David Margolick, ‘At the Bar’, Part II

THE OPEN MIND
Host: Richard D. Heffner
Guest: David Margolick
Title: “At the Bar” Part II
VTR: 10/29/93

I’m Richard Heffner, your host on THE OPEN MIND. And this is the second of two programs with David Margolick, national legal affairs correspondent for The New York Times and author of its weekly “At the Bar” column. There were no earth-shaking conclusions last week. Let me make that very clear. But there are so m any m ore questions to examine with Mr. Margolick that I’d like to go back to, David, if I may, to the question of responsibility and who is the custodian of the custodians. And you said there isn’t anything really effective as far as judges themselves are concerned. And I know you have written about disciplining lawyers. And I wonder if you’re satisfied with the level of our national concern for what it is that lawyers, who wield so much power, do.

MARGOLICK: Well, I think the level of concern is quite adequate. I think that a lot of people are very concerned about the problem. The question is the response. And I think that there’s great concern even within the profession that the public is dissatisfied with the way lawyers discipline themselves. They want more discipline. They want more open disciplinary proceedings. This is particularly true in New York. Most disciplinary committees are woefully undermanned. And I think there’s the feeling that, again, with lawyers as with judges, that the level of misconduct has to rise to a particularly egregious level for there to be any kind of satisfaction. And that all sorts of misconduct slips between the cracks. It is never really addressed, which is why there are so many dissatisfied consumers of legal services.

HEFFNER: Is that, in a way, to some extent, a protection for us? That isn’t all that easy to crack down.

MARGOLICK: Well, I think that it’s a protection for lawyers before it’s protection for the public.

HEFFNER: Well, let’s take that as a given.

MARGOLICK: Yeah.

HEFFNER: But then, lawyers, presumably, or the legal process and all that goes with it, presumably protects us in turn.

MARGOLICK: Well, I suppose that at a certain point if you can’t make charges willy-nilly and brandish them very publicly against lawyers, it preserves the lawyers’ powers to defend us at some level. But I think that that should be of much less concern than…I think the problem of reining in miscreants in the bar is much more serious than protecting lawyers who protect us.

HEFFNER: You think it’s as possible as it sounds? I mean, we’re not going to say, “First let’s kill all the lawyers”. We don’t mean that.

MARGOLICK: No.

HEFFNER: Well, maybe some of us mean that at some of the times. But how possible is it to deal with the miscreants and at the same time preserve what you want to preserve in terms of the essential responsibility of an attorney to do his darnedest for his clients?

MARGOLICK: See, I think that the two really aren’t all that connected. I think that probably the level of misconduct is, while much broader than we think, still not all that significant, and probably would involve only a very small number, a small percentage of the bar. And I think that, you know, what the public wants is, the public wants more satisfaction. The public wants to think that when they file complaints against lawyers they’re just not cast down into a deep, deep well and never to be heard from again. And I think that it’s a matter of opening up the process of learning earlier on what the disposition of a particular complaint would be. And then I think that it really, I don’t think in any way it would compromise the basic role that lawyers play for clients.

HEFFNER: Well, then let’s distinguish between the complaint that has to do with Lawyer A’s dishonesty, with the fact that he’s really run away with funds from someone, and that nobody’s going to disagree is a crime and it should be dealt with appropriately. What about the whole business of degree to which a litigiousness has come to characterize our nation, obviously because, to a large extent, that’s what benefits lawyers. But that’s not a matter of honesty and dishonesty in the traditional sense. It does have to do with what the impact of the legal process is upon our life. And I wonder how you would deal with that. You don’t deal with it really in the columns that I read.

MARGOLICK: Well, I’ve dealt with it some. It may not be in the columns that I furnished you, because I’ve done 300 columns by this point, and this is just the tip of the iceberg. But there are, there have been attempts made to rein in lawyers who are excessively litigious, and I’ve written about lawyers who practice so-called “Rambo tactics”. You know, the bomb-throwers, people who have no restraint, and, you know, file motion after motion and are obstreperous and obstructionist and all of this. I’ve written a few columns on that. I’ve written a column, for instance, on what’s called Rule Eleven, which are the sanctions that can be imposed on lawyers who file frivolous motions. Again, it’s not that simple. I mean, I alluded in that particular column to Rule Eleven complaints being filed against lawyers who have filed Rule Eleven complaints.

HEFFNER: About Rule Eleven?

MARGOLICK: About Rule Eleven. You know. So in a sense, the culture and the marketplace, again to come back to something that we discussed in the last program, have to take care of this problem to some degree. You have to hope that, you know, in many instances, particularly in personal injury cases, it’s not to the lawyer’s economic interest to drag things out. You know? I mean, if he’s getting, if he’s getting paid on a contingent basis, getting a third of whatever he collects, he’s got to collect. And the longer that things go on, the more money he’s putting into a case as an interest-free loan to his client, in a way. And you have to hope that, you know, to some degree that controls the excessive litigiousness of lawyers.

