Friday, December 27, 2024
D+52
1939 Between 20,000 and 40,000 died in a magnitude 8 earthquake in Erzincam, Turkey
1978 Spain became a democracy after 40 years of dictatorship as King Juan Carlos ratified Spain's 1st democratic constitution
1985 Arab terrorists attacked the airports of Rome and Vienna, killing 20, wounding 110
1996 Taliban forces retook the strategic Bagram air base which solidified their buffer zone around Kabul.
2004 Radiation from an explosion on the magnetar SGR 1806-20 reached the Earth, the brightest extrasolar event known to have been witnessed on the planet.
2008 Israel launched Operation Cast Lead in the Gaza Strip, beginning with an airstrike that hit 100 targets in 220 seconds killing around 250 people
In bed at 9:30, awake at 3:45 from a dream of having to deliver a speech to a convention of bankers in a steeply-pitched auditorium, wondering what to talk about that would be interesting, and up at 3:50 to light a candle and remember my sister.
Prednisone, day 227, 7.5 mg., day 53. Prednisone at 4:50. My shoulders continue to be pretty painful, a condition that has persisted since November 11th. I see Dr. Ryzka on January 6th. Other meds at 5:50.
Anniversaries thoughts today center on Emily Dickinson's couplet:
In this short Life that only lasts an hour
How much - how little - is within our power
Earthquakes, tornadoes, hurricanes, floods, sinkholes, terrorists, murderers, wicked people bent on evil deeds, military-backed dictators, deep-space stellar eruptions, wars, tribal enmities.
“We are all tattooed in our cradles with the beliefs of our tribe; the record may seem superficial, but it is indelible. You cannot educate a man wholly out of superstitious fears which were implanted in his imagination, no matter how utterly his reason may reject them."― Oliver Wendell Holmes, Sr.
Add to the list mere accidents, unintended consequences, market crashes, computer failures, power failures, data breaches, and what else?
My writing from this journal one year ago this dayte:
Am I paranoid or just realistic? I have long realized that though I think of Geri and me as reasonably secure financially with our retirement savings and social security, I am always aware that our nest egg (other than our home) is all on paper reflecting 1s and 0s nestled into programs on computers and thus vulnerable both to hacking, errors, mischief, and even air bursts of weapons that destroy electrical circuits in computers that operate our power grids as well as the compnters that have all our financial records, including retirement accounts, bank accounts, social security and medicare accounts, everything that has to do with us. The December 19, 2023 issue of The New Yorker contains an article that gives me the shivers: "The Disturbing Impact of the Cyberattack at the British Library." A ransomware attack, most probably from Russia, has crippled the British Library from October 28th to the present.
And the older I get, the more vulnerable I become and feel.😟
Ma nistana? There is an article in this morning's WaPo about police misconduct. Excerpts:
The Biden administration launched the probes in the wake of the national outcry over the police killings in 2020 of George Floyd in Minneapolis and Breonna Taylor in Louisville. Reports issued over the last two years have focused largely on excessive use force and the kind of racial profiling associated with those high-profile cases.
But beyond the most shocking examples of police violence, the reports have highlighted something else: the pernicious ways that other patterns of unlawful policing can disrupt and cause deep harm to local communities.
Investigators detailed how officers sexually assaulted women, mistreated the homeless, exploited poor people, threatened and abused minors, taunted and arrested people suffering from mental and behavioral health episodes and punished protesters exercising their constitutional rights to free speech — especially those who denounced police violence.
“Police killings, as terrible as they are, are relatively infrequent. But these other types of abuses are happening every single day to hundreds, if not thousands, of people,” said Christy Lopez, a former Justice Department official who oversaw the federal investigation into the Ferguson, Missouri, police department in 2014-2015. “They’re not minor just because they’re not deadly, and they’re much more prevalent.”
Members of the incoming Trump administration have vowed to reverse federal oversight of local policing, and some cities have aggressively opposed the Justice Department’s intervention.
There is no surprise in this article. What are the chances of being mistreated, disrespected, an/or otherwise abused by a police officer if you are: (a) White, middle-aged or older, wearing a suit and tie,with a briefcase on the passenger seat in a clean late model car in an upscale neighborhood vs. (b) Black or Brown, wearing scruffy clothing, young, in an old beat-up vehicle or on foot, in any neigbborhood? Quis custodiet ipsos custodes? Juvenal, Satires VI. Who will protect us against the protectors? "Whether the women want it or not, I will protect them." Donald Trump, Green Bay, WI, October 31, 2024. Who will protect them against Trump?
Why some law students thought I was a jerk, or worse. I was thumbing through a copy of one of my old law school textbooks today and found the "Final Review" (a take-home essay exam) for a course I taught in 2000 on 'Lawyer in American Society.' It focused on the bad image of lawyers in American society. As I read it, I was proud of myself for having written it and having required the students to reflect on why "the treacherous rat seems to be emerging as the dominant symbolic stand-in for members of the legal profession? Why are lawyers popularly associated with dishonesty and betrayal? Or do you disagree with the assertions in [articles which I cited in the introductory narrative]? What challenges, if any, do you expect to encounter in pursuing " the lawyer's interest in remaining an upright person while earning a satisfactory living?" In the introductory I drafted, I included a standard lawyer joke: Why have laboratories started to use lawyers instead of rats for experiments? Answers: First, There are more of them. Second, The lab assistants don't get attached to them. Third, There are some things a rat just won't do. Fourth, animal rights activists don't care if you torture them. On the other hand, it's harder to extrapolate the test results from lawyers to human beings.
