More About the Law

THE OPEN MIND
Host: Richard D. Heffner
Guest: Norman Redlich
Title: More About the Law
VTR: 12/1/82

I’m Richard Heffner, your host on THE OPEN MIND. Not so long a newspaper article quoted Norman Redlich, the Dean of New York University’s Law School on the rather strong message would-be lawyers received in his student days several decades ago about the relative unimportance of what in a larger sense we might call legal ethics and professional responsibility. Well, today more and more young Americans enter their professional lives through law school. The legal ingredient in American life itself thus looms exceedingly large from the numbers of law-trained public officials to the legal profession’s pro bono representation of the poor and the denied in our society, to what unhappily feels like the burgeoning legitigiousness of our times, and to the roll, alas, of all these lawyers involved with Watergate. And so, since our law school train those who play such an important role in setting and conducting our national agenda, I thought it well for THE OPEN MIND to look at what law schools teach, perhaps preach, about legal ethics and the responsibilities of the profession. And I’ve invited Dean Norman Redlich who has a career in business, who has practiced law, and served importantly in government to join us today.

Dean Redlich, thanks for joining me today on this, I know to you, extremely important question of ethics in your profession. You know, I know from what you’ve written that more and more law schools are involved with courses that relate to the responsibility of lawyers and the question of ethics in your profession. But I wonder that’s the, if I may use the expression, what’s the bottom line, what’s the moral essence of these courses? How do they relate, for instance, to Marvin Frankel’s statement that, “We lawyers ought generally to be pursuing the truth more than we do and concealing it less than we do”.

REDLICH: Well, I think if I had to define what is the central mission of legal education it would be to convert very bright students into responsible professionals, and the development of professional responsibility, which is the term I would use rather than “legal ethics”, the development of professional responsibility is something that law schools as institutions have to have a total institution of commitment to. And that does not simply involve courses in which one deals with subjects of commingling of funds, whether you talk to the client of an adversary; it really deals with trying to define what the lawyer’s role is. I always say to students on the opening morning of orientation that three years from now – this is when they first come into law school – I say to them that three years from now they are apt to find themselves in a situation where they are in a negotiation and the client lies. And they have to decide what they do under those circumstances. Now, if we haven’t forced them to address those issues as to how they handle that situation, what they do if the client in the course of the trial commits perjury, what they do in a situation where a husband and wife come in and want to affect a separation or a divorce and the facts are laid out by the two for them and there’s a potential adversary relationship between the husband and wife, does the lawyer represent the husband, does the lawyer represent the wife, does the lawyer represent both, or does the lawyer represent neither? Now, those are issues of role definition and professional responsibility which in my day at law school, and I’m afraid until about ten years ago, law schools paid very little attention to. I served as Corporation Counsel of New York when I came back to teaching in 1974. I felt strongly that one of the great deficiencies in legal education was that we weren’t teaching the basic elements of role definition: what does a lawyer do under a variety of circumstances? So I think the issue is, when you ask about the bottom line, it is not a matter simply of trying to teach people right from wrong, ethics versus the non-ethical, lying versus non-lying. Those are traits of honesty that people will have when they come to law school or not have. And I don’t think we can affect those basic ethical traits. What I think we can do is to try to get these young men and women to understand what their role is, how they should influence their clients in terms of a more ethical form of behavior, what their attitude should be to adversaries, what their attitude should be to the court. And I don’t disagree with Marvin Frankel that we should be concealing less and pursuing truth more.

HEFFNER: But is truth the objective of the lawyer, or the interest of his client?

