Carolyn B. Lamm responds:
C. Batkin's Nov. 13, 2009, article in Foreign Policy titled "Lowering the Bar" relies on inaccuracies, distortions, and speculation, and also conveys a fundamental misunderstanding of the role of lawyers in promoting the rule of law and access to justice.
Central to a lawyer's representation of a client are the Model Rules of Professional Conduct, including Model Rule 1.2(b), which reminds lawyers and the public that "a lawyer's representation of a client does not constitute an endorsement of the client's political, economic, social, or moral views or activities… ." This distinction is essential because it would be impossible to secure legal counsel for defendants accused of violent crimes, for example, if a client's actions or beliefs were imputed to the representing lawyer. If anything, the act of condemning attorneys for representing those accused of even the most heinous crimes is what jeopardizes individual liberties and harms the advancement of the rule of law.
Batkin's allegations concerning the conduct of sovereign states or corporations are factually incorrect -- but in any event sovereign states and corporations are entitled to zealous representation. From the earliest days of our republic, the legal profession has been obligated to ensure that the defense of the unpopular is as vigorous as the defense of the mainstream. In March of 1777, John Adams and Josiah Quincy represented the British Army Captain Thomas Preston following the "Boston Massacre," winning his acquittal. Condemned by many for the representation, these patriots devoted their talent to ensure access to justice and due process to one accused of a heinous crime. Our adversarial system of law depends on the willingness of lawyers to undertake the representation of those some might view as unpopular. Indeed the zealous advocacy of legal counsel protects the entire system of justice as well as each person's access to justice.
Another bedrock principle of the U.S. legal system is that no one individual or entity is presumed guilty and therefore denied counsel. Choosing to represent clients accused -- often wrongfully -- of heinous crimes is one of the most difficult duties of a lawyer, but also one of the most essential. That work must be celebrated, as it protects the rule of law. Such lawyers are in fact "defending liberty and pursuing justice." This is more than can be said for Batkin's effort to malign foreign states, corporations, and individuals through the media on the basis of a one-sided presentation of "press accounts" and "credible independent investigations" with no acknowledgement of evidence and arguments to the contrary.
Moreover, the defense of sovereigns or entities in cases brought against them before international tribunals, U.S. courts, and/or administrative agencies concerning the alleged dumping of their natural resources or financial transactions is irrelevant to the alleged human rights issues that Batkin alludes to in her article. A lawyer does not have an obligation to assess whether all of a client's acts, particularly those that are wholly unrelated to the subject of the representation, are "politically correct" or even legal before undertaking a limited representation or working to improve a bilateral relationship.
Indeed, the citation accompanying President Barack Obama's Nobel Peace Prize praises him for his policies of worldwide constructive engagement and his willingness to use diplomacy to resolve issues. President Obama stated during his town hall Meeting in China:
"We know more is to be gained when great powers cooperate rather than collide. That is a lesson that human beings have learned time and again, and that is the example of history between our two nations and I strongly believe cooperation must go beyond our government. It must be rooted in our people—in the studies we share, the business we do, and the knowledge we gain . . ."
President Obama did not for a minute refuse to do business or otherwise engage in dialogue due to alleged human rights abuses in China.
As president of the American Bar Association, indeed throughout my past 35 years of leadership and involvement with the organization, I have always supported and had a deep respect for the ABA's work to enhance the rule of law and access to justice worldwide. It is unfortunate that Batkin's article draws inferences based on inaccurate representations regarding my international legal work to attempt to cast aspersions on the ABA's longstanding commitments to the rule of law and access to justice worldwide. The only bar that has been lowered is for ethics in journalism.
--Carolyn B. Lamm
The American Bar Association