Ethics

Richard Painter has forwarded this post:

In their rightful condemnation of a thoughtless vilification campaign,

defenders of the DOJ lawyers who previously represented detainees point in

their letter to a famed representation by John Adams ?The American

tradition of zealous representation of unpopular clients is at least as old

as John Adams?s representation of the British soldiers charged in the

Boston massacre.?



Nobody could reasonably question John Adams' patriotism because he

represented these clients --Captain Preston and his men -- in what was a

capital case of murder. As I point out in my casebook with Judge Noonan,

however, there were conflicts of interest that compromised the quality of

the representation.



One set of conflicts arose between Captain Preston and his men, who

arguably should have been represented by separate counsel. Captain Preston

could have defended the case by claiming the men fired without his orders.

This conflict was apparent to the men at the time, and they were worried

that Captain Preston?s defense would leave them hanging -- literally. One

of the men, named Kilroy, petitioned for a joint trial with Captain

Preston. If there had been separate trials and separate counsel, it is true

that the men could have defended the case by claiming that Captain Preston

ordered them to fire, subjecting them to court martial if they did not

obey. It turned out that Adams and Quincy represented both Captain Preston

and his men, precluding either of these lines of argument. The case would

have to proceed on the argument that both Captain Preston and his men were

innocent because the crowd had threatened them.



This, however, was difficult because of another set of conflicts. Adams and

his family were very close to the patriots who had challenged the

soldiers? presence in Boston and who may have instigated the unruly crowd

that allegedly attacked the soldiers. Adams? co-counsel in the case,

Josiah Quincy had similar conflicts as his brother Samuel Quincy was

employed by the prosecution. For Adams and Quincy to condemn the actions of

the crowd in order to show they were threatening the soldiers would be

difficult without condemning the townspeople in general. The crowd

allegedly included people who were throwing objects at the soldiers, and

some people in the crowd may have been drunk. John?s cousin Sam ? a

figure more familiar to 21st Century law students than John ? was a

supplier of beer, and after the shooting Sam was actively urging

prosecution of the soldiers.



We are critical in Chapter 7 of our casebook of the strategy that Adams

used at trial to deal with this conflict. First, he may have held back on

evidence prejudicial to the townspeople in order to avoid putting his

fellow Bostonians in a bad light. As one observer, named Hutchison, pointed

out:



"The employing counsel who were warmly engaged in popular measures caused

some of the evidence to be kept back which would otherwise have been

produced for the prisoners. The counsel for the crown insisted upon

producing evidence to prove the menaces of the soldiers preceding the

action, and the counsel for the prisoners consented to it, provided they

might have the like liberty with respect to the inhabitants. After the

evidence had been given on the part of the crown, and divers witnesses had

been examined to shew the premeditated plan of the inhabitants to drive out

the soldiers, one of the counsel, Mr. John Adams, for the prisoners then

declined proceeding any further, and declared that he would leave the

cause, if such witnesses must be produced as served only to set the town in

a bad light. A stop therefore was put to any further examination of such

witnesses, by which means many facts were not brought to light . . . .."



Second, Adams found a way of condemning the crowd without condemning the

townspeople of Boston, or at least the elements with which his family and

Quincy?s family were associated. He portrayed the crowd as outsiders and

appealed to juror prejudice in his closing argument when he describes the

crowd as "a motley rabble of saucy boys, negroes and mulattoes, Irish

[t]eagues and out landish jack tarrs." Referring to Crispus Attucks, one of

the persons killed, Adams said, "[s]upposing in this case, the Mulatto man

was the person made the assault, suppose he was concerned in the unlawful

assembly, and this party of soldiers endeavoring to defend themselves

against him, happened to kill another person who was innocent...." There

was no evidence in the record that Attucks in particular threatened anyone.

Adams compensated for not "putting the town on trial" by blaming the

incident on a portion of the town, including persons of Irish and African

descent. Then, as now, prejudices run deep in Boston. Adams won his case.

He had managed his conflict of interest by playing the race card.



The lesson to be learned from the Boston Massacre trials is that conflicts

do matter. Although Adams still should have accepted the representation ?

he and his co-counsel Quincy may have been the only lawyers in Boston with

the courage to do so ? the conflicts of interest were real and some of

those conflicts arose because of Adams? loyalty to the Patriot cause.

Those conflicts had a genuine impact on the representation. He won

acquittals, but at a cost.



The types of conflicts that would have been more pertinent to the current

controversy over DOJ lawyers apparently did not occur. They would have

occurred if Adams had represented Captain Preston against the government

and then joined the government's prosecution of the men who took or were

supposed to take orders from Captain Preston. It would not matter if

Captain Preston and his men were detained in separate jails or tried in

separate trials. Adams? subsequent representation of the government would

have been wrong. An arguably more remote ? but still genuine -- conflict

would have arisen if another group of soldiers under the same command as

Captain Preston ? and acting on similar instructions from British

military superiors -- had shot and killed some colonists somewhere else. It

would still have been improper for Adams to be employed by the prosecution.

He could, for example, have learned from Captain Preston some details about

what precisely the orders from British military superiors were that

soldiers in these situations were acting upon and the extent to which

soldiers who fired upon crowds were acting without authorization. Based on

information he learned from his prior client, he could have penetrated deep

into a subsequent defense case built upon at least this premise and

probably others as well.