A Conversation With Daniel A. Rezneck
(Appeared in Washington Lawyer, January 2007)
Daniel A. Rezneck is senior counsel in the Office of the Attorney General of the District of Columbia. A 1959 graduate of Harvard Law School, he served as a law clerk to Justice William J. Brennan Jr. on the U.S. Supreme Court and as a prosecutor in the U.S. Attorney’s Office for the District of Columbia. He joined the law firm of Arnold, Fortas & Porter in 1964, where he maintained a litigation practice. In 1975 he was elected president of the District of Columbia Bar, and he served for six years as general counsel to the District of Columbia Financial Responsibility and Management Assistance Authority.
Why did you decide to be a lawyer?
I can’t remember deciding to be a lawyer. As a child I was surrounded by a parental atmosphere in which it was assumed I would be a lawyer. My father was a historian and political scientist; he had written his Ph.D. thesis at Harvard on the English law of treason in the Middle Ages. He had an abiding interest in the law and perhaps wished that he had gone to law school himself. I think for a lot of people of my generation—with parents who had lived through the Depression—there was an emphasis in the household on attaining a position of security. The law was a profession that offered that.
Are you happy with your decision to become a lawyer?
Yes, I’m glad that I did it. My parents were pleased and their expectations were fulfilled. I’ve argued before the Supreme Court a few times and they came to hear me. I was once told a funny story afterward of how during my first argument before the Supreme Court my mother turned to the person next to her, who was a stranger, and said rather loudly, “I wish he’d get married.”
How did you come to clerk for Justice Brennan?
That was in 1960 and 1961. I had been a student of Professor Paul A. Freund at Harvard Law School in my third year. Toward the end of the year he called me in and said he was beginning the editorship of the history of the U.S. Supreme Court under a congressional grant from the estate left by Justice Holmes. Professor Freund wanted a research assistant, and he had decided to model his approach on what Justice Frankfurter had done many years before. It had been Frankfurter’s custom to take a third-year student, ask him to stay at Harvard for another year as a research assistant, and then go to clerk for Justice Brandeis as a law clerk. Professor Freund asked me if I would stay with him as a research assistant for a year and then go to clerk for Justice Brennan, for whom Professor Freund picked law clerks at that time. It took me about a half a second to say yes.
Did you come in contact with the other justices, such as Douglas,
Black, and Warren?
The justice that I had most contact with was Felix Frankfurter because his clerks were all, with one exception, from Harvard Law School, and I already knew them. His chambers adjoined ours, so I spent a lot of time there and got to know Frankfurter quite well. This was toward the end of Frankfurter’s tenure on the Court. He had a stroke the next year and died a couple of years after that.
He and I had a contentious relationship. It started when he came into our chambers shortly after I arrived at the Court. Richard Arnold, my coclerk, and I were both from Harvard Law School, and Frankfurter came in to say hello. The real purpose of the visit, I believe, was to try to ingratiate himself with us and thereby have some influence over Brennan, which he had not been able to have through the direct persuasion of Brennan. I resented that. I didn’t think it was proper.
Although I spent a lot of time in Frankfurter’s chambers, I did not have the reverence for him that many people had. In my view, his greatest achievements were as a professor in terms of what he wrote, the cases that he handled, and the protégés that he developed, many of whom came to Washington during the New Deal. His career as a justice was anti-climactic and didn’t measure up to what he had done previously.
How about Justice Black?
I had great respect for Justice Black. At Harvard, when I was there, the conventional wisdom was that Black was some sort of an untutored, unlettered hillbilly—certainly by comparison with Frankfurter, who was supposed to be the fountainhead of wisdom. When I got to Washington, I found that the reality was quite different. Frankfurter was elderly and probably not very well. He was heavily reliant on his law clerks for almost everything he did. Black, on the other hand, was the most powerful intellectual force on the Court. I loved to sit in on the oral arguments and listen to him questioning the lawyers.
