Jethro, Moses’ father-in-law, was a lawyer. Each year, when the Torah portion pertaining to Jethro is read at Central Synagogue in midtown Manhattan, a person is asked to give a talk relating to the law at a dinner following Friday night services. On 13 February 2009, New York University School of Law professor of ethics Stephen Gillers gave the Jethro talk. With minor changes, it is reprinted below:
When Ron Tabak e-mailed me about giving the Jethro talk this year, I was in Cambodia speaking about the American legal system to graduate law students at the Royal University of Law and Economics. That experience offered one further example of the intense interest globally in the rule of law in the United States. To my mind, the rule of law is America’s best export. If, in other nations, we can instill our respect for the rule of law, an independent bar and an independent judiciary, we will go a long way toward the creation of democratic institutions worldwide.
But our achievements in establishing a nation based on the rule of law should not be allowed to obscure problems with the work of lawyers here at home. When Ron and I agreed on the title of the talk, I was not yet clear on what I would say about honour and the legal profession although I had some vague ideas. Events this autumn, however, have clarified what needs to be said. When talking of honour, one could hardly begin in a better place than the events surrounding the fall of Bernard Madoff. I will then move to the question posed in my title and conclude with references to the Bible.
What I find most remarkable about the Bernard Madoff story so far is that his sons turned him in. Bernard Madoff confessed to his sons and on the advice of counsel, they turned him in.1 And the whole business came crashing down.
I don’t question the legal advice or his sons’ actions. What puzzles me is something else: why did no one do this sooner and why did it take so long? Sooner or later, the fraud would be revealed. Tens of thousands of people would suffer. Those who invested would suffer. Charities dependent on donations from the investors would suffer. All those who the charities helped would suffer. And the suffering would be great.
Now, the incontrovertible fact is that it is impossible to run a business like Madoff’s in our highly regulated society without the help of professionals – accountants and lawyers – all along the way. Did none of them know? Did none have suspicions? Did they look the other way? We will in time, I hope, get answers to these questions. Unfortunately, they are not new questions. They are asked in the wake of all great frauds. Stanley Sporkin asked these questions after the S&L crisis of the 1980s. The government took control of failed banks, including Lincoln Savings & Loan. Charles Keating, CEO of Lincoln’s parent, challenged the takeover. In rejecting the challenge, Judge Sporkin wrote this now famous passage:
‘Keating testified that he was so bent on doing the “right thing” that he surrounded himself with literally scores of accountants and lawyers to make sure all the transactions were legal. The questions that must be asked are:
- Where were these professionals, a number of whom are now asserting their rights under the Fifth Amendment, when these clearly improper transactions were being consummated?
- Why didn’t any of them speak up or disassociate themselves from the transactions?
- Where also were the outside accountants and attorneys when these transactions were effectuated?
- What is difficult to understand is that with all the professional talent involved (both accounting and legal), why at least one professional would not have blown the whistle to stop the overreaching that took place in this case.’2
Judge Sporkin’s questions are no easier to answer today than when he asked them. We do know that lawyers and auditors for the failed banks paid tens of millions of dollars in fines to settle civil claims based in part on their silence.3 Or their insurers did. Was the price of silence then merely a cost of doing business? A ledger entry? Nothing more?
The New York courts did not heed Judge Sporkin’s questions when they adopted new Rules of Professional Conduct for lawyers in December, effective 1 April 2009. In the current climate, you might expect that the courts would have made it a bit easier for lawyers to reveal client information to stop fraud or prevent great harm, especially if the lawyer discovers that he or she has unwittingly assisted the fraud. Following the corporate scandals of the last decade, the ABA Model Rules of Professional Conduct and rules in many states were changed to grant this authority. It is not a radical idea by any means. But not only did the New York courts not adopt these ABA provisions, the new rules they did adopt actually further limit a lawyer’s duty to reveal fraud on others than exists today under New York’s current rules. We’re backsliding here in New York, the nation’s financial capital.4
The title of this talk is: ‘Is law (still) an honourable profession?’ So I have to say what I mean by honour? It is more than acting lawfully. It is that, certainly, but it is more. It is also how you behave even when you can do as you please, especially then. Honour, at the least, means not exploiting the trust of vulnerable others for your own advantage, including strangers, who are relying on certain basic standards of human decency.
