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How does a lawyer handle civil disobedience?

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“One has a moral responsibility to disobey unjust laws.” – Martin Luther King Jr.

But whether a law is just or a cause is right depends on one’s perspective. Judging where to stand on an issue (or how to react to one) is not always clear in the present tense. What am I supposed to do when my responsibility as an attorney conflicts with my conscience?

Aristotle pointed out an unfortunate reality: “it is not always the same thing to be a good man and a good citizen.”

When push comes to shove, which should we aspire to?

Conference Details

Emory University School of Law’s Public Interest Committee is hosting its centennial conference on Saturday, Oct. 1 on this topic. Check out: Justice for All? How the Law Handles Civil Disobedience.

Most of us are comfortable with the view that when our conscience and the law conflicts, we should follow our conscience (so we can sleep at night right?).

This is not radical considering the history of the United States was sparked from the assertion that the authority of a government is derived from the consent of its governed, and when such government becomes destructive, it is the right and duty of the people to alter or abolish it.

That duty and right combined with the need to act now rather than to wait for legal machinery are recurring elements in civil disobedience movements from the Boston Tea Party to the march from Selma to Montgomery.

But when we start hitting more sensitive topics without history’s gift of hindsight, beliefs become less consistent. Acting on our conscience is one thing – but how do we feel when others act on theirs?

When Kim Davis’s conscience conflicted with her duty to issue marriage licenses to same-sex couples following Obergefell v. Hodges and was arrested, many criticized her for choosing her beliefs and not discharging her duty as a county clerk.

Following the shootings in Orlando, when the Democrats were led by Civil Rights veteran Representative John Lewis to occupy Congress, the act was dismissed by many as a foolish publicity stunt and undemocratic (they were not elected to obstruct operations until they get what they wanted – they were supposed to engage and debate the issue).

When Ted Cruz told his the audience of the RNC to vote their conscience, he was booed. And tweeted about.

And when Bernie Sanders supporters acted on their conscience at the Democratic National Convention, they were told that they were being ridiculous.

Whether your conscience is just or moral depends on how popular it is. In some ways, whether a law is just (or even passed) also seems to rely on how it performs in a popularity contest.

As an aspiring attorney, what should I do when deciding between being a good person and a good citizen? Between being a good person or citizen and being a good attorney? Between a potential client and the law?

The ABA Model Rules of Professional Conduct address some of these questions directly in Model Rule 1.2: “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.”

Right as I was trying to drum up further hypotheticals, the comments explained that as a lawyer, I would be able to provide legal counsel so that my client can arrive at an informed decision though I am prohibited from doing so if I know my counsel is being sought for the purposes of committing a crime.

There will be instances where we may have to decide between what our conscience compels and what the law compels. The beauty of our legal system is that it allows for lasting change to be forged when the heat of passion meets with the fires of debate.

Henry David Thoreau captures the concept best in Civil Disobedience and Other Essays:

“If the injustice is part of the necessary friction of the machine of government, let it go, let it go: perchance it will wear smooth–certainly the machine will wear out… but if it is of such a nature that it requires you to be the agent of injustice to another, then I say, break the law. Let your life be a counter-friction to stop the machine. What I have to do is to see, at any rate, that I do not lend myself to the wrong which I condemn.”
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Raymond Tran Raymond Tran is a 2L at Emory University School of Law interested in international and transactional practice. Raymond serves as Lt. Governor of Diversity for the ABA Law Students Division, 5th Circuit; he is on the Emory International Law Review and President of the International Law Society.