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Article Excerpt
INTRODUCTION
In 1990, Jose Orlando Lopez retained a prominent criminal defense attorney, Barry Tarlow, to represent him on serious narcotics charges. (1) Mr. Tarlow's understanding with his client was that Tarlow would "vigorously defend and try" the case but that he would not negotiate on Lopez's behalf if Lopez decided to turn over State's evidence and become an informant in exchange for a reduced sentence. For moral and ethical reasons, it was Tarlow's general policy "not to represent clients in negotiations with the government concerning cooperation." (Indeed, later in the case when Lopez decided to enter into a cooperator's agreement with the prosecution, Lopez sought to negotiate the deal on his own without the assistance of counsel. These pro se plea negotiations ultimately failed). According to Tarlow, such cooperation negotiations were "personally, morally and ethically offensive" and he would no sooner represent a snitch than he would represent "Nazis or an Argentine general said to be responsible for 10,000 'disappearances.'" (2)
Whatever one thinks of Tarlow's policy, this case highlights an important truth. For Barry Tarlow and many other defense attorneys, the practice of criminal defense is about much more than helping individual clients achieve their individual goals. Criminal defense attorneys are often motivated by an intricate set of moral and ideological principles that belie their reputations as amoral (if not immoral) "hired guns" who, for the right price, would do anything to get their guilty clients off. (3) Some of the collateral causes advanced by these attorneys are laudable while others are not. But almost all of them raise ethical concerns that the rules of ethics and professionalism are not well-equipped to resolve. This is a noteworthy problem because cause-lawyering has played an important role in socio-legal movements in this country.
The cause-motivated approach to lawyering contradicts the traditional view of those in the legal profession as rights-enforcers or as neutral advocates of their clients' interests. (4) Weighing the virtue of neutrality in an advocate versus that of activism, the ethics and professional responsibility literature seems to embrace the former as the more appropriate of the two. Lawyers are strongly advised to be zealous but neutral advocates of their clients' interests. (5) They also have a duty of loyalty to clients that may prohibit them from representing clients in cases where the attorney feels the pull of professional, personal, or political interests distinct from those of the client. (6)
These conflicts raise significant ethical concerns for cause lawyers--activist lawyers who use the law as a means of creating social change in addition to a means of helping individual clients. These lawyers are known by many names in the legal and sociological literature, including radical lawyers, critical lawyers, public interest lawyers, poverty lawyers, socially conscious lawyers, visionary lawyers, and so forth. (7) The worry for the cause lawyer is that the pursuit of her "cause" may at times conflict with the client's interest. A lawyer's professionalism is measured in part by her ability to keep her personal and political agendas apart from (and secondary to) her clients' agendas. Accordingly, the repeated cautions against conflicts of interest when representing clients (8) suggest that lawyers ought to be wary of non-client-centered goals in lawyering. Tarlow's particular policy of not representing snitches is open to criticism on this ground, (9) but is merely one example of an overall approach to criminal defense lawyering in which the attorney's moral and political values play centrally in her advocacy decisions.
In this Article--the first to seriously evaluate whether criminal defense lawyers are cause lawyers (10)--I consider several examples of cause lawyering as described by defense lawyers during the course of forty interviews. Through their discussions, I explore the types of values or commitments that animate defense lawyers' approaches to the practice of law and the impact of such "cause lawyering" on the criminal defendant. I consider whether the cause lawyering approach in the criminal context is compatible with ethical and professional rules, and argue that it should be. Sometimes criminal defendants are better represented by defense attorneys who are "cause lawyers" passionately seeking to advance their political and moral visions through the representation of their clients than by attorneys who have no overriding "cause" other than the representation of the individual client. Ethical and professional norms should be more adaptive to these instances.