I realized what a great trial lawyer he must have been and what a great stump speaker as a politician he must have been. He had the most disarming style of questioning. He would lead a lawyer down the primrose path, with softly stated questions in a southern accent. The lawyer had no idea that he was being eviscerated until Black came up with the clincher. When he would deliver opinions from the bench, as he did extemporaneously, it was marvelous to hear him because he was such a great orator.
I think the “Warren court” is a misnomer. Throughout the 1960s it would have been more accurate to call it the Black court.
What was Justice Douglas like?
I didn’t get to know Justice Douglas, and I don’t know that any of the clerks did. He kept to himself. He would pass in the hallways without speaking. He had only one law clerk because he wanted to keep writing his books, so he had an additional secretary instead. I don’t think he and the law clerk were close.
I did have one funny experience with him. Toward the end of the term I was having breakfast in the cafeteria in the Court. Douglas came and sat down and asked me, “When do you think we’ll get out of here?” I said, “I’ve never been here before, so I don’t know, Mr. Justice.” He said, “When Hughes was chief justice, we always ended promptly at the end of May. There was a great chief justice.”
The next day, I’m sitting there having breakfast and Douglas comes and sits with me again. Giving no sign of recognition of the previous day’s conversation, he said, “When do you think we’ll get out of here?” If I had been quick-witted, I would have said, “Well, when Hughes was chief justice, we would have gotten out at the end of May.” But I didn’t. I said, “I don’t know, Mr. Justice. I’ve never been here before.” And he said, “When Hughes was chief justice, we always got out at the end of May. There was a great chief justice.” That was my only encounter with Douglas.
What did you think of Chief Justice Earl Warren?
He was a very warm person. He and Brennan were close personally and they voted together more than any other two justices. There was no question that Warren was the chief. He was a strong personality, and paternalistic toward law clerks. He also told us in no uncertain terms that we were under an obligation of confidentiality that would last to the end of our lives, and that many of the things we would hear we would take to our graves. He impressed that on us.
After your term on the Court, you became an assistant U.S. attorney.
Is being a federal prosecutor the best job you ever had?
Right. That’s the best job I ever had. I think everybody that has served in the U.S. Attorney’s Office would probably agree. I was there for three years, 1961 to 1964.
I started out in the old police court building at 5th and E streets NW, which was then the Municipal Court for the District of Columbia. It went through several name changes before it became the Superior Court, but it was basically the same court. I was in the misdemeanor branch, where all young assistants started. They had a counter there where citizens could make complaints and ask the assistant U.S. attorneys to authorize warrants for the arrest of people. We didn’t actually issue the warrants, but we would recommend them and the judges would issue them based on our recommendations. It was a fascinating experience because it brought me into direct contact with people in the community.
I’ll never forget the first day I was on the counter. This elderly woman came in, and it was quite clear that she was a paranoid schizophrenic. She was out to get somebody. At that point the phone rang and I picked it up. It was one of the assistants in the backroom. He said, “That lady carries a loaded .45.” That was the way I broke in.
Nothing in your education at Harvard Law School prepared you for
That is certainly true. I doubt anyone on the Harvard Law School faculty ever did anything comparable.
What were the most memorable cases you tried in the U.S. Attorney’s
I tried a lot of criminal cases. I had 25 jury cases at the Municipal Court before I went over to the federal district court, where I tried a lot of felony cases. The most highly publicized involved a gentleman who came from a prominent Washington family, and it may have been one of the last obscenity cases prosecuted in the District of Columbia. He purported to be a scholar of Far Eastern erotica and the police had raided his home and seized all this material. There was quite a flap. Oliver Gasch, who was then U.S. attorney, made an intelligent disposition of the case, in which no criminal charges were brought, but the collection was placed under a trusteeship. Access to it was limited to people who had genuine scholarly interest. That worked for a few years, but during the early sixties it became known to the postal authorities that this person was on the mailing lists of people elsewhere who were distributing pornography.
