White Supremacists v. First Amendment

Great Debates
21

Max said:

One minor correction here: Dershowitz is not, nor has he ever been, Hale’s attorney.

It is true that they discussed it, but Dershowitz told Hale that one of the conditions of him being Hale’s attorney was that he would not hold back on his opinion’s about Hale’s views. If memory serves, he also said that he would donate Hale’s fee to the ADL or some other hate-fighting group.

Hale decided he didn’t really want Dershowitz after all.

MGibson: I’m not sure what the exact rules are regarding what cases the attorney has to take. If they believe the case is wrong, then they may be able to reject it. However, that would be on the merits of the case, not on the color of the skin of the person bringing the case.

And, yes, lawyers, as officers of the court, can indeed be “drafted” like that. No, they do not get their normal rate – they get the “public defender” rate, or something like that.

You know, there used to be a few lawyers around here. I hope one of them drops by. I’m pretty sure I have all of this right, but I’d like some verification.

22

DavidB: I’m not an attorney, but I am a paralegal at a telecommunications law firm, and all of our clients became our clients because they signed retainer agreements with us, but as far as I know, we’re free to turn down clients…we don’t have to accept someone we don’t want to represent. Also, as far as I know, none of the attorneys have ever been asked to serve as a public defender…and I don’t know if I’d want any of them as my public defender. They all are very good at FCC regulatory law, and some of them have represented some clients in a civil suit, but I don’t think any of them have any criminal law experience.

23

Well, that’s what I get for relying on out-of-date news and the memory of their joint appearance on CNBC a while back…

24

First off, aren’t all lawyers technically speaking “officers of the court”? If this is the case, then isn’t it a simple matter that Hale’s viewpoints would directly interfere with his ability to represent what the State Courts of Illinois stand for?

Secondly, aren’t all lawyers supposed to be available for court appointment as representatives for any defendant that the court may choose? If so, it seems obvious that Hale would not be able to fulfill the directives of the court.

Finally, I am glad that the Anti Defamation League has had the stones to protest this action. That said, I am still a bit unsure that Hale has the moral credentials to properly conduct himself as a lawyer ([riotous laughing][/riotous laughing]). His own views specifically support the denial of basic civil rights to other Americans. It would seem to me that he may not be qualified.

This is one very tricky issue. If others would be so kind as to clarify my first two questions, I might be able to decide better. Any takers?

25

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I’m pretty sure the views of every lawyer does not represent the views of the state. If I were suing the state I’d sure hate to have my lawyer represent what they stand for.

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There are probably other lawyers who would be unable to represent certain people. Lawyers are human beings with their own agendas and beliefs. They should not be punished for beliefs that are unpopular.

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That should probably be based on his conduct as a lawyer. Being a racist doesn’t mean you can’t act within the ethical rules of being a lawyer.

**

What does his views on how the law should be have on him being a lawyer?

Marc

26

IANAL: but (don’t ya love it when things start out that way).

the issue of public defense cases is handled differently across jurisdictions. (a couple of years ago I attended a convention in Chicago about death penalty defenders and talked to many across the country about their various systems).

SOME jurisdictions have a “public defenders” office, just as they do a prosecutor’s office. There would be a group of attorneys who are employees of the jurisdiction, often include an investigator as well.

OTHER jurisdictions have a pool of “public defender” lawyers. In my jurisdiction (can’t answer for others), the lawyer signs up to be available. Many do, since if you’re a new lawyer starting out, this may be the best way to establish a client base and reputation. However, you may also join a firm who may or may not sign up for criminal defense work. There’s an “A” list of exceptional lawyers who will be assigned serious cases (or newsworthy cases, for instance the “Burning Bed” lawyer was a court appointment here). but otherwise ya get what you are assigned. they are “contract” workers for the county and are typically paid a stipend for the entire case (not a per hour rate). Again, these specifics are from MY county. YMMV.

As far as a lawyer being able to refuse to take a case, I believe, they would be treated under the law the same way as a store owner who can technically refuse to serve any specific individual for specific individual reasons (“I caught you stealing from my store, you are banned forever”), but if a pattern of discrimination on protected classes is discovered, a Civil Rights suit may be filed.

as far as refusing the case if they think it has no merit, I believe that a lawyer CAN do this, since they personally can be charged with filing a frivolous suit. However, they’re more likely to ask for a HUGE retainer up front, and file a “maybe” suit. Can’t pay the retainer? oh well.
As far as a lawyer being an officer of the court, that’s true in this respect:

Any lawyer who knowingly perpetrates a fraud upon the court is subject to penalties including disbarment. So, when you hear on Law and Order about folks being “an officer of the court” it generally means that they must act in accordance with the laws, that if they have knowledge BEFOREHAND of a some one’s intent to commit a criminal act they are required to take action, and they may not, for example, call a witness to the stand if they have reason to believe the testimony offered will be a lie. It does NOT mean that as an officer of the court they have to take the “state’s side” in any matter.