To get back to the marketplace again, if clients are dissatisfied with the way their lawyers are performing and think that they’re doing mate work and flexing their muscles at their expense, there are things that clients can do, and there’s evidence that clients are getting fed up with this kind of thing. Which would explain why mediation and arbitration are becoming more popular, you know, why clients are taking cases out of the legal system to begin with and settling them privately.

HEFFNER: Well, the whole business of alternate dispute resolution, I gather, is growing in importance.

MARGOLICK: It’s gathering steam. And it’s been a slow process. But, you know, there are now several companies in New York that provide this kind of service. And experienced judges have left the bench in order to go into the private sector and mediate and arbitrate cases. I mean, every day there are ads in The New York Law Journal for this kind of thing. You know, Milton Marlin, recently of the police brutality, the police misconduct hearings, runs one of these companies. That’s his job now. And there are several other experienced jurists who do this.

HEFFNER: David, you talk about marketplace. In the last program you mentioned marketplace, twice in this program. Does the concept of the marketplace have all that much room, when you’re talking about a profession? “Let the marketplace handle this”. Don’t professionals have to be concerned about something other than, “Will it sell? Will it continue to sell?”

MARGOLICK: Well, I think that the, you know, one of the great themes of what I’ve written and what the legal press has covered over the last ten years, I mean, in a sense, I’m here because the legal culture has changed and the marketplace is influencing legal culture in a way that it never did, and lawyers have to behave differently than they once did because clients are placing additional demands on them. Clients aren’t letting lawyers get away with murder anymore. Clients are scrutinizing lawyers much more closely. They’re scrutinizing their bills. They’re not letting lawyers set the terms of their own employment in the way that they once did. And so, sure, I mean, the legal profession is a profession, but it, like the process, has been demystified to a considerable degree, and clients aren’t letting lawyers hide behind their professionalism anymore. They’re smoking them out, and they’re scrutinizing them more.

HEFFNER: But you seem also to be saying that that’s not adequate. That the marketplace should not be adequate, and, if I understand you correctly, that the profession must provide a more reasonable and a more rapid way of achieving their ethical standards.

MARGOLICK: Yeah. Well, I think that’s true. I think that, you know, when it comes to discipline, so much of it is subjective, so much of what a lawyer does is behind closed doors, in a sense, the market never enters into those nooks and crannies. And I think that, yeah, I think that the ABA is constantly re-evaluating lawyer discipline, and constantly coming up with more aggressive ways of making lawyers behave.

HEFFNER: Well, you know, you said, “Clients aren’t letting the lawyers get away with murder”. Let’s turn to the question of lawyers letting their clients get away with murder, and how appropriate it is for a lawyer to use all of the means at his disposal, including bomb-throwing, as you call it, to make certain that his lawyer (sic) gets off. Not that justice prevails, because that really isn’t what’s at stake, is it? It’s a matter of winning. My youngest son is an assistant district attorney, and I went down once and watched him in court, and I thought to myself, “My God, how did he learn how to do this? What a terrific way of doing things”. But the strength of the advocate’s abilities, the proof of that is in his victories, which I guess has nothing to do with justice.

MARGOLICK: No.

HEFFNER: What’s your own fix, after these years now, these years of knowing about the law, of writing about the law, about the, our obligation really to find justice rather than to find acquittal or conviction?

MARGOLICK: Well, I guess that I feel that the adversary system probably better than any other approximates justices.

HEFFNER: You feel that?

MARGOLICK: Yeah, I do feel that way. I mean, I’ve seen many perversions of it, you know. And I tackle this problem actually very directly in my book about the fight over the Johnson will. You know, this is a story about will contest. And in the book, the story is the story about the fight over the Johnson & Johnson fortune. And the facts, the legal question is in the case were whether or not the Johnson & Johnson heir’s much younger wife unduly influenced him into leaving her half a billion dollars. His six step-children weren’t happy about that, and tried to break the will, claiming that she had twisted his arm into leaving her the money, and that he had been incompetent, that he had been basically, he had lost his mind by the time he signed his will. And the structure of the book is really designed to address the problems that you raised. The first third of the book described the reality, as I see it. It tells the story of their marriage. It tells the story of his gradual decline, his illness and his decline. It describes the way he was the day that he signed his will. It describe d their marriage and whether there was any kind of coercive element in their marriage. And then the second two-thirds of the book go into the way the lawyers twisted this reality into two very different sides. One highly idealized: the dream marriage scenario. The other into this, you know, absolutely nightmarish vision of a marriage gone awry, with a, you know, with an evil temptress marrying this batty old millionaire, basically. And then you can watch these two versions, these two, sort of, twisted versions of reality go at it, go at one another. And I guess the book itself is not a very good example of what I…it runs counter to my general faith in the adversary system. Because, I mean, clearly justice wasn’t done.

