10/2/24

 Wednesday, October 2, 2024

1904 German General Lothar von Trotha issued an order to exterminate native Herero and Namaqua peoples of German South West Africa (present-day Namibia); 1st genocide of the 20th Century, killed 65,000 Herero and 10,000 of the Namaqua tribe

1919 US President Woodrow Wilson had a stroke, leaving him partially paralyzed

1928 "Prelature of the Holy Cross and the Work of God", known as Opus Dei, was founded by the Catholic priest Josemaría Escrivá in Madrid, Spain

2020 US President Donald Trump announced via Twitter that he and First Lady Melania Trump had tested positive for COVID-19; Trump was hospitalized later that day

In bed at 10:30, awake at 4:20, and up at 4:40.   Lilly showed up at about 8 to be let out and eschewed my offer of a beef jerky treat.

Prednisone, day 141, 7.5 mg., day 20/28.  Prednisone around 5 w/ buttered Dave's Bread & marmalade, morning meds at 8:15.  All Bran w/ berries at 10:00.

Vance/Walz was sort of entertaining and interesting but of no significance in the upcoming election.  Walz flubbed badly on an early question about a misstatement or lie he told years ago that he had been in China when the Tiananmen Square massacre occurred.  He generally talked too fast and seemed perhaps over-prepared, but generally came off rather well.  According to a CNN post-debate poll, he improved his 'likeability' rating by 13 points and Vance improved his by 11, but Walz's number was positive and Vance was 'underwater.'  Vance refused to answer a direct question about whether Joe Biden won the 2020 election, drawing a lot of criticism in this morning's papers.  Walz received criticism for failing to challenge Vance on his many changed positions over the years, especially about Donald Trump, 'America's Hitler.' 

That Vance is so adept at changing positions seems to me to reflect his Yale Law School training where students are taught, as all law students are taught, how to 'argue both sides' and to 'zealously advocate' their clients' position, whether they believe it or not, e.g., defending the guilty in criminal cases.  Neither truth nor personal belief is highly valued in lawyers' ethics.  In 2020, I gave a speech to an audience of lawyers entitled "The Ethics of Legal Ethics" in which I argued:

In the Model Rules [of Professional Conduct], there is no law of Justice, nor is there a law if Good Faith and Veracity.

Justice.  Is it the lawyer’s duty to seek justice?  Many of my first year 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 cynically snicker.  A lawyer may, of course, seek justice on behalf of a client, but the lawyers 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 Clients is to be zealously pursued by the Lawyer, regardless of the Lawyer’s desire for the Tao, which is to say, in Western religion 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 that 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 the meaning of the word “is” is."  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 not encountered that kind of verbal prestidigitational tap-dancing in responses to interrogatories or RPDs?  Or who hasn’t engaged in it?

Once we get outside the sanctum sanctorum of the attorney-client eggshell (when I typed this last night I typed “eggshill”.  A Freudian typo?), the practice of Law is not all Tao-like.  It is driven by the self-interest, which is often to say, the selfishness, both of the Client and of the Lawyer.  Is there a lawyer in the audience who has ever been paid by a client to seek Justice, whether or not it is consistent with the selfish interests of the paying client himself?  How many of us have been retained by altruistic clients?  Clients willing not only to lose, but to pay us good money to assist in their losing?  Plus, lawyers need to survive and are dependent on clients for income.  In addition to the lawyer’s need to survive is the desire of lawyers to thrive.  The New York Times reported last week that starting salaries for associates in many large firms have risen to $160,000 to permit the firms to compete with dot com and other high tech companies offering equity interests to in-house lawyers.  That gives us another illustration of the so-called digital divide.

