The Problems of Sticking to Principle
What do you do when your client seems to stand for the opposite of everything you believe?
Published in 2004 Massachusetts Super Lawyers magazine
By Kirsten Marcum on August 14, 2004
If you’re a civil rights attorney, certain principles seem like no-brainers. No one should be discriminated against on the basis of race. Everyone has the right to free speech. You figure anyone who has a problem with these probably also dislikes children, butterflies and world peace.
But sometimes sticking to principle can lead you in unexpected directions — as attorneys Harvey Schwartz and Harold Lichten learned. The two, whose firms share office space on Tremont Street near Government Center, both successfully represented clients who, at first glance, seemed to contradict everything they stood for. Both believed from the start their clients had a case — though their friends, family and colleagues didn’t always agree.
My Client Thinks I’m Scum
Harvey Schwartz, famed for helping the underdog, takes a white supremacist for a client
Harvey Schwartz knows that good legal decisions can have unintended personal consequences. After all, he’s not just the lawyer who brought the case that made tattooing legal in Massachusetts again — he’s also the father of three, the youngest a teenager. “Now my kids are covered with tattoos,” he says, shaking his head, in his fifth-floor conference room. He seems half-rueful, half-amused. “I just noticed another one on my son the other day.”
It seems his kids, like their father, delight in pushing the freespeech envelope. Schwartz, a former newspaper reporter, has built a career on the First Amendment, championing free speech in some unlikely forms. His tattoo case defended the practice on the grounds that it was free speech, and far less harmful than, say, piercing.
Recently, he’s advocated on behalf of a marijuana law reform group trying to place ads on the T (some of which now decorate his office), as well as a church that wants to advertise itself as the one true religion. He’s also carved out a niche defending the right of members of city, state and local governments to vote freely, without political interference — another form of free speech. “I think, as a remnant of the ’60s, I like putting limits on the power of government,” Schwartz says. It’s been a cornerstone of his civil rights and employment practice for more than 20 years.
But his convictions were put to the test when the ACLU suggested that he take on a case for Richard Barrett, leader of the Nationalist Movement, an anti-immigrant, anti-Semitic, “pro-majority” Southern group whose Web site advocates such things as “Wetback Wipeout” and proclaims “Diversity = Death.”
In 1994, the Nationalist Movement applied for a permit to hold a “pro-majority” parade through South Boston — its way of showing approval for the city’s decision to cancel the annual St. Patrick’s Day parade rather than let gay and lesbian groups march. City officials denied the permit, with Mayor Menino reportedly commenting that he didn’t want Nazis marching through Boston.
The Nationalists marched anyway. Fifteen dedicated racists turned out — and so did 800 state troopers in riot gear, at a cost to the city of $800,000.
Afterwards, Richard Barrett, the Nationalist Movement’s general counsel, filed a First Amendment suit against the city for denying his organization a parade permit. It was a legitimate case, but there was a catch. Although Barrett was a lawyer, a misconduct charge in an earlier case meant he couldn’t be admitted to practice law in federal court. And he was having a hard time finding anyone else to take the case. Finally, he called the ACLU, but even it turned him down.
“You can imagine what it was like for him to scrape the bottom of the barrel and call the ACLU and get turned down,” says Schwartz, who is Jewish. “And so his case was going to be dismissed because he didn’t have a lawyer.” Schwartz, who works with the ACLU on a few cases each year, got the final call: “The ACLU called me up and said: ‘Look, this case is going to get dismissed, and it’s a legitimate First Amendment case. Nobody else will do it. Will you do it?’ And I said sure.”
The decision perplexed his friends and family. Both of his law partners, one black, advised Schwartz not to take the case. Schwartz’s father, who fought in World War II and was captured in Normandy and held prisoner by the Germans, told him: “I don’t understand why you’re doing this.”
But Schwartz was convinced the case was legitimate, and the facts bore him out. “When it comes to parade permits, the city isn’t allowed to have discretion — it’s time, place or manner,” he says. “They can say you can’t hold up traffic, but they can’t let the Ancient Order of Hibernians march and block traffic but not let the Nationalist Movement block traffic.”
Although it took a year for the judge to write his decision, Schwartz eventually prevailed. In the meantime, the case took a personal toll. While Barrett was polite to Schwartz in person, the Nationalist Movement’s Web site featured anti-Semitic caricatures of him and described him in derogatory terms. Throughout the case, Barrett continued to protest Schwartz’s assignment as his lawyer. “When his deposition was taken by the city, he started off with a speech protesting that he was forced to have me as his attorney, and he didn’t want me as his attorney. So I said: ‘Hey, I’ll leave,’ and he said: ‘No, you can’t leave,’” Schwartz says.
For most of the trial, the two remained civil — until the closing arguments, that is, after Schwartz decided that the strongest argument he could make was that the Nationalists are offensive, but they have a right to be offensive.
“Normally, I wouldn’t stand up in front of a jury and badmouth my client. But I told the judge that their views were as reprehensible as they were imbecilic, but they have as much right to say it as Dr. King had to tell us about his dream. The judge’s eyes opened up wide, and I thought, ‘Wow, I’m really scoring here.’” What Schwartz didn’t know was that all of the Nationalists had gotten up and left the courtroom. When he turned around, it was empty.
