Bob Schwartz

Tag: ethics

There is no sanction for lawyers who talk nonsense. But there is accountability for misleading and lying—especially in front of the Chief Justice.

Oath on Admission to the U.S. Courts

I do solemnly swear (or affirm) that as an attorney and as a counselor of this court I will conduct myself uprightly and according to law, and that I will support the Constitution of the United States.

I regularly point out that almost two dozen of the lawyers who helped Richard Nixon execute and cover up his abuse of power and illegal schemes ended up being punished personally and professionally—from jail to disbarment to suspension. (See Lessons for Trump Attorneys: The Lawyers of Watergate)

It may seem a fine line between advocating a position and crossing the line into misconduct. But not really. Lawyers are sworn officers of the court, the law and the Constitution, given substantial power. They are commanded, by their oaths and by the rules of professional responsibility, not to mislead the court and not to lie (and obviously not to break the law).

It is the view of many, unspoken for a while but now being whispered, that various attorneys involved in Trump-related matters have put themselves on the wrong side of the professional line. I note with respect that lawyers are expert at walking up to the lines but not crossing them. Yet in high power highly-charged situations, as with Nixon, as with Trump, greater forces sometimes overwhelm even the smartest and most judicious.

We are still in the eye of the storm. After the dust settles, expect to see some of these lawyers brought before their respective bar associations for consideration of their conduct. It happened in Watergate. It will happen again.

To My Brothers and Sisters in the Law: Remember Professional Ethics in the Face of Tyranny

Some of my readers may be lawyers; certainly some colleagues, friends or members of their families are, so please pass this on if you would like. Many people involved in current immoral and unethical polices such as the forced separation of migrant children are also lawyers.

This is a brief chapter from On Tyranny: Twenty Lessons from the Twentieth Century (2017). Note that the Kindle edition of this essential book is only $3.99. It is the best and most conscientious $3.99 you can spend right now.


5. Remember Professional Ethics (emphases added)

When political leaders set a negative example, professional commitments to just practice become more important. It is hard to subvert a rule-of-law state without lawyers, or to hold show trials without judges. Authoritarians need obedient civil servants, and concentration camp directors seek businessmen interested in cheap labor.

Before the Second World War, a man named Hans Frank was Hitler’s personal lawyer. After Germany invaded Poland in 1939, Frank became the governor-general of occupied Poland, a German colony where millions of Jews and other Polish citizens were murdered. He once boasted that there were not enough trees to make the paper for posters that would be needed to announce all of the executions. Frank claimed that law was meant to serve the race, and so what seemed good for the race was therefore the law. With arguments like this, German lawyers could convince themselves that laws and rules were there to serve their projects of conquest and destruction, rather than to hinder them.

The man Hitler chose to oversee the annexation of Austria, Arthur Seyss-Inquart, was a lawyer who later ran the occupation of the Netherlands. Lawyers were vastly overrepresented among the commanders of the Einsatzgruppen, the special task forces who carried out the mass murder of Jews, Gypsies, Polish elites, communists, the handicapped, and others. German (and other) physicians took part in ghastly medical experiments in the concentration camps. Businessmen from I.G. Farben and other German firms exploited the labor of concentration camp inmates, Jews in ghettos, and prisoners of war. Civil servants, from ministers down to secretaries, oversaw and recorded it all.

If lawyers had followed the norm of no execution without trial, if doctors had accepted the rule of no surgery without consent, if businessmen had endorsed the prohibition of slavery, if bureaucrats had refused to handle paperwork involving murder, then the Nazi regime would have been much harder pressed to carry out the atrocities by which we remember it.

Professions can create forms of ethical conversation that are impossible between a lonely individual and a distant government. If members of professions think of themselves as groups with common interests, with norms and rules that oblige them at all times, then they can gain confidence and indeed a certain kind of power. Professional ethics must guide us precisely when we are told that the situation is exceptional. Then there is no such thing as “just following orders.” If members of the professions confuse their specific ethics with the emotions of the moment, however, they can find themselves saying and doing things that they might previously have thought unimaginable.

Political Expediency and Conscience

Marcellus and Butch - Pulp Fiction

Now the night of the election, you may fell a slight sting, that’s conscience messin’ wit ya. Screw conscience! Conscience only hurts, it never helps.
Loosely adapted from Pulp Fiction

Political pragmatism is a messy business, especially when it looks like pure expediency. That goes for candidates who are not trusted or liked, and for supporters and enablers who overlook obvious shortcomings and transgressions for the sake of some higher goal. (For Democrats and Republicans who think this is only about the other, think again.)

The best movie moment about expediency comes from Pulp Fiction. Those who know this great movie may know the scene. Those who haven’t seen it should, for entertainment and for Tarantino’s willingness to take on interesting moral and ethical questions. Be advised that the movie is rough, as is the language in this scene.

Boss Marsellus Wallace (Ving Rhames) is bribing aging boxer Butch Coolidge (Bruce Willis) to take a dive:

MARSELLUS WALLACE:

I think you’re gonna find ­ when all this shit is over and done ­ I think you’re gonna find yourself one smilin’ motherfucker. Thing is Butch, right now you got ability. But painful as it may be, ability don’t last. Now that’s a hard motherfuckin’ fact of life, but it’s a fact of life your ass is gonna hafta git realistic about. This business is filled to the brim with unrealistic motherfuckers who thought their ass aged like wine. Besides, even if you went all the way, what would you be? Feather-weight champion of the world. Who gives a shit? I doubt you can even get a credit card based on that.

Now the night of the fight, you may fell a slight sting, that’s pride fuckin’ wit ya. Fuck pride! Pride only hurts, it never helps. Fight through that shit. ‘Cause a year from now, when you’re kickin’ it in the Caribbean you’re gonna say, “Marsellus Wallace was right.”