Don’t Lock Up The Lawyers: Ethical Considerations in the Lynne Stewart Case Essay

 

 

 

 

“You can’t lock up the lawyers” Lynne Stewart claimed at a press conference following her conviction (Civil Rights Attorney…).  Contrary to Stewart’s beliefs it seems in an America of shrinking civil liberties you can do just that.  The loss of civil liberties and the effects the outcome of the case could have on client-lawyer relations has been the center piece for the debate.  In fact, with all the hubbub surrounding the question of civil liberties and the sacred relation said to exist between clients and their attorneys an issue of equal importance protests weakly in the background (as it most often does).  So at the risk of boring a crowd that more often gathers to see more entertaining varieties of blood sport, I am going to make the following statement: Lynne Stewart may not be guilty of terrorism but she could be guilty of a lack of ethics.

Obviously this statement carries a variety of issues with it, all of which I would like to address in this article.  Stewart’s background and beliefs, the intent behind her actions, and the nature of the support she provided her client, Sheik Omar Abdel-Rahman, should be discussed in detail before we can render her innocent or guilty of either supporting or propagating terrorism.  I would then like to discuss Lynne’s role as a moral agent rather than a legal agent, in addition to analyzing whether the role she has given herself fits in with both the current political situation in the country and expert opinions on a lawyer’s ethical responsibilities both to their client and to the American legal system.

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Guilty of Terrorism, Me?

Lynne Stewart was indicted on April 9, 2002, on the charges that she had both aided terrorism and defrauded the American government.  Stewart was accused of using prison visits to assist Rahman in communicating with the outside world, something that was strictly prohibited within the measures of his sentence.  The culminating incident was when Stewart issued a press release in the name of the Sheik announcing his withdrawal of support of a ceasefire in Egypt, something that would re-initiate terrorist activities in the region and result in the loss of lives of foreigners and Egyptian police.  Most importantly Stewart had signed a document agreeing to the terms of the visits set forth by a Special Administrative Measure (SAM).

While the government had asked for the maximum thirty year sentence, the equivalent of a life sentence for the 68 year old criminal defense attorney, the defense had asked that the charges be dropped.  Neither got their way and Stewart was sentenced to 28 months in jail and was strongly reprimanded by judge John Koeltl, who proclaimed that Stewart’s “actions in this case constituted “extraordinarily severe criminal conduct” (Civil Rights Attorney…).  While on July 22, 2003, a U.S. district judge dropped the terrorist charges, many still claim that Stewart is guilty of aiding and even propagating terrorism.  Stewart, and a great many others, have shown themselves continually surprised by each turn of events.

Identity politics has become increasingly important in the United States over the last thirty years and Stewart has accompanied its growth in importance (Hensler and Resnick, 2000, 240).  From her earliest days as a lawyer, Stewart has defended indigent and unpopular clients of various ethnic backgrounds.  On the list of her previous clients before defending Rahman figure a member of the Black Panthers, members of the mafia and various violent offenders.  This was one of the things the judge took into consideration when sentencing Stewart.  The 30 year sentence called for by the government was greatly reduced owing to the fact that “during her long career of representing unpopular clients she had performed a public service, not only to her clients, but to the nation” (Civil Rights Attorney…).  In past cases, in addition that of Rahman’s, Stewart assumed a similar pattern with all of her clients – “she viewed them as “revolutionaries against unjust systems´´ and closely identified with them” (Birckhead, 2006, 3).

Indeed, during Rahman’s trial Stewart made blatant statements on the violent measures needed to end American imperialism abroad.  Although these comments were considered unpatriotic at the time they proved fatal when used at her trial a few years after 9/11.  It does not take great insight to see that Lynne’s political beliefs could be used against her although Stewart continues to be astounded by each turn of events.  Indeed, when Stewart was sentenced she stated, “I’m very shook up, and surprised, and disappointed that the jury didn’t see what we saw” (Civil Rights Attorney…).

Ironically enough this statement shows the belief that Stewart had in a system that she consistently disparaged.  It also shows that Stewart may be more guilty of naivety than terrorism.  Stewart acknowledge that while her actions were in line with how she had always represented her client, she claimed that she misinterpreted the changed nature of attorney client-relations after 9/11 and, “was careless, overemotional and politically naïve in her representation of a terrorist client” (Preston, 2006).

But is Stewart just naïve when it comes to the changed political atmosphere and her clients, or is she in fact very conscious of the part she played and the consequences it would bring, both in the world and in the courtroom where her case was played out?  To come to a conclusion we should look at two things: the intent behind her actions and the material support which supports claims of terrorism.

