Ammon Bundy to challenge authority of feds to prosecute Oregon standoff defendants

[Jim Lane]

45. The lawyers' responsibility isn't clear.

On the one hand, you're right that lawyers have an obligation not to make frivolous arguments.

On the other hand, you also acknowledge the lawyers' obligation to represent their clients zealously. These two obligations aren't always easy to reconcile.

Take the example of the civil rights movement. In the 1940s and early 1950s, it was clearly settled law that segregation was permissible if the races were provided with "separate but equal" facilities. That had been established by a decision of the Supreme Court, Plessy v. Ferguson, back in 1896. You can't get any "settled law" more settled than a decision of the United States Supreme Court that's directly on point. If Thurgood Marshall and the other NAACP lawyers had been prohibited from challenging settled law, we'd still have segregated schools.

A lawyer is permitted to advance a position that's contrary to current law if it's supported by a good-faith argument for a change in the law. That's how we got Brown v. Board of Education with its famous declaration that separate facilities are inherently UNequal. Marshall argued that Plessy was just wrong. The Supreme Court agreed and took the rare step of overruling one of its prior decisions.

If you're tempted to look at crackpot right-wing theories and say that no one could advance them in good faith, bear in mind that plenty of white supremacists would have said the same about court-ordered desegregation. I personally favor giving lawyers a lot of latitude to advance novel or unpopular legal theories. Slapping the Bundy lawyers with a sanction for frivolous conduct would make me very uneasy.

As for standing, I can't add to what jberryhill and I have already written. If you don't find it persuasive, we'll just have to disagree on that point.