Still, he has no regrets about his choice. In fact, he’s proud that the decision in the case helped shape the city’s handling of parades and demonstrations during the Democratic National Convention in Boston.
“It goes to show that you do these First Amendment cases on the fringe, and what it does is lay down protection for the Democrats,” Schwartz says. “That’s the irony of it. By protecting the rights of this group that wants to take away people’s rights, you’re not just protecting the Nazis’ rights — you’re protecting everybody’s rights.”
Everyone Has Rights — Even the Majority
Harold Lichten, who built his career litigating discrimination cases, fights for six wrongly treated white guys
Like his friend and colleague Harvey Schwartz, Harold Lichten doesn’t mind standing up for principles even in the face of unpleasant consequences. Back in 1970, after being admitted to the University of Pennsylvania to play on the basketball team, he was thrown off for refusing to get his hair cut. “I’d gone to college to become a hippie, I guess,” the 6-foot-5-inch Lichten recalls. “Although I liked sports, a short haircut sent a political message.” (Plus the girls liked it long.) And so when his coach ordered him to cut his hair before the next practice, he declined — despite the fact that he would be kicked off one of the best teams in the nation.
By that time in his life, Lichten had already developed the commitment to social justice that would come to define his law career. “I was a child during the civil rights movement,” Lichten says. “I can remember watching on TV black people getting hosed down while marching in the streets. I remember Martin Luther King’s ‘I Have a Dream’ speech.” Through college and law school, Lichten volunteered for legal aid organizations. When he graduated, he accepted a position representing lowincome people in Lewiston, Maine.
Lichten’s first employment discrimination case was filed on behalf of an achondroplastic dwarf who’d been denied a job at Bath Ironworks, Maine’s largest employer. It was the first of many cases involving prejudice in the workplace. “Back in the late ’70s and early ’80s, it was really like it was in the ’60s for blacks,” Lichten explains. “People were admittedly denying handicapped people jobs. So there were a lot of cases, and they were very interesting.”
Lichten’s practice grew to include sex and race discrimination. He handled wrongful-termination suits, as well as a number of cases on behalf of labor unions — police labor unions, fire labor unions, telephone workers.
In fact, it was through his work with the firefighter unions that Lichten, now based in Boston, took on his first reverse-discrimination case — and found himself in the surprising position of advocating on behalf of six white men who’d been denied jobs as firefighters as a direct result of a court-ordered racial quota system. Says Lichten: “The one thing I had never done before was to represent the majority challenging the minority. It was so foreign to what I had done all the rest of my career.”
It should be said that Lichten believes in affirmative action. He believes it’s perfectly appropriate to take race into account in determining the single best candidate for a job. But he believes that bad affirmative action helps no one: “There’s affirmative action where you say: ‘We need diversity and let’s reach out and find good people with diversity,’ and then there’s the system they used in Boston, which was terrible,” he says.
The Boston system had been in place for 28 years in both the police and the fire departments, the result of a 1974 federal court order following a case in which the U.S. District Court found the departments’ written exam discriminatory. The court ordered the city to rewrite the exam. It also mandated a one-for-one hiring system, which required one non-white hire for every white candidate hired until the percentage of minorities in the department reflected their percentage in the community at large.
But the city never rewrote the exam. Over time, it became extremely difficult even for highly qualified white men to be hired as firefighters in the city of Boston. Some were turned away year after year, despite scoring 100 on the exam and having spent time as firefighters in other towns. At the same time, minority candidates with low scores and no experience were hired on their first try.
The clients who retained Lichten had an extraordinary commitment to being firefighters. All had scored 99 or 100 on the exam. One was ready to give up a six-figure job as an investment banker. Another delayed a hernia operation in order to take the department’s pre-employment medical exam. “He had to do this 30-minute treadmill, and his stomach was hanging out, but he refused to stop because he thought this was his last chance to be a firefighter,” Lichten says.
But while Lichten believed in the case, not everyone did. Several of his law partners were against taking it, and the younger attorneys in his office refused to help. Instead, he had to use an attorney from another firm. And some of the opposing counsel he faced were friends. “The lawyers from the Office of Civil Rights are people that I know and respect, and I could tell they were disappointed in me,” he says. “As a matter of fact, they told me they were disappointed in me.”
Perhaps even worse, from Lichten’s standpoint, was that his victory on appeal — after which his clients were hired as firefighters and awarded back pay — made him a celebrity for all the wrong reasons. From CNN to Bill O’Reilly, the major media came calling. While Lichten turned most reporters away, he agreed to appear on O’Reilly’s show because, he says, “I figured he was going to use me as a pawn to advance his right-wing agenda.” But O’Reilly never got the chance.
Before the show, a Fox screener called to ask Lichten’s responses to various questions. He explained that he supported affirmative action and that, done right, he believed it had a place in society. An hour later, the show called back to say they’d decided to invite someone from the Cato Institute to talk about the case instead.
Since then, Lichten has consistently turned down offers from around the country to take on more reverse discrimination cases. And while he’s currently contesting the same court-ordered onefor-one hiring system in the police department, it’s clear that he really wishes all the attention would go away.
“All of my other cases — many of which I think are just as important — were brought on behalf of minorities, not on behalf of the majority,” he says. “Frankly, it’s not the case that I hope to be remembered for.”
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