THE BLOG
07/14/2014 02:11 pm ET | Updated Sep 13, 2014

Hillary's Lesson: Defending a Criminal

Hillary Clinton will likely run for president. And if she does, given today's political and news climate, everything in her past is certainly fair game. Likewise for anyone who runs against her. So let's be clear at the outset -- this article is not about whether Hillary Clinton would be a good president; or whether she's a good person; or whether she's disingenuous when speaking about her legal career; or even whether, as some have said, she's a phony when she purports to support women and victims of violence. The voters will have to decide those issues and this article takes no position whatsoever on a Clinton candidacy.

But let's spend a moment on remarks she made during a circa 1980s interview about her 1975 representation (when she was 27 years old) of a man accused of raping a young girl, a client who became a client when a judge ordered her to represent him. Now, there's reason to believe that the representation and her arguably lighthearted discussion of it, even if 30 years ago, may indeed adversely impact her campaign and the way people perceive her. As a likely candidate for president, her past -- even her distant past -- won't ever remain in the past.

So, let's not talk about Hillary Clinton specifically -- let's examine, instead, through the prism of the recent Clinton controversy, the role of the run-of-the-mill criminal lawyer who chooses to, or is appointed to, represent an extremely unpopular defendant, or a defendant counsel believes is truly guilty.

Simply put, under our criminal justice system, every criminal defendant -- yes, even those accused of committing horrific acts -- deserves zealous representation. Period. Yes, lawyers can ethically choose to refuse to represent a client, as long as they're not directed by a court to do so (as seems to have been the case with Clinton). But lawyers can, and do -- and, frankly, must -- represent their clients even though they don't like them or the crime they are alleged to have committed. Still, may -- should -- the lawyer take a dive? Certainly not. The Hippocratic Oath compels a doctor to "never do harm," even if her patient is Hitler or bin Laden. No different for a lawyer appointed to represent the likes of them -- a lawyer's duty is to represent their client to the fullest extent of the law, no matter the defendant and no matter the crime! Yes, lawyers must represent guilty people; the law and the courts insist on it.

Do we, as criminal lawyers, go to bars at night when day is done and speak to colleagues, bragging or telling "war stories" about how we robbed justice, how we "got the client off," as long as we did it ethically (for example, by not letting the client perjure himself)? Some of us do -- the truth is, professionals occasionally let off steam and speak colloquially, familiarly to our colleagues about our clients and cases, as perhaps Clinton did in her tape recorded interview by a reporter.

The gist of the Clinton episode is not (or certainly should not be) that she defended a rapist -- she was a defense attorney and it appears to be undisputed that a judge directed her to represent the defendant. Nor should it be an issue that she (apparently, cleverly and competently) talked the prosecutor and court into a short jail sentence for a child rapist through, among other things, taking advantage of the prosecutor's failure to secure evidence and enlisting the help of a New York blood expert who lent his reputation and influence to Clinton's arguments.

The real problem is the (arguably) lightheartedness in her ten-years-later, 1980s era, interview where she said that her client's passing a lie detector test undermined her belief in the worth of lie detectors. Ironically, although the public won't see it this way at all, her real "wrong" may have been that statement and that she spoke on the record disparagingly, even years later, about a client (never mind that he was truly guilty). Her twin duties of zealousness and loyalty to him, loathsome as he indeed was even in her view, should have precluded her from a conversation such as the one she had with the reporter.

Yes, one might cringe knowing that the victim was shortchanged by Clinton's competent representation of her attacker, and worsened by Clinton's seeming acknowledgement that he was guilty. Still, in having represented a guilty client, even for an horrendous offense, Clinton did what she was required to do, particularly -- maybe, especially -- if it was unpopular at the time for her to do it. Criminal lawyers must do their job and their job is to give a defendant, guilty or not, the best representation possible.

Indeed, politicians representing unpopular defendants certainly did not begin with Hillary Clinton. John Adams, later to be our second president, defended at trial the killers of five Americans in the Boston Massacre. Despite the risk to his political career (not to mention his legal career), it is reported that he took the case because of his genuine and unyielding belief that all men were entitled to equal justice, that they deserved a fair trial.

Of course, if she runs, people should decide for or against Clinton on the merits -- and, in her case, there is much for them to consider either way. But if they consider this episode -- her representation of a guilty man accused of an horrendous offense -- the public should be aware of precisely what ethical responsibilities may have compelled her actions, and where, if at all, she failed.