I called the exercise a 'Final Review' rather than a 'Final Exam' because I cited what I considered the most important reading assignments during the course and asked the students to seriously reflect on them and consider their implications for what they could expect to encounter in the practice of law. A standard law school essay exam took 3 hours of intense reading, analysis, and writing. My Final Review required much more time, at least for serious students. I'm not into patting myself on the back (or am I?) despite my dean's advice to "toot thine own horn lest the same not be tooted," but I am proud of that course that I put together. Two faculty colleagues taught other sections of the course and they approached the subject matter very differently. Each had a Ph.D. in History and they taught their courses as History courses. I taught mine as an Ethics course, largely about the moral choices one might expect to confront in the actual pracrtice of law. One of the papers I assigned was my own speech to the Thomas More Society titled "The Practice of Law as an Occasion of Sin",
One of the reasons I think that the practice is an occasion of sin is simply that there appear to be so many unhappy lawyers. Unhappiness, of course, is hardly conclusive evidence of sinfulness, but I think it is evidence of some probative value. Lawyers whose heads and hearts and souls are all on the same track tend, I think, to be pretty happy people. It is a wonderful thing to have your work life and your emotional life and your spiritual life all integrated; it makes of us people of integrity, both in the sense of wholeness and in the sense of uprightness. When our lives are so integrated, it’s more difficult to be an unhappy person. Still possible, but more difficult. [I’m reminded of a wall plaque that a client gave me: “Being Irish, he had an abiding sense of tragedy, which sustained him through temporary periods of joy.”]
. . . . . [ I quoted from several books by prominent lawyers about the unhappiness of lawyers.]
The sadness, loss of humanity, and spiritual crisis afflicting lawyers is also reflected in the world of fiction and entertainment. In the March 31, 1997 issue of the New York Times, there is a feature article on John Grisham’s legal thrillers, including his then latest “The Partner” in which “a lawyer steals $90 million from his firm and its wealthiest client, fakes his own death, and flees to Brazil.”
”For lawyers, the main dream of escape is to get out of the profession,” Mr. Grisham said in a recent interview. “They dream about a big settlement, a home run, so that they can use the money to do something else.
My experience at the Bar, living and working within the ethics rules, and in the Academy, assisting students in learning them, suggests to me that there is precious little of Ethics with a Big E, or of morality underlying legal ethics rules.
If one looks up “ethics” and “morality” in the O[xford] E[nglish] D[ictionary], we find that the definitions there are pretty synonymous. “Ethics” is defined as the science of morals or the department of study concerned with principles of human duty. “Morality” is defined as ethical wisdom or the knowledge of moral science.
For most people, morality is tied up somehow with religion, not religion conceived in a narrow or doctrinal or sectarian way, but religion in the grandest sense, as a theory or hypothesis or, perhaps more likely, an intuition of meaning or significance or purpose, an intuition or apprehension of Divine Presence in Creation. This intuition or apprehension is what we call Faith and it’s the major component of what Christians call Grace.
Am I God’s gift to the world, here to love and assist my neighbor, or am I a mere cosmic accident, or a mere cosmic inevitability?
Am I doomed to be a spiritually and socially isolated and alienated, only self-centered character out of Camus or Sartre or Kafka or am I called to be a care-giver to widows and orphans, the sick and the dying, the hungry and oppressed, the imprisoned and the stranger? Am I to be a Good Samaritan?
These are questions of radical religious sensibility and one’s responses to such questions, I suggest, determines one’s ethics, one’s morals.
Over the course of recorded human existence, I think it is clear that many people and peoples have had what I’ll refer to imprecisely as a Grand Religious Sensibility and that Sensibility has led to an overarching Moral Sense. I think this is what C. S. Lewis, in his wonderful little book, The Abolition of Man, calls by the ancient Chinese term, the Tao, meaning the Road or the Way.
In a short Appendix to the book, he gives ample illustrations of the commonality of the Ethics or Morality of the Tao, across historical, cultural, geographical, and religious (in the narrower sense) lines: Chinese, Egyptian, Jewish, Mesopotamian, Platonic, Aristotelian, Stoic, Christian and others. He catalogues the common rules of human action under 8 headings:
1. The law of general beneficence(Do unto others . . .)
2. The law of special beneficence (Care of family and friends)
3. Duties to parents and elders
4. Duties to children and posterity
5. The law of justice
6. The law of good faith and veracity
7. The law of mercy, and
8. The law of magnanimity.
The reason I suggest that there is little of ethics or morality underpinning the rules of so-called legal ethics is that we find so little of the Overarching Moral Sense, or of the Tao, in the rules governing lawyer conduct. Indeed, the only law, which is really recognized, is what Lewis calls the Law of Special Beneficence. And, the objects of the Special Beneficence are principally clients ( i.e., those who buy our services) and, to a lesser extent courts, and to a still lesser extent, other lawyers and third parties, especially adversaries.
