Asserting Attorney Autonomy

You’ve heard it before: some version of the sentiment that “everyone is entitled to zealous legal representation.” The D.C. Bar (of which I’m a licensed member) Rule of Professional Conduct 1.3(a) states that “a lawyer shall represent a client zealously and diligently within the bounds of the law.” However, what’s colloquially known as the “zealous advocacy” doctrine was never meant to encroach on the autonomy of any attorney to choose what clients we represent.

There’s a dangerous line of thinking that’s oozing out from the ultra-conservative legal margins into the mainstream. One of its most vocal proponents is 5th Circuit Court of Appeals Judge James Ho, a Federalist Society darling and a clear SCOTUS hopeful. In a recent concurrence, he railed against large U.S. law firms who have an “institutional bias” towards liberal or progressive causes in their pro bono practices. Moving past the utter ludicrousness of that assertion, he then claims:

The concern is that [law firms] have abandoned neutral principles of representation, and instead engage in ideological or political discrimination in the cases that they’re willing to take on. See, e.g., id. at 338 (“representing a person with whom we may disagree is a hallowed, essential tradition of the profession”); Lefebure v. D’Aquilla, 15 F.4th 670, 675 n.1 (5th Cir. 2021).

There’s a whole lot happening here. First, accepting without question the “hallowed, essential traditions” of a profession that has historically restricted its membership only to white, propertied, cisgendered men is…a choice. Second, there is no such thing as a “neutral” principle of representation; every attorney is not required to take on every case or client in the name of “neutrality.” Attorneys are not meant to be unthinking tools to be wielded by any paying client. Third, law firms—and by extension, the individual attorneys of which they are made up—are, in fact, allowed to discriminate in deciding what cases they are willing to take on. Just like I can discriminate between two tomatoes at the grocery store, I can also be discriminating and, indeed, discerning about the type of work I am willing to do.

The law does not exist in a vacuum. The law does not exist without the people who create and shape it. I went to Georgetown Law and chose “Curriculum B” for that very reason, to learn not just what the law is, but why it is that way, and perhaps even what it should be. I am a better attorney for it. Forcing attorneys (and to be clear, attorneys who are not public defenders) to take on clients they do not want to represent or legal work they do not wish to perform is a recipe for bad arguments, bad outcomes, and bad legal precedent. The devil doesn’t need more advocates, and not every legal argument is worth making. My ability to choose—my inherent autonomy—as an attorney is an essential pillar of my membership in this profession.

And what about the beloved free market? There’s a lid for every pot. Why not find yours instead of using coercion masquerading as tradition? What kind of legal economy (in an unabashedly capitalist society like ours) can honestly rely on a systemic lack of choice on the part of the seller (the attorney) to choose their buyer (the client)? Where does Adam Smith’s “invisible hand” fit into this autocratic proposal?

It’s no coincidence that Judge Ho is espousing these extremist beliefs while the current administration wages war on the legal profession as a whole, from federal judges, to, major law firms, to immigration attorneys specifically. As Professor Austin Kocher notes:

While this [executive order] casts a wide net—potentially targeting any attorney who challenges the administration in court—it singles out immigration attorneys by name, accusing them of coaching clients to lie and manipulating the asylum process. This focus makes clear that the immigrant rights field is a primary target. What’s at stake is not just individual lawyers, but the broader ability of immigrants to access legal representation at all.

Threatening to impeach judges, defund federal courts, gut the ability of law firms to represent clients before the government, and force attorneys to take on any client who comes along is threatening to create a legal system that is wholly unrecognizable, and one that is wholly unable to use the law to challenge those in power.

I’ve been an attorney for almost 10 years. I didn’t enter into this profession with the understanding that I would sacrifice my ability to choose what kind of work I am willing to take on. Quite the opposite; I was taught when I earned my law license that I could chart my path within the bounds of standards of professional conduct and the law. I have the right to determine on whose behalf I am willing to argue. Attorneys are not servants.

So yes, everyone is entitled to zealous legal representation, but everyone isn’t entitled to my zealous representation.