The postal authorities had one of their people in a little town called Walkerton, Indiana, write a letter to Washington. They always picked places in rural states so that they would have venue there if they wanted to bring a prosecution. The letter said, “I am eight years old and I have a great interest in pornography. Could you help me?” This guy rose to the bait and wrote back, saying, “I’m so delighted to meet somebody who has common interests.” Then he proceeded to ship copies of his books—he had written three books, one on China, one on Japan, one on India—purporting to be studies of erotic art in these countries. By today’s standards it would be laughable to say that these books were obscene. Nevertheless, the postal authorities recommended a prosecution, and the U.S. attorney asked me to handle it.
The defendant was represented by Joseph L. Rauh, the noted civil rights and civil liberties lawyer. Rauh came to me repeatedly in the months before the trial asking if I would agree to waive jury trial. I wasn’t willing to do that, but he kept after me. Finally, a week before trial, I gave in and agreed to a waiver of jury trial. I thought I could win either way. In those days we had what was called the master calendar. We didn’t have cases assigned from the outset to an individual judge, as we do now.
So when you waived jury, you didn’t know who the trial judge
Right. On the day appointed for trial, we went before Chief Judge Matt McGuire, who did the assignments. He said, “The first case is supposed to go to Judge Burnita Shelton Matthews.” He picked up the jacket and said, “Oh, this is a rape and sodomy case. I don’t want to send this to Judge Matthews. Here is another case for violation of some provision of the U.S. Code.” He had no idea what it was, and he said, “I’ll send this one to Judge Matthews.” It was the obscenity case, and it was hers to try.
Well, Joe Rauh came running up to me and said he wanted to withdraw the waiver of jury trial. Judge Matthews was, I believe, the first woman district judge in the United States. She was very nice and genteel, and was from Mississippi. I told Rauh, “Nothing doing. You were after me for months to agree to a waiver of jury trial, and I’m not going to withdraw it now.” So we tried the case before Judge Matthews. Rauh disappeared after the first day, and let one of his young associates conduct the rest of the trial.
It was a hilarious case. My star witness was a Jesuit priest from Georgetown University, who, curiously enough, was an expert on Far Eastern erotica. He had great contempt for the defendant, not because of anything that was obscene, but because he considered the defendant a charlatan and not a scholar. He made it clear that these books had no scholarly value whatsoever. After the testimony of the priest, there wasn’t much left of the defense. The case was in the newspapers every day for two weeks, and my name was in the papers constantly. That cured me of any desire for publicity. I’ve never cared about it since.
What was the outcome?
Judge Matthews found the defendant guilty but did not send him to jail. She fined him $10,000, so he had to choose between paying the $10,000 fine or paying his lawyers to take an appeal. I think he did a cost-benefit analysis and decided that it wasn’t worth putting any more money into his case. He paid the fine, and the conviction stood.
When did you leave the U.S. Attorney’s Office?
In 1964 I joined the law firm of Arnold, Fortas & Porter.
Did you have any dealings with Abe Fortas?
Yes. Fortas was the best technical lawyer I ever saw in action. I remember a case in which a Democratic senator in Nevada was facing an election challenge in state court. President Johnson asked Fortas to get involved, and Fortas asked Abe Krash, a brilliant lawyer and my mentor, and me to study the case and report to him. We worked for probably 16 hours between us, and went to see Fortas at the end of the day. He picked up the phone and called the lawyer in Nevada who was going to argue the case in state court the next day. He started out disarmingly by saying, “I have a few ideas. I’m sure you’ve thought of all these, but I just wanted to pass them along to you for what they’re worth.” I hope that the lawyer was making notes because Fortas embarked on a 45-minute soliloquy, which was a closing argument as brilliant as anything I’ve ever heard, about why the Nevada state court didn’t have jurisdiction. I was tremendously impressed. He came up with arguments Krash and I hadn’t thought of.
You walked with giants at Arnold & Porter?
You could say that: Thurman Arnold, Abe Fortas, Paul Porter.
What was Paul Porter like?
