Under ABA Rule 1.7(a)(2), a lawyer faces a conflict if there is a "significant risk" that the lawyer's representation of a client will be "materially limited" by the "personal interest of the lawyer."

One wise lawyer called this a "rheostat" conflict, as compared to the strict on-off "light switch" conflict of ABA Model Rule 1.7(a)(1), which either exists or does not exist, depending on whether the lawyer is adverse to a client.

A "rheostat" conflict under Rule 1.7(a)(2), on the other hand, arises only if the conflict has a sufficiently intense effect on the lawyer's judgment -- much like turning up a "rheostat" light switch to increase the brightness of a dining room chandelier. For instance, a mildly pro-life lawyer presumably could adequately represent an abortion clinic, and provide the required diligence and loyalty despite the lawyer's personal beliefs.

On the other hand, a stridently pro-life lawyer who strongly believes that abortion is murder would almost surely face a "significant risk" that the representation of the abortion clinic would be "materially limited" by his or her strong beliefs. That lawyer might find himself or herself "pulling punches" when representing such a client. In that case, it seems unlikely that the individual lawyer would be able to continue representing the abortion clinic.

Although ABA Model Rule 1.7(b) provides for a way to clear most conflicts, even the client's consent does not cure a "rheostat" conflict unless the lawyer reasonably believes that he or she can "provide competent and diligent representation" to the client.

The ABA Model Rules also deal with an issue that presumably would rarely have arisen in John Adams's time -- imputation of an individual lawyer's disqualification under a "rheostat" conflict to the entire firm.

Under ABA Model Rule 1.10(a)(1), such an individual lawyer's disqualification is not imputed to the entire firm, unless it presents "a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm." ABA Model Rule 1.10 explains that one lawyer's "strong political beliefs" would not disqualify the entire firm, as long as the lawyer did not work on the case and his personal beliefs "will not materially limit the representation by others in the firm." That seems unlikely in the case of a personal conviction such as a pro-life stance.

However, one can imagine an example where the firm might face imputed disqualification. For instance, if the vehemently pro-life lawyer was the managing partner with the sole power to set everyone's salary, the entire firm might be disqualified.

So the ABA Model Rules assure lawyers that they can represent unpopular clients, disqualify an individual lawyer from such a representation only in fairly unusual situations, and impute that disqualification to the entire law firm only in very extreme situations.

Most lawyers do not find themselves facing these issues, because they can diligently and loyally represent clients with whom they disagree. No one can force a lawyer to take on a client of that sort, but on Law Day and most other days our profession congratulates itself when lawyers represent unpopular clients -- at least some unpopular clients.

----------

Tom Spahn practices as a commercial litigator at McGuireWoods in McLean, Va. He regularly advises a number of Fortune 500 companies on issues involving ethics, conflicts of interest, the attorney-client privilege and corporate investigations.

Published: Wed, Sep 14, 2011