This paper challenges the well-established view that neutrality (or at least client-centrality) is the only ethical approach to lawyering. I provide empirical evidence supporting the contention that in many instances the cause lawyer's approach is not only defensible but preferable. My conclusion provides no quarrel with the notion that the defendant's goals should take priority over the attorney's personal or political goals. Rather, I illustrate that the common formulation of the conflict-of-interest problem is oversimplified and unrealistic for the many criminal defense lawyers who are also cause lawyers. The real conflict lies not between the client and the lawyer's political interests but rather between this client's interest and the interests of other clients that better embody the attorney's larger moral or political cause. (11) "Other clients" can be other current clients, other future clients, or the class of criminal defendants generally. This conflict, one that criminal defense attorneys and other cause lawyers face regularly, is the focus of this paper.
The Article proceeds in four parts. In Parts I and II, I make the case that many criminal defense attorneys are in fact cause lawyers--lawyers who use their legal skills "to pursue ends and ideals that transcend client service." (12) Part I presents empirical evidence from a qualitative study of forty criminal defense attorneys. Following a brief description of the project design and methodology, I describe the attorneys' practices and attitudes about criminal defending and the reasons they choose it. The interview data from this qualitative study reveal that many defense attorneys are motivated by a range of moral and political beliefs and that they practice in a manner consistent with those beliefs. Part II provides a brief review of the scholarly literature on cause or public interest lawyering and its application to the criminal defense enterprise. Read together, Parts I and II leave little doubt that although criminal defense attorneys represent, almost by definition, individual clients in individual and unrelated cases, many are cause lawyers for whom law practice is "a deeply moral and political activity." (13) As Scheingold and Sarat put it in their recent book on cause lawyers, these are lawyers who "have something to believe in and bring their beliefs to work in their work lives." (14)
Parts III and IV consider the ramifications of having cause lawyers practicing criminal defense. In Part III, the heart of this paper, I consider the types of conflicts encountered by criminal defense attorneys precisely because they are working on behalf of causes in addition to working on behalf of individual clients. The focus of this section is on conflicts encountered by criminal defense lawyers when the goals that they "believe in" are different and possibly (though not necessarily) incompatible with the goals of their clients. I explore in detail three conflicts mentioned repeatedly by the respondent attorneys: their decisions regarding whether to file Anders briefs informing the court that the defendant has no viable issues, the use of collective action by attorneys to challenge unfavorable Government policies, and decisions to forego making certain arguments on behalf of particular clients. Part IV considers the question of whether criminal defendants are better off with cause lawyers or with non-partisan attorneys operating under the conventional approach of neutrality. I conclude that contrary to conventional beliefs, defendants are not always better off when represented by criminal defense lawyers guided only by the formal dictates of the professional responsibility and ethics rules. I argue that the formalistic approach to conflicts of interest embodied by the ethical and professional rules fails to account for the realities of cause lawyering in general and criminal defense lawyering in particular. While the paper ultimately raises more questions than it can answer given the limited data, its purpose is to contribute to an important dialogue regarding the ethical regulation of cause lawyers.
I. EMPIRICAL EVIDENCE OF CRIMINAL DEFENDERS AS CAUSE LAWYERS
This project emanates from an empirical study involving lengthy interviews of forty criminal defense attorneys. An earlier component of this study had as its central aim the exploration of how the federal sentencing guidelines affect these lawyer's perceived abilities to be successful advocates. (15) Despite my own experience as a criminal defense attorney, I quickly learned that in constructing my inquiry, I had made certain assumptions about what it means to be a successful advocate and that these assumptions were not necessarily shared by many of the attorneys being interviewed. For many of the lawyers with whom I spoke, the requirements set forth by the ethics rules (that lawyers zealously pursue their individual clients' interests and objectives) were viewed as baseline or minimum requirements. (16) Many of these lawyers had goals and motivations that were distinct from their client's immediate objectives. My interest is in these extra-curricular commitments and their effect on the enterprise of criminal defense lawyering.