He was not a great legal scholar, but he was a very good lawyer, particularly when the firm was Arnold, Fortas & Porter. He brought in business, he argued cases in the Supreme Court, and he was very supportive of the young lawyers in the firm. I enjoyed his company. He and I used to watch the news together on television almost every evening, and we frequently went to Duke Ziebert’s for dinner. His wife was spending most of her time in New York, and he lived up at the Shoreham hotel, and I would drive him up there after we had dinner at Duke’s. He was a great storyteller. He had been a trial lawyer in Kentucky, and he’d been the treasurer of the Democratic National Committee in Franklin Roosevelt’s last campaign in 1944. Under FDR he’d served as ambassador to Greece and as head of the Federal Communications Commission. So he had quite a career.
I remember one case that came to him from Kentucky that I worked on. It involved a young lawyer for the Kentucky Bankers Association. There had been a longstanding fight between the bankers and the lawyers, because in every small town in Kentucky there was a bank, but there wasn’t always a lawyer. The banks wanted to draw up promissory notes, mortgages, and other legal instruments, and the bar association took the position that that would be the unauthorized practice of law. A lawyer had to do it, which in Kentucky meant sending a lawyer around the mountain. This young lawyer for the bankers association gave his clients an opinion that they were entitled to engage in drafting these instruments. He then received a letter in the mail from the bar association saying, “You have 30 days to show cause why you should not be disbarred for counseling, aiding, and abetting the unauthorized practice of law.” The lawyers from his firm in Kentucky came to see Porter and me. It seemed so outrageous that I said to the lawyers from Kentucky, “Have you considered an action against the bar association in the federal court in Kentucky under the federal Civil Rights Act?” There was a long silence. They could not believe that the Civil Rights Act applied to them. I said, “It sure does.”
We drafted a complaint under section 1983 and the First Amendment claiming that this was interference by the bar association with a lawyer’s right to counsel clients. We went to Kentucky and Paul Porter argued the case before a federal judge in Louisville. Half the Louisville bar showed up. It was like the return of the prodigal son. Porter prevailed and got a temporary restraining order, and the bar association withdrew the charge. That was a very exciting experience.
What was the nature of your practice at Arnold & Porter?
I was fortunate, because you could still be a generalist in those days. There was no pressure to specialize, and we prided ourselves on handling whatever came through the door. I wanted to keep my hand in criminal law, and about 20 percent of my work involved criminal cases. The rest were antitrust, securities, government contracts, some tort actions—just about anything you can think of in litigation.
What were the cases that you argued before the Supreme Court?
I’ve argued three cases. The first involved a juvenile from Ohio named Whittington. I had worked on the brief in what became the leading juvenile rights case (the Gault case during the 1960s in the Supreme Court). It was argued by a friend of mine. So when the next case came along, it fell to me. The case involved a young boy from a small town in Ohio who had been charged with the murder of a neighbor. It was a couple of years after Gault, and the principles that had been laid down in Gault for the treatment of juveniles had clearly been violated. So I didn’t have much difficulty in that one.
Did you get questioned by Justice Brennan?
I’m sure I did. He sat in each of the cases that I argued and he never disqualified himself. He told me afterward that Chief Justice Warren sent him a note during my argument saying, “Your law clerk is doing a very good job.” I appreciated that.
What were the other cases that you argued?
I argued a case in 1972 from Florida involving the question whether a municipal court clerk could issue a valid arrest warrant, Shadwick v. City of Tampa. I argued that the warrant was invalid, and I lost 9–0.
The third case was the most interesting and the most consequential. I was asked to represent the District of Columbia Court of Appeals in a suit brought by a young man who had read law in Virginia and had been admitted to the Virginia bar. He had also waived into the Maryland bar, and he wanted to take the D.C. bar exam. Because he was not a graduate of an ABA-accredited law school, as the court rules in the District of Columbia required, he was not allowed to take the D.C. bar exam. He brought suit on a constitutional theory and an antitrust theory against the judges of the D.C. Court of Appeals, claiming that the rule requiring graduation from an ABA-accredited law school was invalid and that he should be allowed to take the exam. I won the case, although the Court left him a little bit of arguing room at the end. They held that he should not have been allowed to bring this particular case in the U.S. District Court for the District of Columbia because he was complaining about the refusal of the D.C. Court of Appeals to grant him a waiver of the bar rules. They said his proper course should have been to proceed by applying directly to the U.S. Supreme Court for a writ of certiorari to the D.C. Court of Appeals. That case was a foundation of the doctrine that is now known as the Rooker-Feldman doctrine, which is frequently utilized to deny people access to the federal courts. Feldman was the name of the young man who brought that case.
