Reporters, lawyers, and moral turpitude

34 thoughts on “Reporters, lawyers, and moral turpitude”

1. I’m of two minds about this. From the time the New Republic scandal surfaced, I’ve found it difficult to believe anything that Glass has written (or said). I would never hire him to by my lawyer, because I would not feel that I could trust him.

   On the other hand, he does appear to have made a serious effort to behave himself, and his current employer seems to find his work more than acceptable.

   I have long felt that, as a society, we tend to demonize people who have some notable stain in their past-criminal records, Glass’s fabulations-but continuing to hold those against them only makes it harder for them to “go straight.”

   I guess I would allow him t practice law. But, as I said, I would never hire him.

   1. It’s not just whether you’d hire him: what if your opponent hires him? What if you fear, with reason, that the opposing counsel will concoct whatever false facts best suit his argument, will conceal documents from the discovery process, etcetera?

      1. As a practical issue, a good lawyer will protect their reputation for honesty so the judge will look to them to educate the judge on the issue(s) of the case. If the judge is looking solely at me to do that because he doesn’t trust opposing counsel, I have a huge advantage in my case. From that perspective, I wouldn’t mind having Stephen Glass opposed to my client in the court.

         If I have reason to fear dishonesty from opposing counsel, I can be extra vigilant for it, and point it out to the judge, further enhancing my credibility and reducing opposing counsel’s credibility. If they hide documents during discovery, I make sure my depositions, requests for production and admission, and interrogatories cover what they failed to disclose, and I hit them for sanctions. In any case, often it will be the client who hides things from their lawyer or requests their lawyer hide things during discovery; I mention this not to excuse lawyers who have been complicit in such activity, but to point out that a good lawyer would be looking at discovery with such misbehavior in mind even if opposing counsel were a saint.

         1. Right — at least for me (I am not a lawyer, by the way), the problem isn’t that Stephen Glass didn’t make the California Bar, but that rejecting him is making an implicit claim that they are able to catch all or even most of the potential lawyers that have been seriously (and serially) dishonest.

            I know, I know, that argument is making the perfect the enemy of the good. It’s not that it’s outrageous that Glass didn’t make it, it’s just that rejecting his application has zero effect on my confidence in the honesty of the California Bar.

         2. So what you’re saying is that the California Bar should inflict upon the unsuspecting plaintiffs of their state a lawyer who is a known liar and so places his clients at an automatic disadvantage?

2. There is absolutely nothing keeping Glass from “going straight.” He’s just not allowed into a profession that requires far more than average honesty and moral rectitude. He can do anything he wants: he can sell cars, wash dishes, write software, fix cars, or even write fiction! He just can’t be a lawyer: cry me a river.

   1. Yup.

      As I understand it, he lied or downplayed his past misdeeds in his bar applications (NY, CA). That’s not someone who has reformed.

3. Query: Is there anything Mr. Glass could have done or could do that would indicate redemption enough to allow his admission to the California Bar?

   Please respond in light of applicable case law such as http://online.ceb.com/CalCases/C2/65C2d447.htm-Hallinan v. Committee of Bar Examiners (1966) 65 C2d 447. “Kayo” Hallinan was admitted by the California Supreme Court over objections about conduct and moral fitness (that his father was a well known SF Commie lawyer may or may not have helped). He had been arrested many times for street and bar fights (such as stealing beer and breaking jaws in bars) as well as for civil disobedience at civil rights demonstrations. See this short bio of http://www.sfgate.com/news/article/Kayo-Hallinan-s-winding-path-from-teen-ward-of-3117613.php

   By the way, he was later San Francisco District Attorney.

   Was the Court right to admit him?

   1. What sunk Glass and distinguishes the other cases is that he dissembled and lied about his past transgressions to the NY and CA Bar investigators. It’s like a security clearance investigation — come clean and most things can be forgiven; lie once and you’re basically done. If they catch you lying, most states require you to show “sustained exemplary conduct” to make up for it, a standard few of us would meet.

      “Glass applied to become a member of the New York
      bar in 2002, but withdrew his application
      after he was informally notified in 2004 that his moral
      character application would be rejected. In the
      New York bar application materials,
      he exaggerated his cooperation with the journals that had published his
      work and failed to supply a complete list of the fabricated articles that had injured
      others.

      “… It was not until the [later] California State Bar moral character proceedings that Glass
      reviewed all of his articles, as well as the editorials The New Republic and other journals published to identify his fabrications, and ultimately identified fabrications that he previously
      had denied or failed to disclose. In the California proceedings, Glass was not forthright in
      acknowledging the defects in his New York bar application.

