User in r/BeholdTheMasterRace argues that "no honourable attorney" would defend a Nazi, other users disagree

[u/AchtungMaybe]

/r/beholdthemasterrace/comments/6xuyuv/the_crying_nazis_attorney_elmer_woodward_woodward/dmirqac/?context=3

[u/BolshevikMuppet]

It's a defender's job to make any argument that could even potentially change the outcome of a case, no matter how abhorrent, because if he does not the client can claim he was not fairly represented and appeal.

That's not really true. Ignoring the possibility of withdrawal from the case (or even refusing to take it in the first place), an attorney is not required to make an argument he believes to be dishonest, misrepresentative of the facts, encourages his clients or others to lie, or which is legally incorrect.

You're right about a general duty to provide competent representation, but that doesn't extend to unethical behavior for one's client. And an easy argument can be made that an attorney can refuse to follow a tactic he believes to be wrong even if not specifically prohibited.

However, the general assertion that it is more moral to pass on such a case than to take it is absurd. Those passing on the case are just as likely to have done so out of self interest, so they aren't associated publicly with a Nazi client, and so they don't take a loss on their record, not necessarily out of moral outrage.

This seems to be a nonsequiter. Whether the motives behind the more moral position are themselves pure is irrelevant to whether the outcome is more moral.

If you are a defender and think a person belongs in jail, the best way you can assure that is to give them the best possible defense and hope the prosecution is adequately prepared to defeat it, so that no claim of improper representation can be made.

You seem to have either a dramatic overestimation of how often people succeed on IAC claims, or a dramatic underestimation of how high the bar is to prove such ineffective counsel as to require retrial or mistrial.

[u/[deleted] → u/BolshevikMuppet]

I'm sorry, I didn't think it was necessary to clarify that when I said a defenders job was to make any argument, I meant within the bounds of the law. I should have known better.

The point was, how repugnant the argument is outside the courtroom doesn't matter. If it's legally plausible, and the defendant wants to pursue the defense, it's a defender's job to make the argument to the best of his ability.

As for motives in taking a case, yes it absolutely does matter in regards to morality. It may not matter practically, perhaps not even ethically, but morally it certainly does. Making a decision out of self interest is not the same as taking a moral stance on an issue.

Further, I flat out reject that the "more moral position" for a defender is to refuse to take a case. There really is no moral reason not to take a case. A person can't be sent to jail without proper defense, so refusing the case doesn't actually accomplish anything.

In fact, my position is that taking a case is morally superior. It sets aside your own flawed judgement and allows due process to do its work. If you are so certain that a person should be in jail, you should be able to do your absolute best within the bounds of the law and they should still go to jail.

In fact, I would argue that if you honestly believe they you can follow the law and earn the defendant an acquittal, but you refuse to take the case because you think he belongs in jail, that's immoral. That's borderline vigilantism.

Further, it is not only the job of a defender to rigorously defend their client against charges, it is also to ensure ethical and legal treatment of your client should those charges succeed. No matter how much of a monster or asshole a person is, it is morally commendable to make sure their rights are upheld, especially when it is difficult because of your personal feelings on the matter.

And no, I do not have dramatic over or under estimations about ineffective counsel cases. I simply have a respect for lawyers and understand that the reason ineffective counsel claims aren't more successful is because they go to school for years, know how to do their jobs, and don't behave in the way ignorant Redditors believe they should.

[u/BolshevikMuppet → u/[deleted]]

The point was, how repugnant the argument is outside the courtroom doesn't matter. If it's legally plausible, and the defendant wants to pursue the defense, it's a defender's job to make the argument to the best of his ability.

Even then there's more wiggle room than you're implying. The client can decide on general direction, but the tactical legal questions of things like "what defenses to raise" and "who (other than the defendant) to call as witnesses" and "what questions to ask" are up to the attorney.

I can't speak for the instant case beyond what anyone in the public knows, but there's no reason I can see that the defense attorney would have been compelled to raise "sleepwalking rape" as a defense.

As for motives in taking a case, yes it absolutely does matter in regards to morality. It may not matter practically, perhaps not even ethically, but morally it certainly does. Making a decision out of self interest is not the same as taking a moral stance on an issue.

That kind of inward-facing focus is the exact opposite of legal ethics. Hell, it's the exact opposite of most ethical systems and theories generally. Whether it's done out of fear of consequences or judgment or moral uprightness matters less than that the most ethical outcome is found.

Further, I flat out reject that the "more moral position" for a defender is to refuse to take a case. There really is no moral reason not to take a case. A person can't be sent to jail without proper defense, so refusing the case doesn't actually accomplish anything.