HEFFNER: David, I was just going to say that. And undue influence, it’s not a…

MARGOLICK: Yeah. I think that my point is, I mean, we talked about this in the last show, there were various distortions in this trial. And I think that the story is a good one because the distortions were so pronounced. But that, left to its own devices, when people are doing, the lawyers are doing their jobs and the judge is doing his or her job, then I think that it’s probably the closest approximation to justice that we can come up with. I can’t think of a better one.

HEFFNER: You’re, I guess, maybe it’s a question that has to bring about the answer you’ve given when it’s addressed to someone who is so much involved in the culture of the law, even though someone who is quite critical of the conduct of the culture of the law.

MARGOLICK: Yeah, it could be. I could be that I’ve, you know, I’m a lawyer, I went to law school, I went through this, I went along this route, and it could be that I just accepted the premises of the system that I cover. But again, I can’t imagine a better system, with all of its imperfections. And in a way, you know, my column in the paper is a catalog of its imperfections. And it’s a catalog of the various peccadilloes that humankind introduce into what otherwise might be a very good system, and all the chinks in it. You know, all the ways in which, you know, human nature twists or compromise the process.

HEFFNER: Yes, but this is a system that puts undue influence in the hands of those who are the most skillful as litigators. Right?

MARGOLICK: Uh huh. That’s true. Yes.

HEFFNER: So then I don’t think my son had undue influence. But I must say I was enormously impressed by what he was doing as a prosecutor, as a litigator.

MARGOLICK: Yeah.

HEFFNER: And, I don’t know. Is it the old social democrat in me, perhaps, that thinks that there’s got to be a better way? Is it the communitarian in me that thinks that this perhaps represents the worst of what has become of us in our times? It just gives me the willies.

MARGOLICK: Really?

HEFFNER: …as I think, well, you write that…

MARGOLICK: Yeah, well, I write that, but again, I think that it makes the story so rich is because of its atypicality in a way.

HEFFNER: Oh, that’s a cop-out. Come on. You don’t think that’s a cop-out?

MARGOLICK: Well, no, I really think that there were incredible distortions in this case.

HEFFNER: Why would you be so indignant, as you were, in covering this and writing about it? “Cover” is not a fair word. The book does more than cover it.

MARGOLICK: Right. Obsessed with it. Well, because I think that, I suppose I was indignant because I felt that many of the players in this process weren’t upholding the principles to which I think the legal system should be subject. And I thought that they were departing from what I would consider to be the ethical standards of the profession.

HEFFNER: What do you see as the other problems we have to address in the legal system? You’re concerned about the fact that judges aren’t disciplined, or frequently, or occasionally at least, do not exercise self-discipline. You’re concerned about the fact that lawyers who go beyond the bounds of what it is they legally even can do are not quickly brought to justice.

MARGOLICK: Right.

HEFFNER: What are the other major concerns that perhaps lead to the way numbers of people embrace the old Shakespearian notion of “First, let’s kill all the lawyers”.

MARGOLICK: Well, you know, I mean, not my view of lawyers, I mean, I hope I’m not losing my edge. But this, I’m a little bit tired of that Shakespearian quote, as I think most people are by now. I once did a column, in fact, about all the different do-dads and chachkas that you could buy that have that saying on it. You can buy plates and you can buy bumper stickers and you can buy embroidered pillows. I mean, the assumption is, it’s a very popular quote. People will invariably say that it’s, of course, ripped out of context, and that even Shakespeare was saying you put those words into the mouth of a knave, and you know, it’s the best indication that even Shakespeare realized that lawyers were very important.

HEFFNER: Yes, but those who quote it, those…

MARGOLICK: Those who quote it, yes. Absolutely. Yeah. You know, I mean, I want to…Maybe, perhaps I’m giving the profession more of a break than I once did.

HEFFNER: You seem very mellow today.

MARGOLICK: Yeah. Well, I think that in a way that’s a bad rap. I mean, clearly, you know, people come into contact with lawyers at very unhappy periods in their lives. And, you know, lawyers really can’t win. I mean, I guess I feel that in some ways it’s very easy to take cheap shots at them. And I’ve done that. I’ve probably taken more than a few myself. But that one of the reasons that the column has done as well as I think it has is that lawyers are always doing interesting things. Some lawyers do very courageous things. Some lawyers really stick their necks out. You’ll see, I mean, I think that the people who think that I’m constantly knocking the profession, if you look at a fair sample of my columns, you’ll see that perhaps at regular intervals there are quite glowing columns about lawyers who are really feeling quite noble.

