When to bow out
13 Apr 2008
Mary M. Cheh recently published a paper for the Social Science Research Network, entitled, “Should Lawyers Participate in Rigged Systems: The Case of the Military Commissions”.
Professor Cheh argues that these tribunals are governed by rules of evidence and procedure that are fundamentally unfair. The accused can be convicted on secret evidence, hearsay, and evidence obtained by torture and coercion, and there is no civilian judicial review. Under such circumstances, Professor Cheh argues that counsel who refuse to participate in proceedings before those tribunals take a stance that is fully defensible from an ethical point of view.
Professor Cheh’s paper raises an interesting question. The Military Commissions are not the only example in recent memory where participation by ethical counsel seems to be questionable.
Under what other circumstances is it appropriate for a lawyer to refuse to participate?
