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tv   [untitled]    June 30, 2012 8:30am-9:00am EDT

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so i told sam, i had gone back to boston. sam called me up, said he needed more help. i went back for a few weeks. i said august 7th or whatever it was, i've got to be out of here. so i was on a small boat in a ffrpa fjord in island. and i looked down and there was a newspaper from a couple of days ago with a photograph of president ford taking the oath of office. i was in a fjord near reykjavik, island. >> what did you think of the pardon? >> it's a tough one. i don't think i would have done it but i didn't have the stereo scopic view of the harm to the country. this experience made me a real prosecutor. and i -- i've had prosecuteive
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instincts for a long time. maybe they weren't honed in 1974, but i don't think even then i would have done it. >> what did it this teach you about the wheels of our government? >> the wheels may grind slowly, but they grint pretty well. a lot of force in the law, and it made the president do a lot of things that he didn't want to do, and the whole procedure involved a lot of things a lot of people didn't want to have done. throw countries in the world i associate with the capacity for self examination. one is israel, one is the united kingdom, and the third and perhaps the greatest is the united states. >> did you stay in touch, besides the 1999 story, did you stay in touch with hillary rodham after? >> yeah, i've known her pretty continuously. there were whispered conversations about bill in
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1974. they were neared the next year, same year i was married. and the bill in question, the whispers in question, not bill weld, it was bill clinton. i never did see him visiting there. he and i went to the same college at oxford a year apart, had some very good mutual friends, so that by the time i became governor, i couldn't wait to meet this guy that i had herd so much about. i have known hillary rodham clinton in lots of different contexts. >> you said this launched in your career. >> in the sense i became interested in criminal law, went back to run for state attorney general and led to everything else. appointed u.s. attorney, which led to be elected governor of massachusetts. >> is have i forgotten or been unable to elicit any stories. >> that's a wrap as they say in hollywood.
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>> thank you. it's been a pleasure. >> thank you. you're watching american history tv. every week we bring you eyewitness accounts of the people and events that shaped our nation. saturdays at 8:00 a.m., subs at 3:00 p.m., mondays at 4:00 p.m. eastern. on c-span3. to marks the 40th anniversary of watergate, chapman university school of law hosted a commemoration of a rule of law. in this last session, panelists considered the reformed enacted in the aftermath. this program, about an hour and 40 minutes. >> i would like to introduce our moderator for this panel. for those of you who joined us for dinner, she gave a terrific speech. i'll give those of you who weren't here a little bit of her background. one of the first women prosecutors in the country and first in the department of justice's organized crimes section. this experience led to her
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appointment as one of three trial attorneys in the watergate case in that role, she cross-examined rosemary woods about the 18 1/2 minute gap found to be missing in one of the recordings. and then she entered private practice and named general council of the u.s. army. she is currently an innovative management kuttle and serbs as managing director of operation green jobs, a nonprofit that provides placement to veterans. she served on the board of directors for several universities. she received bs from the university of illinois at champagne/urbana. >> sorry. not on here. >> and her jd from columbia university. with that, i'll have her introduce our panelists. >> thank you, whitney, thank you, chapman, for organizing this. we're going to do something a
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little different on that this panel. i hope we can keep you all awake for this last hour or so. a little bit of a slide show as i introduce the panelists that you will see. just some pictures, so it won't distract you too much. but i want to first introduce all of our panelists and say we are going to have a conversation here instead of having us just talking to you and we'll take questions as well from the audience. i hope it will be a lively and entertaining and we can keep the hiss histrionics amongst us to a minimum, but enough to keep you awake. let me introduce professor arnold rockvaier. he was in law school during watergate. he had a summer job and he delivered u.s. postal mail. he delivered the mail in three,
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and he spent the last three hours watching the watergate hearings that summer. he also -- i share with him a common interest in robert mardian. the least known of the watergate defendants or maybe second least. >> that was convicted. >> least known convicted defendant. and he got involved in the appeal from the conviction, which he succeeded in overturning on a technical legal ground that it wasn't severed after his lawyer got sick and had to withdraw. he had ample good counsel from arnold's firm. i'm sure it wasn't in confident council. just one mardian had chosen. we have a special bond and will have disagreements about bob mardian, but i'm sure for your enjoyment. for the last 30 years, a
