A Dangerous Precedent for Pro Bono

DOJEarlier this month, while we were celebrating pro bono at the 2014 PBI Annual Conference, the U.S. Senate rejected President Barack Obama’s nomination of Debo Adegbile to lead the Civil Rights Division of the Department of Justice.  All Republicans and seven Democrats voted against the nomination ostensibly because, while working for the NAACP Legal Defense and Educational Fund (LDF), Adegbile contributed to a series of briefs on behalf of Mumia Abu-Jamal, a death-row inmate convicted of killing a Philadelphia police officer.  Abu-Jamal’s death sentence was ultimately overturned on the grounds of unconstitutional jury-sentencing instructions.

Adegbile’s defeat on these grounds sends a troubling message, suggesting that lawyers can be faulted (or even punished) for representing unpopular or marginalized clients or causes.  The practice of judging lawyers based on the views of their clients jeopardizes fundamental, nonpartisan underpinnings of our justice system – the constitutional right to a fair trial and legal representation – and could negatively impact the provision of pro bono legal services.  Indeed, as summarized by Rule 1.2(b) of the Model Rules of Professional Conduct, it is a basic tenet of the legal profession that a “lawyer’s representation of a client . . . does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”

Attorney General Eric H. Holder, Jr., an ardent champion of pro bono, said in his statement on the Senate vote, “It is a very dangerous precedent to set for the legal profession when individual lawyers can have their otherwise sterling qualifications denigrated based solely on the clients that their organizations represent.”

In the wake of Adegbile’s rejected nomination, we in the pro bono community must heighten our vigilance and redouble our efforts to uphold access to justice.