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

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to be the trusted adviser and confidante and doing the job makes them lose confidence in you, i want someone aggressive to push the march begins, that's not at all unique to that setting. >> a response to respond to lau excellent point. the power relationship between attorney-client varies very much. many times we say, well, confidentiality should be as broad as possible because if a client knows that he or she could tell you everything that's going to happen in the confidentiality, then you can convince them not to do it. if someone comes and says i'm going to do this and that's good because they know you're not going to turn them in, the advantage is for you to tell the client do don't do that, and they will listen. yet, what we saw in watergate especially is that the lawyers were in a much weaker position
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than the client. when john marney goes to john mitchell, that's a big power difference. the client -- there was a dispute with the cross-examination as to whether liddy would turn himself in or not. there's a dispute there. >> there's also a question whether liddy was his client. getting to that question. because liddy did not work for -- technically he worked for the finance committee, so he wasn't his client. does that make a difference in how you approach this from an ethical standpoint? this is where the rule did not apply, but today is did sd. >> let me add a layer here, because i think this is a really important point. personal relationships that develop between the lawyer and the client are the things that cloud the judgment. they cause the problem.
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when you represent an organization, you are hired by general counsel, the ceo, whatever, you have a personal relationship. you play golf with them. these are the people who you believe you represent in your own heart of hearts. that's who you are thinking about. that's who john was thinking about when he represented the office of the presidency. he felt he represented richard nixon. mardian had a personal relationship with mitchell. the problem is these personal relationships cause the difficulties. the rule that's in place, the 1.13 says your organization is the client, not the constituents. you have to be clear about that. you have to tell them that are you representing the organization. let me give one example. during the first week, if you listen to all the tapes of the first week, what you hear nixon saying -- and nixon wanted to get out of this. he didn't want to commit a crime. he wanted to get out of this situation. if you hear and watch closely
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what happens during that week, nixon's concern that his friend, the personal relationship, mitchell, is involved because mitchell had gone over to the committee to re-elect. he had the guy who authorized this ultimately. nixon kept saying did mitchell know, did mitchell know, did mitchell know, and at one point we played this tape where he says, look, we should cut it off at liddy. he will take the rap. he will say he authorized it. we'll just cut it off at that point. mitchell -- or, no, liddy, at liddy, and let liddy take the rap, and nixon says -- again, these are these personal relationships and how they get involved. he says i don't think we can do that because liddy will never be able to explain why he had $250,000 at his disposal. it will affect mitchell. he can't take it. why can't he take it now? his wife was going through a very difficult time because of
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alcoholism and other matters. she was threatening suicide if he didn't get out of politics, and so richard nixon, who felt he oweded his presidency to mitchell, who was his campaign guy in 1968, could not blame mitchell for this, and so, therefore, the cover-up happens. it's very much related this whole issue of personal relationships. so i think what the rules are trying to do is to say you as lawyers, you immediate to step back and understand that you can't let these relationships decide how you advise your client. the organization is the client, and that's 1.13, and that's the big difference, i think today from the rules back then. >> let me ask a question. where liddy had no relationship with mardian. liddy was not his client, technically, but liddy did try to become his client.
