Here's something,* objecting to negative reactions to statements made by Indiana lawyer James Bopp, statements made while representing and on behalf of his client, Michael Gableman:
The first big assumption is that every word said by an attorney automatically and verbatim represents the exact personal thoughts of the client.Nobody even remotely suggested such a thing but, anyway ...
The [Wisconsin] Rules of Professional Conduct state that an attorney’s representation of a client does not constitute an endorsement of the client's "views or activities" (SCR 20:1.2(b)).Here's how SCR 20:1.2(b) reads:
A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.In other words, the rule purports to insulate the attorney from having attributed to him the client's views. For obvious reasons, such as a lawyer providing representation to a white supremacist, or to a doctor who performs abortions (as is explained in the Comments published below SCR 20:1.2(b)).
The purpose of the rule is to help ensure that even clients "whose cause is controversial or the subject of popular disapproval" may secure legal representation. Exactly opposite of what the Federalist Society's student recruiter is trying to show, which is that the client is protected from the attorney's political, etc., views. Baloney.
To be sure, SCR 20:1.2(b) protects Bopp against being ascribed the opinions of Gableman by dint of Bopp's legal representation, not the other way around. But what Wisconsin law says, as the learned counsel William Tyroler (who, to the best of my knowledge, is neither from Indiana nor on the FedSoc payroll) put it here some time ago:
"Surrogates" — client Gableman and counsel Bopp enjoy a principal-agent relationship (as do all attorneys and their clients). State v. Divanovic, 200 Wis. 2d 210, 224-25, 546 N.W.2d 501 (Ct. App. 1996) ("The attorney-client relationship is one of agent to principal, and as an agent, the attorney must act in conformity with his or her authority and instructions and is responsible to the principal if he or she violates this duty.") In a word, Bopp is Gableman's mouthpiece. We can assume that Bopp, the agent, utters words approved by and therefore attributable to Gableman, the principal.Yet the FedSoc official soldiers on nevertheless:
In a similar way, an attorney’s unscripted response to a reporter’s question should not be treated as though it came from the mouth of the attorney’s client as an exact representation of his personal thoughts on the matter.Nothing but hyperbole here and in any event not similar to the present situation. Moreover, Bopp made substantially identical remarks in court, on the record, in the course of directly presenting Gableman's defense to a panel of three Wisconsin appellate judges.
Live and in person.
Agent Jim Bopp's statements are reasonably understood as those of his principal, Michael Gableman. That's what the law says.
And I clearly recall a number of occasions when Gableman promised to follow the law (as opposed to following the rules, which seems to have been an endeavor more distinguished by its arbitrariness).
* Intriguing too, is the Federalist Society employee's own objection to Justice Butler's disposition toward the accused's right to present evidence in his defense at trial: Forest Shomberg is innocent.
Is it any wonder, then, that he would champion Bopp's strategeries?
If one were to assume that individuals' views should be attributed to the people or organizations they work for, then "mouthpiece", "Loophole Louie", and Mr. Chiarkas saying the Wisconsin death penalty referendum result flowed from a "dark urge for vengeance" might leave the State Public Defenders office most disadvantaged by the application of the assumption.
ReplyDeleteOn the other hand, Mr. Tyroler's "mouthpiece" serves as a counterweight to Mr. Henak's claim at the recent SCOWIS symposium that criminal defense attorneys "dedicate their lives" to that work.
Are you seriously comparing Nick Chiarkas's relationship with assigned counsel to the one between Gableman and Bopp?
ReplyDeleteAs Tom Foley suggests, Mr. Berres doesn't seem to grasp the concept of principal-agent. I am not, for example, Mr. Henak's advocate nor he mine. On the other hand, had I retained him to advance my cause at some public forum, well, yeah, I'd expect to have his statements ascribed to me. And if I didn't want to be associated with those statements, then I'd want to publicly disavow them. Especially if I were a judge or justice and wanted to assure the public I did not subscribe to the very views expressed on my behalf.
ReplyDeleteBeyond that, I'm not quite sure what Mr. Berres' means by my point about principal-agency being a "counter-weight." I am sure, though, that whatever point he is attempting to make distracts from the immediate discussion.
Note that Mr. Berres doesn't explain why Bopp's statements, made as a centerpiece of the defense of Justice Gableman, ought not be attributed to the latter. Instead, he simply posits a shallow, inapt analogy.
Let's ignore, then, Mr. Berres' clumsy misdirection. It may surprise Mr. Berres to find that there are times when an attorney's statements in court are admissible against his or her client under the party-opponent rule, Wis. Stat. § 908.01(4)(b). State v. Cardenas-Hernandez. It's a fairly stringent test, and I'm not saying it's applicable in this context. Rather, it merely illustrates the larger point, the one avoided by Mr. Berres, that indeed the principal-client may be bound by the words and actions of the agent-attorney.
The question is whether there is reason to doubt Justice Gableman's fairness to one side, given his own attorney's non-disavowed statements made on his behalf, that that side categorically represents "scum bags," etc. I say a decent argument can be made that his recusal should be required in all criminal appeals. Mr. Berres simply doesn't address the problem of apparent fairness, which is going to hound every single criminal appeal in the supreme court.
"that side categorically represents 'scum bags,' etc."