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professor of law at the university of baltimore law school. to my right, jim rabenault. and said how do i say it? jim has been working with john dean on the ethics training that stems out of the watergate experience and the question that john asked, how did so many lawyers get into trouble because of watergate? so you will hear from his standpoint, on one hand, a convicted defendant. >> not me. >> a perspective of a lawyer for a convicted defendant, and on the other hand, someone who was cooperating with the prosecution and plead guilty and has a focus particularly on representing an organization and what that means as to who your client is when you represent the white house or in the case of when you represent the committee to re-elect the president. so you will have very different
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perspectives from the two of them, jim is now a partner in thompson high in ohio. and has published two books on the history of the american presidency and it was actually a common interest in president harding that brought john dean and jim together. so that's a pretty interesting little thing. laurel rigartos, a professor. a professors professional on the subject of our panel, ethics. an associate professor at northern illinois university. another illinois person i'm glad to say where she teaches about professional responsibility. she will have good insights into our subject. she was an associate at my old law firm, jenner & block and a partner at michael, best, and fred lic frederick. let's set the statement fge for
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questions i'll ask the panelists and they may want to ask each other questions as well. we'll look at what were the ethical dilemmas that lawyers involved in the watergate case had to face and what were the dilemmas that actually got them in trouble? and we'll talk with whabout wha the rules they were operating under at the time. what the rules are now. whether the rules are an improvement. whether it will would have changed the outcome, the same either way or maybe even worse. and i also want to make sure they address whether they really think these were ethical lapses or straight out criminal violations. i would say a lot of what happened was not an ethical lapse, it was a violation of article 18 of the criminal code of the united states of america. i would like them to address that. and i was also wondering how we might apply some of the moral,
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ethical rules. not necessarily the model rules of lawyers, but the ethical rules to situations outside of the law. so, for example, at penn state, there was a reporting up, which is one of the subjects i think jim will particularly be talking about reporting up. the coach did report up. and nobody did anything. john dean reported up, and nothing happened. so it's not just in a legal context. i want you to be able to think about this for those of you who are in private practice or representing corporations, it's not necessarily always just the legal issues. so let's -- let's talk about that. and before we get to specific conduct that was involved, i would like to ask each of you a question and have you just each give an answer to kind of put in place your unique viewpoints about was it client
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confidentiality that was the big problem? attorney/client privilege, or the secrets of a client? the lack of clarity over who the client was? and was it fear of losing a client? which would happen in private practice just as much? or was it lack of knowledge of the criminal law? you want to start, arnie. >> you better give him the mike. >> mr. armstrong used the word epistimology. and was part of bob mardian's defense and the concern he had, in that he was given the job by john mitchell to find out what this whole watergate breakin was about. because after the breakin, the democratic national committee announced it was bringing a civil suit for invasion of privacy against -- outside of
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the committee, called creep, or we had to call it crp, because we couldn't call it creep in front of our client, all right? but the democratic committee was going to sue the committee to re-elect the president for invasion of privacy. and john mitchell asked bob mardian to be the lead lawyer on that suit. and without going into great deta detail, it was the epistiolgical issue, what did he know about watergate? to learn about this, to defend his client, he met with some people such as gordon litte and jeb mcgruder and learned what became known as the truth. the truth of the breakin that mitchell had authorized it, that higher ups knew all about this, and then when he went to john mitchell, and we'll talk about
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this later as well. mitchell said he's a liar. he's crazy, all right? not telling you the truth. from that point on, robert mardian did certain things, arguing, they want to frolic on their own, maybe a cia operation, so the issue becomes from the prosecution's point of view, does this indicate criminal intent or whether he is acting as an attorney. the ability to know when an organization has engaged in wrongdoing as an attorney. and carrying forth, investigating and defending your client. i believe this is a close issue between your ethical obligation and the criminal law in criminal intent. >> before i turn to jim, i just -- the slides are being shown now, and i notice that you have a slide that shows some of
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ma mardian's conduct before he became the lawyer on the dnc case that hadn't been filed. he wasn't the lawyer for creep on the case. he tried to conceal bob mardian's identity. i'm sorry. jim mccord. he gave an alias when he was arrested, because he knew he would be traced immediately, and wanted to seal his relationship to the commission to re-elect the president. and bob mardian made a phone call to get him out of jail before he would be discovered. he participated in drafting a false press release. a prior question of criminal conduct before he became the lawyer for creep. we'll talk about that after we get the answer to the question for everybody. i wanted to put it in context. jim. >> i find any time somebody on
