ACSBlog: The Blog of the American Constitution Society

Deputy Assistant Secretary of Defense Charles Stimson recently suggested that lawyers who do pro bono work for detainees should be punished by their corporate clients:

I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.

Stimson recently replaced the more moderate Matthew C. Waxman, a former Supreme Court clerk who advocated to creating detainee treatment polices which complied with the Geneva Conventions.  According to a November 2005 New York Times report, Waxman's stance placed him at odds with David Addington, the influential Chief of Staff to Vice-President Cheney.  According to one Defense Department official, Addington "ate [Waxman] for lunch."

University of Houston legal ethicist Nancy Rapoport argues that Stimson's comments are at odds with the rules of professional conduct which guide all lawyers:

Charles Stimson, the Deputy Assistant Secretary of Defense for Detainee Affairs, recently excoriated several large law firms, suggesting that the firms’ pro bono representation of Guantanamo detainees rendered them unfit to continue their for-profit representation of corporations. Apparently, Mr. Stimson has missed the recent renaissance of Harper Lee, Truman Capote’s friend who wrote To Kill a Mockingbird. In that famous book, lawyer Finch represents Tom Robinson, an African-American man falsely accused of raping a white woman, at a time when such accusations typically resulted in public lynchings. Suffice it to say that Atticus Finch represented a very unpopular client.

Before someone accuses me of equating innocent Tom Robinson with alleged terrorists, let’s get one thing straight. It’s a professional obligation for lawyers to represent indigent clients, even highly unpopular ones, and that obligation is necessary for the administration of justice. The Preamble to the Model Rules of Professional Conduct provides that

A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel.

Stimson's comments have been publicly disavowed by the Pentagon.