This is a question I’ve asked in the past. It is not instinctively an easy question to wrestle with. It can easily boil over into various slippery-slope arguments and accusations regarding risk of inviting concepts of the “thought police” and the like.
But another news item invites the question back into the arena for further discussion. This ABA Journal online story details efforts of two criminal defendants to seek relief from their convictions/guilty pleas because of information that has emerged indicating that the Massachusetts lawyer that represented them in their cases was a racist. That lawyer was appointed to and assigned to these cases through Massachusetts’ public defender agency.
In terms of the facts of the matter, there are at least two interesting wrinkles.
One, the lawyer in question has now passed away and cannot speak further in the matter to defend himself. Two, the proof of the asserted racism on the part of the deceased lawyers come from a variety of Facebook messages believed to be attributable to the deceased lawyer.
The posts in question are collected at the link above, but also appear in an affidavit filed by the public defender agency through which the lawyer was appointed to the cases. (Unless you are truly looking for offensive stuff to read, I would skip the link though.) As happens at a surprisingly frequent rate, these posts were easily accessible because the lawyer left his Facebook profile set to public access rather than limiting his posts to being viewed only by his Facebook friends.
Both of the defendants seeking relief — are African American males of the Islamic faith. One seeks leave to withdraw a guilty plea while the other is seeking a new trial in a case in which he was convicted of armed assault with intent to commit murder.
One of the avenues of pushback that arises in kicking around issues regarding whether racist beliefs are so inherently disqualifying for someone to be a lawyer or not tends to be lots of examples, both historical and verifiable and anecdotal, of lawyers being able to represent clients that they found to be repugnant or clients who had horrible racist or even genocidal views directed towards a class of people that would include the lawyer.
There is certainly no question that open-minded, non-racist lawyers are entirely capable of representing, for example, people who are racist. But those examples don’t really move the needle.
What there do not seem to be are examples of things working out well in the opposite direction. Examples of situations in which a racist attorney is able to competently and zealously represent a client who is a member of a group that the racist attorney hates and thinks is “lesser” than they are.
Now, are the lack of those examples simply a lack of data that is out there and exists — perhaps in part because there are few examples of people who are attorneys but who are open about their racist views? Or do such lawyers simply turn down all such cases where they would have to represent someone outside of the group with which they align themselves? (And that might be something they are simply required to do after all under RPC 1.16 and 1.7 if their own personal interests would create a significant risk of material limitation on the representation.) Or is the lack of such examples an inevitable consequence of the inherent problem?
There are obvious First Amendment concerns as the issuance of a law license is something done by the government and evaluating someone’s views that manifest themselves through speech can be problematic when it amounts to the government favoring one form of speech over another. But, aspiring lawyers already do face inquiries into character and fitness that sometimes can straddle that line in ways that the profession seems to tolerate and, of course, lawyers often have aspects of their First Amendment rights hampered by ethics rules when they are engaged in representing a client
Nevertheless, I’m still left pondering a variation of the question I left off with over 4 years ago:
Does empowering a racist by conferring a license to practice law on them something that is inherently prejudicial to the administration of justice?