All the major religious traditions in the world have some version of the Golden Rule, certainly including Judaism and Christianity. But in the Model Rules, there is no Golden Rule, or law of General Beneficence. What does that mean to the religious lawyer?
In the Sermon on the Mount, Jesus said “Blessed are the merciful,” but in the Model Rules, there is no law of Mercy. Consider the fact that the American Bar Association and the vast majority of states have roundly rejected a rule that would require lawyers to reveal client confidences when and to the extent that it reasonably appears necessary to prevent the client from committing an act that would result in death or serious bodily harm to another human being. What does this mean to a conscientious Christian? Or Jew? Or Muslim or Hindu or for that matter any person of conscience?
The Tao or law of magnanimity looks toward generosity, including generosity in overlooking injury. Jesus said we should forgive seventy times seven. In the Model Rules, there is no law of Magnanimity or of generosity generally. Consider the history of the mandatory pro bono initiatives.
In the Model Rules, there is no law of Justice, nor is there a law of Good Faith and Veracity.
Justice. Is it the lawyer’s duty to seek justice? Many of my freshman law students say yes. I suggest to them that the whole system would fall apart if a lawyer had a duty to seek justice. Some of them blanche; some snicker. A lawyer may, of course, seek justice on behalf of a client, but the lawyer has no professional duty to do so and it may be just as likely that a lawyer is seeking to avoid justice, so long as that can be done legally. The idea is expressed most clearly not in the Model Rules, but in the ABA’s Model Code:
The duty of the lawyer, both to his client and to the legal system, is to represent his client zealously within the bounds of the law, . . . In our government of laws and not men, each member of our society is entitled . . . to seek any lawful objective through legally permissible means. . .
What counts is not Justice, but Law. That which is Legal is Permissible; that which is Permissible for the Client and is desired by the Client is to be zealously pursued by the Lawyer, regardless of the Lawyer’s desire for the Tao, which is to say, in Western religious thought at least, the Lawyer’s Conscience.*
Good Faith and Veracity. We lawyers are forbidden to lie, but we are not required to tell the truth. Misrepresentation is prohibited, but candor is not compelled and is often inconsistent with a lawyer’s duty. In Homer’s Iliad we read:
Hateful to me as are the gates of Hell is than man who says one thing, and hides another in his heart.
But isn’t this often a lawyer’s stock in trade? Attorney William Clinton’s pathetic performance in the Monica Lewinski fiasco gave us but one example of lawyerly deconstruction and intentional misleading, while arguably not lying. “It depends on what “is” is”, doesn’t it? The temptation to this sort of thing may be stronger in the litigator than in the transactional lawyer. Is there any litigator in the audience who has never encountered that kind of verbal prestidigitational tap-dancing in responses to interrogatories or Requests for Production of Documentss?
Last week I received in the mail a newly published law review article from the Pace University Law Review, White Plains, New York. The title is “The National Association of Honest Lawyers: An Essay on Honesty, “Lawyer Honesty” and Public Trust in the Legal System.” It was written by Professor John A. Humbach of Pace University Law School.. He writes:
Lawyers can either be trusted or they cannot. The regrettable fact is that lawyers, on the whole, can not be trusted. The reason is not merely that some lawyers sometimes do not tell the truth. The problem is far more systematic and pervasive. The reason lawyers cannot be trusted is that, on the questions that ultimately matter, most lawyers do not even purport to present the objective truth.
A lawyer may not tell direct lies, nor help the client to lie, but the lawyer has a far more subtle art. The lawyer’s skill is to weave stories that are false out of statement that are true. They do this in part by purposely withholding pertinent information knowing full well of the misunderstandings they promote in doing so. They deliberately undermine the credibility of truthful information and evidence that may be damaging to their clients. They make great efforts to encourage jurors and others to form misleading impressions of their clients and of past events. And in a variety of other contexts, the versions of reality that lawyers attempt to portray do not even purport to correspond to the actual facts as either the lawyer or the client honestly sees them.
On the contrary, most lawyers will probably agree that, in their pursuit of values other than truth, they have not merely the right but even the duty to mislead.
Needless to say, it wasn't a speeh designed to make me a lot of friends among lawyers, nor was the Lawyer in American Society course designed to make me a lot of friends among those who aspired to join our fold.
Reviewing that Final Review and my 'Occasion of Sin' speech has me remembering and reflecting on the tensions I experienced in the practice of law, especially the conflicts inherent in a "fee for service"/hourly billing office environment, and the emphanis on maximizing billable hours and reciepts/income/revenue. When you have maximum billable hours, you are a hero. When your billable hours are low, you're a goat and not a GOAT. I am writing these words on a late Saturday afternoon and am wearied just thinking about those days and the frequent conflict between the firm's interest in maximumizing income and the clients' interests in paying no more than is necessary in fees. Leave no rock unturned, especialy when you bill by the rock. . .