Is specialization one of the changes to the profession that you
have seen over the past 40 years?
Absolutely. The pressures to specialize are great. The three lawyers that I mentioned—Arnold, Fortas, and Porter—all were great generalists. Back then, that was the model to emulate.
In your view, why did that change?
Economics. The pressure of competition. At the time that I started, the practice of law in Washington was basically an oligopoly—you had a few major law firms that handled almost all of the major business. There was more than enough work to go around, and the major firms had very little incentive to compete with each other. That has changed drastically due to the entry of large numbers of out-of-state firms establishing large Washington offices. The kinds of things that might have been done by only a half-dozen firms in Washington in the 1960s are being done by dozens of firms today.
Do you think there are too many lawyers today?
No. There are a lot of people who don’t have lawyers at all and who need them. There’s no surplus of lawyers, but there is an overconcentration of lawyers in certain areas of the practice. Clients may be served better by having more choices than they would have had under the oligopolistic arrangement of the 1960s, but that has made the atmosphere at law firms harsher because of the competitive factors at work.
It has been said law firms have become businesses and lawyers businessmen
instead of professionals. Do you agree?
No. That doesn’t show much understanding of history. I researched this while I was teaching professional responsibility and I found statements by Sir Thomas More from the 16th century complaining about the commercialization of law practice. I found a speech by Brandeis from about 1900 in which he said that there is a danger that we’re going to become a business rather than a profession. So these claims have been around for a long time. The practice of law has always been both a business and a profession. I think that it has perhaps become weighted more now toward the business side than it was previously. More to the point, the structure and organization of law firms have changed to resemble a corporate form much more than when I started. There are very few large firms that are true partnerships now. In the early 1960s the law firms had relative equality among the partners; everybody had a voice in the management of the firm. Now a lot of law firms are run on a corporate model with people at the top who act like CEOs.
You teach at Georgetown University Law Center. What inspired you
to take that on?
In 1963, when I was in the U.S. Attorney’s Office, I got a call from Ken Pye, who was a dean at Georgetown. Pye asked if I would take over a course in civil procedure from a professor who had decided not to teach that year. This was in August and the semester was about to begin. I had never taught before. I gulped hard, and said I would do it. I kept ahead of the students by one class for the entire year. That was my introduction to teaching, and I am now the senior adjunct at Georgetown because I’ve taught there for 43 years.
If you were asked by a bright young person today, would you advise
him or her to go into law?
Yes. But I also tell my students at Georgetown that I hope that they’ll go into the government at some period of their careers, and that to the extent that it is still possible to try to be a generalist. It’s sad now that, because of the debt so many students come out of law school with, they don’t have the choices that were available to us in the 1960s.
When you were president of the D.C. Bar in 1975–76, what were
your principal accomplishments?
The principal one was setting up the continuing legal education program. We had hoped to use bar dues to support it, but the membership of the bar voted in a referendum against using bar dues for more than a few limited purposes. So we had to do this through the sections and by making the CLE programs as self-supporting as we could. I look back on that with satisfaction, because CLE is fundamental and we now have one of the best programs in the country.
You have been a member of the William B. Bryant American Inn of
Court since its inception in 1987. Did you ever try a case before Judge
Yes, I tried a celebrated case before him. It involved the question of whether there was a constitutional right to jury trial in a criminal case in American Samoa, a territory of the United States. It raised the old question, Does the Constitution follow the flag? And if so, to what extent? He rendered a splendid opinion upholding the right to jury trial.
