To The Readers Of The Metropolitan Corporate Counsel :
As the New Year got underway, the issue of lawyers' independence assumed special importance. In January, the "independence" issue made national headlines when a Department of Defense official called upon American businesses to boycott lawyers or law firms that represented individuals detained for national security reasons at Guantanamo Bay. The organized bar called for the statement's retraction and, ultimately, the official resigned. Ironically, the official was actually a lawyer and should have known better. Even after his resignation, the bar's denunciations continued with various letters and resolutions condemning those who try to intimidate any lawyer who takes on an "unpopular" client or cause. The values voiced by the bar's unified response to this incident reflect a longstanding tradition of "independence" for lawyers here in the U.S., as well as in countries with legal systems based on our judicial process's "adversary" system.
Our main meeting hall is called "Hamilton Hall" in honor of Andrew Hamilton, the lawyer who represented Peter Zenger during his 1735 trial for seditious libel in colonial New York. Without rehashing the Zenger case (now recognized as the high-water mark of jury nullification), Hamilton's representation merits special mention. Zenger's "local counsel" from New York were discharged in the early stages of the case and a Philadelphia lawyer represented him.Zenger, as we all know, was acquitted because of Hamilton's courageous advocacy. This tradition of "independence" is reinforced by virtually every component of our current ethical rules and precepts.
Today, there are two components to lawyers' independence.One is the "independent advocate," undaunted by fear of public or private retribution. This sort of "independence" is heroically depicted by the fictional Atticus Finch in Harper Lee's To Kill a Mockingbird. Undoubtedly, Gregory Peck's Oscar-winning portrayal of Finch in the movie version inspired a number of us to become lawyers.
The second part of "independence" is embodied in the phrase "independent legal advice" that characterizes the qualitative nature of what a lawyer must provide to a client. Many of our black-letter ethical precepts reinforce and protect this type of "independence." We avoid conflicts of interest to assure that our clients receive advice untainted by even the hint of divided loyalties. Our ethical rules require us to examine our own personal interests and refrain from taking on a client whose representation would pose any conflict.
A lawyer's independence is similar to the sort of independence that we demand from the judiciary. Judges are supposed to be "independent" in the sense of being free from any political or economic influence that might taint their judicial behavior and impartiality. Freedom from improper influences and bias, as well as the appearance of bias, are the hallmarks of judicial independence.Sadly, the general public does not always appreciate the importance of "judicial independence" and hardly a week passes without some unfair or opportunistic attack on judicial independence from the media or a headline-hunting politician. Even sadder is the fact that judges are unable to defend themselves from these attacks because their code of conduct forces them to remain silent as they bear the brunt of an ad hominem media mugging. This constraint actually worsens the impact of the media's unfair coverage, in many instances because it uniformly causes the story to contain the phrase, "the judge declined to comment on the decision."
Last year, NYCLA established the Task Force on Judicial Independence, co-chaired by former Appellate Division Justice Betty Weinberg Ellerin and Norman L. Reimer, NYCLA Immediate Past President. The task force has been meeting with media representatives and others to discuss the importance of judicial independence and find ways to educate the public about its necessity. Surprisingly, some of the media persons were unaware that judicial ethics require a judge to refuse to comment on pending or impending cases and that the uniform responses of "no comment" from chambers are neither evidence of embarrassment nor admissions of error.
I urge you to speak out and speak up about the importance of both lawyers' independence and judges' independence. When we use the word "independence," we have to dispel laypersons' confusion of "independence" with "unaccountability." We need to emphasize the themes of fairness and impartiality because they resonate more sympathetically than the word "independent" with its connotations of "unaccountable," "untethered" or "out of control." If we do not educate the public about our core values, and the significance of what we do and how we it, then the bench and the bar will continue to be opportunistic targets for cynical politicians and sensationalist media. Moreover, we will only encourage the sort of social, economic and political pressures that we have resisted for almost three centuries since the time Andrew Hamilton spoke up for Peter Zenger.
Edwin David Robertson