REDLICH: I think that for the most part, the answer is yes, it is. But truth is not always the end object of our adversarial system. For example, take the obvious case. We have something called the privilege against self-incrimination. In many respects that operates contrary to the proof. It gives the person who knows the truth more than anyone else, namely a criminal defendant, the right to withhold it. And so we say in those circumstances that there are certain things we value more than the truth. Namely, the element of privacy, the element of compelling the prosecution to prove a case without the help of the defendant. I think that with regard to the day-to-day operation of the lawyer, many times in our adversary system we have to reach the conclusion that confidentiality is more important than learning all the truth. That is that the client will come to the lawyer and reveal a set of facts. It may not be in the client’s interest to have all of those facts presented to another party, or to a court if it comes to litigation. Now, we have concluded that confidentiality between lawyer and client serves certain very important interests. And in serving those interests we are going to in effect subvert the full pursuit of truth in order to preserve the interests of confidentiality of lawyer and client. So we say that the lawyer has an obligation, an ethical obligation not to reveal certain facts. And indeed the court cannot compel certain facts from the lawyer.

HEFFNER: But I always thought that the ultimate objective of the legal profession was justice and serving society. And isn’t society disserved with this emphasis upon privacy, this emphasis upon confidentiality?

REDLICH: No. I think that if you had a society in which the overriding object would be to know everything at all times, you would have a society in which neither you nor I would care to live. It would be a society which would be a totalitarian one. It would be none in which we could not talk to people in a confidential manner. It would be a society in which we could not refuse to reveal certain facts when those facts are asked by the government or by some other party. So I think in balance truth is a very important value. But with regard to lawyers and clients, when a client comes to a lawyer, one of the objectives that the lawyer should have, and I think most lawyers do have, is to try to induce that client to act lawfully, to act properly, to comply with law, if the client is not complying with law, to change his or her course of action. In the course of giving that type of advice it is terribly important that the lawyer have all of the information. Now, if the lawyer does not have both a legal right and a professional obligation to withhold certain facts, it is impossible to expect the client to confer openly and freely with the lawyer. The real question, and it is one that I’ve posed in some of my writings, is whether lawyers are fulfilling that responsibility. Lawyers have a very privileged place in American life.

HEFFNER: A very powerful place.

REDLICH: A very powerful and privileged place. More so than any other society on earth. In this country lawyers have a very unique position. You mentioned our being a more litigious society. We are a society, as everyone knows, with more lawyers per capita than any other country on earth. We also have more freedoms per capita than any other country on earth…

HEFFNER: You’re making a connection.

REDLICH: …and I think the two are not related. I am making a very strong connection. But in any event, lawyers have a very powerful and important role. Now, they have a monopoly on legal business. You have to be licensed. Lawyers are able to learn a great deal of things about illegal conduct. And they are given the right under law to withhold it, and they have an ethical obligation to withhold information as well. Now, I think that society has a right to expect that lawyers are being placed in this type of privileged and powerful role should be using that to try to raise the level of conduct and raise the standards of their clients. We don’t have the attorney/client privilege just to benefit the lawyers. We have the attorney/client privilege because it ought to serve a broader societal interest.

HEFFNER: Does it, in reality?

REDLICH: Yes, I think it does.

HEFFNER: I don’t mean just the principle. As you look through your profession, would you say, as the law is practiced in business as well as in government, in private as well as in public matters, that that is the key consideration?

REDLICH: I think that it does…Yes, I think that in practice – and certainly this is not true of all lawyers – but I feel that confidentiality between lawyer and client does in the final analysis serve society’s interest in terms of lawyers, that lawyers do induce and persuade and suggest clients in the direction that would be better than if they didn’t have lawyers.

HEFFNER: And your feeling must be then that they don’t pocket this kind of information substantially to the disinterest, counter to the interest of society at large? That doesn’t bother you as much as if we didn’t push in that direction?

REDLICH: It has to bother any person that’s ethically sensitive to realize that you are in possession of information which you have an ethical obligation not to reveal and which if you did reveal might prevent some financial loss to another party. It has to hurt you ethically. And if you are in possession of information which would establish the guilt of a person when that person for, because of the inability of the state to prove its case may never be tried may, if tried, be acquitted. Or even worse, if an innocent party may be tried and convicted. That has to bother us. And to say that it wouldn’t mean that you really had no sensitivity. The question is what is the trade off?

HEFFNER: Right. The question is you may be bothered. But to say, “I’m bothered” is not very much, is not saying very much. “I do something about the conflict between my professional obligation and my ethical concerns for society”, doing something is the important thing.

