Some things lawyers just can’t do. Lawyers can’t destroy documents, fabricate evidence, lie or fail to tell clients everything they need to know to make decisions about their cases, just to mention a few. But these are the easy prohibitions. Lawyers face myriad more subtle questions every day.
In my own work, what do I tell a client to whom I promised to finish a letter or a pleading last week and it still is not done? What do I tell the judge about why I neglected to inform opposing counsel of a third-party subpoena despite the requirement that I do so? I suspect that any practicing lawyer will tell you that his or her character and integrity are tested frequently, in situations where the stakes are low, in situations where the stakes are high, and in situations where a truthful and ethical response may cast the lawyer in a bad light before a court or a client.
So arise these dilemmas in light of the case of Stephen Glass. As the world knows, as a journalist, Glass, who graduated from Georgetown University Law Center and is seeking admission to the State Bar of California, failed to abide by the standards of his profession as a reporter for The New Republic. He repeatedly made the wrong decision when he was trusted with the responsibilities of a journalist, subject only to the scrutiny of editors who, in the end, he easily and repeatedly deceived. Glass’ attorney on Nov. 6 argued for his client’s admission to the bar, which the California Committee of Bar Examiners opposes, before an apparently unsympathetic California Supreme Court.
In the seemingly exemplary life that he has led since his disgrace as a journalist, I search for evidence that he has faced the same sort of difficult “heads I lose, tails you win” decisions that both working journalists and working attorneys need to make. Perhaps it is an unfair burden on Glass to push beyond the testimonials, the acts of contrition and the large number of articulate and distinguished character witnesses that he has put forward to try to imagine how he would conduct himself when the honest and ethical act is, at the same time, the more difficult and problematic choice or when the world is not watching and no bar application is pending. No lawyer is perfect. Will Glass admit his new mistakes as readily as he has admitted his past mistakes, particularly when it no longer serves his interest to do so?
If allowed to practice, Glass will discover that the character and integrity of lawyers are tested each and every day. They are tested against the heightened standards of conduct to which lawyers are rightfully held. They are tested by clients who do not wish to disclose a harmful document and argue that it is unresponsive or that it should just be destroyed. Telling a client no when that client has paid you hundreds of thousands of dollars is not an easy thing to do. The hill grows steeper when the lawyer knows that it is his or her decision, not that of a conclave of supervisors or senior partners. There is a difference between being a lead lawyer responsible to the client, to a court and to your partners and colleagues and being a law clerk with the luxury of supervision by others.
A BELIEF IN REHABILITATION
I should say that I have never met or spoken with Glass. I should also say that as former public defender and as a lawyer who now focuses on helping lawyers avoid discipline or disgrace, I have developed my own biases. One of those is that I believe in redemption. Glass’ story is one of redemption, and I was moved by the testimonials and efforts in the papers submitted to the California Supreme Court. As I have seen in countless cases, rehabilitation is real and human beings deserve second chances — and they frequently make the most of those second chances. So, personally, I wish Glass the best of luck in his effort to obtain admission to the California bar. My own bias and years as an advocate for lawyers, however, tell me to leave the deciding to others.
The task of the distinguished and eminent justices of the California Supreme Court is not an easy one. I would urge them to consider two things. First, rather than get caught up in the minutiae of whether Glass’s confessions of wrongdoing and error were sufficiently timely or complete, focus on what kind of lawyer they believe he would be today and in the coming years. The past — both the good and the bad — is relevant only insofar as it will help answer the following questions. Will Glass follow the standards of the legal profession when it hurts and makes him look bad? When his 15 minutes of fame are over and he just needs to do the right thing for his client, will his moral compass point true? Are there any hints about how Glass would now react under pressure and outside of spotlight?
Second, the Glass case may be a hard one to decide, but it is not hard to understand. The public at large is looking to the court for a decision and for an explanation of its decision. This is not a case about securities regulation, state insurance regulation or federal pre-emption. It is a case about someone whose misdeeds are not obscure or inaccessible to the general public. I hope that the court will respond to the public’s thirst for a plain, short and simple explanation of the decision. The court has an opportunity to reconnect itself and the law to the public through a decision that does not wind through pages of precedent, expound about burdens of proof or take the reader through pluralities, dissents or concurrences.
Good luck, Stephen Glass, but don’t forget that the hard part begins after you have been admitted.
Thomas B. Mason is a partner in the Washington office of Zuckerman Spaeder.