HEFFNER: Oh, despite the fact that I think that you’re being very mellow today, I don’t feel at all, in reading through as many of the columns as I have, that you’re out to knock them. I think what you’re dealing with, as you suggest, is that very, very interesting profession that touches on many, many aspects of our lives. And therefore, the columns are so extremely interesting; they don’t have to constantly knock. But look, you’re the one that talks about the marketplace. Let’s leave it to the marketplace. And the marketplace seems to be concluding that there’s something wrong in Porsche-land.

MARGOLICK: Right. Well, that’s certainly true. And I think that, you know, I did a column actually recently about the president of the State Bar Association calling for a moratorium on lawyer-bashing, attributing the murder of those lawyers in San Francisco to excessive lawyer-bashing. But I think that apart from cleaning its own house, as we’ve talked about before, and disciplining the rogue lawyers and judges, I think that the lawyers could be cleaner than hounds’ teeth…

HEFFNER: And still…

MARGOLICK: …and they would still be abused in the way they are. I think that there’s really very little that they can do. People don’t like dealing with lawyers. And people, as I said, come up against them, have to seek out their services, you know, at miserable times in their lives. There’s no way you’re going to like your estranged spouse’s lawyer, or even your own.

HEFFNER: We’re taping this program at the end of October 1993. I don’t know when it will be on the air, but I still must ask you, as an observer of the law and of the way it is practiced, how goes the Department of Justice these days, and the Attorney General’s Office? What’s your impression?

MARGOLICK: Well, my impression of this is, and I’ve written about this, Janet Reno came to the American Bar Association convention in August and absolutely wowed the conventioneers. She was ubiquitous, she was available, she was charming, she was tough. Her rhetoric was tough. The legal profession hasn’t, didn’t much like the Reagan and Bush Justice Department people. They were fawning over her, gushing over her. So from the public relations standpoint, I think that she’s doing very well. But even there, I heard voices from people who had heard her in Miami, who watched her in Dade County for many years, saying, “You know, she’s saying the same thing as she was saying in Miami all this time. This is nothing new”. And the real question is what’s going to happen when the rubber meets the road and she really gets down to doing something. And whether she’s going to do something. And I think that that’s the question that’s before us now. The Times ran a story a few days ago written by the people, our reporters who cover the Justice Department, saying that the bloom is off the rose down there, and that there’s great unhappiness with her and that she really hasn’t gotten off the dime at this point. And that her performance has yet to meet her rhetoric, and the charm is wearing a little bit thin. And so I think in that sense, I mean, she’s, the level of dissatisfaction is growing, and it’s time for her to produce.

HEFFNER: Of course, I couldn’t help but, when I read the front page story in The Times…

MARGOLICK: It’s a tough story.

HEFFNER: It was a tough story. And I couldn’t help but think, “Well, there’s the press, given everything for the first weeks or months, and then…”

MARGOLICK: Well, she had a long honeymoon.

HEFFNER: Yeah.

MARGOLICK: She had a long honeymoon.

HEFFNER: And your sense of her testimony about the constitutionality, the clear constitutionality of limitations upon what appears in film and television, what’s the reaction among the legal press there?

MARGOLICK: Well, I think that, you know, again, that’s rhetorically very powerful stuff. But if it ever, it’s like Giuliani talking about Farrakhan at Yankee Stadium. I mean, it’s very popular to say something like that in certain quarters, but it just doesn’t pass constitutional muster. And it’s very easy to indulge her as she says something like that, but if it ever came down to enacting, to codifying something like that, I think that she’d run into real problems.

HEFFNER: Less than a minute left. Let me ask you whether you think, in terms of the makeup of the Supreme Court now, that indeed we may find a high court that is more willing than ever before to accept traditional limitations of free speech, offensive speech.

MARGOLICK: I guess it probably depends, in part, on how influential Justice Ginsberg is. The court’s tolerance for that sort of thing has probably reached, I would imagine, its high-water mark, and that we’re going to see some kind of relaxation. I think that the court will start to swing in the other direction, and that it will focus on its more traditional concern for the First Amendment increasingly as time goes by.

HEFFNER: Interesting point. David Margolick, thank you so much for joining me today on THE OPEN MIND.

MARGOLICK: My pleasure.

HEFFNER: And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you care to share your thoughts about our program today, please write to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $2.00 in check or money order.

Meanwhile, as an old friend used to say, “Good night and good luck”.