"The Taint of Association"

Rick asks whether Dean Kagan should have told the Harvard students protesting Ropes & Gray that lawyers must be free to provide zealous representation for all clients without the taint of association.  I guess my answer depends on what we mean by "the taint of association."  If the taint translates into the state trumpeting the lawyers' identities and encouraging the market to punish the lawyers for the sins of their clients, I agree that lawyers should operate taint-free.  But if the question is whether there is a moral dimension to a lawyer's decision to represent one client rather than another, then the taint is inescapable. 

I once declined a partner's "invitation" to work on a case defending a company that had defied even minimal standards of human dignity.  The conduct was evil, and its only possible defense was the statute of limitations.  I did not believe that working on the case would make me culpable for the underlying conduct, but rather culpable for devoting my time and talent to their cause.  I represented many clients who had behaved badly (why else would they need my services?), but this, for me, was beyond the pale.  Nevertheless, there were dozens of attorneys lined up behind me to take the case; rarely, in our legal services market, will the immorality of the client preclude representation.  (The client's lack of money is another story, of course.)  To paraphrase Bill Kunstler, everyone has a right to a lawyer, but they don't have a right to me. 

More broadly, if the Catholic legal theory project has any bearing on the practice of law, doesn't there have to be some degree of moral accountability for the causes we take on?  Pope John Paul II, for example, famously (and controversially) instructed that Catholic lawyers “must always decline the use of their profession for an end that is counter to justice, like divorce.”  And if I should exercise moral agency in picking my clients, am I not equipped to exercise moral agency -- and to encourage others to exercise moral agency -- in picking my employer?

In this regard, I believe that the moral dimension of legal representation should be recognized in the marketplace.  If I was interviewing at a law firm that had devoted all of its pro bono activities to challenging partial-birth abortion bans, would I think twice about whether the ideals of the firm match my own?  Absolutely.  Do I think it's a healthy sign of moral engagement when law students challenge a firm's decision to devote its resources to a particular client or cause?  Absolutely.  At the same time, do I think it's a threat to the marketplace when a government official takes on the role of moral arbiter, drumming up support for a boycott against lawyers taking on causes disfavored by the government?  Absolutely.