>> Monday, February 03, 2014

I listen to the Slate Political Gabfest podcast every week.  Some weeks, it's an entertaining bit of inside baseball, some weeks I'm not sure why I bother.  Slate contributors David Plotz, Emily Bazelon and John Dickerson gab a bit, mostly about politics, occasionally about things they don't seem to know anything about, sometimes about things they've written articles or books about, and then after approximately an hour they wrap everything up with "cocktail chatter" about things that are interesting them or bugging them.

I mention this because the most recent installment featured a return to a subject they apparently don't understand well enough to talk about, namely disgraced ex-journalist Stephen Glass and his failed attempts to become a lawyer, first in New York and subsequently in California.  Glass became infamous for a journalistic career in which he routinely fabricated quotes, sources and events, going so far as to fabricate materials purporting to back up his fictions.  It's a subject that's personally relevant to Slate editor Plotz: Glass was a Slate contributor and Plotz's wife, the journalist Hanna Roslin, was friends with Glass and Glass was a guest at their wedding.  Rosin, indeed, was collateral damage in Glass' ugly exit from The New Republic, where they both worked, jeopardizing her own credibility sticking up for Glass when his deceptions came to light.  Yet Plotz is self-righteously offended that the California State Bar doesn't think Glass is good enough to join their ranks, has written a column in Slate saying as much and ranted about it a bit on the most recent Gabfest.

Plotz writes:

The decision is long and citation-filled. It claims to make a rational, precedential case that Glass has not met the legal standard for being a lawyer in California. But reading it as a non-lawyer and a non-Californian, I’m instead struck by its anxious snobbishness. The Committee of Bar Examiners and the Supreme Court justices—every one a lawyer—don’t want to let Glass be a lawyer because they’re embarrassed that anyone could possibly think that he’s like them. He’s not one of us, dear.
Indeed.  The opinion, which you can read here (PDF link), does in fact contain a lengthy factual basis for the Court's decision, citations of the cases the Court uses to reach their citations, and an analysis of how the applicable precedents have shaped their decision making process.  In these regards, the California State Supreme Court opinion isn't so much filled with "anxious snobbishness" as it is typical of jurisprudential writing at the beginning of the Twenty-First Century.  It's true that the Court could have put things much more simply, if it weren't customary to state the facts, state the precedents, then state how the facts are interpreted in light of the precedents.  If legal custom weren't what it is, the Court very well could have said it all in two short sentences:

So, needless to say, I don’t like Steve. And I don’t trust Steve.  

In case you couldn't guess, that would be Mr. Plotz proffering his own personal thoughts about Stephen Glass before going on to castigate the legal profession for not liking and trusting a guy who serially lied to Plotz's wife and then, we're told by Mr. David Plotz, portrayed her as "conniving, sleazy, and disloyal" and Plotz himself as "even worse".
Plotz is certainly correct that the legal profession has a great deal to be ashamed of, that there are plenty of dishonest and crooked lawyers, he may even be right that the California Supreme Court's statements about a lawyer's requisite honesty are "a claim that only lawyers could make about law with a straight face".  I'm not particularly interested in defending my profession today, thinking that such defenses might seem self-serving at worst, or at best might make me sound like somebody who has a beam in his eye.  (I've always found that a weird image: I can't help wondering if there were people staggering around First Century Palestine with chunks of wood sticking out of their faces.)
But one might say such things about any number of professions, including journalism, the profession that exiled Stephen Glass when they caught him engaged in chicanery.  There are two differences, however between the law and most (not all) other professions when it comes to this subject, however.
The first would be that the law is a field in which dishonesty can have immediate and lasting damages that are unmatched in most other fields.  A dishonest journalist may damage someone's reputation, which is undeniably awful, and embarrass his editors and publishers, which... enh, probably isn't that big a deal, sorry.  Such things are fairly recoverable: the defamed victim can sue for libel, for instance, and a publication that has a generally good reputation is likely to recover from one single bad contributor.  The victims of a dishonest lawyer, however, are not the legal profession, which is frequently equated with prostitution and remains the subject of jokes about the greed and prevarication of attorneys, but the dishonest lawyers' clients: the person whose appeal was not filed when the lawyer claimed it was, the person whose money wasn't properly handled when the lawyer was supposed to place it in a trust account, and so on.  The victim of a dishonest journalist may face years of explaining how a false story was recanted, and that's a hellish thing, make no mistake; the victim of a dishonest lawyer may be pauperized or worse: it's possible for the victim of a dishonest lawyer to face the loss of liberty and perhaps, in the right (i.e. wrong) circumstances, life.

