The story of Shon Hopwood is certainly an inspiring one…so far. While serving more than a decade in federal prison for a series of armed robberies, his time in the prison law library turned him into an expert in case law, and he pulled off a rare feat: a petition for certiori he prepared on behalf of a fellow prisoner successfully persuaded the U.S. Supreme Court to review the case. Now Hopwood is out of prison, and is turning his life around. He has been working as a paralegal, he now has a family, and at 34, he plans to apply to law school.
It is likely that a law school will admit him, but not at all certain that any state bar would give him a license. Can a former bank robber pass the profession’s character requirement? Should he, no matter how good he is at writing Supreme Court briefs?
Amazingly, most legal ethics authorities I have spoken with say that Shon Hopman is trustworthy enough to be a lawyer. The type of transgressions that tend to block admission to legal practice are in a narrow range that include outright violations of commitments and official dishonesty: failure to pay debts, deserting the Armed Services, breaches of confidentiality agreements, signing false affidavits. Robbing five banks? What’s not to trust?
This seems bizarre to me, but then I don’t trust John Edwards, either. What is an acceptable risk when one hires a lawyer? Well, President Obama’s advisor John Brennan casually suggested that it was reasonable to release suspected terrorists because they only returned to try to blow up buildings and airplanes 20% of the time. “‘People sometimes use that figure, 20 percent, say ‘Oh my goodness, one out of five detainees returned to some type of extremist activity,’ Brennan said. “You know, the American penal system, the recidivism rate is up to something about 50 percent or so, as far as return to crime. Twenty percent isn’t that bad.” This means, I suppose, that if it is reasonable to trust a former bank robber, with his expected 50% recidivism rate, to be your lawyer, it might be even more reasonable to send a released terror suspect to law school.
Bar committees make their decisions based on individuals not statistics, and I am willing to assume that Jon is an otherwise terrific guy who just fell in with the wrong crowd. Still, no matter how long ago his crimes were, they were serious, there were a lot of them, and they raise a rebuttable presumption that he has a permanent design flaw in his ethics alarm system. He hasn’t knocked over any banks lately because, among other things, he didn’t have an opportunity. I don’t believe any bank would hire him, even after he got a law degree. I’m not sure they should. As for being willing to admit him to the practice of law, I think the legal ethicists are being overly generous. It is too bad that a talented legal mind might have to be restricted to being a paralegal in a law library, but he should have thought of that before he set out to be a bank robber. A lot of lawyers who have impeccable backgrounds find it hard to resist running off with their clients’ money; why should we assume that a bank-robbing lawyer is a better bet?
Ah, redemption. We hear about it every time a political figure or a celebrity who has behaved scandalously wants a second, third or fourth chance. Redemption and forgiveness are American, we are told. It is Christian. It is the way we would want to be treated if we went astray.
This brings me to the topic of Marion Barry.
Yesterday, Barry, a Washington, D.C. City Council Member who was mayor of D.C. for all but four years between 1979 and 1999, found himself the subject of a just-released special report on his activities. The report, by respected D.C. criminal lawyer Robert Bennett, alleges that Barry took kickbacks from a city contract he brokered for his former girlfriend, and earmarked hundreds of thousands of dollars to fund organizations he indirectly controlled.
If you have lived in D.C. or have followed Barry’s career, this comes as about as big a surprise as hearing that Mark McGwire used steroids or that Amy Winehouse has been drinking herself into a stupor. Barry spent the first part of his mayoral career wheeling and dealing and brokering numerous shady deals with cronies, but was able to skirt the law until he was nabbed in a crack cocaine sting with the help of a former girlfriend, and filmed while using. This barely put a dent in his popularity: he spent just six months in jail and was promptly elected to the City Council in Ward 8, where voters vocally celebrated his new-found trustworthiness as evidence of “redemption.” Barry confessed. Barry apologized. Barry prayed.
Redemption!
Barry became mayor again. After only a year, Barry’s under-the-table use of District contracts became too much for the Federal government, which stepped in and imposed a financial control board limiting the ability of the man the Washington Post called “Mayor for Life” to run his scams effectively, and he only served four years amid rampant suspicions that he was still using drugs and still playing fast and loose with taxpayer money. Within five years, he was ready to run for office again, and announced his candidacy for the City Council. But he was soon stopped for driving under the influence of liquor, and U.S. Park Police found traces of marijuana and cocaine in his car. Barry said he was set up,charges were dropped, but had to leave the race. He waited a couple of years, and when he finally ran for the Ward 8 position 2004, he won in a landslide. Redemption again.