      “… Many of his efforts from the time of his exposure in 1998 until the 2010
      hearing, [moreo]ver, seem to have been directed primarily at advancing his own
      [professional and psychological] well-being rather than returning something to
      the community. His evidence did not establish that he engaged in truly exemplary
      conduct over an extended period.”

4. As a new lawyer who has just gone through the exhausting process of applying for admission to a state bar, and the less exhausting process of starting my own firm, I’m puzzled by state bars that impose morality requirements. On the one hand, the morality requirements are imposed purportedly to protect the lawyer’s future clients and “the integrity of the profession.” On the other hand, these same states do not require that lawyers carry malpractice insurance. California, it seems, only requires disclosure of malpractice insurance. If you truly want to protect clients from unethical or incompetant behavior, provide a remedy to wronged clients instead of restricting the practice of law to those who meet fairly vague “morality” requirements (even if the case here would be an easy call for a lot of people).

5. I think he did not apply to be a journalist again because for nearly the last ten years, he has been working as a law clerk and essentially a paralegal in a law firm. I don’t know every fact of this case, but the record appears to show that he had developed a reputation in litigated cases as a scrupulous, honest lawyer. The events complained of in The New Republic are now 20 years old. As David Plotz, a former colleague who otherwise hated the guy noted, the Supreme Court of CA may have been applying a test it might not apply to others. The State is not worse off because Glass is not admitted to the Bar. It does not look like it is better off.

6. The current issue of Nature (23 January 2014) has a major news article about the rehabilitation of Woo Suk Hwang, the South Korean stem cell researcher who was identified as a fraud about ten years ago. He now clones dogs at a private institute near Seoul. Cost is about $100,000 per dog, mostly for American pet owners. This supports other clinically relevant research that may lead somewhere. But Hwang will probably never be trusted again by the scientific community at large. Nor should he be. Harsh, yes, but he understood the potential consequences and brought them on himself for whatever reason, not unlike Mr. Glass. One thing about this is odd though. Fraud in certain sectors of our political economy has few consequences for those in charge. While nearly 1000 bankers were convicted of fraud and sentenced to prison in the Great S&L Meltdown of the late 1980s-early 1990s, now, in the aftermath of a much more consequential meltdown, not so much. Why is that?

   1. While nearly 1000 bankers were convicted of fraud and sentenced to prison in the Great S&L Meltdown of the late 1980s-early 1990s, now, in the aftermath of a much more consequential meltdown, not so much. Why is that?

      My response to people who say this is to ask them who, exactly, they think should be prosecuted, what, precisely, they think the charges should be, and to explain some of the specific evidence they have that there would be a conviction.

      As a legal concept “fraud” has a technical definition and can be very hard to prove. To convict someone you need the following elements:

      1) You have to prove that the specific individual not only made incorrect statements but that he either knew that they were false when made or was grossly negligent in not so knowing.

      The problem here is that you have to find specific instances of someone making the false statement. Saying that they should have known isn’t enough. Recollections that they said something aren’t enough. You need to be able to place into evidence actual emails, letters, or recorded phone calls in which someone clearly identified themselves as the communicator and made the false statements and you need a case that they knew they were false. That’s an incredibly high bar to clear in most of these cases. I don’t care how sure you are that malfeasance took place; if you can’t produce the evidence you can’t prosecute.

      2) You have to prove that the false statements were material. People have a tough time understanding what “material” means in this context. It is not enough that the statements be relevant to overvaluing whatever is being sold, though that is necessary. It also needs to be the case that the false statements were a significant element in the other party’s decision to enter into the contract.

      In the case where Goldman ended up paying a large fine for misstating how mortgages were assigned to a particular security a lot of people were outraged either that the fine was too low or that no individuals were prosecuted. I, on the other hand, was amazed that the SEC got Goldman to agree to a significant fine at all because I thought that materiality would be hard to prove. The wronged party, a German bank, had a demonstrated willingness to buy MBS without being the slightest bit picky. This was due to a quirk in German banking regulations that allowed them to count MBS as Tier 1 capital without any distinction as to what was in them. They almost certainly would have bought the bond even without the information about origin and possibly even if they had been told exactly how it was actually done.

      3) You have to be able to show damages resulting from the false statements. In some cases this is harder than it sounds. Given how complicated a lot of these products are and how sensitive they are to various scenarios it can be hard to pin down just what the losses were and why they happened.