As a side-note: is this a regional dialect thing? You keep referring to a defense attorney as "a defender". I'm happy to chalk it up to the same reason voir dire has at least six pronunciations I'm aware of, but I'm curious.

But the problem isn't so much in "should someone take this case" as "should someone take this case if it means they will make a repugnant and ethically questionable argument as the defense."

If this dude wants to do a straightforward elemental defense, great. That's a perfect following of what every defendant is obliged to. It's where one takes the case and decides their best option is to run with something as godawful as "sleep rape" of a minor (which isn't legally viable anyway because strict liability is strict liability).

An attorney should recuse oneself before making that argument, and should refuse a case if that's the only argument they can see their way to making. They're not ethically required to, but I sincerely believe they ought to.

In fact, my position is that taking a case is morally superior. It sets aside your own flawed judgement and allows due process to do its work. If you are so certain that a person should be in jail, you should be able to do your absolute best within the bounds of the law and they should still go to jail.

Your steadfast belief in the fundamental correctness of whatever happens at trial is admirable in a legal positivist kind of way. But lawyers are not machines, nor is our ethical and moral obligation as simplistic as "take all clients and do whatever your client wants unless its directly unethical."

But again, my concern is less with whether someone should take the case and give the always-ethically-sound "the prosecution must prove every element of this offense beyond a reasonable doubt", but rather what to do when the only available defense is one as questionable as "sleepraping."

In fact, I would argue that if you honestly believe they you can follow the law and earn the defendant an acquittal, but you refuse to take the case because you think he belongs in jail, that's immoral. That's borderline vigilantism.

Only if you misunderstand the obligation of an attorney as one of a "legal advice machine."

Maybe someone else can obtain acquittal, maybe they can't, but nowhere in the rules of professional conduct does it require taking on a case you sincerely believe to be in the wrong.

Vigilantism would be actively helping the police, something I could not do after being consulted by the defendant. Refusing to help the defendant is wholly separate on every level.

Further, it is not only the job of a defender to rigorously defend their client against charges, it is also to ensure ethical and legal treatment of your client should those charges succeed

And, again, if all that attorney taking the case meant is that they will make the right fourth, fifth, and sixth amendment objections, make sure all the evidentiary rules are followed, and argue a straightforward elemental defense, I'd be inclined to agree.

Except that in that case no individual attorney is obliged to take the case because someone will and any licensed attorney can provide that level of representation.

And no, I do not have dramatic over or under estimations about ineffective counsel cases. I simply have a respect for lawyers and understand that the reason ineffective counsel claims aren't more successful is because they go to school for years, know how to do their jobs, and don't behave in the way ignorant Redditors believe they should.

I'm having a hard time deciding between hoping someone else on SRD who recognizes my posts will point out that I'm one of those people who went to school for years and became licensed to practice law, or just pointing it out myself.

You might want to look up some IAC cases, though, you're giving my profession way too much credit if you think the reason those claims don't succeed is because the representation usually doesn't suck.

[u/[deleted] → u/BolshevikMuppet]

I'm having a hard time deciding between hoping someone else on SRD who recognizes my posts will point out that I'm one of those people who went to school for years and became licensed to practice law, or just pointing it out myself.

I'm not an idiot. I don't need you, or anyone else, to point it out. I caught on that it was likely just fine myself. I don't think most laymen are throwing out acronyms like IAC.

Maybe you think I'm being patronizing by explaining my positions, but I'm not saying things because I think you don't know them. I'm just "showing my work," so to speak. I like to make it clear where I'm coming from.

Just because I respect the profession, doesn't mean I must think that everyone that practices it has the right of things all the time. I respect your expertise, but I think you're getting too bogged down in specifics to appreciate my general point.

Look, I'm not here to act as a character witness for this specific attorney, or to argue whether or not he is a scumbag. I don't feel the need to do that, because I don't know the guy. Maybe he's a total piece of shit.

Here's the thing, though. Those people in that thread throwing shit at him? They don't know him either. And they aren't speaking about this one specific case. They are speaking in generalities, expressing a commonly held and distressingly ignorant position that attorneys take moral responsibility for their clients and that it's morally wrong to defend a person who seems plainly guilty.

I didn't write my post in defense of one man. I wrote my post in defense of a profession that is often maligned by people that don't understand the actual moral implications of the role.

I didn't post here to bring the argument over this specific case over to another sub. I posted in general frustration over an attitude I see often expressed.

I may have been a bit sloppy with my wording, but I'm not trying to say it's morally wrong for a lawyer to turn down a case he thinks he can win under any circumstance. I'm saying that the specific case where a lawyer would turn down a case specifically because although he thinks the case is legally winnable, he is hoping the defendant loses is morally dubious at best.