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liddy actually said he wouldn't talk whether mardian would take a dollar so they would have attorney-client privilege, and liddy was a lawyer, so he knew about the privilege. did that have an impact on how things were hankdzed? >> i think mardian handled it properly. when liddy offered him the $1, mardian explained very clearly, i am not your lawyer. i mean, he said to liddy, i am not your lawyer. i am the lawyer for the committee to re-elect the president, and he said i will tell john mitchell everything you tell me, but i will not tell anybody else. all right? the one thing that goes unspoken is that under the rule, all right, since the head of the organization has the right to actually waive so, john mitchell could have said to mardian, if liddy told you that, i am now ordering you to go to the justice department, to go to the
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fbi. now, of course, liddy, knowing what he knew, wasn't going to be concerned about that, all right, but when you speak to an employee of an organization, there should be a speech. i am not your lawyer. i'm the lawyer for the organization. what you tell me i will not disclose outside unless after i disclose it to the organization's head, i'm instructed to. if you want to get your own lawyer, you should get your own lawyer. i'm not your lawyer. at the time of watergate, there was no rule on that. there was no rule on that. the only rule was an e.c., an ethical consideration. not a d.r., all right? under those -- the e.c. is we would like you to do it, but you can't be disciplined. there was no d.r. it was an e.c. that said the lawyer is the lawyer for the organization. what bob -- >> actually, what it said was
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the lawyer owes his allegiance -- >> it's even weaker. >> it's a very nebulous standard. >> interestingly -- i'm not trying to say this proves that mardian was not guilty. he did what the aba eventually adopted. he said to gordon liddy, i am not your lawyer, so i'm not your lawyer. i'm going to tell mitchell everything you tell me. all right? a question that you asked and cross-examination, did you explain to liddy that mitchell could waive the privilege. mardian's response was that was a risk that liddy had to take, all right? but, of course, we all know that liddy didn't worry about that because he knew that john mitchell knew as much as he did, so he was not concerned that mitchell was going to turn him in, so i think that was -- >> because what he was saying was that mitchell was the one who was behind it all. >> right. >> so, of course, he was going to withhold it and not reveal this. >> but in another thing that you have to emphasize, that that
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employee better be warned that you are going to tell the boss, and that the boss could very easily tell you to disclose it. i think that's very important. >> in fact, that's called the of john warning today. jill had two moments that were her shining moments during the watergate trial, and this is of mitchell ehrlichman, mardian. one was the rosemary woods where she got her to do the rosemary stretch and showed the 18 minutes. the other was she cross-examined bob mardian. we've been talking a lot about him, and he was a department of justice guy. if you see a picture of him, you know, he is a tough guy. hard nail guy. he was a little bit explosive in his personality. >> a little. >> so they put jill up to cross-examine him, and she within a very short period of
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time got him angry, and he acted out, and it's part of the reason i think he got convicted. >> i think there's no question. unlike rosemary where i took her as a witness based on timing, we actually did debate within the office whether i would cross-examine mardian because we knew of his explosive temper and he was pretty generally disliked, i think, to your credit. you find some good in him. there are very few people who do. we thought if we could get him to yell at me, it would be much more impactful than if he yelled at rick or jim, and that the jury would feel, oh, you can't treat that nice lady like that, but then we thought that because of shoef nichl he might not no matter how i provoked him, he might control himself, and it didn't take long. he easily exploded. >> what was kwet you asked him?
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>> who knows? i don't know. >> what's your name? >> the jury hated him. the defense lawyers were all literally just jumping out of their seats. recess, recess, recess. and the judge called a recess. they tried calming him down, and part of the appeal was based on that if he had his original lawyer of choice, he would have honored that lawyer's advice and would have calmed down and that i wouldn't have been able to provoke him and that, therefore, he wouldn't have been convicted because it did play into the conviction. we'll never know. there was enough evidence of his actions that started before he was the lawyer, but when he was just a political operative so i want to keep that in mind. this was not for violating attorney-client privilege that he was indicted. it was for actions that had nothing to do with that, but that he did get significant information from liddy which he
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continued to withhold. that wasn't the cause of his indictment. >> can i go back to just one point that i would like to hear your thoughts about this. you mentioned about all the people disciplined that they weren't acting as lawyers. i want to go back and explore that a little bit. as i understand the rules now that i've done a lot of reading, if you are a lawyer and you have a license to practice law, you are under the ethical rules. whatever you're doing. whether you are practicing law, whether you are ceo, or president of the united states who was a lawyer. in fact, did he get disciplined as part of -- >> he was disbarred. >> here in california, wasn't it in. >> new york. >> new york. >> just because i'm a lawyer, i have to follow all these ethical rules, even though i'm not acting as a lawyer. i'm curious about that. >> well, some of the rules are specific about in the course of
