Free Stephen Glass!
Summary Judgment is American Lawyer senior writer Susan Beck's regular opinion column for the Litigation Daily.
I think Stephen Glass should be allowed to practice law.
I don't know Glass, but I do know he's done some bad things. Specifically, back in the 1990s he made up stuff when he wrote articles for The New Republic and other magazines, and then he went to great lengths to cover up his extensive lies. This was wrong, and it caused a huge uproar in the journalism world.
But should he be licensed as a lawyer? Sure.
That's not going to happen, at least in California. On Monday the California Supreme Court reversed the findings of a state bar court and ruled that Glass didn't have the right moral character to be a lawyer. In a 35-page decision, the court cited the "moral turpitude" that Glass had exhibited as a journalist more than a decade ago, and asserted that he hadn't been forthright in disclosing the full extent of his deception when he applied to the bar. Glass was also turned down in 2004 when he applied to join the New York state bar.
"The ruling today vindicates the idea that honesty is of paramount importance in the practice of law in California," state bar president Luis Rodriguez said.
I'm all for honest lawyers, and I'm not going to try to excuse Glass's conduct. But I think he should be allowed to practice law because state bar associations shouldn't be in the tricky business of judging moral character.
First of all, they do a lousy job of it. Most of their character analyses are so perfunctory and shallow that they're meaningless. We all know lawyers whose character is questionable and worse: Some are slippery, some are deceitful, and some are downright nasty, awful people. Even among the elite of The Am Law 100, I've talked to lawyers who have bent the truth, and I routinely read court filings that distort facts and stretch the meaning of the law. The legal profession is hardly a shining beacon of moral integrity. In other words, it's not all that different from other professions.
Second, why is someone's character relevant to being a good lawyer? Some of the most successful lawyers cheat on their spouses, neglect their children and won't walk the dog. It would be nice if all lawyers aspired to be Atticus Finch, but that's not the reality. I can see the need to apply more scrutiny to certain applicants to the bar: those with criminal records, or a history of filing frivolous or vexatious litigation, or a record of not paying child support. But for the rest, I wouldn't spend the time and the money trying to predict their future conduct.
In Glass' case, the scrutiny he endured became unseemly. He felt forced to disclose that he became suicidal after the discovery of his fabrications, and he went through the indignity of submitting an affidavit from his psychiatrist, who vouched that Glass didn't appear to be a sociopath. His application was supported by a solid list of character witnesses, including two professors he knew at Georgetown University Law Center. Paul Zuckerman, a lawyer who hired Glass as a clerk, gave him a glowing recommendation and called him one of the best employees in his firm. (I cringe to think whom I named as character witnesses when I applied for admission to the New York state bar. I think it might have been someone who'd hired me for cat sitting.)
But the California Supreme Court wasn't convinced that Glass was rehabilitated. It nitpicked over whether his disclosures about his past transgressions were sufficient, quibbling that in 2002 he didn't alert New York state bar authorities to a magazine article he wrote that might have hurt the feelings of actor Alec Baldwin. The court was also offended that he spent so much time in recent years on activities "directed primarily at advancing his own well-being, rather than returning something to the community." If focusing on your career were a bar to being a lawyer, then I'm guessing we'd have a few thousand lawyers in this country, instead of more than a million.
I suspect the court's action was motivated by fear of bad publicity more than valid concerns about Glass' fitness to be a lawyer. Instead of trying to judge people's moral character, the gatekeepers for the legal profession should pour those resources into tracking down and punishing lawyers who actually harm their clients and the courts. That would be a better use of their time.
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