Question: Which two men are fit to practice law? (It’s a trick question…)
The Wall Street Journal Law Blog muses on an issue that has troubled me for a long time: the fact that the legal profession allows people to keep practicing law whose conduct would have kept them out of the profession had it occurred before they were lawyers.
The reason for the current examination is the apparent inconsistency of disgraced New Republic journalist Stephen Glass continuing to fight and uphill battle (and, I think, doomed) to be admitted to the California bar, while lying scum-of-the-earth John Edwards still has his law license and is opening up a new practice in North Carolina. I wrote about Glass here, and Edwards here.
In the Journal piece, estimable legal ethicist Stephen Gillers opines that the different standards applied to Glass and Edwards are paradoxical, with the law grads entering the profession being held to more stringent ethical standards than a veteran attorneys. “If anything, you might say it should be the opposite,” he says.
Especially if the veteran lawyer is a high-profile, national figure who makes every other lawyer want to crawl under a rock…
You can read the article here.
The answer is that neither Glass nor Edwards is trustworthy, nor possess the minimal degree of honesty and integrity to practice law.
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Pointer: Legal Ethics Forum
Ethics Alarms 
I had an instructor a year ago that worked in some way for the Edwards campaign in 08…
He was fair almost to a fault (I got perfect grades on virtually everything I did in that class, and in his foreign policy class, despite our views actually diverging nearly 100% of the time), but I loved poking fun…
Showed up on the second day of class with Hunter’s book and had it open when he walked in, just so he knew I had figured out which campaign it had been…
Many laughs were had that day.
Mr. Marshall:
Given the premise that no individual that is a chronic liar is fit to be admitted to the bar, it seems to me that such character defects would effectively prevent many politicians from returning to practice law after an elected tenure.
In Glass’ case he admits to concocting stories and the underlying evidence to support his fictions. In Edward’s case, he lied to protect his other less than honorable behavior.
If we only define the term lie in its strict technical terms in that a person knowingly provides false information or utterance for the purpose of deceiving then the bar could reasonably conclude that any future information is suspect.
If we apply strict liability tests for admission to the bar based on prior conduct then I agree the same test should be used for those already admitted. If we permit the rehabilitation of honor for those brought before the bar for ethical breaches we must also give some latitude to those who prior to admission have taken reasonable steps to rehabilitate themselves and have demonstrated through practice that a belief in his/her integrity is warranted.
If we extend the precepts of honesty and trustworthiness to mean that all communications must be complete, factual, and fully understandable then would omissions of information, or, language that is difficult to understand without advanced degrees, that would materially affect another’s decision also be a lie?
Using a variant of your Second Niggardly Principle, would the use of language that obfuscates intent, is designed to, or could be expected to confuse the lay reader also be considered an ethical breach even if no ill-will should be presumed?
Our adversarial system seems to promote the idea that omissions or material facts not disclosed are not lies but are tactics used to provide for the best representation of the client. If a prosecutor withholds exculpatory information, it can lead to a reversal of a conviction but it is rare that the prosecutor is brought before the bar. Comparatively, there is no duty of the defense attorney to produce inculpatory information.
The days of a handshake to seal a deal are long gone. It seems that today the goal is to find an attorney with the best command of the language in order to avoid technical perjury and economic injury.
Chris, your first paragraph stirred me to the (perhaps) most heretical, perhaps most illiberal thoughts, especially toward lawyers…
…thoughts of changes to eligibility criteria to practice law, applicable to persons elected (and possibly, applicable also to persons appointed)…
What if…a person would, having once been elected to office (or, having been appointed to an office of government by a person holding an elected office), become ineligible to practice law in any jurisdiction that falls under the authority of the office…for some period of time, or…for life?
I do wonder how such limitations would impact political processes, given how those processes are currently impacted by the involvement of practicing lawyers in them…it’s late, so my writing may be incomprehensible…but…is there any way to inhibit ideological monopoly, at least in a society where the rule of law prevails?
In fact, the legal profession is very reluctant to judge personal, non-law, non-practice-related dishonesty as disqualifying a lawyer as untrustworthy, because it is afraid of the extent to which that could be applied. I disagree with this,as it is obviously a myth—but that is why John Edwards is still a lawyer. I believe that lawyers should not lie at all in any significant way, and yes, if it were up to me, a lying politician WOULD be banned from practice. I can’t see how an untrustworthy elected official can be a trustworthy lawyer. My colleagues, most of them, do not agree. I am not the most popular professional in the field.