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your representation, so not every rule is going to apply to every relationship one has just because they're a lawyer. the duty of confidentiality is going to apply to somebody who you have a client relationship with. but in terms of lawyer misconduct, the rules allow for a lawyer to be disciplined when the lawyer engages in fraud lent conduct, and that is not confined to during the course of one's representation of a client. that, in part, also applies to character and fitness when state bars are deciding whether they're going to admit somebody to the bar in the first instance. they don't just look at their conduct as a law student. they're looking at their character as a human being and as part of that there's always one case that i teach where there was some egregious misconduct, but also the student had not paid $250 -- or had
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received 250 parking tickets while attending law school. all of which had been paid or contested, but the number of them just showed a gross contempt for the rule of law. this was compounded by the fact that he impersonated a cop. i don't know if the parking tickets alone would have prevented the court from certifying his character and fitness, but from the moment we decide to enter the profession, our conduct is looked at in a broadway, and that then continues once we are licensed to practice. if we, you know -- while buying the home, lie on our mortgage documents, that would be seen as conduct that is unfit to somebody who should have a law license even though it wasn't done in the course of representing a client or acting as a lawyer. >> would you say that one good example of what you're talking about when it's not in your role as a lawyer, but it's covered by
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the rules would be our governor, our former governor, rod blagojevich who -- >> yes. >> who was disbarred because of his conduct that had nothing to do with his being a lawyer. he was being a politician and doing illegal acts and was disbarred for that. isn't that just a good example of how the rules apply in nonlegal context? >> right. just to share with you because i happen to have it in front of me, part of the order that disbarred president nixon, when the -- in describing his conduct the court said that mr. nixon improperly attempted to obstruct an investigation by the united states department of justice of an unlawful entry into the offices of dr. lewis fielding, a psychiatrist who had treated daniel elsberg, improperly consealed and encouraged others to conceal evidence relating to unlawful activities of members of his staff and of the
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committee to re-elect the president and improperly engaged in conduct which he knew or should have known would have interfered with the legal defense of daniel elsberg. so he was not in -- acting in a lawyer role, but because of that conduct, he lost his law license, and he actually tried to voluntarily resign his license to the new york bar and they really wanted to write the order disbarring him so they declined his voluntarily r resignation and proceeded with disbarring proceedings. >> if i could maining a point here. the whole reason we're here today is because when john testified in front of the senate, he had created a document which he was asked who was involved pre break-in and post break-in, and he wrote it out for his lawyer, and he put stars or astericks next to the names of many people, and when he was shown that during his
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testimony, he said, you know, what do the stars mean, and he said, well, it means that they were all lawyers, and, you know, full two-thirds of the people who are involved here were lawyers. gordon liddy was a lawyer. chuck colson was a lawyer. president nixon, obviously, was a lawyer, but, you know, all of these people are lawyers, and, yet, none of them had been trained in legal ethics. it was not mandatory. it was not required by the aba for a law school to be accredited, and the words that resonated is how in god's name did so many lawyers get involved in something like this? for the public it was -- the reaction was, you know, really how did so many lawyers get involved in crime? you know, the highest levels, the presidency. her big question was can lawyers just sit back and know that crimes are going to happen like paying hush money and that they can't do anything about it? you know, the defense of
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confidentiality, is that true? is that really our system? that gives rise to all these reforms, you know -- you all have to take ethics, you take a bar exam, cle that we're doing, and the change in the model rules. that happened as a result. it was an outgrowth of all of this. yet, here we are 40 years later, and if i read the rule that's still applying here in california, it says this. it is the duty of an attorney to maintain the confidence and at every peril to himself or herself to preserve the secrets of his or her client. imagine. >> watergate confidentiality actually was broadened. everybody thought, oh, it's going to be narrowed, but when the debate came up, the aba really decided to broaden it. >> and why do you think that was, and was that a good outcome? >> personally i agree with a very broad confidentiality rule. i do. >> because?