Understanding these lawyers' motivations, to the extent we can ever understand anyone's motivations to do anything, helps to gain purchase on the question of whether criminal defense lawyers ought to be included within the category of "cause lawyers." After all, that which distinguishes cause lawyers from conventional lawyers is their intent and motivation to pursue social change. (17) Although cause lawyers differ widely in their principles, ideologies, work settings and strategies, the essential and distinguishing feature that binds them is that they are drawn and motivated by moral and political commitments. (18) To classify a group of lawyers as cause lawyers, one must begin by understanding what motivates them and what they believe themselves to be about. In the case of criminal defense lawyers, what are their motivations?
The issue of motivation in lawyering has been only marginally explored. Yet, among the questions asked by scholars who study cause lawyering, the most intriguing have to do with the issue of motivation. As Professor Carrie Menkel-Meadow asks, what motivates a lawyer to undertake work that is often poorly compensated and that may involve personal, physical, economic, and status sacrifices in order to seek greater social justice? (19) She laments that very little of the writing done on cause lawyering expressly considers the political, experiential, and psychological roots of its motivations. (20)
Even more under-examined are the motives of criminal defense lawyers and how these motives impact the way in which they do their jobs. An empirical examination of this small sample of criminal defense lawyers provides an illustrative though non-exhaustive list of some of the motivations that inspire and guide lawyers to seek social justice in the field of criminal law and policy. The interview data from this study reveal a wide range of motives, as mixed and varied as the lawyers themselves. From this range of motives, several useful categories emerge: ideological motives, personality-based motives, experiential motives, ambition-oriented motives, and motives based on group identity. While the causes for which criminal defense lawyers labor are as varied and mixed as the attorneys themselves, there are nonetheless some glaring commonalities revealed in the interviews of the defense attorneys. In the section that follows I describe the design and results of the empirical study. (21)
A. EMPIRICAL STUDY
1. Data and Project Design
The data for this study is derived from in-depth, semi-structured interviews with forty criminal defense attorneys who practice mostly or exclusively in federal court. The forty attorneys are from one of two large and demographically diverse federal districts--in two different regions of the country (22)--and comprise a mix of public defenders and private attorneys. Prior to each interview, the lawyers were told that neither their names nor the jurisdictions in which they practice would be revealed in the study. This level of anonymity was intended to increase the responsiveness and comfort level of the subjects. Each attorney interviewed was asked to fill out a short questionnaire prior to the interview. The interviews, lasting approximately sixty to ninety minutes each, explored the subjects' perceptions of themselves as advocates and the factors that they felt influenced their zealous representation of clients. Each interview was audio-taped, transcribed, and coded. (23) While the interviews spanned various topics, each respondent was interviewed at some length about their motivations for doing the work they do. Some of the questions asked in this vein are listed below in Figure 1.
Figure 1 Sample Interview Questions How would you characterize the goals of your job? -- How do you determine what is the best result in any given case? -- What are the kinds of things that the client gets to decide or that you decide and not the client? Are there such things? -- How much control would you say that you have over how your cases develop? Why? -- Do you think that public defenders face different challenges than private attorneys from prosecutors, judges, or their clients? -- To what extent are you ever in the position of having to worry about your reputation and credibility? -- To what extent do your colleagues or other members of your defense bar influence what you think is appropriate for you to do as an advocate? -- Is there a particular culture in this office as far as advocacy issues? -- Since you've started defending, has the nature of the job changed? How has it changed? -- Is there anything about your background or training or values that you think significantly informs what kind of lawyer you are? -- Why do you do this job? -- Is there anything I haven't asked that maybe I should have asked? Any aspects of the work that you think bears on your ability to be an effective lawyer?
The lawyers for the study were identified in "snowball" (24) fashion, starting initially with the federal public defender offices in each selected jurisdiction. Each of the two defender offices I visited employs fifteen to twenty attorneys. (25) I contacted each attorney in the public defender offices by electronic mail or telephone seeking an interview. From these attorneys, I obtained a response rate of approximately seventy percent. (26) I began by interviewing all the attorneys who responded, with the exception of those who worked exclusively on appeals or habeas corpus cases. I asked each respondent for the names of other criminal defense attorneys in that jurisdiction who might be willing to be interviewed. I maintained a list of lawyers whose names were mentioned by more than one respondent. I contacted these individuals, often mentioning the lawyers who referred me, and obtained positive responses from approximately thirty percent of the snowballed subjects.