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c-span uses the word epistimology, i turn it off. because i don't know what it means. let me start off by saying that arnie has been a key part of what john and i have been doing in our watergate cle. when we first started looking at this, we used an article he wrote, enron, watergate and the regulation of the legal profession. it's a wonderful article, what he really looks at, what happens with the lawyer who is confronted with crime or fraud, and -- but is under the duty of confidentiality? he looks at that in mardian's case. and mardian's working for crp, asked to veinvestigate, clearly found out stuff. at what point did he stop being a lawyer and become a conspirator? this is a question john faced
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identically, he represented the white house, spoke with the same people, gordon lidde. he a high degree of confidentiality at that time. the rules for the profession at this time were very unclear in terms of who your client was when you represented an organization. was it the people of that organization? or the organization itself? that has a lot to do with the way people acted back then. so he were kind of looking at this issue of confidentiality and went a lawyer who is under confident crosses the line and becomes a conspirator and gets involved in crime. u.s. a tough question, fortunate, the rules have changed as a direct result of watergate. john's testimony before the senate resulted in the model rules. and the model rules today say when you learn about this sort of thing, you have to go through
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a series of things. report up within the organization. try to solve it within the organization, that's your client, and in essence, protect your client from the very people running it sometimes. that's your job as a lawyer. and the other thing it says, if you get to the top and you're not satisfied, things aren't going to stop, then you can report out, which is making the lawyer a whistleblower. and so it -- these issues are gigantic issues for our profession. this was hotly debated at the ada, rejected these rules until enron as arnie points out and then they changed the rules. all around the country, except for california. but so it's a good question. the whole question of when do you step out of your role of being a lawyer and a confidante, understanding secrets and knowing crime is happening and it will continue, can you just
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sit back or do you have to act? and if you sit back, do you become a criminal? it's a big question forrure profession. >> that's a good intro to laurel, because you have raised a question about the line between representing your client and the responsibilities you have to your client and laurel's point as she will i think explain, when you have an obligation to third parties, to the public. >> i'll cast the net a little wider, because i've been looking at the disciplinary action that was taken against lawyers as a result of their involvement in watergate in 1976, the national organization of bar council put out a report. they put together a committee in 1973 to track what was happening around the country in disciplinary proceedings with
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state supreme courts. at the time they issued their report in 1976, 29 lawyers had been the subject of disciplinary proceedings. at the time of that report, eight h8 had been disbarred, 11 had been represent represent ma reprimanded in some other way. of the 29, at least 18 had some advertise mi disciplinary action taken against them. one thing important to think about, most of them were not wearing their lawyer hat, so many of the act fors who were lawyers were not thinking about the confidentiality rules or their role as a lawyer, because they happened to have a law license, but they were not wearing their lawyer hat in the
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course of their job. is but that, of course, did not save them from disciplinary action or from losing their license. in some instances, when i read many of the orders in particular disparting or suspending the actors, a lot resonated about the invasion of rights of third parties. and had they thought about that, and then for some of them who were wear iing their lawyer hat we have sort of an institutional tension about the role of a lawyer as a trusted advisor, and the tension between our role as a public servant as somebody who is supposed to help promote justice and our knowledge of confide confidential information put us in contention of those two roles
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and that's been the enron debate. >> how would you answer the question of what that balance should be between -- and this is only talking about the lawyers who were disciplined who were acting their lawyer capacity. and -- and maybe, arnie, maybe you'll have to address the sequence of whether mardian wasn't just an employee of creep when he took certain actions and then later became a lawyer for creep. do you want to continue, lauren? >> there are three different ways we can think about it. when are there times we'll say that a lawyer must breach that confidentiality because there is some greater interest at stake? we can also think about it, when there are times where we will permit a lawyer to exercise their own judgment and perhaps breach those confidentialities in order to protect some other