Stewart’s supporters will tell us that there is very little evidence to suggest that Stewart intended to support terrorism through her actions.  The most fanatical of then will claim that Stewart was simply naïve when it came to her relationship with Rahman.  The government claims another story and believes Stewart knowingly violated the SAM by distracting prison guards while Rahman let his translator know of his decision on the cease-fire.  The government states that Stewart then passed Rahman’s decision on to the Egyptian press.  While the government set out to prove that this move was evidence of her support of terrorist violence, the defense, “asserted that her intent was only to draw media attention to Rahman’s plight and, thus, to catalyze renewed interest in his case” and thus fell “within the ethical guidelines and boundaries of proper legal advocacy” (Birckhead, 2006, 3).  They also claimed that Stewart’s comments on “the justified use of violence were theoretical, made long-ago, and had no relevance to her intentions vis-a-vis the Sheikh” (Birckhead, 3).

The direct link between terrorism and the release of Rahman’s position to the press is tenuous at best.  Did Stewart inform the Egyptian press of Rahman’s position all the while knowing that this information could result in the deaths of innocent people?  The intent of Stewart’s actions has not been clearly proven either in the court room or out of it.  In all probability the decision of the jury was influenced as Birckhead claims by the pitting of “post-modern language and abstract theories of the intellectual elite against the hard-nosed, black and white reality of the foreign terrorist threat [in the midst of] the shadows of 9/11” (2006, 3).

In fact Stewart holds that the basis of the case against her is formed all on one communication from Rahman to his supporters, which, in fact, was unclear in nature.  The first interpretation seems to have been unclear, although it was quickly revised to come out as, “I [Omar Abdel-Rahman] am not withdrawing my support of the cease-fire, I am merely questioning it and I am urging you, who are on the ground there to discuss it and to include everyone in your discussions as we always have done” (Birckhead, 2006, 4).  That the communication does not specifically give the go-ahead to Rahman’s supporters to engage in terrorist activities is notable.

Lynne Stewart did not intend to provide material support to Rahman and his supporters.  She did not even provide a message that was specifically clear on Rahman’s full withdrawal of his support.  Whether she knowingly intend to violate the SAMs is another discussion.

Stewart’s apparent dismissal of a court ordered restriction on Rahman’s communication with the outside world, most noticeably the media was also under discussion.  While the government held that Stewart had signed an agreement to this restriction and then knowingly violated it, the defense claimed that at no moment had Stewart broken the law, as the restriction was made following a SAM, which is not technically a law.  Boghosian a vocal supporter of Stewart claimed that the only thing Stewart is guilty of is “violating a Special Administrative Measure which is not a crime” (2007).  She adds, “It occurred while Janet Reno was Attorney General.  Reno knew about it, and dealt with it appropriately by telling Stewart not to do it again, or she would not be able to visit Rahman” (Boghosian 2007).

What is important to conclude is that Stewart’s activities surrounding her defense of Rahman are not in fact criminal and therefore do not belong in a criminal court.  What we should be questioning is the ethical nature of her actions.  If Stewart did not involve herself in criminal activities did she then involve herself in a breach of ethics?

Stewart a Moral Agent?

This case highlights the ethics that surround the nature of the right to unfettered communication between lawyers and their clients.  To what extent is a lawyer to accompany their client in their ethical beliefs?  Is a lawyers first and only duty to his or her client or do they have some measure of responsibility to the justice system and maybe even to the American people?  Are the SAMs in fact an attack on civil liberties that lawyers have an ethical duty and a right to fight against?  Despite all the attention paid to terrorism, the decline in civil liberties and the ruination of the lawyer-client relationship outlined in the sixth amendment the larger ethical picture has been lost.

Reinhold Niebuhr claimed that law is a “compromise between moral ideas and practical possibilities” (qtd in Rhode, 2000, 3).  We can extend this definition to ethics within law to define the tenuous nature of the relationship between a lawyer’s moral beliefs and the restraints placed upon them by the legal system.  First let us discuss the connection between the legal system and the lawyer.

Lawyers play a role of utmost importance in the structure of our society.  Lawyers can effect a societies notions, beliefs and faith in their justice system, most specifically the criminal justice system.  The decisions lawyers make should to some extent be upheld by the society they work within.  Rhode claims that “the lawyer, certainly in the field of criminal justice, takes decisions within a system constituted by various procedures and process, and within a framework provided by the decisions of others” (2000, 3).  No lawyer can work completely out of the system, nor ignore the rules and regulations imposed upon them by some of its actors, namely judges.  Yet, that is just what Stewart did when she ignored a judges ruling and used herself as a liaison between Rahmal and the outside world.

Yet all lawyers differ on where they should stand on the spectrum between their obligations to society and their obligations to their client.  Gordon claims that, “some of the most contentious disputes about “ethics” in the legal profession concern such conflicts between the “private” interests of lawyers and clients and their “public” obligations to adversaries, third parties, and the justice system itself” (2000, 42).