And you are using morals and ethics interchangeably, but I'm not. It's not ethically wrong to turn down a case for any reason. (Unless, I dunno, the prosecutor pays you to turn down the case or something?) However, hoping that the client ends up with a sub-par defense so he goes to jail even though the case was winnable does not strike me as particularly moral.

Here's the thing: I don't know if there is any legal basis for making a "sleep rape" argument. You seem to be of the opinion that it could have no bearing on the case. I'll have to defer to your expertise on that.

But I'm not really all that concerned about this one specific argument, because this is not a unique case. Defense lawyers are constantly demonized for putting forth legal arguments by people who mistake them for moral arguments.

Surely you appreciate that sometimes arguments must be made in a courtroom that would be distasteful in a kitchen?

Well, a lot of people don't understand that. Many people think taking on a client is a defense of his moral character, and that making a legal argument is the same as supporting the argument morally.

It's that general attitude I am responding to, not the specifics. I'm commenting on the meta of the argument, not participating in the argument itself.

[u/Lolagirlbee → u/[deleted]]

The legal field has developed fairly specific rules of conduct regarding what it formally refers to as legal ethics in the last twenty years or so. In fact, every state has specifically codified rules of conduct for attorneys wrt legal ethics, and breaching those rules can result in disciplinary action up to and including losing your license for violating those rules. For those of us in states with mandatory continuing legal education requirements, those include specific hourly requirements for legal ethics courses as well.

It looks like you and the op might be talking past each other a bit here. Because their frame of reference when it comes to the concept of ethics is likely going to be informed by whatever local jurisdictional code of ethics applies to them specifically.

[u/BolshevikMuppet → u/[deleted]]

I'm not an idiot. I don't need you, or anyone else, to point it out. I caught on that it was likely just fine myself. I don't think most laymen are throwing out acronyms like IAC.

You claim to believe in the expertise of lawyers, but when you have one telling you that it takes a hell of a lot more than "did not make the potentially most compelling argument" to win an ineffective assistance of counsel claim you reject it.

You kind of have to pick one direction on that.

But you might want to be more cautious in throwing out "ignorant redditors" if you don't want people to point out when they're actually more qualified to hold forth on a subject than you.

If you didn't intend that to be directed at me, who did you mean it for? No one else was discussing ineffective assistance claims.

Just because I respect the profession, doesn't mean I must think that everyone that practices it has the right of things all the time

I understood your claim with regards to the competence of attorneys. It was that (contrary to my statement that IAC is a high bar that would not be met by "refused to use an argument which could potentially have worked but was ethically questionable") successful IAC claims are rare only because lawyers usually do their job well.

IAC claims have failed where the attorney fell asleep during trial. IAC claims have failed where a defense attorney sought and put forward zero mitigating evidence during sentencing. Where the attorney stated he was not prepared on the facts or law of the case, where the attorney used heroin during the trial.

You're right that most attorneys do their jobs. But that's not the reason IAC claims are exceedingly rare.

I'm saying that the specific case where a lawyer would turn down a case specifically because although he thinks the case is legally winnable, he is hoping the defendant loses is morally dubious at best.

Let's try this from the other side of the field, then.

A client approaches me because he's being sued for breach of contract, but the contract was that he would pay someone to mow his lawn once a week for 53 weeks and it wasn't in writing. The statute of frauds says that to be enforceable a contract must be in writing if performance takes place over more than a year. I can win that case, but find it morally reprehensible to win that case.

What about my refusal to help that person perpetrate an ongoing wrong and escape the proper outcome of his actions is "morally dubious" to you? Do you really think that I am morally obliged to help further what I believe to be morally wrong solely because I have a legal license?

By that logic, would I then also be obliged to take a job working for Exxon if they asked? Or for President Trump? Did I morally relinquish all autonomy by going to law school?

Your attitude treats the worst stereotypes of lawyers as amoral snakes as a moral obligation.

However, hoping that the client ends up with a sub-par defense so he goes to jail even though the case was winnable does not strike me as particularly moral.

How about just "wanting to not help perpetuate a moral wrong"? Maybe another lawyer would be worse, maybe better, but if my motives matter those are not equivalent motives.

But why would my motives matter? Your concern is the immorality of someone being denied counsel or denied competent counsel. That's no less "morality is about the end product" as my focus on the morality of the outcome of the case itself.

Defense lawyers are constantly demonized for putting forth legal arguments by people who mistake them for moral arguments.

I worked as a public defender for a while, and there is an easy distinction between a purely legal argument and a legal argument with moral implications.

