March 12, 2013
Last week, Arkansas Attorney General Dustin McDaniel stated that he would defend a new law that bans most abortions after twelve weeks of gestation “whose heartbeat has been detected.”
Although McDaniel, a Democrat, has expressed concerns about the ban’s constitutionality, one of the primary responsibilities of state attorneys general is to defend state laws against legal challenges.
As such, it would have been more unusual for McDaniel to decline to defend the law than for him to so in spite of his reservations.
Of course, it’s not completely unheard of for an attorney general to decline to defend a law that he or she believes is unconstitutional. After all, back in February of 2011, President Obama ordered the Department of Justice to stop defending the Defense of Marriage Act (DOMA) because the administration came to the conclusion that the law is unconstitutional.
Nevertheless, there were far more political implications at work in that instance than in Arkansas. While there are certainly some political factors that McDaniel has to consider, his dilemma is very similar to those faced by attorneys every day:
What do you do if you are forced to defend a position to which you are personally opposed?
And I’m not talking about those times when attorneys have to argue positions that they believe are legally or logically weaker than their opposition’s; I’m talking about situations where, even if an attorney has the superior legal ground, he may be advocating for a position that he or she is morally against.
These kinds of conflicts take a variety of forms (although most don’t have the stark political elements of McDaniel’s or the DOMA situations).
When imagining an attorney defending a position that she’s against, perhaps the image that most conjure is the criminal defense lawyer advocating for a defendant that the attorney knows to have committed the crime.
While there is no question that this does occur, in most such circumstances, the attorney does not argue for the accused’s innocence, but instead that some aspect of the arrest or trial violated the individual’s constitutional rights.
This approach, although often the most effective in a given situation, is an example of the principal method of how attorneys deal with internal moral conflicts: she may not condone the behaviors of the accused that led to the criminal charges, but she does believe that every individual, no matter how egregious the crime, is entitled to due process of the law (this tends to be the case for the civil defense, too).
Nevertheless, attorneys don’t always have the option of sidestepping their moral conflict by concentrating on a different type of legal argument.
These situations usually involve courses of action insisted upon by clients, but ones with which the attorney nonetheless disagrees – be it because of a low success rate, because of a detrimental impact on others, or because it’s ultimately not in the client’s best interest.
There are several ways attorneys respond when faced with this predicament.
First, many attorneys simply withdraw from representation (if ethical rules allow for it). This is a perfectly acceptable option – and sometimes it is the ethically mandated option (e.g. if the client is intent on breaking the law).
Next are the attorneys who override their own internal moral compass and fully adopt the views of their clients.
Although many attorneys take this course because they believe that their moral objections interfere with their ability to be the best advocates possible, it actually has the opposite effect: jumping onboard too unreservedly often interferes with an attorney’s objectivity and prevents her from seeing the bigger picture. Both of these effects regularly result in less effective advocacy since the attorney is more oblivious to the potential weaknesses of their arguments.
The final group of attorneys does the opposite: she will continue to represent the client while preserving her moral reservations.
At first blush, this direction may seem to lead to less effective advocacy, since the attorney wouldn’t be wholeheartedly behind the argued position.
More often than not, however, it’s to the contrary: such an attorney is fully aware of what’s wrong with the argument, and is therefore able to prepare defenses and responses with great efficacy.
And as long as an attorney does her due diligence preparing the argument, it shouldn’t matter whether she truly believes that the position is the correct one.
So while it may not be the most comfortable thing in the world for an attorney to defend a position that she doesn’t agree with, it often provides the catalyst for creating a better argument.