REDLICH: That’s right. Now, you have to ask what the lawyers do. Well, let me try to state what they are. I think the first thing that lawyers do, and I believe they do this as a general practice, is that in the course of their practice, they do try to keep their clients acting properly. I think most lawyers operate that way. The notion of lawyers trying to advise clients how they can operate illegally is not the image of lawyers, it’s not the, that does not conform to the reality of lawyers that I know.

HEFFNER: Can I stop you at that?

REDLICH: Yes.

HEFFNER: That certainly is the image that’s held by a very great many Americans. And I was telling you before we went on the air, I went back into my old general good things file and found this quite telling – on can disagree with it – op-ed piece in The New York Times from after Watergate written by a former newspaperman who is now at a major law school. He said, “Those who place the ultimate blame for Watergate on Richard Nixon’s childhood go back too far. Those who place it in the tendency of White House power to corrupt don’t go back far enough. The origins of moral relativism lie somewhere between in a quasi-mystical, demeaning, aggrandizing, relativizing, inflating, mind-sharpening, boring, stimulating, feared and corrupting experience known as law school”. The slippery slopes. He said that’s where lawyers begin to go down the slippery slopes. I daresay that most of the people who read that, unless Esquire was the proper way to address them, agreed with that characterization.

REDLICH: You know, if Richard Nixon did not get into trouble because there were lawyers around him, Richard Nixon got into trouble because there wasn’t one decent lawyer around him. If he had one good lawyer, one…

HEFFNER: Good lawyer or decent lawyer?

REDLICH: I equate the two because a good lawyer is somebody who would have given the president the kind of advice which would have led to his not having almost been impeached.

HEFFNER: Yes, but Dean Redlich, the purpose of this piece was not to examine Watergate. It was to say going down the slippery slope begins in law school because that’s where you’re taught how to handle American life, how to handle society, how to handle conflicting interests in a way that certainly doesn’t lead in the opinion of so many people to the pursuit of the truth.

REDLICH: But you see, I don’t think that is a fair description of what happens in law school. I think that lawyers by virtue of their occupation, their role, are placed at the vortex where in the business world for example they are dealing with a complex world of regulation. We live in a world of regulated capitalism; they are in a world of regulation. Business people have to have proper advice as to what they can and cannot do with regard to securities regulation, the Federal Trade Commission, Internal Revenue Code, etcetera. In a society such as ours which is after all a free society, people have an obligation to comply with the law. As the same time they have to know just what the law requires them to do. That inevitably places a lawyer in the position of trying to define what are the limits of legal conduct. Now…

HEFFNER: You mean how far you can go.

REDLICH: What you are able to do within the law. Now, one could look at that, the story of looking at the glass full or half empty, one could look at that and say that what the lawyer is doing is what you have just said, namely advising the client how far they can go and approach the element of illegality and still get away with it.

HEFFNER: How often does that happen? In your estimation. Five percent of the time? Ninety-five percent of the time?

REDLICH: I think it happens far less than 50 percent. And the reason, and I say that because I believe that most…I’m not saying that only because I have a kind of idealistic, unrealistic notion of the ethics of lawyers. I’m saying it because I thin I have a fair appraisal of the ability of lawyers. Now, when one is advising someone as to what they may or may not want to do, it is foolhardy to advise them to move up to the limit of what is legally permissible. The risk of error is too great. And one should be advising clients to move in the direction where they will not get near the cliff. The job of the lawyer isn’t to catch the client after he or she falls off the cliff; it’s to make certain that they don’t get near the cliff. And I believe that in the vast majority of instances that is what lawyers do. Those are the things you don’t hear about, the things you don’t read about. But I think that’s the way law is practiced most of the time.

HEFFNER: Do you think a particular burden is placed upon what you consider the usual practice by the practice of having house counsel, having an attorney who is on your staff and who becomes in a sense another one of the team?