For reasons that still escape me, the Department of Justice went all out to defeat the right to jury trial. I don’t know why they felt some compulsion to do that, whether it was due to pressure from the Department of the Interior, which was responsible for administering American Samoa, or some other reason. Anyway, we challenged the denial of jury trial to a man who was an American, not a native. He put out a little newspaper in Samoa and got into a fight with the governor. He was being prosecuted on tax charges and was denied a jury trial. We were asked to handle the case on a pro bono basis. I came up with a theory that we could sue the secretary of the interior in Washington because he was ultimately in charge of American Samoa; he had appointed the judges who denied this man the right to jury trial.
Is this the case in which Margaret Mead testified?
Yes. The government brought a group of Samoan chiefs as witnesses. They came dressed in their full tribal regalia to describe why jury trials wouldn’t work. The high point of the government’s case was Margaret Mead, the anthropologist who had made her reputation by writing a book titled Coming of Age in Samoa. She had lived in Samoa in the 1920s and had a colonialist attitude toward the Samoans. They were, she said, basically helpless children who benefited from an autocratic chief system. Jury trial was a threat to that. She was an extraordinary witness. She was well into her seventies and was used to having her way. She engaged in long speeches that tried Judge Bryant’s patience to the utmost and on cross-examination she turned extremely hostile.
One of the things I was able to bring out was that in the ensuing 50 years since she had written her book, she had spent only one hour in Samoa and that was at the airport for a stopover when she was on her way to Australia. She knew nothing about Samoan society as it had evolved. As a witness, she was a total disaster. Ultimately, what interested Judge Bryant about the case was the similarity between what was going on in Samoa and the American civil rights movement.
What was the similarity?
Essentially, the younger generation in Samoa was tired of being ruled by this tribal system with autocratic chiefs. They wanted the rule of law. Being able to participate in a jury trial meant that they’d have a chance to participate in their own government. The chiefs were bitterly opposed to that, and Judge Bryant realized that what was at stake in this case was not so much the fate of this one newspaper editor as the whole autocratic system with the dominance of the chiefs. After his opinion was issued, the government announced it was going to challenge the decision. I think the case would have gone to the Supreme Court, but the government filed its notice of appeal one day late, and Judge Bryant’s decision still stands.
You represented Congressman Frank Thompson of New Jersey in ABSCAM,
the federal government’s first major undercover sting investigation.
Can you tell us about your experience there?
Yes, that was one of the harder experiences of my professional life. It took place in Brooklyn in the Eastern District of New York, which was one of the harshest places to try a case that I have been in. It was a very difficult atmosphere. ABSCAM was the first of the major videotape sting cases. For a while it looked like that conviction might be set aside, but it wasn’t. Everybody who was charged in ABSCAM went to jail. It was hard to contend with the videotapes because the undercover agents knew exactly what they were doing. They were scripting the whole thing and the congressmen didn’t have a clue about what was going on. It’s the nature of a congressman to be very agreeable and always to say yes. When these propositions were put on tape and the congressmen were manipulated to say yes, it made out the elements of an agreement to take legislative action for money and therefore established a bribery case.
I think people have learned since then how to deal with videotape sting cases. There have been some successful defenses, where lawyers have been able to point out either gaps in the tapes or events that were not taped, and they raised questions in the jurors’ minds. I think that the defense bar has adjusted to these undercover tactics so they are not as overwhelming as they were in ABSCAM, when we were caught rather flat-footed.
You have practiced in the preguidelines era, and since 1987 under
the Federal Sentencing Guidelines requirement. What did you think of
I don’t like them. I’ve always been a believer in judicial discretion, although I understand the arguments that run the other way. I was involved in a case one time that involved a 16-year-old who committed felony murder. He killed a storekeeper during the course of a holdup. I persuaded U.S. District Judge Gerhard Gesell to sentence him under the Youth Corrections Act. Even though it was really a first-degree murder case, he was released after a year, and committed another homicide within a year. That was shocking to both Judge Gesell and me. I was sure that Judge Gesell wasn’t going to give that kind of break to a defendant again. You can argue, I suppose, that you have to have some check on discretion in sentencing, but at the time Judge Gesell had a good basis for what he did.