Honour shares the stage with two other civilizing qualities. One is shame. To value honour is to be capable of shame. For the shameless, honour does not exist. They don’t prize it and they don’t miss it. The other quality is empathy even (especially) for those you do not know. Empathy is compassion for the plight of others, because you understand that they are tied to you and you to them.
Honour, shame and empathy, then, make up the glue of civilisation. Without them, things will fall apart. And as bad or worse: when the public sees a loss of honour in how institutions and professionals behave, we have a loss of trust. That is what we see happening now. Some examples:
Reviewing Charles Morris’ book, The Trillion Dollar Meltdown, in the New York Review, Jeff Madrick writes:
‘Morris makes it clear that it was an unquenchable thirst for easy profits that led commercial and investment banks in the US and around the world – as well as hedge fund, insurance companies, private equity firms, and other financial institutions – to take unjustifiable risks for their own gain, and in so doing jeopardize the future of the nation’s credit system and the economy itself.’5
George Packer, in the New Yorker, describes in wrenching detail the plight of some of the vulnerable victims of this behaviour; blue collar people in southwest Florida who have lost their jobs and sometimes their homes. These are people largely invisible to the masters of the financial universe who produced the mess under which they now suffer.6
In The New York Times, Gretchen Morgenson’s columns have shown that the credit-rating agencies gave ridiculously optimistic grades to mortgage-backed bonds. The bond issuers paid the agencies’ fees. The income from this part of the agencies’ business was especially lucrative. Put two and two together: the inference is compelling.7
Elsewhere, health, not wealth, has been jeopardised. In January, Eli Lilly agreed to pay US$1.42 billion to settle a probe into alleged improper marketing of the anti-psychotic drug Zyprexa. Gardiner Harris and Alex Berenson reported in the Times:
‘Among the charges, Lilly has been accused of a scheme stretching for years to persuade doctors to prescribe Zyprexa to two categories of patients – children and the elderly – for whom the drug was not federally approved and in whom its use was especially risky …. The company … pressed doctors to treat disruptive children with Zyprexa, court documents show, even though the medicine’s tendency to cause severe weight gain and metabolic disorders is particularly pronounced in children. Over the last decade. Zyprexa’s use in children has soared.’8
And staying on health, Marcia Angell in the New York Review,9 Gardiner Harris in the Times,10 Senator Charles Grassley with subpoena power,11 and others have told of psychiatrists with economic interests in a drug, sometimes along with their universities, or who have received huge consulting sums from drug companies, then doing National Institute of Health studies on those very drugs or on drugs owned by the very companies that paid them so handsomely. Some universities did not enforce their conflict of interest rules. Some of this conduct also violated NIH conflict of interest rules.
A particularly outrageous example of dishonourable behaviour in my lifetime was Big Tobacco’s decades-long suppression of conclusive proof that tobacco kills, while all the while implying the contrary, including in ads targeting young people. I needn’t ask Judge Sporkin’s questions this time. We know where the lawyers were. Big Tobacco’s success in hiding the science that showed that tobacco kills was accomplished with the highly creative help of clever lawyers who managed to bury the information by concocting a theory that the laboratory results were protected by the attorney-client privilege.12
This takes me back to lawyers. As I say, in our regulated economy, lawyers are deeply embedded in all sophisticated commercial and financial transactions. So, often, in situations like those I’ve described and others, the conduct would not have been possible at all or for long without the assistance of lawyers. Or if not the assistance, then with the knowledge and acquiescence.
Let me be clear: It is more than honourable to help clients achieve their goals under law. And it is more than honourable to be devoted to a client’s goals. In a civilised society, it is necessary. Lawyers say, with justification, that it is not their job to judge the worthiness of the clients’ goals, only if those goals are legal. A lawyer is but an advisor on the law, they say. The client calls the shots.
