Monday, January 27, 2014

In Re Glass (Cal. Supreme Ct. - Jan. 27, 2014)

It's not too surprising that disgraced journalist Stephen Glass doesn't get to be a California attorney (despite passing the bar exam).  Not only because what he did was wrong -- really, quite wrong -- but as a colleague of mine put it, he also "p*ssed off the wrong people."  The more you know about what Glass did, the more my colleague's comment seems exactly right.  Read the California Supreme Court's opinion for more (excruciating) details.

I was, however, a little bit surprised that the opinion was unanimous.  I would have initially thought that some justices on the California Supreme Court would have a different take.  But I concede that the Court has a slight institutional preference for uniformity.  Particularly in cases (like this one) that are both high-profile and nonjurisprudential.  So perhaps I should have weighed that interest a little more than I did.

Regardless, everyone relevant agrees that Glass doesn't have the moral character to become an attorney in California.  Even today.  Good luck elsewhere.  In the meantime, enjoy being a law clerk.

I'm of two minds about the disposition.  On the one hand, I think the Court had a pretty good opening paragraph that summarized well why Glass ain't getting the Court's say-so.  It reads:  "Stephen Randall Glass made himself infamous as a dishonest journalist by fabricating material for more than 40 articles for The New Republic magazine and other publications. He also carefully fabricated supporting materials to delude The New Republic's fact checkers. The articles appeared between June 1996 and May 1998, and included falsehoods that reflected negatively on individuals, political groups, and ethnic minorities. During the same period, starting in September 1997, he was also an evening law student at Georgetown University's law school. Glass made every effort to avoid detection once suspicions were aroused, lobbied strenuously to keep his job at The New Republic, and, in the aftermath of his exposure, did not fully cooperate with the publications to identify his fabrications."

Yeah.  That's pretty bad stuff.  Note the connection to doing this stuff while in law school.  As well as thereafter.  That's in substantial part what gets him dinged.

On the other hand, the stark truth of the matter is that the Court's rationale is largely itself fiction.  Is Glass likely to be a sleazy lawyer?  No.  No way.  In large part (if not entirely) because of his prior misdeeds; in particular, (1) getting caught, and then (2) having his life ruined therefrom.  Who's the most likely, in my mind, to be an unethical lawyer?  The guy who's always cheated a little bit (or a lot) and not been caught.  'Cause they still believe they're the smartest person in the room, and continue to internalize the benefits of cheating.  By contrast, who's amongst the least likely to cheat?  The dudes who've been busted.  Not only because they (typically) realize the consequences of their conduct.  But particularly in high profile cases -- and you can't get much higher profile than this one -- because these guys know there's always someone looking over their shoulder.  People (clients, opposing counsel, Bar officers, judges, etc.) who know full well their past history and who are just itching to get their pound of flesh and have the guy disbarred.

So if the relevant inquiry is (as it largely is) whether we believe that Glass will be a good and proper lawyer, who'll faithfully protect the interests of his clients, I think the answer's pretty clearly "yes".  I don't pretend that anyone who disagrees with this statement is lying, or irrational; reasonable people may perhaps not believe in rehabilitation, or that the world -- and, especially, people therein -- are nearly as gray as I do.  But when the California Supreme Court concludes that Glass simply doesn't have the moral character equivalent to the median (or even low end) California attorney, I'm just not buying that conclusion.  I know plenty of California lawyers.  I've taught thousands of 'em personally.  From all that I've read about Glass -- and I've read a lot -- my strong sense is that he's at this point as ethical as at least the average California attorney.  Maybe more so.  I'd quite readily entrust a legal matter to him.  The kinds of stuff he's done over the past several years favorably impress me.  And yes, yes, yes, I know (and the California Supreme Court constantly reminds me) that he's done these good deeds at least in part precisely because he wants to show that he's reformed and should be permitted to be an attorney.  I get it.  But I don't think you voluntarily go into therapy four days a week merely to try to "make a record" for yourself.  Or personally bathe homeless people purely because it looks good on a resume.  I have a keen sense that this guy's sincere.  Perfect?  No way.  Not in the slightest.  But I'll let you in on a little secret.  Neither am I.  Neither are you.  Neither are any of us.  Intellectually, morally, ethically, spiritually, or otherwise.