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>> i do believe that we need to encourage people to speak to lawyers and to get a client to come into a law office and talk to a lawyer is more important -- is very important because then i do believe in most situations the power that the lawyer has over the client will lead the client to obey the law and not -- and follow what should be done. it's not always true. as a general rule, i believe to encourage open communication with a lawyer that broad confidentiality rule is better. that is what the -- the commission did not recommend it. a middle ground. then the aba went further. having said that, as i mentioned before, i do not see a national consensus among all the states. some of the states have required disclosure. some have permissive disclosure. some have very limited permissive disclosure. let me add one more point here
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about laurel's idea and jim was commenting on being a lawyer and not being a lawyer. there was one defendant who was only a lawyer. that was ken parkinson. >> yes. >> all right? >> describe what he did so that -- >> what happened was -- the picture up there has all five of them. they're the five defendants at the trial. ken parkinson is in the front. you have hold i-man in the left who grew his hair out, and bob mardian who could not grow his hair out and john ehrlichman and john mitchell and ken parkinson in front. when mitchell resigned -- >> mardian. >> as mardian resigned as the lawyer on the dnc civil case to go back into campaign work, mardian had been the goldwater 1964 western states campaign manager for barry goldwater from arizona, and in 1968 he was the western states campaign person
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for nixon in 1968, so he was more -- he wanted to get involved in the campaign. when he agreed -- mitchell agreed he could leave the case, that the dnc civil suit, and he hired an outside lawyer, ken parkinson, and the favor that mardian did for hiring to parkinson to hankdz the case, about $150 an hour, led to ken parkinson to also be indicted. although there are some overt acts in the indictment involving mardian that did not relate to as i lawyer, but i think that ken parkinson, who was not politically involved at all only, only dealt with his role as a lawyer. he was found not guilty at the trial. all right? he was found not guilty at the trial, so the one person who was solely involved as a lawyer was found not guilty. mardian's defense was i was
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solely involved as a lawyer and should not be convicted. obviously, the jury did not believe that and came back with a guilty verdict. >> if i could make one follow-up comment. after watergate the aba decided to revisit the model code of professional conduct, and they formed the commission, and their first draft of 1.6, while it did broaden confidentiality, it also contained new xepgs about when a lawyer could reveal confidences in order to prevent death or substantial bodily harm, and then it also additional crimes or fraud that could harm financial interests, and that was rejected by the aba house of delegates, so while the initial draft did broaden, it did then include these important exceptions, but that was not ultimately adopted by the house of delegates, and then there were two more subsequent attempts to include those
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exceptions, which should not pass, and it was not until after enron that we finally see permissive exceptions where lawyers could many certain circumstances reveal confidences to prevent things such as financial fraud, and i'll just make one side note many terms of confidentiality. i think there is no consensus, and it is something that we revisit and in other context also, in illinois, a few years ago there was a nationally publicized case where two public defenders had defended a man who told them that he had committed a murder. he was on trial for killing two police officers. while they were defending him, another man was arrested in a different murder, and their client said, hey, that guy who is on murder for killing that mcdonald's security officer, i did that one too.