In 1995 you embarked on public service undertakings. The first one
was with the D.C. Control Board. Can you tell us about your experience?
The Control Board was a unique opportunity. In 1995 the District was bankrupt, and Congress passed legislation setting up a financial control board to run the District and to rescue it from bankruptcy. In the same month that Congress passed this statute, Arnold & Porter adopted an early retirement system, which I was eligible for because it started at 60 and I had just turned 60. I applied for a job to Andrew Brimmer, who was the first chairman of the Control Board and he hired me as general counsel. I spent six years as the general counsel to the Control Board. It was a new experience for me because, as general counsel, I wasn’t just doing law. The Control Board was acting though the five members of the board, plus the executive director, and myself as general counsel. I had the chance to be in on making policy as well as advising on strictly legal matters. I found that extremely interesting because I hadn’t had much chance to do that in private practice.
There is a view that the District of Columbia can never stand on
its own feet financially because it is too small and there is too much
territory owned by or ceded to the federal government. What do you think
Over 40 percent of the land in the District is owned by the federal government. When you add in embassies, international organizations, churches, universities, and other institutions that are exempt from property taxation, over half the land in the District is not subject to the property tax, which is a major source of income. You put that with the congressionally imposed ban on taxing nonresident income, which was enacted as part of the home rule legislation, and the result is about 70 cents of every dollar earned in the District goes outside the District without being subject to taxation. I am convinced, as was the Control Board, that there is a built-in structural imbalance in the District’s financial situation. There is an inability to raise funds sufficient to support the functions of the District government. Those functions are not limited to those of a city but include many state functions.
What about the federal payment?
The federal payment no longer exists in its traditional form. For a number of years, Congress had made a payment every year of over $700 million to the District, which could be used for any purpose. When Congress passed the Revitalization Act in 1997, they did away with the federal payment and substituted a series of earmarked payments for particular purposes. The District still gets direct federal appropriations, but only for the purposes determined by Congress, not as determined by the District. That’s a serious problem.
Among the most dramatic changes in both civil and criminal law has
been the advent of e-mail. What has been your experience with e-mail?
Well, I used to give a lecture at the law firm called “The Curse of E-Mail,” which advised lawyers and clients against overuse of e-mail. It’s horrifying to see the kinds of things that get written down in e-mail by people who are not thinking about what they’re saying. If they had to dictate it to a secretary or even into a tape recorder, much less write it into the form of a memorandum, I don’t think they would do it. But it’s so easy to send these messages and put things down in e-mail, with both lawyers and clients engaging in conduct that can have very damaging consequences. We have seen some criminal cases in recent years that have turned on indiscreet e-mail communications. So clients need to be educated to exercise restraint. The same thing applies to lawyers, because given the evolution of the law of attorney– client privilege, it is very difficult to conclude that what you do as a lawyer is always fully protected.
You have seen a lot of changes in the practice of law over almost
a half century. Can you tell us what you think are the most pronounced
Well, the biggest change is the breakdown of the system I described earlier, where you had a few firms that tended to dominate the Washington practice in major cases. That has disappeared. You’ve got many more firms that have the ability to handle any kind of matter. On balance that is a plus for the clients because they have more choices. There have been other improvements was well, such as the entry of women and minorities into the profession in large numbers.
On the negative side, I think we have seen competition between and within firms that makes people preoccupied with business development and getting credit for bringing in clients, instead of working on client matters. That is unfortunate.
You have been with the D.C. Office of the Attorney General for a
while now. What do you do there?
Well, I’m senior counsel in the Office of the Attorney General, where I’m defending the District in lawsuits. I spent much of the past year defending the baseball stadium project against legal attacks attempting to enjoin it. The cases that come though this office are very interesting. They run the gamut from the most minute questions of municipal law all the way up to federal constitutional issues, civil rights actions, and so on. I have also been heavily involved in special education cases in the school system, which is a major area of litigation. The caseload is extremely challenging, and I’m having the time of my life.