2. Respondent Demographics
Of the forty respondents interviewed in the study, approximately half were public defenders and half were private attorneys. The lawyers ranged in experience and background. Most of the lawyers interviewed have been practicing law between six and twenty-five years. Three of the respondents have been practicing in federal court for five or fewer years and seven for more than twenty years. A number of the lawyers had previously worked in law firms or government organizations doing civil or other non-criminal work, but most of them had done only criminal defense work during their careers. (27) Three practiced for short stints as prosecutors. (28) Based on the questionnaires filled out by respondents themselves, the group included fourteen female, twenty-six male, twenty-eight White or Caucasian, seven Black or African-American, three Hispanic, Latina/o or Mexican, and two Asian or Indian. They ranged in age from twenty-five to sixty-three (29) and attended reputable law schools all over the country. I obtained demographic information by having each attorney complete a short questionnaire prior to beginning the interview. (30) The questionnaire form appears below in Figure 2. Some of the information from the preliminary questionnaires has been synthesized in Figure 3 to facilitate comparison. (31)
Figure 2 Questionnaire Form Professor M. Etienne Regulating Criminal Defense Attorneys Preliminary Questionnaire Thank you for agreeing to meet with me for an interview. Please fill out this preliminary information below prior to our interview. ID# (interviewer use only) -- Gender -- Race -- Age (optional) -- Number of years practicing law -- Law School -- Number of years as a defense attorney -- Number of years as a prosecutor -- How would you characterize the goals of your job as a defense attorney? Thanks for your time.
The sample of lawyers in this study is not designed to be statistically representative of the federal defense bar. As with most qualitative empirical studies, (32) my goal was not to conduct a randomized survey but to obtain a nuanced understanding of defense lawyers' motivations for doing the work they do. Interviews play a critical role in qualitative empirical studies because they provide nuances and explanations that are difficult to obtain from quantitative or statistical analysis. (33) I expect that this study will broaden our understanding of cause lawyers in general and our sense of the cause for which criminal defense attorneys labor.
3. Preliminary Findings
As noted above, data were in the form of semi-structured interviews. The interviews focused on sentencing practices and defense attorney advocacy in the context of sentencing. As the attorneys explained their practices and strategies as advocates, they revealed many of the underlying values that animate their decisions. After gathering the interview data, I combed the transcripts to identify and categorize the factors they said motivated their conduct. Attorneys explained that they were motivated by: (1) their desire to achieve the "best result" for clients; (2) their interest in securing procedural fairness--as opposed to specific results--for clients; (3) their optimistic worldview about human nature; (34) (4) their belief in giving others the benefit of the doubt; (5) their commitment to equal justice for the poor, minorities, and the disadvantaged; (6) their "social worker" sensibilities; (7) their opposition to sentencing and prison policies and their desire to fight government overreaching and law enforcement corruption; (8) their respect for and desire to be respected by their colleagues in the defense bar; (9) their belief in the adversarial justice system; (10) the excitement of and opportunity for first-hand criminal litigation; (11) their feelings of identification with their clients; and (12) the financial compensation.
From these twelve broad categories, I identified those that relate to cause lawyering. The result was six more specific categories of motives: (1) the goal of securing fairness or procedural rights for those accused of crimes; (2) the desire to effectuate broader criminal justice reform; (3) providing an opportunity for disempowered defendants to have their day in court or have their voices heard; (4) helping defendants improve their lives through advice, counseling and tapping into resources, much like a social worker; (5) identification with clients' needs because of the lawyer's particular background or experiences such as religion, race, ethnicity, and (possibly) gender; (6) a shared view among defense lawyers leading to the development of an influential group network and inter-group pressures. A seventh category was created for miscellaneous motives that did not correspond into any of the six described above. These themes were used as a framework with which to code the forty interviews. The coding involved a verbatim reading of interview transcripts, studying each text line by line, and highlighting statements falling within the noted themes. The section that follows focuses on these recurring themes raised by the respondents in discussing their "causes" and the factors that motivate them.