      4) The misstatement must be about an objective fact. If a banker says, “These are the most awesome bonds ever and they’re perfectly safe,” this almost certainly wouldn’t count as fraud no matter how bogus that statement is. (There are exceptions but they rely upon there being a big disparity in the expertise of the two parties, which wouldn’t be demonstrable in most of these cases; if you’re involved in direct negotiations with a major investment bank over complex products the assumption is that you know what you are doing.)

      Put all of these together and what you find is that the couple of times the DoJ has brought fraud cases from the 2007-09 financial meltdown they’ve lost. These losses come despite the prosecution entering into evidence emails in which the defendants explicitly discussed with each other the ways in which they lied to clients. If they can’t get convictions when they have that kind of evidence I have a hard time believing that there are all that many convictions to get.

      The differences between now and the S&L crisis are the size of the institutions involved, the nature of the transactions that were declared fraudulent, and the sophistication of the injured parties. The S&Ls were much smaller operations in which responsibility was much more concentrated; proving that a specific individual was responsible for the false statements and that he was in a position to know that they were false was a much easier task. And the counterparties were much more likely to be small time investors or customers who faced a much lower bar in arguing that they didn’t understand the nature of the transaction.

      1. Yeah, that’s what the president said, but I can’t remember if it was before or after he called Dimon and Blankfein savvy businessmen.

      2. IMHO, Mr. Neil’s long screed is basically meaningless. While the common law sort of fraud is a little tough to prove in court there are many other statues which the Feds could have used to go after the various unlawful activities of the banksters if simple fraud was too tough for the Justice Department. See, for example, the layperson’s explanation of some of the relevant law at http://www.miamicriminaldefenselaw.com/lawyer-attorney-1806427.html

         Successful prosecutions could have been brought under, e.g., 18 U.S.C. §1344 had there been the political will to do so.

         1. I’m sympathetic to the view that a whole bunch of wall streeters ought to be wearing orange jumpsuits. Mr. Neal’s post is telling me things I’d rather not hear.

            But it sure as hell sounds like he knows what he’s talking about. I learned a lot from his piece.

            By contrast, I think you and I probably agree on a lot, H. And yet you lose me in the very first sentence. Misspelling Mr. Neal’s name when it’s right in front of your face is either a childish act of spite or a laughable bit of incompetence. And whatever you think of Mr. Neal’s writing, characterizing that comment as a “screed” is even worse than the name thing.

            For God’s sake man, look around a get a feel for the room before you jump in and start commenting, so that you can see what level the others are playing at. Otherwise you risk embarrassing yourself.

7. Oddly, no previous commenter has mentioned the example that I consider highly relevant to this discussion: Donald Segretti. Mr. Segretti was suspended from practice for two years following his guilty plea in the Watergate scandal. Forty years later, he is a respected senior member of the legal community where I practice. Yes, anecdote is not the same as data, but it’s still worth considering.

8. I don’t know what to think, because I don’t understand what caused Glass’ alleged lack of complete disclosure about his past wrongs. Did he just forget some, or was he being (again) dishonest? I have no idea.

   I am not a huge fan of this sort of finality though. I hope the Court had satisfied itself about why the secondary failures to disclose happened, because if they weren’t actually deliberate, this seems unduly harsh to me. It’s been a long time and he’s been working hard to live a straight life again. There are many unpleasant experiences in life that can make us stronger, better people. We don’t look as good on paper anymore maybe, but we might actually be much more worthwhile for other reasons. I’ve never met the guy so I don’t know. But I wasn’t too convinced by what I read in the paper either.

9. Not strictly on point, but I’ve always thought the most interesting part of the Glass story was that no one suggested his dishonesty meant that it was a bad idea to hire Jewish writers, though when Jayson Blair did roughly the same thing there was a huge spasm of backlash against affirmative action and speculation that this man had been brought along too fast because he was black.

   Glass has gotten away with relatively light punishment for his misdeeds; he even managed to write a book and have a movie made out of it. I don’t think he’s entitled to a waiver into the California bar just because time has passed, and certainly not when he tried to conceal the original offense from the bar examiners.

   1. he even managed to write a book and have a movie made out of it

      If this is a reference to the film Shattered Glass, that movie is not an adaptation of Stephen Glass’s novel (which cme out the same year the film came out, and was not a source for it). I don’t know what if any compensation Stephen Glass received for the use of his life story in Shattered Glass; the Wikipedia article appears to suggest (at least at a cursory glance) that Glass had no involvement.