So I believe -- partly irrationally, but in large part rationally -- in redemption.  And think it's transpired here.  Even if the entirety of the California Supreme Court concludes otherwise.

(One part of the opinion particularly bothered me.  The Court views some of what Glass has done favorably, and says, for example, "To be sure, through therapy he seems to have gained a deep understanding of the psychological sources of his misconduct, as well as tools to help him avoid succumbing to the same pressures again."  Good job.  But then discounts the importance of these changes with the simple conclusion:  "But his 12 years of therapy primarily conferred a personal benefit on Glass himself."  As if the reason people go to therapy isn't to have true insights and help themselves be better people, but rather as an outlet for their incessant narcissism.  Ditto for the fact that as a law clerk, Glass appears to have been truly committed to pro bono work, including work on behalf of the homeless and other vulnerable clients.  Stuff like the following:  "California attorney Paul Zuckerman testified that he decided to give Glass a chance as a law clerk. After initially assigning Glass minor projects and exercising close oversight, Zuckerman became convinced that Glass was one of the best employees in the firm, with a fine intellect, a good work ethic, and reliable commitment to honesty. Glass exhibited great compassion, assisting at a personal level with difficult clients and helping to find resources and social services for some of the firm‟s many homeless clients. Other lawyers who had worked for or with the firm confirmed Zuckerman‟s view of Glass as an employee who conducted excellent legal research, was assiduous and hyper-scrupulous about honesty, and stopped to think about ethical issues."  His pro bono work included helping "many homeless clients, and in addition to the legal work he does on their cases, he has helped them with their personal problems, even with regard to matters of personal hygiene."  The Court fobs all this off with the terse statement:  "Glass points to the pro bono legal work he does for clients of his firm as evidence of sustained efforts on behalf of the community, but we observe that pro bono work is not truly exemplary for attorneys, but rather is expected of them. (See Bus. & Prof. Code, § 6073.)"  Wow.  This does not reflect highly on the Court's understanding of contemporary realities or the profound difference between (1) what Glass has done, and (2) what most attorneys do.  When you're comparing apples to apples, and deciding whether Glass has what it takes to be an ethical attorney, the terse conclusion that attorneys are simply "expected" to do good isn't really what I'm looking for.  Under this view, Glass could be a modern day Mother Teresa and it wouldn't matter either.  We expect attorneys to do this stuff anyway.  Plus he's just trying to build his resume so he's admitted to the Bar.  That bastard.)

It's not that I don't get why the Court rejects Glass.  I do.  Seriously.  It's a high profile case.  We've got "standards" that we've got to uphold.  Some -- maybe most -- people wouldn't like it if they knew that people like Glass got to become attorneys in California.  So there's pressure to reject the guy.  A reality that I understand.  Plus it's only one guy.  A guy who truly did do some very-not-good stuff.  Why not throw him under the bus?  It's not like he doesn't "deserve" it, right?

Plus, to be honest -- and this part I'm not kidding about -- the reality is that we've got plenty of lawyers in California.  Not for low- or middle-income folks, mind you.  But for paying clients, well, we're darn near bursting at the seam.  Why add one more when there's even a chance that the guy's just a faking scumbag?  We've got plenty of applicants who haven't done anything bad.  Or, more accurately, about whom we don't know anything bad.  Why not admit them over someone like Glass?

That's a tolerable argument.  One that has some degree of traction for me.

I'm just not sure how much.

It'd be a viciously easy case, in my view, if I could admit Glass as a member of the Bar limited to doing "good works".  Pro bono cases.  Low bono cases.  Public defender.  Legal aid.  Stuff like that.  If there was a program like that, I'd admit him in a heartbeat.  And if, after ten years or so, if things went as I am certain they would go, with everyone looking over his shoulder, he wanted to grab a brass ring or two, so be it.  More power to him.  He paid for his misdeeds and deserves the chance.

But there's not.  And, lacking that, the California Supreme Court just doesn't think this guy has what it takes.  Its money is on this guy probably (?) being worse than 90% (more?) of attorneys in California.

Maybe I'm a sucker.  Maybe I'm a dupe.  But I'd bet otherwise.