B. CRIMINAL DEFENSE LAWYERS AS CAUSE LAWYERS: A LOOK AT MOTIVATIONS
During the course of the interviews, I began to focus on lawyer "motivations" in at least two senses of the word. I investigated the factors that lead lawyers to choose criminal defending as well as those that influence lawyers' approaches in how they do their jobs. I concluded that these motivations are best understood by viewing criminal defense attorneys as a distinctive breed of cause lawyers.
Motivations are notoriously difficult to discern. For every action, there are likely several influential motivations. The same is true for the motives of criminal defenders. Moreover, the motives that lead some attorneys to choose a career as a cause lawyer is often different from the motives that lead them to remain in these difficult and often poorly paid careers. Additionally, the "motives" inquiry is further complicated because its respondents hear one of two distinct questions. There is the "what motivated you to become a cause lawyer" question and the "what goals motivate your work" question. The conflation of the two is understandable because in many instances, a single motivating factor (e.g., outrage over police brutality, opposition to unfair treatment of poor and minorities) answers both questions. For example, a lawyer's desire to eradicate police brutality may be both her inspiration and her goal. Thus, when I refer to motives, I refer both to the motivators that serve as the lawyers' inspirations as well as their goals. (35) The data shows that few of the lawyers interviewed were influenced by a single cause or motive. Instead many of them echoed variations of the twelve previously outlined "motives." I consider the wide mix of motives in greater detail below.
It is worth noting at this juncture that although this paper has as its focus an examination of criminal defense lawyers as cause lawyers, the data obtained from the interviews may also be valuable as an independent contribution to other areas of scholarship. (36) Understanding lawyer motives is also relevant to a host of policy concerns and proposals including the regulation of lawyers, the encouragement or requirement of pro bono legal work, and the recruitment and admission policies of law schools.
From the perspective of the cause lawyering scholarship, the data reveals most notably several commonalities among respondents. The first commonality noted from the study is that criminal defense lawyers seem to have a shared ideology or worldview (37) that oddly combines skepticism of government action with an admiration of its underlying principles. Many (public) defense attorneys embody the seemingly contradictory position of working for the government, against the prosecutorial arm of the government in order to protect what they perceive to be the integrity of a governmental system of criminal justice. Their principal cause seems to be a dedication to fighting governmental tyranny and abuse. Variations of this include a strong desire to help the underdog or to protect the disadvantaged members of society. Second, the respondent attorneys generally believe that the process of representation is nearly as important as the result. They want the experiences of their clients to be as minimally traumatic as possible. This requires that the attorneys make great efforts to ensure that their clients feel informed, respected and empowered throughout the process. Most of the attorneys expressing this view discussed their desire to "help people" and are committed to the improvement of the lives of individual clients. And third, the lawyers studied tend to share a group identity with other criminal defenders and behave as though they are part of a movement or social agenda of legal reform that transcends their individual cases. The goal of this movement appears to be to change the way the law treats the criminally accused. The lawyers had a "soldier" mentality and were as devoted to their roles as part of a network of criminal defense lawyers as they were to the changes they sought to promote.
The vast majority of the respondent lawyers began by explaining that the primary goal of their representation was to "help" the client or to obtain the best result. (38) For most attorneys, the best result was always an acquittal or the lowest possible sentence. But many attorneys realized early on that those goals were often difficult to attain and were not directly within their control. (39) As one lawyer explained, even when he does not win, "in those cases where ... someone's life has been influenced in some small fashion by how [he] litigated a case, [he] fe[lt] good." (40) Therefore, in conjunction with winning or reducing the length of confinement, the attorneys articulated numerous other goals of representation. These additional goals help elucidate these lawyers' attitudes and beliefs about their roles as defense attorneys.