10. as a former reporter and current california lawyer, i agree with the CSC decision to prevent this guy from joining the bar. “good moral character” sounds like a highfalutin phrase, but the bottom line is that this guy is a serial liar, and sometimes you just can’t come back from that. he was already trying to become a lawyer (in NY) at the same time that he was committing his original journalistic fabrications. then, after his many lies (and his coverups as to those lies) were found out, he never made a good faith effort to come clean with all the publications he abused, and then he lied about THAT too (to the NY bar). then he wrote and made money off a book about his lying! and finally, he continued dissembling even into his CA bar application process.

    his good work with pro bono clients and helping the homeless is admirable, but it doesn’t really reflect on what he would do if given the profit incentive to lie in the future, for example if it came to clients or opponents with a lot of money. and if he were to join the bar, obviously there would be no way to limit him to a type of legal practice where the temptation to lie is minimal. so…. no.

    1. I don’t know where I come down on Glass being admitted to the bar. As a lawyer, however, I was completely unconvinced by the California court’s claim that he continued to lie in his bar applications. That read like lawyer’s games from the court and counsel for the bar, not genuine deception by Glass. The witness who was quoted as criticizing the bar lawyer came off as pretty credible to me.

    2. I don’t know that greed was ever the problem with this guy. Where’s your evidence for that? Would he have become a journalist in the first place if he was all about money?

11. You know, if they’re going to set the standard this high for entrants, then they need to be kicking a whole lot more people *out* of the bar. You can be an apologist for torture and get a lifetime position in this country. Who are they kidding? You can hide exculpatory evidence as a prosecutor and get away with it. In the light of day, in front of everyone, which is a thousand times worse than faking some stupid articles.

12. You somehow seem to have fallen into the vile clutches of Disqus. I take this to mean you’ve never tried to use Disqus before.

    1. No, it means my colleagues and I are bored and disgusted and tired of swatting cockroaches. If there’s a better system of commenter sign-in than Disqus, I’m all ears. But the free-for-all is over. Our requirements are that every commenter needs to have a handle (even if it’s Anonymous #7) and that the first comment be approved by a moderator. That will solve the problem we’ve had of obnoxious jerks getting banned and then coming back from a new IP address.

       1. So, your solution to this was to delete every single comment ever made on the site, going back a decade? When you get actual cockroaches, do you pull out a can of gasoline and a match?

          You might have just frozen existing comments, and imposed that sensible policy going forward. But you didn’t value the input of your readers enough to bother. Thanks for revealing that, and good bye.

          1. Actually, the non-disqus comments are still there and visible (albeit poorly formatted) if you can disable the disqus javascript in your browser. Disqus acts like a lion taking over a pride — it kills all the children that aren’t his.

             Not that you’ll miss my valuable input 🙂 but I really, really dislike disqus — or anything that tracks you across websites. WordPress allows user sign-ins and you can set the default role to be Contributor which I think will only allow folks to comment. It also supports a policy like the one you discribed.

             On the bright side, the obnoxious jerk filter seems to be off to a stellar start!

13. Mark, that’s a sweet point. And Plotz’s, uh, TNR-worthy piece is demolished in the comments.

14. Hope y’all find Disqus a satisfactory solution. It would never occur to me to complain about the steps taken by a blogger to make the workload more bearable, but in order to foster goodwill among your commenters, I think you should offer Brett and other malcontents a full refund of the subscription price.

    1. i’m not so much a malcontent as i am someone who had stopped commenting on blogs that used disqus after trying it for a while because it tracks your activity across blogs and compiles them and because the internet filters at my workplace block all disqus comments so the blogs become nothing but the posts from the bloggers. personally i’d rather pay a fee or a subscription in order to keep commenting than i would to use disqus. i just think this is a poor choice and i probably won’t be commenting much anymore which means i probably won’t be reading this blog much anymore. it won’t injure me but it does annoy me.

       i do wonder if this means dr. humphreys will start allowing comments on his posts again. i stopped reading him when he quit allowing comments. i just don’t have time for a blogger that refuses both criticism and praise.

       1. I’ve got no beef with the idea that the ability to comment is a key to the appeal of blogs.

          I know disqus tracks activity across blogs, but is there a reason I should care? I mean, I wouldn’t actually care if people could follow me from blog to blog, but can they? As far as I know, I’m the only one with access to my cross-blog postings. Am I wrong?

          1. Aha - and now I see that you’ve made yours private and I haven’t - so people can, in fact, track me. Interesting …

15. so are we back to non-disqus commenting or is this a transition between transitions?

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