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ha, ha, isn't it funny somebody else is being convicted for that? they had to keep that confidence, and one thing that they did do was they asked their client if they could reveal that confidence when he died because usually our confidences survive death. we have to keep them even after our clients are no longer alive, and they expected their client to be executed fairly shortly because of the murder conviction of the two cops, and he agreed that they could reveal that confidence -- >> he actually signed a document? >> no, it was an oral agreement that was then documented in an affidavit that the two public defenders prepared. well, it turned out he managed to evade the death penalty, and he lived for 26 years, and so they kept this affidavit in a lockbox under one of their beds, and then once he finally passed
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away, they came forward and alton logan is now a free man, and the public just, you know, oh, they just hate lawyers when they hear stories like that, and it also causes a lot of lawyers to really reconsider did we have the right balance there, you know, in terms of when we keep confidences? we do have massachusetts and i believe one other state in their rules do allow for the breach of confidence in order to prevent wrongful incarceration. there has been some talk about proposed amendments that would allow the breach of a confidence after death. that would basically allow in the rules what they did by client agreement, so this balance is an ongoing dialogue in the profession that could come up in lots of different areas. >> i want to turn now -- we've talked a lot about the confidence issue, and it comes up not just in the esoteric areas or something like
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watergate. i had a pro bono case where the client said that she was going to kill her boss who had accused her of sexual harassment, and i went to my firm and said what do i do? do i have to warn him? could she really do this? it was a major cause within the firm. nobody could decide. we went to the bar association. they couldn't decide. i finally decided that i would ask her psychiatrist whether she would violate her confidence and tell me whether it was likely that she would do it, and the psychiatrist said, nah, she wouldn't really act that out so i fired the client sxishgs warned her if she did anything, she was no longer my client xshgs if she made any further threats, that i would reveal them, and as far as i know, the gentleman was never murdered, but, i mean, these things come up in the strangest of way, but --
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>> i think that was the point i was trying to make. i think that most people that come and tell you they're going to kill somebody aren't going to do it. all right? and to get them -- >> you have to worry about if this do. >> to get them in your office is a big value. for them to know it's confidential, to get them into your office with confidentiality, that's why when you ask me my opinion, i'm in favor of a broad confidentiality rule because i think that they had someone to talk to, they knew you wouldn't turn them in, they talked to you, and they did it. i mean, that's what they wanted to do. it doesn't always work. it worked in your situation. it's not going to work in every situation. that's why i feel that way. >> can i argue a little bit with him on this point because i feel very strongly the opposite? >> sure. >> i think that the reason there was such a debate within the aba and especially after enron that they did finally adopt these rules allowing lawyers to report out is because i think that the
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public looks at us, lawyers, as not just playing the advocate role. i think they look at us as having a public hat, and trying to take care of the public good. now, i come from a family of lawyers, small town in ohio. my dad was a lawyer. my grandfather was a lawyer. when something like this came up in a small town, i don't think they -- they work things out to the public good. not so sure they worried as much about client confidences as we do today, but the point is i think the public looks at lawyers, and they believe that lawyers are playing a role that is a public role and not just an i represent the client, to heck with all you, and i think that is our job too. i do think that there are points where we need to exercise our judgment and we need to force clients to do the right things so that crimes don't happen. especially economic crimes which is what a lot of what the aba was about in all of this, and all these people who lost money
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in enron while lawyers knew what was going on. i do think it is the right balance to have the limited ability to report out. i don't think that that chills client communication. you know, people who are bad actors are bad actors, and they need to have strong lawyers. other people who will listen to you are not going to be chilled by the fact that they think, you know, you could say something about it. i feel pretty strongly that the aba came to the right result that most jurors dicks now have the right result. >> could i take a small issue? >> sure. >> while i agree i think the public does see us as advocates and public servants, i don't think anybody feels that way about their lawyer. that's a general concept, but once it comes to, you know, they've hired a lawyer for something, you know, recently somebody said i want a lawyer. give me a recommendation. somebody is going to be a real bulldog. i want a pit bull. i want, you know, somebody who
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is -- it's maybe a little different in the generic versus what clients expect of us and how we have to as lawyers help manage those expectations about we are not there to help them win by any means whatsoever. there are limits to our role. >> yeah. of course, one thing that's important in this discussion is lawyers are in litigation are advocates, and that's one thing, but lawyers in transactional deals really are not so much the advocates. they're supposed to be in there trying to make sure this deal is done according to what their client wants, but the best example that ron, i think, you give in your book is you have a closure of the real estate deal. there are representations back and forth. it says the biggest tenant just gave me notice this morning that they're not going to renew. they're about to pay, and i'm not going to tell them.

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