27

Seeing as how his character is being evaluated on the basis of what he said, it most certainly in a free speech issue.

That’s your opinion. You do not have the right to legislate your opinions.

Says who?

Okay, so not only is the 1st Amendment being violated, but so is the 13th. Is this supposed to make it better?

My earlier question remains unanswered: what exactly is the relationship being the organization which denied Hale the ability to be a lawyer, and the government?

28

I’m curious – can anybody cite an American statute, rule, court decision, etc., that says a lawyer has to take any case that walks in the door?

Honestly, I’m skeptical that that is the rule.

29

The Ryan said:

It’s not just being based on what he said, but on how he behaves.

I note that nobody has commented on the fact that he has lied repeatedly, and been caught doing so. Does anybody think that just maybe this could be a character issue?

I had said: “Can Hale properly represent a black person, or a Jew? No.”

The Ryan replied:

Just my opinion? Jeez, man, have you ever read anything this guy has written? Do you really “think” he would represent the “mud people” to the fullest extent of the law? He’s busy justifying why his pal, Smith, killed several folks, but you “think” he would represent these same people? What planet are you on?

30

The following is from a treatise by Geoffrey Hazard, a well respected scholar in the area of attorney ethics:

“Some arguments about a lawyer’s proper role assert or assume that lawyers must accept all cases presented to them . . . . This line of argument carries little weight, however, for its premise is plainly incorrect. Lawyers are not required to accept employment in all cases . . . .”

Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct S. 1.2:301 (2d ed. 1998).

Again, if anyone wants to point me to a statute, case, rule etc. (American) that says lawyers have to accept any case that walks in the door, I’d love to hear it.

As far as lies go, there is a fine line between lies that are protected speech and lies that should disqualify one from the practice of law. Just look at the case of Bill Clinton.

31

Dave, I read some of the links given in this thread, but didn’t see anything about Hale’s lying. I can’t say I’m surprised, but could you point me to a link? Lying is a character issue, one all too readily ignored by, IMO, almost all lawyers. It should be grounds for disbarment PROVIDED we apply such a rule even-handedly to everyone, and not just make it a pretext to selectively prohibit people we disagree with.

The more I’ve thought about this, the more I’ve come to realize that it’s BECAUSE I find this guy’s views reprehensible that I should be speaking on his behalf. That’s what free speech IS, after all. It’s not “you’re free to say what you think as long as we all agree it’s okay”. If I really believe what I’ve always said about free speech, I HAVE to stick to it when it is violated for people I disagree with. Especially so, in fact.

For me the crux is this: Is the standard Hale is being held to noticably different from people who hold different social and political views? Obviously so. To characterize the disapprobation of the review board as anything other than a condemnation of his views is just disingenuous.

So, those of you who approve of the state’s action here (or the state’s representatives if you want to be picky), can we at least codify in specific detail which social views lawyers are not permitted to express? Obviously, racial superiority is one. Can a lawyer express the belief that there is one true religion, and all others are inferior or, at least, mistaken? Can a lawyer express the view that men and women are biologically different and should therefore have different roles in society? Can a lawyer express the view that communism is evil and people who advocate it should be expelled from the United States? How about the view that democracy is a flawed system and the U.S. should move toward a more socialist model? Surely that is not what the state of Illinois advocates; such a lawyer could never represent a corporate interest fairly. Should such a lawyer then be disbarred? Every single social view here has been linked by at least some people to their adherent’s “lacking character”. Until this whole connection is more clearly spelled out, and the “characterless views” placed on the books for all to see, I will maintain that the state of Illinois has gone too far.

32

APB, I’m searching through Chicago Tribune archives at this very moment.

As far as the lying, some of it is in his publications, which you’d have to read to fully grasp the implications. The other lies I mentioned had to do with his claims of how well he knew murderer Benjamin Smith.

Okay, here’s something (not from the Trib – they charge for their archive articles). It’s from the State Journal-Register in Springfield, IL:
http://www.sj-r.com/news/00/06/27/h.htm

Some excerpts: “The full character committee upheld the decision of its own panel, saying that Hale publicly advocated violence and misrepresented his relationship with Benjamin Smith, a former member of Hale’s ‘church’ who targeted minorities in a three-day killing spree last summer.”

“Character committee members, in denying Hale’s application for a law license, said he had ‘dedicated his life to inciting racial hatred’ and that ‘he cannot do this as an officer of the court.’”

As if to indicate that they made the right decision, Hale’s response was a threat of violence: “‘As far as I’m concerned, the Constitution of the United States is dead. As such, I can no longer in good faith and conscientiousness tell my followers to obey laws issued by this government,’ Hale said. ‘I really see the future of this country being more turbulent and violent as a result of this decision today.’”

“Illinois bar licensing officials opposed Hale’s appeal, saying he had failed to prove he had good moral character.”

“‘As opposed to being excluded from Illinois’ bar on the basis of beliefs or speech, Hale’s past conduct, lack of credibility and inability to meet his burden of (good character) proof doomed his bar application,’ they said.”

