When Americans find themselves in need of an attorney—whether purchasing a new home, fighting a traffic ticket, or starting a new small business—they want one who will zealously fight for them. Navigating the foreign world of judges, juries, and administrative agencies can be daunting.
The right to legal counsel is a hallmark of our republic. And, within the legal profession, the duty to be an advocate for one’s client is sacrosanct. In fact, legal ethics require attorneys to be zealous advocates. And, they should not fear reprisal for statements made in connection with ongoing legal proceedings.
Most Americans would recoil upon learning that government officials would punish or harass an attorney in order to prevent him from representing his client. Yet, that’s what happened recently in the case of Kevin Clarkson, his client, and the unelected bureaucrats of the Anchorage Equal Rights Commission (“AERC”) in Alaska. The AERC spent months undermining the attorney-client relationship by bringing charges ranging from civil penalties to criminal prosecution against Kevin’s Anchorage-based law firm, Brena, Bell & Clarkson (BBC). The charges stemmed from statements Clarkson made in the course of representing the Downtown Hope Center (“Hope Center”), a charitable organization that, among other things, runs a soup kitchen and a homeless women’s shelter in Anchorage, Alaska.
The Hope Center hired Clarkson and his firm to represent them after the AERC filed a complaint accusing the shelter of discrimination, even though the Hope Center is not subject to the AERC’s jurisdiction. News media in Anchorage picked up on the AERC’s complaint, and in response to press inquiries about the case, Clarkson did what most lawyers across the country do for their clients: he reiterated his client’s legal position as already outlined in pleadings before the AERC.
That was too much for the AERC. Not long after his comments to the press, the AERC filed a complaint against Clarkson and his law firm. The AERC claimed that by explaining his client’s legal position to the press, Clarkson violated Anchorage ordinances against publishing discriminatory policies. Troublingly, the AERC complains that Clarkson challenged their jurisdiction, suggesting that charges were brought to coerce cooperation with the AERC’s investigation.
The AERC’s charges against Clarkson and his firm were an unprecedented attack on the legal process and our system of justice. The right to counsel helps prevent government overreach by requiring overbearing government officials to play by the rules. Forty-eight states, including Alaska, give attorneys absolute immunity from liability for statements made in connection with legal proceedings. Government officials cannot silence, censor, or punish attorneys for routine acts or zealous advocacy in representing clients. No one, let alone government officials, should come between an attorney and his client.
After weeks of negotiations with my firm, First Liberty Institute, and the firm’s local counsel – and the threat of a federal lawsuit against the AERC – the AERC agreed to drop its charges against Brena, Bell, and Clarkson. But we should not have been needed. If an attorney cannot represent his client free of threats of punishment by meddling government officials, who can? Extreme interpretations of anti-discrimination laws, such as those here, invite controversy where none should exist and are the reason many states have rejected the amended ABA Model Rule 8.4(g) due to concerns that lawyers may find themselves targeted with disciplinary charges for opining on matters of public concern, or even defending their clients in the public arena.
It shouldn’t take the threat of a federal lawsuit to guarantee citizens their right to legal defense. Our legal system is premised on the idea that everyone has legal rights and that the government must afford them a full and fair opportunity to defend themselves. Thankfully, this time, cooler heads prevailed.
Reed Smith serves as counsel for First Liberty Institute, a non-profit law firm dedicated to defending religious freedom for all. Read more at FirstLiberty.org.