Since his second political comeback, he has tested positive for drugs, failed to file his tax returns,violated probation for failing to file them, been arrested for stalking, and admitted that he gave his girlfriend a government job, saying that he saw nothing wrong with doing so because it wasn’t illegal. Barry lives by Barry’s Law, and it can be summed up thusly:”Do whatever you want, as long as you can get away with it.” The fact that the good, sincere, religious voters of Ward 8 have continued to trust a scoundrel like Barry, and the fact that Barry continues to exploit that trust for all it is worth, defines an ethics lesson. Forgiveness is a virtue, and it can be earned by remorse, confession, apology , reform and amends. Trust, however, should require more. It must be supported by common sense, logic, and the wisdom of experience.
These tell me that positions of trust—-elected officials, lawyers, accountants, bankers, treasurers and other corporate officers—cannot and should not be filled by the beneficiaries of redemption when they have committed major crimes, like Shon Hopwood, or have been flagrantly dishonest, like John Edwards, or have repeatedly been in trouble with the law, like Marion Barry. Redemption…absolution from the sins of bad conduct—is a wonderful thing, but it has no place in the realm of professional ethics.
The proper standard to apply to Shon Hopwood is this: given a choice, would an objective client be wiser to trust a convicted bank robber to be her lawyer and handle her affairs, or a lawyer without any criminal convictions at all? The answer is obvious.
Unless, I suppose, that lawyer is John Edwards.
Ethics Alarms 
It seems pretty clear to me that, first of all, bar associations are shy about DIS-barring those that deserve it. There are multitudes of attorneys out there who have broken the Rules of Professional Conduct, engaged in activities that demand disbarment, and no jurisdiction seems to want to open that Pandora’s Box. Politics, scandal, time, money.
But one thing the bar associations COULD do is be more exacting in terms of whom they DO admit to the bar in the first place. Hopman is clearly a test case. True, he’s only 34 and could truly have found redemption. But with his record, here’s the question: had he not been imprisoned for more than ten years, would he really have “read” the law, found an interest and ability in it, and decided to move forward in that field? Or, if not caught, would he still be robbing banks today, or moved on to more heinous crimes?
Clearly, many established lawyers, members of their respective bar associations, become corrupted over time (e.g. Bill Clinton, who gave up his bar membership so that he could pre-empt a sure disbarment). The bar associations depend (unfortunately, like the American Medical Association) on self-reporting within the profession itself, and that is not happening and not going to happen any time soon.
So in my opinion, the best choice for bar associations today is (in Barney Fife’s words in the”Mayberry RFD” TV show) to “nip it in the bud.” That is, be more stringent about who you admit to the bar in the first place. That won’t solve all your problems about unethical lawyers, but it may keep out some of those whom “profilers” would suggest will be problems down the road. Hopman, and other criminal convicts, could be one group that could easily be automatically “profiled” out. There are lots of law-related professions out there, if they really want them. Or, Hopman and his ilk could serve the prison system by providing paralegal services to other prisoners. But hang out a shingle? Think not.
The whole culture of Lawyers has become interesting to me. It’s a gentleman’s club that excludes “The Unmotivated Competent”.
Maybe a history lesson would be appropriate for me, but my real question is this:
“Why is it fair for a Union to determine who can work in a public sector and who can not?”
Shouldn’t Lawyers come in at least two varieties? 1) Uncertified or 2) Bar Certified
Perhaps limiting the field to “Bar Certified” lawyers puts in a nice “barrier to entry” for competition and allows lawyers to charge more. Thus, when a little guy needs advice, it costs too much to get advice and it’s just cheaper to pay off or plead out of the charge, even though he’s in the right or completely innocent.
Now, I know anyone can represent themselves. So what we are really saying is: If you are smart and educated, you can play along. If you are dumb and uneducated, you probably can’t afford a lawyer and should just agree to a plea. Does anyone think poor people might be disproportionately affected by this policy?
How does any of this relate?
If the bar doesn’t want to admit Hopwood to its rank and file because of “character issues”, fine. But what does that have to do with representing someone like his wife who trusts him implicitly?
My final point is this:
Bar Associations don’t “dis-bar” some lawyers because of the over dramatic effect it has on their livelihood. Dis-bar a lawyer and take away the only thing they know how to do. It’s the final nail in the coffin.
Perhaps Bar Associations would be made up of the people of the finest cloth if they were more stringent – and the people they didn’t admit were able to continue on in a diminished capacity?
I can’t be inventing this subject for debate. Can you point me to a resource that has dealt with this issue?
Tim…I will: write me off-site, and I’ll get you some stuff as soon as I can. It’s a HUGE, controversial, fascinating issue.