Is there really that much daylight between a lawyer and client?

"After completing his time on the Supreme Court, Daniel Kelly provided legal counsel to several clients, amongst which were the RNC and RPW," [Kelly’s spokesman Jim] Dick said (paywalled, sorry). "It is a maxim in the legal profession that the views of clients are not attributable to their attorneys."

This is Wisconsin, so that means there’s yet another election coming up, this time for Supreme Court Justice (among others). This Blog Is Not About Politics but I will remind everyone who is eligible to vote on or before April 4. (This is a pro-democracy blog and I hope this is not controversial.)

Anyway, through the course of this campaign, the records of both Daniel Kelly (a former Supreme Court Justice who wants to return to the bench) and Janet Protasiewicz (a current Milwaukee County Circuit Court judge) have been scrutinized by friends and foes alike, and by the press. Relevant here, attention has been paid to Mr. Kelly’s former representation of Republican Party interests to work on “election integrity” issues. The above quote from his spokesman appeared in response to questions about that representation. This idea was briefly alluded to at today’s debate as well.

But is it really true? Is there really that much distance or difference of opinion between a client and a lawyer?

The “maxim” Mr. Dick was referring to is likely SCR 20:1.2(b), which states: “A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.”

However, it’s important to remember that this is an ethical maxim, and it’s important one. ABA Comment 5 suggests the policy behind the rule: “Legal representation should not be denied to people who are unable to afford legal services, or whose cause is controversial or the subject of popular disapproval. By the same token, representing a client does not constitute approval of the client's views or activities.”

It makes sense, ethically—people facing criminal charges, particularly serious ones, are constitutionally entitled to representation. And even in civil cases (where counsel is not generally guaranteed) having good lawyers on all sides makes the process work. If clients’ views or actions were imputed to the lawyer, it would be impossible for many litigants to find qualified representation. Lawyers could, at least theoretically, be disciplined for taking on clients whose actions conflict with the law, if they are perceived to have endorsed those actions.

However, it’s important to remember that SCR 20:1.2(b) is not a business maxim. Clients are free to choose their lawyers based on whatever criteria they want, including shared views and values. And clients often do that (particularly issue organizations, political committees, elected officials, candidates, and similar). An anti-abortion organization isn’t going to try to recruit the former general counsel for Planned Parenthood, nor vice versa. Heck, I would imagine that, say, the World Women’s Folktronica Association (should such an association exist), while prioritizing legal acumen, would prefer to select a fan of the genre.

So, while the quote at the top is technically correct, from an ethics standpoint, it’s not the whole story. Readers can draw their own conclusions.