REDLICH: Well, to some extent – and that’s a very good question – and to some extent I faced that issue many times when I was corporation counsel of the city. After all, the New York City Law Department is one of the largest law offices in the world. We are the attorneys for the city. Corporation counsel is appointed by the mayor, serves at the pleasure of the mayor. It’s like the Attorney General of the United States. And you have to always make certain that your professional obligation is one that enables you to maintain some degree of professional independence and a high degree of professional independence at the same time as you’re serving the interests of the client. Now, I don’t think there is as sharp of a difference between the so-called in-house counsel and the outside corporate law firms. Remember, with our major corporations some of the legal staffs are almost miniature law firms. They are large. They are headed by people who have a high degree of professional reputation. And most importantly in many of the firms the route of advancement is within that in-house corporate law firm. So that the person to whom the young lawyer is ultimately responsible for achieving something in a professional career is by virtue of how he or she performs within the context of that in-house law firm. Also, again going back to self-interest, I think that just as wise politicians have learned that they are best served in the final analysis by good lawyers and not by the kind which Nixon had around him, I think that good corporate executives have reached that conclusion too, and that they are not well served by people who are simply following orders.

HEFFNER: You know, the other week I did a program with William H. White who had written The Organization Man…

REDLICH: Right. I remember.

HEFFNER: …back the first year of this program 26 years ago. There he talked about the large law firm and the whole matter of bureaucratization in every aspect of American life. And I don’t know that it’s terribly much better today. And when you say you don’t see very much of a qualitative difference between the in-house, the law group…

REDLICH: In ethical matters.

HEFFNER: All right. In ethical matters. And the outside one, I don’t know whether you’re damning with faint praise there or whether this is good, bad or indifferent.

REDLICH: No, I intended to praise.

HEFFNER: Isn’t it this question – let me just ask you –

REDLICH: Yes.

HEFFNER: Isn’t it this question of independence – you used the word – at a time in our lives when there are fewer and fewer of us who are independent of the pressures of corporate life or the pressures of government life, the pressures of money seeking?

REDLICH: You know, in any discussion of this kind, I do not want to be in the position of saying that those pressures don’t exist. Of course they exist. The pressure of losing a very valued client is an important pressure. What people often fail to realize however is that the pressure can sometimes go the other way. A law firm, a client that has been with a law firm for 25 and 30 years and is involved in a delicate matter with securities issues or anything of that kind doesn’t want to be in the position of the law firm leaving either, just as no political figure wants to be in the position of the chief legal officer resigning.

HEFFNER: Well, let me ask this question. I think it’s a fair question. We have two minutes remaining. It seems to me to be crucial. In terms of this pressure, would you say looking back to your law school days and to your beginning practice of the law that lawyers today, perhaps thanks to these courses in ethics or professional responsibilities, respond to pressure – and pressure must have been as great 30 years ago as it is today – respond to pressure better or not so well? Ethically.

REDLICH: I think they respond to pressure better, ethically. I think that we have made them more aware of it. You know, the thing you and I haven’t touched on yet, the entire debate that is going on in the legal profession today over the new model rules of professional conduct is one that has awakened the whole profession to a set of professional issues that we weren’t thinking about before. Law students, not just through courses but through their clinical training at law school, are facing professional responsibility issues that they didn’t face before. And I think that the kind of cynicism…You know, it used to be said that when I went to law school that legal ethics were so unimportant they would let the Dean teach it. The kind of cynicism that used to pervade the legal world then I think is really behind us. And that doesn’t mean that everybody’s responding well, but I think most people are responding better.

HEFFNER: You know, that’s why I had asked you originally if you could stay for another program. We’ll come back and do another program, because obviously this whole dispute over the degree to which your profession is willing to revamp officially, professionally its consideration of ethics is a fascinating one.

REDLICH: And if the profession reaches a conclusion which I hope they do not reach, then I might have to revise some of the things I said on tonight’s program.

HEFFNER: During this past summer I must admit it didn’t look so good. But thanks. We’ll come back to this subject again. Thank you very much, Dean Norman Redlich.

REDLICH: Thank you.

HEFFNER: And thanks, too, to you in the audience. I hope that you will join us again here on THE OPEN MIND. Meanwhile, as an old friend used to say, “Good night, and good luck”.