An Awful Lot of Lawyers Involved

By Jos

John W. Dean III, being of a tidy turn of mind, decided at one point to draw up a list of the names of Watergate figures who, in his opinion, had broken the law. They numbered 15, and so many of them shared a common characteristic that Dean marked down next to each of these names a star. Senator Herman Talmadge last week asked what the stars meant. Said Dean: "Just my first reaction--[that] there certainly are an awful lot of lawyers involved here. So I put a little asterisk beside each lawyer."--"Any significance to the star?" Talmadge persisted. "No," answered Dean, "that was just a reaction of mine, the fact that how in God's name could so many lawyers get involved in something like this?" It is a question that a lot of other lawyers (and non-lawyers too) have been asking themselves, since there has been no comparable conspiracy of lawyers in history. Indeed, the total number of attorneys involved in the vast case, including all the various prosecutors and defenders, and also including those who deny any wrongdoing, has been calculated at 125.

The high honor of the legal profession sometimes seems more apparent to the leaders of bar associations than to the general public.

There is even a lingering popular suspicion that lawyers are not always above sharp practice. Yet there is a special order of shame in the spectacle of attorneys not merely breaking the law but directly attacking and debasing its fundamental principles.

There is, for example, the vision--testified to but thus far neither proved nor disproved--of the nation's chief law-enforcement officer. Attorney General John Mitchell, casually listening to aides plot illegal wiretaps and break-ins, while at the same time overseeing various prosecutions of political dissenters for conspiracy.

Although ethics courses are not widely taught in law schools, lawyers are instructed by the American Bar Association's code of professional responsibility to avoid even "the appearance of impropriety." Many lawyers reflexively defend their profession against current criticisms by arguing, as did one Los Angeles attorney, that "those people had stopped being lawyers. They were either 'gofers' or politicians." Another argument currently heard in legal circles is that governmental scandals are bound to involve lawyers simply because there are so many lawyers in government. These defenses are not very persuasive. Lawyers are numerous in government partly because they are supposed to know enough law to prevent scandals, not to organize them. Nor do lawyers shed their training and their professional responsibilities just because they function as officials taking orders. Whether they appear as advocates for the state or for their clients, lawyers are essentially officers of the court, with all the strictures and obligations that that position implies.

Lawyers in or out of government enjoy a position of personal trust. The attorney-client privilege allows a client to confess to his lawyer without fearing that the lawyer can later be made to testify about their talks. Even this has been used to explain the actions of the Watergate lawyers. Whatever they did, the argument goes, was done for the President as client. That, too, is a poor justification. In a 1967 Virginia case, Attorney Richard Ryder took stolen money and a sawed-off shotgun from his client and stored them in his own safe-deposit box. A U.S. district court, citing Benjamin Cardozo's observation that "the privilege takes flight if the relation is abused," ruled that the special lawyer-client relationship could not be invoked in circumstances that so clearly involved the obstruction of justice. Ryder was temporarily suspended from practice.

There is, then, no special defense for the Watergate lawyers, and some legal leaders want to see them specially punished. The severest professional punishment that could be visited on any culpable Watergate lawyer is disbarment, which can be inflicted even for misconduct that is not serious enough for criminal prosecution. The A.B.A., says New York Attorney Martin Garbus wryly, "sets forth high standards for lawyers--a higher standard than is anywhere articulated for Presidents." In perfect seriousness, Garbus is gathering 500 signatures for a petition to the California and New York bar associations --both of which have the President as a member--to consider whether "Richard Nixon has failed to meet the standards of his profession [and] should be disciplined or disbarred." In general, however, legal associations have yet to take disciplinary steps against any members involved in Watergate. Only Liddy has been expelled from the bar (by New York).

The District of Columbia Bar Association has hired three law students to track and catalogue Watergate developments in preparation for any formal actions, but thus far no complaints have been filed against anyone. David Austern, counsel for the association's disciplinary board, observes, "It's like an assassination of the King of England. Nobody files a complaint; everybody assumes the authorities know about it."

Problems involving the procedures of disbarment are really just technicalities when compared with the massive breakdown of standards demonstrated in the Watergate case. "What then went wrong?" A.B.A. President Robert Meserve asked an audience of lawyers in Hollywood, Fla. "Surely, it does not require a close reading of the code [to discover] that breaking and entering is wrong, that perjury is wrong, and that encouraging it is wrong." Part of the problem lies in the fact that on the one hand a lawyer as a counselor is expected to bring a detached and professional point of view to a case, and that on the other the lawyer as advocate is expected to represent his client's interest and vigorously advance it. It is true that flamboyant trial lawyers often use every legal means at their command to win a case for even a guilty man. Yet the balance in the Watergate affair apparently tipped disastrously in favor of excessive advocacy.

That is indisputable, but a harsher judgment ought perhaps to be rendered as well. Although lawyers have always had to be concerned about striking the proper balance between advice and advocacy, there are special pressures today because of the way some of the best and brightest attorneys practice their profession. In business, lawyers of ten take over as operating officers.

Boards of directors are flush with them, and often an attorney will take not a fee but a percentage of the deal he is drawing up.

In such situations, the lawyer's supposedly detached view has in fact be come much the same as that of any prof it-anxious corporate manager. Since lawyers also find themselves with similarly heavy commitments in politics -- and since, in addition, they are the principal intermediaries between business and government -- the maintenance of an above-the-action detachment is both difficult and not always personally satisfying. To be the commander or a chief deputy has a natural appeal.

Yet a certain impartiality is essential to the practice of law. If the man who tries to be his own lawyer has a fool for a client, then the lawyer who be comes his own client is not much better off. Some years ago Law Professor Monroe Freedman raised a storm by suggesting that a criminal-defense lawyer owed such complete allegiance to his client that he should balk at practically nothing, including even in some cases perjury. But this is closer to the no-holds-barred philosophy of war than to that of law. Professor Philip Kurland of the University of Chicago Law School has written about the Watergate mess: "Whatever one might properly expect of professional spies or advertising men, surely the lawyers owed a duty to the law whose keepers they are."

They certainly did, but the kept make poor keepers.

The law is supposed to be the repository of a society's ethics and morals. It is of course also slavishly technical, extravagantly complex and simultaneously too precise and not precise enough. But its very imperfection is why it has need of lawyers constant ly to nurture its growth and to correct its sometimes unjust ways. Legal groups may need to devise new guidelines that somehow strike a better balance between the roles of counselor and advocate. But the chief difficulty is find ing and restoring to the profession its sense of duty to the continuing experiment of law. Some slight satisfaction can be salvaged from the current debacle if it helps restore to lawyers a renewed sensitivity to that most necessary Obligation. *Jose M. Ferrer III

*Their names: William O. Bittman, Charles Colson, John Dean. John Ehrlichman, Herbert Kalmbach, Robert Mardian, John Mitchell, Paul O'Brien. Kenneth Wells Parkinson, Gordon Strachan. Dean left out one law-breaking lawyer:

G. Gordon Liddy. who pleaded guilty to the Watergate breakin. Other lawyers not on Dean's list but involved in different ways in Watergate:

L. Patrick Gray. Egil Krogh. Henry Petersen. Herbert Porter, Donald Segretti and. of course. Richard M. Nixon.

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