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interest. and that's i think a lot of what sarbanes-oxley and 1.6 and 1.13 have revolved around. one thing i think we haven't looked at enough is our role as a moral adviser. if the rules don't permit it or demand it, should we at least be counseling our xhints about what is right in trying to be persuasive and influential and it doesn't raise concerns about chilling our conversations, because it might reach our confidentiality, and the model rules, as you look how they progressed since 1 the908, our as the moral compass has been diminished as we move toward the black letter regulatory code for lawyers. less room for that. and that's sort of one thing we
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can think about. >> do you think it would have made a difference? >> the thing that we talk about a lot, the whole idea of leverage, lawyers can, and a lot of lawyers do, council their clients to do the right thing and a lot of times you found them not being followed. you have to get them to do the right things, the way the rules are set up right now, the idea is you tell them to do this, and give them the choice of doing it, and then when it's clear they are not going to follow that choice, you threaten them essentially by saying i may have to resign with noise, telling people i'm resigning for a reason or i may have to report out and then the hope is that the client will do the right thing, and so the -- the best world is that lawyers are acting as moralists, telling their clients to do the right thing, but at the end of the day, a very practical thing. how do you make them do the
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right thing when have you no leverage, other than, you know, you better do this,or i'm going to very quietly resign. and nobody will ever known about it. a real issue of leverage. >> let me comment on the failure of the organization to respond, whether you can actually disclose or merely resign. there is a debate on that. and i would say that although after watergate, a tremendous se sentiment there should be more disclosure, the majority approach is probably resignation and not disclosure, when the aba was considering a confidentiality rule, the 1.6, they actually increased the confidentiality scope to permit less disclosure than before
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watergate. so, for example, one example, the aba rules only would permit disclosure if someone would be kills or substantial bod i will harm. i would say based upon my research around the country, i want to say there is no national consensus, even today. states are all over the place. some states like florida, you must disclose any crime of a client. other ones permit only permit, don't require, only crimes that will prevent someone from being killed. there is really no consensus there. the concern we had in representing mr. mardian in the case was the allegation -- the allegations that he should have made disclosure of what he had learned from lidde and learned from others, and he disclosed
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this to the fbi or went public with this, the whole thing could have been cut short two or three days after the breakin. he learned all of this the very first week, and it was his position that he was under the confidentiality obligation, not to disclose outside the organization. there was no 1.13 at the time. it turns out and i'm not saying this is not -- does not prove he's not a criminal intent in any way, but what he did actually became the rule that was adopted. once you get contact information, he went right to the top, went to john mitchell, and john mitchell basically said you're being fed lies. then he talked to some other people, and he realized i don't like what's going on here, and he resigned. bob maridan only involved as attorney for about one month. all right. there were some other accusations against him, and his
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defense on those were basically the denial cartoon i found up there. he just denied some of the stuff. there were two issues here and it's not the reality i choose to accept. very quickly, somebody -- i will say somebody called up gordon lidde to contact richard kleintree on the golf court to get him out of jail. there was some question that bob mardian was involved with that, but he denied it. there was a false press release issued where james mccord, who had been creep security officer had been arrested. and the false press release -- the press release said -- it was
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false. obviously false. it said mr. mccord has many clients. creep is one client of his, but he has other clients, and we don't know anything about this. of course, not expressly. very much hinting that the watergate job was for another client. those did occur before mardian was asked to be council. however, mardian denied doing those things. of all of the things he's accused of doing, we don't know which one the jury hung their hat on this or that. >> before we lose the point, part of your original question was you asked about if there was any fear of losing the client. and that has crossed my mind somewhat, because it seemed to me reading from mr. deane's book, and other materials, there
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thaw there was this culture from the white house th, the ends justified the means. whatever mr. nixon wanted, i don't care how you get it done, just get it done. i don't think that's necessarily unique to that setting. i think a lot of new graduates that enter into the world that encounter clients that don't want to hear lawyers putting the brakes on and say if you do, i'll go find someone else. that's something we have to deal with, be mindful of. one thing that struck me when i read mr. dean's book, when it came to your attention, that the -- the brookings institute might be firebombed and you went and put the brakes on that, rather than being sage advice, it almost seemed like the response to that was you didn't have the grit to, you know, do the job that needed -- little old lady was the term that they used, like when yo

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