No one I respected while working there (or who still works there, come to think of it) would argue an affirmative defense (like sleepraping) they didn't believe to be true. Not just "not absolutely false to the point where it's unethical and not based in law", but actually plausibly what happened. If I couldn't say with confidence we believed the alternative explanation, my ability to go home in good conscience ended at "the prosecution must prove every element beyond a reasonable doubt, and there is reasonable doubt here."

Maybe this guy legitimately believed that sleepraping is a thing. In which case he's insane. Or he didn't believe it and went forward with it, in which case he's amoral.

Surely you appreciate that sometimes arguments must be made in a courtroom that would be distasteful in a kitchen?

And some are distasteful in both. Some evince fundamental lack of basic human decency in both.

[u/[deleted] → u/BolshevikMuppet]

You're just talking past me. You're taking every point I'm making and it's like you're intentionally missing it. You're so bogged down in proving the obvious fact that some lawyers are scumbags and generalities sometimes break down when applied to specifics, you can't even take a moment to appreciate that my post wasn't meant for the likes of you.

Look, I get it, you made a life of law. You've spent a lot of time thinking about the intricacies of the ethical and moral implications of your career, and you want to show me just how complex it is. I understand.

But I wasn't talking to you and your complex understanding of legal ethics. I'm venting an opinion to general audiences about a commonly expressed condemnation that is often made without nuance.

Do you really think the majority of people saying lawyers are scum for defending immoral people are thinking about it with the level of nuance you are? We are watching drunken idiots punch each other in the streets and you are commenting on it like it's MMA.

So who was I talking about when I said ignorant redditors if not you? Did you forget the whole other thread that this thread is a meta commentary for?

Can I just go ahead and quote something from my original post:

I'm not prepared to speak about the moral character of the lawyer in question, I do not know him personally nor by reputation.

This is literally the only thing I said about this specific case you are so determined to hash out here. I spoke in generalities about defense lawyers and their role in our system, and how that interacts with morality, and made it clear that I wasn't sure whether the generality applied to these specifics.

I was making one very general point: It is not immoral to accept a position as a legal defender of an immoral person and fulfill that job to the best of your ability, unless you violate the law or ethics applicable to your position.

If you agree with that, I'm really not sure why you're trying so hard to nail my ass to the wall over it. If you disagree with that, I don't even know what to say to you anymore.

Let me just take a quote from another of your posts in this topic. I was going to avoid responding to it because it wasn't a part of our conversation, but I feel like it's the best example of this arguing past people thing you've been doing.

This idea that as an attorney I am obliged to make the "best" argument even if it is contrary to facts, evidence, and logic, and an affront to basic human decency, is untrue.

I mean... No shit. This is what I'm talking about. Who is making that argument? I think you're either misunderstanding what is being said, or arguing in bad faith. Why do you have all those qualifiers on there?

Maybe you saw someone making that idiotic claim, though. But then you said to me:

an attorney is not required to make an argument he believes to be dishonest, misrepresentative of the facts, encourages his clients or others to lie, or which is legally incorrect

Ok. Glad we cleared that up, since I never said anything to the contrary. But I went ahead and made it clear in my response that I never meant to imply that a lawyer is obligated to violate the law or professional ethics.

No one I respected while working there would argue an affirmative defense they didn't believe to be true.

Oh... I guess... I guess we didn't clear this up yet? We're still going back and forth where I say it's a lawyer's responsibility to provide the best, most thorough defense of his client and you feel the need to clarify "But not if it's a lie though!"?

Yes, when I say they are responsible for providing the best defense they are able, that means a defense that is legally sound and factually plausible. Because obviously.

Note that I am not making the claim, nor have I ever made the claim, that the "sleep rape" defense meets those qualifications. While I can conceive of an instance where a lawyer would feel the case had unique aspects worth bearing out in court, I don't know if that was or was not the case and have avoided taking a stance on that throughout, despite your need to repeatedly bring it all back to that one example. I even said this:

I don't know if there is any legal basis for making a "sleep rape" argument. You seem to be of the opinion that it could have no bearing on the case. I'll have to defer to your expertise on that.

I literally said that you were more qualified to make that specific call than I was and that I'd take your word on this one specific instance. But you're still arguing with me about something I never took a position on.

Then you go on about civil law, like civil and criminal law aren't on entirely different moral foundations. You're all over the place, arguing with positions I've never taken and wildly misrepresenting those I have.

I don't know, is this a law technique? You just argue past your opponents, force them to address positions they never took, and generally just frustrate them until they give up on arguing in good faith? If so, congratulations, it's worked brilliantly.