It has been a very busy couple of weeks. I just finished grading final Professional Responsibility exams (we call it "PR") and in just over a week, I will be starting a summer class in the same subject. Over the last 5 years, I have been the source of legal ethics training for over 500 law students, many of whom have gone out to practice around the country. They have called me when they have difficult ethical problems to address, and I know they will continue to do so.
I always start the class by telling the students about my own experience with PR in law school: nearly everyone in the class didn’t want to be there. It was a required necessary evil of law school. We also got the impression that our professor didn’t really want to be there either; he would have been much happier lecturing on the Uniform Commercial Code. We did the time, got our grades and moved on.
Then, on my first day in practice, I was almost immediately confronted by an ethical problem; I was preparing a lawsuit to dissolve a corporation, and it was a big problem, since our firm had done the work to form the corporation years before. Could we ethically represent one of the principals against the others now? It was a nerve-wracking experience for someone just starting out. Fortunately, they all made up, and we never had to confront that problem.
I tell the students that they should be prepared for an ethical problem to crop up on their first day too, and on every day thereafter. That usually scares them enough that they stop playing solitaire on their laptops and pay attention for awhile. Then I try to make the point that it really isn’t so hard to stay on the right side of things most of the time, as long as they take to heart the advice from that book that was popular a few years ago: "Everything I Need to Know, I Learned in Kindergarten."
Right now is a very interesting time to be teaching PR. There are interesting parallels to Watergate. Most law schools did not have a class in PR up until the 1970s – but when so many people from the Nixon Administration went to prison, and so many of them were lawyers, law schools had to consider that perhaps it was partly their responsibility that such a thing had happened.
So here we are 30 years later, and I would imagine that some people out there must be thinking "what good has it all been?" Are lawyers simply amoral?
I would like to say that I think not and hope not. The vast majority of lawyers are good people who want to do the right thing for their clients and the law.
That brings me to Monica Goodling and Alberto Gonzales. One must certainly wonder if they are "good" or "bad" people, especially in light of Ms. Goodling’s testimony as to her own civil and criminal culpability when questioned by Rep. Bobby Scott:
"I know I crossed the line of civil service rules."
"I believe I crossed the line, but I didn’t mean to."
Let me say that I do not condone any criminal behavior on her part, and I do not believe that her explanation holds any water at all. Ms. Goodling would be well advised to heed the warning of Mr. Justice Tom Clark of the U.S. Supreme Court:
A criminal statute must be sufficiently definite to give notice of the required conduct to one who would avoid its penalties, and to guide the judge in its application and the lawyer in defending one charged with its violation. But few words possess the precision of mathematical symbols, most statutes must deal with untold and unforeseen variations in factual situations, and the practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions. Consequently, no more than a reasonable degree of certainty can be demanded. Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.
Boyce Motor Lines v. U.S. 342 U.S. 337, 340 (1952).
Yet, I don’t think, after all that she is a "bad" person. I believe her when she says she isn’t. I believe her, based upon the words of Mr. Justice Oliver Wendell Holmes:
You can see very plainly that a bad man has as much reason as a good one for wishing to avoid an encounter with the public force, and therefore you can see the practical importance of the distinction between morality and law. A man who cares nothing for an ethical rule which is believed and practised by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can.
[ ]
If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience. The theoretical importance of the distinction is no less, if you would reason on your subject aright. The law is full of phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds.
Oliver Wendell Holmes, THE PATH OF THE LAW, 10 Harv. L. Rev. 457, 459-460 (1897).
I wish I could feel so sanguine about Attorney General Alberto Gonzales (AGAG). I get the impression he knew what he was doing all the time.
I am still trying to decide just how much of what is going on in Washington will be part of the curriculum this summer. This whole affair looks as if it will go on for quite some time, and I think we may just have to wait until another semester.