In his essay, Why Lawyers Can’t Just Be Hired Guns, Gordon claims that lawyers must take into account various societal factors while they practice their profession.  These factors might be democratically based in that the laws of our society are subject to change by democratically elected officials in the various branches of government, or they might be constitutional, in that the exercise of their powers is limited by the guidelines set out in the constitution (2000, 44).  Indeed, Gordon claims of liberal society, “The general premise of a liberal polity in short is that freely chosen goals (or “self-interest,” if one prefers that reductive way of speaking) are to be pursued within a framework of constraints–established by norms, customary practices, rules, institutions, and procedures and maintained by systems of culture and morals backed by social sanctions and, selectively, by law” (Gordon, 44).

As much as Gordon claims that lawyers should take into consideration the rule of law in America, he also notes that it is a question of balance.  The author uses the analogy of a fish bowl.  While the fish (the clients) must be cleaned and cared for it is also important to keep the bowl (criminal justice system) in good shape for them (2000, 46).  Stewart, on the other hand, sees the fish as more important than the bowl.  Stewart clearly saw her obligation to her client as coming before her obligation to the legal institution.  This does not signify a lack of ethics but rather a strong belief in the ethical responsibility she felt to do everything she possibly could to help her client’s case.  That we may despise him and his beliefs does not matter.  Stewart was in fact following through with her ethical beliefs by using the communications as part of a method of defense to gain public awareness.

Should Stewart be punished for repeatedly ignoring an agreement she signed and agreed to?  Yes.  Are her repudiation of the agreement and her clandestine actions a violation of criminal laws?  Taking into consideration what we know of Stewart and the moral responsibility she has always shown to her client it only follows that her actions should be analyzed under the ethical lens, rather than the criminal one.  Stewart believed that she was following through with her ethical duty to defend her client to her full ability.  One of the means through which she sought to do this was through the time honored way of going to the press to garner attention for her client’s cause.

What’s to Be Done?

Stewart did not break the law so why was she in a criminal court room?  Her intent was not directed at supporting terrorism but rather the rights of her client.  The Stewart case should not be in a criminal court room but rather up for review before the Bar Association on ethical grounds.  What should be up for discussion is the loss of her license, not a felony conviction.  That a large portion of society can not see this is following with the hysteria created around anything that has to do with terrorism after 9/11.  That Stewart’s behavior was discussed in the criminal courts rather than  under an ethics committee in the Barr Association is a clear indicator of the very political skin it has taken on.

Can we judge Stewart because her actions have taken on political significance they never had in the past?  Lynne Stewart is on the far end of a spectrum that has the upholding of the rule of law on one end and personal morals on the other.  She herself has claimed that she did not perceive the danger of being so far on the unpopular side of this spectrum, especially at this time and in this place.  Convicting Lynne Stewart on charges related to the propagation of  terrorism would be stretching the matter to the convenience of the American government and to the detriment of society on a whole.   At best we should judge her guilty of having ethics not in line with those currently held in vogue and maybe even of having a superiority complex.

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Works Cited

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Birkhead, T.R.  (2006).  The Conviction of Lynne Stewart and the Uncertain Future of the Right to Defend  American Criminal Law Review  43 (1), 1-20.

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Boghosian, H.  (2007).  On Steven Lubet’s Indictment of Lynne Stewart  Lynne Stewart News Letter  http://www.lynnestewart.org/

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Civil rights attorney convicted in terror trial  (2005)  CNN  Monday, February 14, 2005  http://edition.cnn.com/2005/LAW/02/10/terror.trial.lawyer/

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Gordon, R.  (2000).  Why Lawyers Can’t Just Be Hired Guns.  Ethics in Practice: Lawyers’ Roles, Responsibilities, and Regulation. Ed. Deborah L. Rhode,  Oxford: Oxford University Press,  42-60.

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Hensler, D and Resnik, J.  (2000).  Contested Identities Task Forces on Gender, Race, and Ethnic Bias and the Obligations of the Legal Profession  Ethics in Practice: Lawyers’ Roles, Responsibilities, and Regulation. Ed. Deborah L. Rhode,  Oxford: Oxford University Press,  240-255.

 

Lubet, S.  (2007).  Stewart’s Sanctimony: Despite her proclamations from the courthouse steps, Lynne Stewart is no martyr.  The American Lawyer  January 1

http://www.law.com/jsp/PubArticle.jsp?id=1167214008977

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Preston, J.  (2006).  Lawyer in Terror Case Apologizes for Violating Special Prison Rules  The New York Times  September 29,

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Rhode, D.  (2000).  Introduction  Ethics in Practice: Lawyers’ Roles, Responsibilities, and Regulation. Ed. Deborah L. Rhode.  Oxford: Oxford University Press.

 

 

 

 

 

 

 

 

 

 

 

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