If criminal defense attorneys could produce a patronus, it would take the form of To Kill a Mockingbird’s Atticus Finch. In fact, I daresay that pretty much every attorney or law student of any stripe has read that book or watched the movie and thought with pride, “That’s why I do what I do. That’s my profession at its most brave and noble.”
Finch is fictional, of course, but the world he inhabited was sadly not – not in the early 1930s, when the story is set, nor were things much improved for people in certain parts of the country in 1960 when the book was published. Had there been hashtags at the time, #believewhitewomen would have been perpetually trending.
Atticus Finch is a hero because he stood against the overwhelmingly popular public opinion of his day, even in the face of threats to himself, his professional reputation, and his own family. He demanded that evidence outweigh accusations, that skin color has no bearing on guilt, and that the accused is always cloaked in the presumption of innocence until the accuser proves otherwise. That his client Tom Robinson was convicted in spite of his factual innocence, and killed shortly after, is the central tragedy – and call to arms – of the story. It is a plea for the rule of law to triumph over the howl of the mob, and a tale of the woe that ensues when it does not.
In this social media age, where the howls of the mobs are so easily amplified, the rule of law needs protection and promotion more than ever. And we as lawyers have an obligation to stand against that mob, to demand that the rules and protections of our society apply with equal force to everyone, of whatever social class, and of whatever demographic check-box.
Whenever one invokes the rule of law these days, you can count on some ridiculous wit to say, “Oh, YEAH? You know the NAZIS had laws about KILLING JEWS!” or something along those lines. This is absurd on its face – the fact that historical despots made their own laws to justify evil acts doesn’t therefore obligate us to live in a society where laws are merely suggestions. And I’m not just saying that because there isn’t much money for lawyers to make in an anarchy.
But sometimes injustice doesn’t just come from despots, but from The People in the form of popular legislation – and in that small way the Nazi-invokers have a point. Tom Robinson could also have given you a few examples, as his friends and family watched his trial from the “colored balcony.” A democracy is two wolves and a sheep voting on dinner, as the old saying goes, which is why we prefer to live in a Republic where the sheep is armed and contesting the election.
And that’s why “the law” must be supported by a solid foundations of fundamental principles, principles which our laws, legal procedures, and (and this is the critical part) our own conduct as attorneys must respect and continually reinforce. Every human being similarly situated must be treated the same by their government officials, regardless of their genetic makeup. When you are accused of wrongdoing, whether you face criminal penalties or merely a loss of public or professional reputation, your accuser always, always has the burden of proof.
As the guardians of the Rule of Law, our obligations as attorneys go further than merely applying technical rules in a dogmatic way. It’s about cultivating a culture in which our principles of justice and fairness are granted real force. It’s about not misrepresenting case law, or making ridiculous arguments which undermine the obvious intent of our statutes, even when we think a judge might just let us get away with it. It’s about treating colleagues with respect, integrity, and civility, even if our clients are at odds or if we disagree with their politics. It’s about being the kinds of lawyers our legal heroes (fictional or otherwise) have always been in our own minds.
A version of this piece originally appeared in the December 2018 issue of The Nevada Lawyer, the State Bar of Nevada’s monthly magazine for member attorneys.