ReplyDeleteIt happens that way back in law school, that was the characterization of his clientele that a criminal defense lawyer used to explain why it was impractical for him to judge when putting his client on the stand might result in perjured testimony.
There might be some kind of unfairness if being a former criminal defense lawyer is a disadvantage in seeking high office, but the forum for the remedy is the same public that Mr. Chiarkas critiques.
More misdirection from Mr. Berres. The question isn't whether there "is a disadvantage in [defense counsel] seeking high office" but, rather, whether there is doubt as to Justice Gableman's ability to adjudicate fairly in criminal cases.
ReplyDeleteJudge Deininger, even while declining to favor discipline, rightly criticized candidate Gabelman's "disdain for the role of defense counsel in our adversary system". James Bopp echoed that disdain in service to Justice Gableman's cause. Mr. Berres does nothing to assuage concern that such disparagement will translate into result-oriented jurisprudence. Indeed, he aggravates it.
Incidentally, the "scumbags" portion of Mr. Bopp's colloquy was presented in court, not to the press scrum afterwards.
ReplyDeleteAnd it was presented not only for the general purpose of supporting Gableman's motion for summary judgment, but explicitly as both explanation of and justification for Gableman's television advertisement.
So it wasn't so much Bopp's view that somehow cannot be attributed to his client, it was intended as an amplification of his client's own views.
While we know that Bopp can't be held responsible for Gableman's views, surely Gableman can be held to account for Gableman's.
Well put by Mr. Foley.
ReplyDeleteLet's try a thought experiment for the anti-Butlerites. Assume two candidates for supreme court, one from the plaintiff's bar, the other from the defense. Plaintiff's attorney runs on a platform that explicitly labels insurance companies "scum"; and derides the defense bar as looking for loopholes to get their scummy clients off the hook and as characterologically unsuitable for the office. Plaintiff's attorney wins the election. You represent an insurance company with a case in that court: Do you file a recusal motion against the new justice? If not, why not?
There's a criminal defense lawyer's role and a risk of a criminal defense lawyer's mindset. It appears to me the public took colleagues' confering the "Loophole Louie" nickname (rather than, say, "Bill o' Rights Butler") as indicating the latter. There wasn't much point in bringing up Justice Butler's prior role except as part of a claim that he brought such a mindset to the bench. It's the other side of what candidates seek to convey with law enforcement endorsements.
ReplyDeleteScalia never worked for Nick Chiarkas either.
ReplyDeleteIt's the other side of what candidates seek to convey with law enforcement endorsements.
ReplyDeleteNo argument from me. Nor that it was fair campaign fodder to argue that a criminal defense attorney would be overly solicitous of the rights of criminal defendants. If the public buys it, then I won't whine or refuse to accept the outcome. But -- again -- the electability of criminal defense attorneys is not what the recusal issue is about. The question now is different: whether you can expect a judge to be fair to one party of a dispute when he has quite literally vilified both that party as a class and their counsel for providing representation.
I invite Mr. Berres to answer my 3:30 post.
Just to clarify a bit, in case there's any interest in continuing the discussion.
ReplyDeleteLet's call the matter of ascribing Bopp's statements to Gableman a "procedural" issue. I imagine that the gap between those who say yes and those who say no is simply unbridgeable. There's probably nothing to be gained in pursuing that point. I'd like to see if there's also an unbridgeable gap with respect to the "substantive" issue: whether those statements would, if attributable to Gableman, support recusal. I say they would, but if I'm wrong I'd like to hear why. That's the purpose of my hypothetical (3:30 p.m.), to eliminate Bopp as a variable and to put his words directly in his client's mouth. I hope someone will attack the problem.
Ironically, neither Bopp nor Gableman seem particularly interested in paying much heed to SCR 20:1.2(b).*
ReplyDeleteAnd never mind "views": Bopp has no problem attributing Reuben Lee Mitchell's motives to his counsel — e.g., "If Butler had gotten his way, Mitchell would have been released" — and of course Gableman positively favored a misbegotten attempt to ascribe Mitchell's very actions to Butler.
That the argument is now being advanced that Gableman is somehow protected by this rule of conduct is considerably beyond ludicrous.
* Exemptions may apply for counsel pro hac vice.
"Gableman positively favored a misbegotten attempt to ascribe Mitchell's very actions to Butler."
ReplyDeleteAnd it bears emphasizing that I don't believe being an accessory to first degree sexual assault of a child is among the "moral activities" contemplated by the rule.
Bopp has no problem attributing Reuben Lee Mitchell's motives to his counsel
ReplyDeleteYeah, that's why it's funny he chose that strategy to defend his client. Sure wasn't necessary to go that far. My guess: Bopp determined to represent a cause as much if not more than a client. Advancing a 1st amendment right to lie by implication is one thing; tarring Butler in particular and the criminal defense bar in general with the "scum bags"association was unnecessarily polemical. Unless, as I rather suspect, Bopp had some political agenda in mind. And to the extent that that agenda took precedence over the interests of his client -- as I believe clearly occurred -- Bopp's no better than certain counterparts on the Left.
The collateral damage will be to the supreme court's credibility. I'm just not sure Gableman's supporters fully appreciate the damage Bopp has already done to the court.