1. Procedural Rights And Fairness
The lawyers believed that they were there to guarantee that the procedural rights of their clients were not trampled upon. (41) Many of the attorneys felt that even if their clients were convicted and received significant sentences, they would have done a good job if they insured that their clients enjoyed all the procedural safeguards to which they were entitled under the law. A related point often articulated by the respondents was that they stood prepared to hold the government to its burden of proving guilt beyond a reasonable doubt. In many of the interviews, the lawyers described their work as upholding individual rights and liberties, or Constitutional rights. (42)
Related to the notion of procedural fairness is the idea that every party in a litigation action deserves a strong and dedicated advocate. These lawyers are believers in our criminal justice system and see themselves as the embodiment of the Sixth Amendment right to counsel. (43) Without the right to effective advocacy, other constitutional rights would be less meaningful. (44) To many of the lawyers interviewed, the belief that a good defense attorney for the accused is a critical aspect of a strong criminal justice system motivates them to do the job.
2. Criminal Justice Reform
A number of the respondent attorneys described themselves as fighters. (45) They fight convictions or harsher sentences for their clients, to be sure, but they also fight the system. The two "fights" were viewed as symbiotic. For these lawyers, the criminal justice system was badly in need of repair in one way or another. The ills they sought to combat included police violence, law enforcement corruption, racism, overly harsh sentencing policies, prosecutorial abuses, and court processes and procedures that are unduly partial to the prosecution. All of these are causes that could be championed during the process of representing individual defendants. (46)
The ultimate goal for the lawyers seeking to reform the criminal justice system is either to change the law as it is written or as it is applied. Some lawyers target specific cases or statutes that they believe ought to be overturned and work toward that goal, much like cause lawyers in other fields work steadily toward a long-term goal of eradicating the death penalty, legalizing gay marriage, or desegregating schools. Other lawyers identify certain practices such as racial profiling, automatic detention for certain crimes or mandatory minimum sentences and seek to challenge those. These criminal defense attorneys engage in what is often referred to as impact litigation but they use their criminal defense work as the medium through which they seek change.
Evidence of this was most stark when talking to lawyers about deciding when to pursue and when to forego certain legal arguments. Their decisions were often based not solely on the best interest of the client but with an eye on the effect it would have on the law. Some lawyers discussed their decisions to withhold certain arguments for fear of making "bad law" (47) while others combed favorable appellate cases in other districts in order to bring "good law" into their own district when the right case came along. As one lawyer put it, "you know, there ... is a responsibility not just to the client but to make some good law ... to litigate ... out of a sense of responsibility to the system that would do things the right way." (48) For the most part, these lawyers perceived themselves as agents of legal reform and believed that their roles as criminal defenders transcended the specific benefits their advocacy afforded individual clients.
One noteworthy aspect of the criminal defense lawyer's desire to influence socio-legal reform is what appears as, unfortunately, anti-governmentalism. (49) Indeed, many defense lawyers describe themselves as "fighting the government" (50) and "making the government prove its case beyond a reasonable doubt." (51) It is probably more accurate to say that criminal defense lawyers are not anti-government but rather are antigovernment misconduct or abuse. (52) They see the potential for government abuse in all stages of the criminal justice system: political pandering by the legislature, misconduct by the police, selectiveness and vindictiveness by prosecutors, arbitrariness and bias by judges, harsh and inhumane conditions in prisons, and so forth. These lawyers do not see themselves as defending the criminally accused per se but are committed to defending "the little guy" against each and every perceived manifestation of governmental overstepping. (53)
3. Giving The Defendant A Voice And Ownership Over Process
Although defense lawyers want to obtain substantive results for their clients, they noted that sometimes defendants also have the need for a process that allows them...
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