In the past, Plotz has pointed to Glass' pro bono work and pronounced that Glass is at least honest enough for that, even while suggesting Glass isn't to be trusted enough to invite over for dinner.  But no state--not California, not New York, nor any other--admits practitioners to specific and limited practices of law.  To say that Stephen Glass is honest enough to do one kind of work is, unfortunately, to pronounce him to be fit for all kinds of work.  To be honest, I'm not sure I'd trust Glass to help a homeless person with a housing application or whatever else he might be assisting them with; but the point is that it seems quite strange to say that you don't trust someone enough to break bread with them but you can't see any problem with this person helping a little old lady craft a will, or prosecuting a teenager for murder, assisting in a real estate transaction, representing a parent in a child custody case, or whatever.  That Glass has no apparent interest in any of these other practice areas at this time is completely meaningless: a person with a law license is licensed to practice law in the broadest, most generic way, whether or not he's qualified for that practice area.  (Perhaps things should be different, and lawyers should be admitted only to fields they can demonstrate proficiency in, but that's a whole 'nother subject.)

The second thing is that the law is a regulated field, and concerns with honesty and integrity and competency (you know, the kinds of things discussed in the previous two paragraphs) are the ostensible purpose for the regulation.  It's absolutely fair, of course, to suggest that the fact the law is allowed to self-regulate creates a conflict of interest and that lawyers ought to be regulated by a governmental body if at all.  And it's also more than fair to accuse the legal profession of using self-regulation to perpetuate an oligopoly in which legal costs are inflated by standards that are calculated to limit the number of attorneys competing against each other.  But these critiques, however valid, don't address whether there's a need to make sure that people who might be drafting wills for little old people, or who might be representing the State or the defendant in a capital case, or who might otherwise be dealing with serious matters of solvency, of life, of death, are qualified to do so.

Journalism ejected Stephen Glass, but there's not a central body of journalists who can keep Glass from writing.  Every competent editor who cares about her publication's integrity can refuse to hire him, which may amount to the same thing, but there's not a regulatory body charged with maintaining the industry's standards.  For better (and I think it's mostly for the better) or worse (and I concede it's sometimes for the worse), the law, like medicine, does have a regulatory body that tries to keep out people who could harm the people seeking its services.  Which is where we came in.

I have no idea whether Stephen Glass is rehabilitated or not.  I suspect, however, that his rehabilitation doesn't require a law license to endorse it or further it: Glass has worked as a clerk for quite a while, and nothing in the law's self-monitoring prevents Glass from helping people in ways that fall short of the unauthorized practice of law.  If a law firm wants to hire Glass as a researcher, investigator or clerk, they may do so: and then the responsibility for Glass' integrity falls upon the lawyer who supervises his work and can be sanctioned for any missteps Glass might make.  (Frankly, I wouldn't be likely to hire someone with Glass' history, and I'm not sure the ability to sanction a lawyer who supervised Glass is a fair remedy if the lawyer who relied on Glass' work gets a client jailed or killed, but that's where we are.)
One last matter that we can't let past before we wrap this up.  Plotz's most bizarre comment might well be this one:
The Supreme Court also worries that Glass would fabricate documents and deceive clients, a bizarre and backward conclusion. The very first thing anyone knows about Glass is that he was a liar and a fraud. Any judge he appears before will know: This is that lying journalist. Any opposing counsel will be aware: This is Shattered Glass. He’s not trying to sneak into courtrooms under a new name: He’s Stephen Glass. He is a flashing red highway sign. This is what happens when you Google him. Glass is far less likely than most lawyers to try to sneak something past a judge, because he’ll know that every single word he speaks and document he signs is suspect.