Here’s some quotes from an earlier article, before he went through all the appeals (in fact, it quotes a law professor saying Hale would likely win). This gives some background:

"To receive a license, every prospective lawyer is required to appear before a judge or attorney working on behalf of the Illinois Supreme Court’s committee on character and fitness. The committee representative looks for problems including dishonesty, criminal activity, academic misconduct or financial irresponsibility.

All but 25 of more than 3,000 applicants last year were approved at that initial stage."

33

That certainly is an interesting claim. What’s even more interesting is that you seem to think that it requires no support.

Seeing as how the alledged lies to which you refer apparently happened after the rejection, that would fall quite clearly under the “lame excuse” category.

No.

If you have to ask that, if you think this is at all relevant, then you simply aren’t getting the point.

Do your legs ever get tired from all this jumping to conclusions?

34

Ryan, call me when you have something intelligent to add to the discussion.

35

With respect to the duties of lawyers to represent clients, I’m afraid I disagree with some of your analysis, David. (Bear in mind, I’m not an American lawyer, so there may be some jurisdictional differences.)

First, with respect to the duty of a lawyer to take a case: a particular lawyer is not obliged to represent any and all clients. Some lawyers are hired full-time by a corporation, a union, a government, or some other organization. They obviously cannot be compelled to represent anyone else, as it would require them to breach their contractual obligations to their employers.

Even those in private practice cannot be compelled to represent someone. For example, if the lawyer does not believe the person has a case, or is lying, or wants the lawyer to do something contrary to the law or legal ethics in litigating the matter, the lawyer should not accept the case.

Another reason may be a conflict of interest, whether personal or professional, which would bar the lawyer from taking the case.

As well, the lawyer can only take a case if he/she is able to defend the client fully. Some lawyers presented with a particular case may conclude that they don’t have the skill set necessary to carry it forward. In those cases, the best legal advice they can give is to help the person find a lawyer who can handle it.

There are also the personal beliefs of the lawyer. If a lawyer truly believes that his/her personal beliefs would prevent him/her from presenting the client’s case, then the lawyer should not handle it. Note that this isn’t a question of disagreeing with the potential client’s views, per se. Rather, the issue is whether the lawyer’s own views would prevent him/her from doing a proper job of the client’s case.

For example, a friend of mine is a very good criminal defence lawyer, but he won’t take cases involving sexual assaults on children. That’s because he has three small children himself, and he believes that his personal reaction to the allegations would prevent him from doing a proper job defending the client.

The second issue mentioned was court-appointments. Yes, the court can appoint a lawyer, but in my experience it only appoints from a panel of lawyers who have expressed their willingness to take court appointments. (In the historical antecedents of the English common law, any barrister present in court could be called on to represent an accused, but the custom developed that if a barrister took off his wig it was a signal to the court that he was not willing to take a court appointment. Or he could just leave the court room when it became clear a court brief was coming up.)

However, all those bits and pieces aside, there is an important principle at stake. That is the absolute duty of the bench and bar, collectively, to ensure that anyone facing serious charges, and who wants a lawyer, is represented by counsel. This was a common law right, and is now a constitutional right in Canada and the U.S. (Canadian Charter, s. 11(d); U.S. Constitution, Amendment VI).

Normally that duty is fulfilled by the private bar and legal aid plans, but occasionally, for whatever reason, a case crops up where a person has trouble getting a lawyer. In these cases, the Crown, the private bar, and the court may have to work together to find someone to take on the case. For example, in the Bernardo case in Ontario, involving a notorious case of sexual abuse and murder, the accused had trouble finding a lawyer after his first lawyer quit. The news reports indicate that the local bar persuaded a very prominent defence lawyer to take on the case, because of the basic principle that an accused person has the right to representation by counsel. After the lawyer agreed to take the case, the court appointed him.

36

Will you call me when you decide to stop being as asshole?

37

I think this guy has just as much potential to provide a good defense for a black or a Jew as a Holocaust survivor can for a neo-Nazi. Lawyers defend people they find repugnant all the time.

38

I’m an attorney in the US (I know this opens me up for abuse.) I just wanted to confirm that an attorney does not have an obligation to take any client that walks in the door. As for appointments to defend indigent clients, those attorneys are chosen from a list of attorneys who have voluntarily put their name on the list. You don’t want to force all attorneys to represent defendants because, quite frankly, you don’t want a real estate lawyer defending a criminal defendant. Many jurisdictions have rules of conduct that encourage taking appointments but, in DC for example, you can refuse the appointment if it would be an undue burden on the attorney or the “client or cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client.”

39

I want to clarify my previous post. Though in general the court selects appointments from a list, a court does have in its “inherent authority” the power to appoint an attorney even if the attorney is not on a list. This really would only happen if the case was in an area with few attorneys. If nobody came forward to help a defendant, the judge could pick somebody.

I also didn’t mean to imply that a real estate attorney could never do criminal defense work. Any attorney can volunteer to do defense work as long as he or she took the steps to become proficient in criminal defense work.