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Washington Lawyer

Legal Spectator: Who We Are and Who We Want to Be

From Washington Lawyer, January 2011

By Jacob A. Stein


We are, I know not how, double in ourselves, so that what we believe we disbelieve, and cannot rid ourselves of what we condemn.
—Michel de Montaigne (1533–1592)

Hypocrisy is the most difficult and nerve-racking vice that any man can pursue; it needs an unceasing vigilance and a rare detachment of spirit. It cannot, like adultery or gluttony, be practiced at spare moments; it is a whole-time job.
—W. Somerset Maugham (1874–1965)

In the elections, there is always a candidate whose past misdemeanors contradict his moral preachments. Google is waiting to impeach him and label him a hypocrite. Why take the risk? Montaigne gives us one of the answers. Another reason is the candidate’s enablers. If the candidate wins, the enablers win. They urge the candidate on. They tell him the money is there. The candidate tells himself that if he wins, his past bad acts are remote and irrelevant under Rule 403 of the Federal Rules of Evidence.

If he loses, he consults his lawyers. They advise him to adopt what is known in the law as confession and avoidance. Admit the bad acts but introduce additional evidence that shows his goodness. Here is an example:

I made mistakes, but in all my years of public life, I have never profited, never profited from public service—I have earned every cent. And in all of my years of public life, I have never obstructed justice…. Well, I am not a crook. I have earned everything I have got.
—Richard M. Nixon
During a November 17, 1973,
Speech in Orlando, Florida

Let me say here that the practice of law does not give us much room to criticize others. Edgar Lee Masters had his skepticisms about our profession. He had a busy Chicago trial practice. He and Clarence Darrow were partners for a few years. Although Masters’ thriving law practice took up most of his time, he wrote poetry about the people in the small town where he was raised and the people he met in the courts.

Masters’ poems were in the form of blank verse obituaries. In 1916, he put his thoughts in a book titled Spoon River Anthology. It became a success. It changed his life. He quit the law practice, moved to New York City, and wrote for the rest of his life. He never duplicated the success of Spoon River. Here is a Spoon River sample.

John M. Church

I was attorney for the “Q”
And the Indemnity Company which insured
The owners of the mine.
And the upper courts, to beat the claims
Of the crippled, the widow and orphan,
and made a fortune thereat.

The bar association sang my praises
In a high-flown resolution.
And the floral tributes were many—
But the rats devoured my heart
And a snake made a nest in my skull?

Masters said the person he called John M. Church was the type of Chicago lawyer who was “the hard, shrewd, money-grabbing corporate corporation and business lawyer.”

There is another side, a lighter side, to the law. I know of no book devoted entirely to hypocrisy and the law. However, an English Judge, Henry Cecil, had a few words to say about it. He said that if you are going to succeed at the Bar, “you must first learn to flatter yourself. You must flatter yourself that you are quick in the uptake, able to express yourself well, are patient, hardworking and a man of complete integrity. For certain success at the Bar you need to have these qualities.”

He said that an interesting form of hypocrisy goes on in the courtroom where the lawyers flatter the judges:

“Your lordship has put it so much better than I can,” (when he hasn’t);

“Your lordship is, as always, very good (kind) (helpful),” (when he has in fact been none of these things, rather the contrary);

“As your lordship knows,” (when he doesn’t);

“I am loathe to trouble your lordship,” (when counsel is quite determined to trouble his lordship);

“With the greatest respect, my lord,” (when counsel is saying to himself or whispering to his neighbor: “Will the blithering old idiot never get the point?”);

“If your lordship will bear with me for one moment,” (when the judge has been particularly obtuse);

“It is always a great pleasure to appear before your lordship,” (though this can sometimes be true).

Judge Cecil recalls a judge who disliked flattery who would say: “Don’t say ‘with respect’ to me. You don’t mean it.” I was a young barrister at the time, and, after seeing what happened to other counsel in his court, I flattered myself that I knew how to treat him. I never called him ‘Your Honor,’ I never said ‘with respect,’ and I never imputed to him the slightest knowledge of the law. And I never won a case in front of him.”

Jacob A. Stein has written a new book, Eulogy of Lawyers. Reach the publisher at [email protected].