Take the first, and now infamous, sexual abuse investigation of Jeffrey Epstein. Mr. Epstein hired Alan Dershowitz and others to defend him, and the defense team succeeded in resolving the case with a federal non-prosecution agreement and a relatively minor state plea.
A journalist for NPR recently asked Mr. Dershowitz whether he now regrets having achieved such a favorable result for his client, who since has been arrested again and charged with sex trafficking. This is the wrong question to ask a criminal defense lawyer. Mr. Dershowitz’s only mission at the time, in fact his ethical obligation, was to defeat the investigation or, if he couldn’t do that, resolve it on the most favorable terms possible for his client. The better question — and the one that remains unanswered — is why, under the circumstances, federal prosecutors agreed to such a lenient deal.
Harvey Weinstein’s sexual assault case in Manhattan is also instructive. Earlier this year, Mr. Weinstein hired Ronald Sullivan, a Harvard law professor who also served as the faculty dean of an undergraduate housing facility. Students protested, contending that they no longer felt safe in the dormitory, and the college ultimately forced him out as dean. The college’s response didn’t make sense. You are free to dislike, even despise, Mr. Weinstein, but what did his lawyer do?
There are many reasons not to attack an unpopular defendant’s lawyer. A hallmark of our criminal justice system is that every criminal defendant has a constitutional right to the “assistance of counsel,” which, according to the Supreme Court, means that he can retain a lawyer of his choice and mount his own defense. Or, if he cannot afford counsel, he can have one appointed to represent him.
Punishing the lawyer of a notorious defendant, or insinuating that she should regret doing her job well, chips away at this right. Doing so discourages lawyers from taking on unpopular clients, and it can deprive a defendant of his choice of counsel. Mr. Sullivan, for example, resigned from Mr. Weinstein’s defense team shortly before he was ousted from his position as dean.
In addition, every criminal defendant has a right to be presumed innocent until proven otherwise. This presumption of innocence, a distinguishing feature of our legal system, is a critical safeguard against prosecutorial abuse. Punishing a lawyer because you disapprove of her client undermines this protection, reinforcing the perception that the defendant is already guilty.
Sometimes unpopular defendants are actually innocent. This is why — in addition to other hurdles criminal defendants must overcome, including access to qualified counsel — it’s essential that every defendant be permitted to pursue his defense without having to worry that his lawyer will be attacked.
Still, there are limits. When a lawyer breaks the rules on behalf of a client, she deserves to be punished. In 2005, for example, a defense lawyer named Lynne Stewart was convicted for smuggling messages from her client, terrorist Sheikh Omar Abdel-Rahman, also known as the “blind Sheikh,” to his followers in violation of certain “special administrative measures” governing her representation.
Or take Michael Cohen: He was a zealous advocate for his client, Donald Trump, but he crossed the line into criminal conduct and was prosecuted as a result.
Mr. Dershowitz told NPR that “you should always feel bad about producing results” like the one he helped obtain in the Epstein case because the job of a criminal defense lawyer is “to do what you can to help your client and then to feel bad about it.”
That overstates the case. Rather than regret her success, a lawyer usually has the option to decline a particular representation, and it has been reported that Mr. Dershowitz, who faces his own legal troubles over his association with Mr. Epstein, regrets having taken him on as a client.
But when a defense lawyer takes on an unpopular client, she may also be carrying out what’s noblest about the legal profession. Every criminal defendant deserves, and is entitled to, a defense. Punishing a lawyer for representing her client undermines that guarantee.
Daniel Suleiman (email@example.com) is a white-collar criminal defense and investigations partner in Covington & Burling LLP. He was deputy chief of staff of the justice department’s criminal division from 2012-2013.