Defense attorney discusses ethics and controversy

By Jason Searle
U-M Law

Michael Tigar has built his career representing high-profile clients—from political activists, to alleged concentration camp leaders, to former White House press secretaries and U.S. Senators. Speaking recently at Michigan Law as part of the school’s lecture series on ethics, professionalism, and civility, Tigar illustrated the complexity and uncertainty of these topics in today’s legal practice.

“Suppose you obeyed all the rules of professional responsibility. Would that make you an ethical lawyer?” asked Tigar, who is an emeritus professor of law at Duke University and American University Washington College of Law, and has argued seven cases before the U.S. Supreme Court. The point was clear from the beginning—the rules of ethics do not provide answers to all of the dilemmas that arise in practice. By way of example, Tigar pointed out that the Model Rules of Professional Conduct do not impose a mandatory duty to do pro bono work, yet in his view, such work is essential to being an ethical lawyer. Tigar went on to explain that in a system reflecting the values and will of the powerful, the rules will be crafted similarly. In order to be ethical lawyers, “we have to draw our own path out of that [system of rules],” he said.

Tigar cited many ethical challenges he has faced in his career, including what is arguably his most famous case—representing Terry Nichols, who was convicted as an accomplice to Timothy McVeigh in the 1995 Oklahoma City bombing. Tigar said that he experienced some internal conflict when deciding whether to accept the appointment to serve as Nichols’s counsel. However, he believed that no one else with sufficient acumen to handle such a case would take it on. “I thought, ‘How could I say no?’”

Tigar succeeded in changing venue from Oklahoma to Colorado and in recusing a number of judges who might hold bias, since the bombing had targeted a federal building. However, the problem of constant national press coverage of the case remained.

“We were not going to try a case against the media,” Tigar said, so his strategy was to avoid or be as brief as possible in media appearances. “We had to recognize that the jurors were watching,” Tigar explained, and he knew that significant media exposure would only give the prosecution something more to attack. Tigar stated that this strategy “was just a practical application of the ethical rules.”

He and his team used other strategies that some found contrary to professional decorum. First, Tigar pressed the judge to move jury selection to the Denver fairgrounds, and 1,300 people were summoned there for selection registration. Tigar also pushed for Nichols, in street clothes and without security, to be present at the fairgrounds so that people could “see him as a normal person.”

While blocking out the media in the Nichols case was a useful tactic, and one supported by ethical understandings of the time, Tigar said that he now believes lawyers should speak in public about their cases. He explained the historical and constitutional basis for the idea that, “lawyers have not only been advocates, but are also public citizens who have the right and are best fit to speak out.” As long as lawyers temper their public speech with their understanding about what is ethically appropriate to share, he sees such speech benefitting the public.

Nearing the end of his talk, Tigar warned, “Each person in this room is going to face questions that touch upon your duty as a lawyer and that mostly cannot be solved by the rules.”

Further, Tigar acknowledged that the rules are constantly changing. Under such circumstances, lawyers need to find rule-abiding ways to do what they feel is right, and strive to convey a “human story” on behalf of their clients, he said.