By Ana Choi
On April 28, the Supreme Court will hear oral arguments for Obergefell v. Hodges, the case that could finally and conclusively bring marriage equality to all states. Public attention is mostly focused on what the Supreme Court will decide and how they will reach their decision, but this case also brings up interesting questions about the role of lawyers in cases that involve controversial public policy issues. A New York Times article has recently reported that no major law firms are willing to represent the side arguing against same-sex marriage, due to the belief of many lawyers that opposing same-sex marriage is bigotry akin to racism, as well as firms’ concerns about retaining clients and attracting talent.
The article then goes on to point out that “representing unpopular clients has a long and proud tradition in American justice,” citing examples such as John Adams representing the British soldiers after the 1770 Boston Massacre, Clarence Darrow defending two activists who bombed the L.A. Times building in 1910, and law firms today that are defending Guantanamo Bay detainees accused of ties to Al Qaeda.
However, the fact that all of the above examples were criminal—as opposed to civil—cases is a fundamental distinction, not a mere technicality. The American justice system is built on the principle that everybody is innocent until proven guilty, and that principle would ring hollow without defendants’ constitutional right to counsel. No matter how terrible a crime an individual is accused of, and regardless of whether the individual actually committed that crime, he or she has a right to be defended; and in turn, the lawyer defending the individual is indeed carrying on the “long and proud tradition in American justice.”
But civil cases are different. Civil litigants do not have a constitutional right to counsel, and more importantly, there is not a good, principled argument for the proposition that lawyers should represent anyone and everyone. It is one thing to say that indigent civil litigants should be provided with counsel when they are faced with penalties (civil Gideon)—but it is another thing to say that prominent law firms should refrain from declining a client just so that the two sides in a case will have equal firepower in terms of quality of advocacy. When individuals take the bar exam and become licensed to practice law, they do not forfeit the right to have moral values and to act according to those values. Of course, lawyers usually do not have the luxury of only representing clients with whom they agree; lawyers working at firms often just have to take on whatever assignments they are given, and even solo practitioners have to deal with the economic pressures of making a living. But when lawyers and law firms do have the opportunity to take a stance and weigh in on an important social issue, they should not be chastised.
In fact, if anything, the problem is that this doesn’t happen often enough. If more law firms were to take a stronger stance against things that they perceived as social evils, then they could go a long way towards curing those evils. The fact that this N.Y. Times article was even written shows that law firms have the potential to exercise significant influence over public perception of what is good or bad, right or wrong, and changing public perception is half the battle.