In the final analysis, I think that lawyer’s ethics rules subserve the lawyer’s need to survive and desire to thrive.  That is to say, they are self-serving or selfish rules.  In David Luban’ terrific book, The Good Lawyer, he concludes his chapter entitled “The adversary Excuse” with this (and I conclude with this):

Anything . . . that is morally wrong for a nonlawyer to do on behalf of another person is morally wrong for a lawyer to do as well.  The lawyer’s role carries no more privileges and immunities.  Am I not saying that a lawyer may be professionally obligated to do A and morally obligated not to do A?  That is indeed what I am saying.  When moral obligation conflicts with professional obligation, the lawyer must become a civil disobedient.  Not that this is likely to happen.  Lawyers get paid for their services, not for their consciences.  But so does everybody else.  As we do not expect the world to strike a truce in the war of all against all, we should not expect lawyers to.  Shen Te, The Good Woman of Setzuan, says:

I’d like to be good, it’s true, but there’s the rent to pay.  And that’s not all:  I sell myself for a living.  Even so I can’t make the ends meet, there’s too much competition.

That, of course, is the way the world is, and criticizing an ideology won’t change the world.  The point of the exercise, I suppose, is merely to get our moral ideas straight:  One less ideology is after all, one less excuse.  

I look back on this speech almost a quarter century after I gave it and suspect, rather confidently, that it was not very well received by my audience.  Was I moral grandstanding or virtue-signalling or simply reminding my fellow lawyers of how self-serving our rules of behavior are?  I'm not sure what my purpose was but I'm quite sure the speech reflected my personal discomfort or moral dissonance about the practice of law.  Lawyers are tools for their clients, hired guns.  Their goal is rarely to do good, but rather to do well on their own behalf, their law firm's, or employer's behalf, and the client's behalf.  Those are the instrumental rules and values that J. D. Vance, a lawyer and a politician, operates under.  It should come as no surprise that his position on any issue changes depending on whose favor he is seeking.  His campaign symbol ought to be a windsock.

Anniversaries.  First, the Germans had some experience in genocide long before Hitler and the Holocaust, but Hitler came closest to mastering the crime after studying America's history with Black slaves and Native Americans.  America was his model for race-based oppression.

Second,  from the time of his stroke, the country was run by Wilson's wife, not by whoever was designated in the Presidential Succession Act at the time.  It took until 1965 for Congress to pass the 25th Amendment and until 1967 for it to be ratified by enough states to be incorporated into the Constitution.  It seems particularly important with old Joe Biden in the White House and now with old Donald Trump perhaps our next president and J. D. Vance in line to succeed him.

Third, from Wikipedia: "Opus Dei is a personal prelature within the Roman Church that has been the subject of numerous controversies. Throughout its history, Opus Dei has been criticized by many, including by numerary members who knew the founder and had roles in Opus Dei's internal government. The reports by former members in the US, England, Spain, Latin America, France, Germany, and other countries are published. Journalists have described it as "the most controversial force in the Catholic Church" and its founder Josemaría Escrivá as a "polarizing" figure.

The canonization process of Escrivá has been described as unreliable.  Those who question the validity of the canonization of Escrivá note that John Paul II was naïve in the cases of Theodore McCarrick and Marcial Maciel, both of whom procured large sums of money for the Vatican, like Opus Dei.

Controversies about Opus Dei have centered on allegations of secretiveness,[8] but also on sexual abuse cases in Spain, Mexico, Uruguay, Chile, and the United States; cases that were investigated and canonical sanctions were applied to the perpetrators.  Controversies have to do with recruiting methods aimed at teenagers becoming numeraries; the illicit use of psychiatric drugs in its central headquarters; the misleading of its lay faithful about their status and rights under Canon Law; the "mortification of the flesh" practiced by its celibate members (cilice, discipline, and sleeping on a board, elitism and misogyny; and support of authoritarian or right-wing governments, including the reactionary Franco regime."

Lastly, Trump caught COVID-19 but pumped up with everything available to him and not to the millions who died from it, he survived to do more damage to the country.  It seems God had other plans for him, which we are living with now.  God's ways are not our ways, right?