In other words, instead of the usual situation where a lawyer who has passed the screening process of the Bar is presumed fit until he demonstrates otherwise, the Bar should rubber stamp Glass and everybody who ever has to work with him should beware.

This is a bizarre argument for all sorts of reasons.  For one thing, this is exactly how the system isn't supposed to work: a prudent lawyer might take a Russian proverb approach to opposing counsel's submissions, but a reasonable amount of trust is what oils the system's wheels and keeps court cases from getting bogged down in endless nested cycles of fact-checking the checked facts.  This is also the reason judges get very, very angry if they discover somebody playing fast and loose: judges simply don't have time to go through every brief with a fine-toothed comb, and a filing that has a casual relationship to truth is a waste of the court's time, and of opposing counsel's.  Time that might be expensive, whether that expense is measured in money or life.  (Something I haven't mentioned that's also worth recalling: expenses aren't just borne by the parties.  A courtroom isn't just lawyers, a judge, and parties: it's the bailiff who opens and closes the court, the clerks who actually run the place, the court reporters who record it all, and assorted other administrators.  Putting a hearing on hold because a litigant's counsel is a big fat liar is literally a waste of taxpayer dollars: it's other cases that aren't being heard, it's clerks having to pull minutes from previous hearings and other filings to figure out what the hell is going on, it's jurors cooling their heels in a waiting room, etc..)

If a court is going to have to basically do the same amount of work researching Stephen Glass' filings that Glass was supposed to put into doing the filings in the first place, because it's Stephen Glass who made the filings and can't be trusted, it seems an enormous time-and-money saver simply to not let him do the filings in the first place.

Nor does one quite comprehend why Glass will be extra careful since he's Stephen Glass and knows how bad his reputation is.  It's not as if Glass seemed to have terribly good reasons for lying when he was writing news stories.  In at least one case, the amount of work he seems to have been willing to  perform "fabricating what he would assert were his reporter's notes from interviews, fake business cards, a voicemail box, a Website, and newsletters" (from page 7 of the California Supreme Court opinion) seems to have possibly been a bit harder than actual proper research would have been.  One cannot know what Glass' mental state was when he lied all those times, but it's troubling that there appear to have been times he lied when telling the truth would have been easier.

Plotz clearly has a low opinion of lawyers, and he's probably justified in this.  Many of us are nasty pieces of work.  But its this very fact that drives the profession's aspirational striving: rather than accepting and condoning the fact that so many of us are horrible human beings, the profession makes a special point to try to do something, however ineffectual and often hypocritical, about it.  Many lawyers are dishonest, but they aren't supposed to be, and rather than laugh about it or shrug our shoulders, rather than say, "Well what did you expect from a lawyer?" the way a non-lawyer might say it, we will slam you, sanction you, and possibly eject you from the entire profession if we catch you.  Plotz doesn't take our aspirations seriously, perhaps because we can be fairly called out for not being very good at living up to them; but he's being stupid not to take our aspirations as seriously as we do.  We don't want Stephen Glass, not because "he's not one of us," but because he isn't supposed to be.  We regard our own, our people who are just like Glass as a cancer to be excised from the body; it's foolish to think we'd transplant a tumor just on the hope it's turned itself benign.

Perhaps the California State Bar should reconsider its position, however, after Mr. Plotz has invited Mr. Glass over to his house to discuss a freelance writing decision for Slate over cocktails.  Before asking Californians to assume the risk of Stephen Glass, Esquire, he can put his money where his mouth is by letting Glass demonstrate his rehabilitation through a series of bylines, eh?


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