And almost always, this is true. But it is not always true. Sometimes, this defence undermines the rule of law itself. Our popular model for the work of lawyers – the way lawyers are portrayed in popular culture – envisions a trial lawyer, usually a criminal defence lawyer, whose arguments can be challenged by an opposing lawyer and will be exposed to the ruling of a judge.
This can be a misleading model. Most American lawyers are not trial lawyers. They are counsellors or advisers, operating where there is no judge and no adversary. No one is watching. And there may never be anyone watching. Then, the temptation is to push the limits, sift the language of the law, find hidden meanings.
Now, our social understanding is that law is not endlessly pliable in this way. But the problem is this: it can be made to be, because law is only a language and language is remarkably pliable. In the hands of a creative, motivated lawyer, with a demanding client, the language of the law can have astonishing elasticity. Through interpretation, the rule of law can be turned into what it is not. Unbounded imagination is fine when interpreting Shakespeare or Kafka. No one can get hurt. Not so for law.
Our law cannot be defined solely by the limits of a lawyer’s linguistic imagination. That is a recipe for destabilising the rule of law, not preserving it.
Are you shocked by the torture memos the Justice Department lawyers wrote during the Bush years, some of which were later disowned by the same Justice Department in the face of popular repulsion? I am, especially after I had a chance to study them closely. They are worse than you think. They are dense, with hundreds of footnotes. This is no accident. They are dressed up to appear scholarly, erudite, learned. But they are junk law.
The torture memos are but a far more egregious example of the kind of behaviour I’m describing. Push the limits. Use your imagination. Who’s looking? The client wants it. If the client is ever challenged, it has an excuse. The lawyers said it was legal. That is in fact what former federal officials now say: ‘we had a legal opinion.’
A lawyer who uses his or her legal education and skills to distort the law, to destroy the rule of law, because he or she is adept at manipulating language, and no judge, no adversary is watching, is as blameworthy as the client. You cannot hide behind your professional mask.
What I have just said may seem unremarkable to non-lawyers. To many lawyers, it will sound like sacrilege, a rejection of the duty of loyalty to the client. My reply is that loyalty does not require you to aid morally offensive goals, even if they are legal.
Lawyers may say, ‘But if I decline, someone else will do it, so what is gained?’ My reply is: ‘let someone else do it. But not you. Honour is personal. Worry about yourself. You don’t get a pass from moral responsibility because you acted for a client.’
That’s the first lesson I would offer, aimed at lawyers. A second lesson, aimed at all, is this: keep ready your capacity for outrage. This is very important. Next to the vote, outrage is the one response each of us can contribute. Outrage is how honour must confront dishonour. If we lose the capacity for outrage, we are in serious trouble.
It is tempting to put outrage aside. There are other things to do every day: make play dates, plan dinner, read a novel, learn Italian, not to mention our jobs. Outrage takes energy. It is stressful. Today, the demand for it is seemingly endless. Nonetheless, outrage is a duty of citizenship. Its opposite is complacency, which will bring more reasons for outrage in a downward spiral.
I’m a lawyer and law professor. For more than 30 years I’ve taught legal ethics. So maybe I can be forgiven for believing that honour among lawyers is the best hope for a civil society, especially in times like these when it can appear daily that those we believed were good people, good institutions private and public, good companies, seem to have lost their moral bearings, that we have a scarcity of honour and capacity for shame. If the bar loses honour and capacity for shame, what do we have left? We have the clergy. Necessary, but not sufficient.
So here is my third lesson, again for lawyers: do not become skilled facilitators of whatever legal goal a paying client may desire. That’s not what you envisioned for yourself when you answered the question on your law school application: ‘why do you want to study law?’ Practice saying no. No has moral power. It can be liberating, both for you and for your client.
I would have hesitated to give this advice if I did not have eminent precedent. Elihu Root, Nobel Peace Prize laureate, Secretary of State under Theodore Roosevelt, said it better a century ago: ‘About half of the practice of a decent lawyer is telling would-be clients that they are damned fools and should stop.’13
And more recent are the words of Thomas Shaffer, an emeritus professor at Notre Dame Law School. Professor Shaffer often writes about legal ethics and religious values. He gave a speech at Vermont Law School some ten years ago. It became an article in the school’s law review.14
The title is Jews, Christians, Lawyers, and Money. It began:
‘Years ago, when I was the resident guru in legal ethics at Washington and Lee University, in the little mountain town of Lexington, Virginia, a reporter from the daily newspaper in Roanoke asked me to identify the most serious ethical issue for American lawyers. My answer was “money”.’
