What Lawyers Do

As an alumnus of Harvard College and Harvard Law School who has spent a professional lifetime advocating for my clients, I was shocked to read about the contretemps involving Winthrop House Faculty Dean Ronald S. Sullivan, Jr. It is highly disturbing that a distinguished Harvard faculty member and lawyer has been excoriated for serving as a member of Harvey Weinstein's defense counsel, and that his attackers are pressuring the University to remove him from his position as faculty dean. Those actions reveal a profound ignorance about what defense lawyers do, how our criminal justice system works, and what the U.S. Constitution demands.

Criminal defense lawyers do not participate in or condone the alleged crimes of their clients. Their advocacy should not — indeed, must not – be deemed as constituting tolerance for such conduct or lack of sympathy for the victims thereof. On the contrary, the American Bar Association’s Rules of Professional Conduct expressly state: "A lawyer's representation of a client does not constitute an endorsement of the client's political, economic, social or moral views or activities."

Was Sullivan required to take on the defense of Weinstein? Not necessarily, but neither did he have unfettered discretion to reject the representation of Weinstein or any other scoundrel because he is hated, because his alleged deeds are loathsome, or because the public/mob (usurping the role which is constitutionally assigned to judge and jury) has decided he "must be guilty." In New York state, our profession's ethical protocol "requires acceptance by a lawyer of [his/her] fair share of tendered employment which may be unattractive both to [the lawyer] and the bar generally."

Inevitably, therefore, a criminal defense lawyer will be obligated to represent many who are alleged (sometimes falsely, sometimes not) to have committed horrific acts. And yes, at some point, that might include someone accused of sexual assault. How could it be otherwise?

The lawyer who is appointed by the court to defend an accused has even less choice. Such an appointment, the ethical standards of New York state tell us, may not be declined except for “compelling reasons.” What if the representation is "personally repugnant" to the lawyer? Does that constitute a "compelling reason" to decline the matter? Not necessarily. "Compelling reasons," New York state rules instruct, “do not include the repugnance of the subject matter, the repugnance of the person or your belief that the client in a criminal matter is guilty.” Under the rules, a lawyer can decline based on personal repugnance only if "the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client."

What does this teach us? Something very important. The objective of the rules is to make sure that the lawyer's representation of the criminally accused client is not impaired. The whole point of this structure, the fundamental purpose of our entire criminal justice system and the rules governing lawyer conduct is not to protect the tender sensibilities of student onlookers or Crimson pundits, and certainly not to safeguard lawyers from public scorn. The purpose is to protect the rights of the accused, to make sure the defendant gets a fair trial. That is what our founders cared about; that is what is enshrined in our constitution; and that is the purpose that Sullivan is serving.

In doing so, he is following in a noble tradition. To cite a famous example: More than 240 years ago, John Adams defended the British soldiers who fired on American patriots at the Boston Massacre. They were also reviled, just like Harvey Weinstein, and Adams was condemned by many for representing them. But Adams (who won the case, otherwise I wouldn't tell you this anecdote) called that piece of lawyering "one of the best pieces of service I ever rendered my country."

How sad to see the contrary view being expressed in a supposedly more enlightened era by a supposedly educated elite just a few miles from the Massacre site. Was John Adams not fit to be a Harvard faculty dean?

Once a lawyer takes on the representation of such a client — however abhorrent — the lawyer's duty, by ethical imperative and the American constitutional mandate guaranteeing defendants a fair trial, is to provide the best honest defense available, even if, under the circumstances of the particular case, that amounts to no more than cross-examining the prosecution's witnesses, pleading for mercy, or trying to avoid a death penalty sentence. That is also something that most people don't understand, but surely Harvard students should.

Our system of law depends on lawyers defending the accused with skill, integrity, dedication and independence, and of their refusal to cater to the mob. Defendants who are convicted without such representation have a good chance of reversing their convictions on appeal (represented by another lawyer doing his or her duty).

If righteous indignation compels us to pillory Sullivan and hound him out of his position because of Weinstein's alleged crimes, doesn't the same sanctimonious attitude require us to inflict the identical treatment on anyone else who takes on Weinstein's defense? Why don't we just force Weinstein to go to trial without counsel? In fact, why have a trial at all? Why not just send him to prison? Why not adopt the approach of Lewis Carroll's Red Queen (if I may paraphrase): "Punishment first; verdict afterwards; trial after that."

To equate the lawyer with the purported wrongdoing of the client is an act of foolishness. To demonize the lawyer, attempt to strip him/her of an honored position and attempt to cow the lawyer into dropping the representation is an act of malice that threatens our institutions.

Somewhere, the ghost of John Adams weeps.

Mark H. Alcott ’61, a former Crimson News editor, graduated from Harvard Law School in 1965. He is Of Counsel to Paul, Weiss, Rifkind, Wharton & Garrison LLP.