Professor Shaffer continued with references that resonate today:
‘My purpose so far is to suggest to you that money is the number one most serious moral problem for American lawyers and their clients. My moral observation is biblical: God destroyed the biblical cities of Sodom and Gomorrah in a rain of brimstone and fire. The Rabbis of the Mishnah wondered why. They did not decide, as many Christian preachers have decided, that God got upset because of the Sodomites’ sexual irregularities. It wasn’t sex. The reason for the destruction of Sodom was money.
‘The Rabbis said the relevant text is in the Book of Leviticus. “Thy brother may live with thee.” The wealthy Sodomites were not generous to one another; they did not take care of the poor …. Sodom was destroyed by God, in the view of the Jewish tradition, because “individual selfishness … had become an integral part of its communal culture.”
‘The book of Leviticus also says: “You shall not put a stumbling block in the path of the blind.” The sages of Judaism decided that the rule does not apply to those who harass blind people as much as it applies to those who misuse the law, who are dishonest, but legal, who, “through perfectly legal transactions”, mistreat vulnerable people ….’
Let this be our lesson, too.
*********
Copyright © 2009, American Bar Association; Stephen Gillers. Used with permission. Originally published in The Professional Lawyer, 19 No 2 Prof Law 23.
Notes:
* Stephen Gillers is the Emily Kempin Professor of Law, New York University School of Law.
1 Inquiry Finds No Signs Family Aided Madoff, NEW YORK TIMES, Dec. 15, 2008.
2 Lincoln Savings & Loan Assoc. v. Wall, 743 F.Supp. 901 (D.D.C. 1990).
3 See, eg, Law Firm Will Pay A $41 Million Fine In Savings Lawsuit, N.Y. TIMES, March 9, 1992.
4 The New York Appellate Division Courts did not adopt the confidentiality exceptions in Rule 1.6(b)(2) and (b)(3) or Rule 1.13(c) of the ABA Model Rules of Professional Conduct when they amended the New York ethics rules effective April 1, 2009. Further, they changed the duty to report fraud on a court or person. What had been an obligation to make a ‘noisy withdrawal’ when a client has committed a fraud on a tribunal or a person, see NY Opinion 797 (2006). now applies only to a fraud on a tribunal. Elsewhere, the new New York rules expand the duty to report false evidence or fraud in a tribunal. Rule 3.3.
5 Jeff Madrick, How We Were Ruined & What We Can Do. NEW YORK REVIEW, Feb. 12, 2009.
6 George Packer, The Ponzi State, New Yorker, Feb. 9, 2009.
7 Gretchen Morgenson, Debt Watchdogs: Tamed or Caught Napping, NEW YORK TIMES. Dec. 7, 2008.
8 Gardiner Harris & Alex Berenson, Lilly Said to Be Near $1.4 Billion U.S. Settlement, NEW YORK TIMES, Jan. 15, 2009. The payment was accompanied by a guilty plea to a misdemeanor. Enters Guilty Plea In Zyprexa Drug Case, FULTON COUNTY NEWS. Feb. 5, 2009.
9 Maria Angell, The Corruption of Doctors, NEW YORK REVIEW, Jan. 15, 2009.
10 Gardiner Harris, Top Psychiatrist Didn’t Report Drug Makers’ Pay, NEW YORK TIMES, Oct. 4, 2008.
11 See Maria Angell, supra note 9.
12 See, e.g., Robert Hinerfeld, A Broader View of Societal Ethics: The Societal Context, 2002 SYMPOSIUM OF PROF. LAW. 35 (2002).
13 Quoted, inter alia, in Amstar Corp. v. Envirotech Corp., 730 F.2d 1476 (Fed. Cir. 1984).
14 Thomas Shaffer, Jews. Christians. Lawyers, and Money, 25 VERMONT L. REV. 451 (2001).