Matthew Hennessey: This is Matthew Hennessey of the Carnegie Council and it is my great pleasure to be speaking today with Jeffrey Brand, Dean of the School of Law at the University of San Francisco. Prior to becoming Dean, Professor Brand helped establish the law school's Center for Law and Global Justice. While in private practice, Professor Brand co-founded and was Editor in Chief of the Federal Litigator.
This afternoon we will be discussing ethics in the legal profession, a subject which has great potential to impact both the domestic political landscape and foreign policy. Dean Brand, thanks for taking the time to chat.
Jeffrey Brand: I am glad to be talking to you and I appreciate the opportunity.
Matthew Hennessey: How much course work does the typical law student do on the subject of ethics?
Jeffrey Brand: Well, this is a subject of great debate. It varies from law school to law school. Most law schools are now required to train students in basic ethics so that they can pass the professional responsibility examination in any given state. But in many law schools it's just one course, less than 5 percent of the curriculum.
Here at USF, we teach the ethics course in small discussion sections so that students have a much more integrated sense of what ethics is about—that it's not just rules. Hopefully, a lot of ethical training also takes place in a broader, substantive context when law professors weave ethics into courses that are not so named, whether it be property, civil procedures, or constitutional law. Professors should be targeting the topic specifically, so it’s not just 'ethics through osmosis.' They should be raising the ethical context of a case when it's discussed in a substantive class and, most particularly, in a clinic setting when a student is engaging, for example, in how they might be cross examining a witness.
But how it gets taught in the curriculum is a complicated question that really depends on the law school. I like to think that we’re taking a leadership role in the way we teach ethics.
Matthew Hennessey: Do you think there is enough ethics being taught in law schools?
Jeffrey Brand: Absolutely there is not. Lawyers have a horrible reputation, by and large, which is a shame. In large part, though, we should blame ourselves for not emphasizing ethical foundations and the nobleness of what we can do as lawyers. I think it would do a lot for the profession to let people know that institutions care about legal ethics. The place for that conversation to begin is in the law school themselves. We don't do enough. We need to do a lot more.
We are in the middle of an extraordinary moment in history, watching what is going on with the Pakistani lawyers. These are lawyers that are standing up for the right reasons. If there were lawyers in the boardrooms, if there were lawyers in uniform who stood up and said, "That is not the ethical thing to do," then we might have avoided Abu Ghraib or some of the corporate scandals here in the U.S.. Those kinds of ethical lawyers—with the guts to do the right thing—can only get their training in one place. That's at the beginning, in the law schools.
Matthew Hennessey: Because of the nature of the legal profession, lawyers are often intimately involved in government and affairs of state. Is there a set of ethical challenges that regularly present themselves when lawyers do politics?
Jeffrey Brand: I think the most vivid example right now is the Justice Department. There you have lawyers, I think, who felt more fealty to the President of the United States than they did to the Constitution of the United States. And I don't mean to minimize in any way the courageous lawyers in the Justice Department or in the Department of Defense, and there are many, who tried to stand up to this. The senior lawyers that wrote the memos to justify the kind of actions, such as water boarding, that are abhorrent, I think are lawyers that were caught in a political web and forgot their responsibilities to the Constitution and upholding the rule of law with justice.
But it's not just in political situations. The situations are constant. It could be in a corporation where lawyers are more interested in the profit margin than they are in their ethical duty to tell them when they are crossing a line which must not be crossed. On a much smaller scale, but no less important, at what point is it piling on for District Attorneys overcharging in a way that violates the due process rights of a defendant? District Attorneys, and there are so many great ones, must be able to determine the ethical line which they will not cross when looking at a particular fact-pattern and determining what the appropriate charges are. They should not get into a situation where they are overcharging in the hopes of getting a plea-bargain, just to gain a conviction.
Matthew Hennessey: So what is the answer?
Jeffrey Brand: It seems to me that the answer is to make sure that what you do with students, both inside the classroom and outside the classroom, creates lawyers that understand in their guts what it means to do the right thing. This doesn't mean that everybody's going to do it all the time and always. But we have students coming in now who are idealistic, who care about what they are doing. If you can start to create in their head a sense that they can be a good professional, make a good living and pay back their debt while at the same time being an ethical professional concerned for others, I think you can start to turn around some of these issues that seem so distressing.
This is why the Pakistani situation is so mind-blowing. Here are lawyers that are putting their lives on the line in a country that is not anywhere near as free as the place where we are lucky enough to live. I don’t think there is a quick fix—or a complete fix. But if we train a cadre of skilled ethical professionals that care about other people it can go a long way toward changing things dramatically. We have to have leadership in legal education that is willing to say, "This is what matters."
Matthew Hennessey: In New York we are very familiar with the case of Lynne Stewart, the lawyer convicted of providing material support to terrorists while representing Omar Abdel-Rahman, the so-called Blind Sheik. What are the special ethical obligations, if any, for lawyers representing individuals accused of international terrorism?
Jeffrey Brand: Lawyers have an obligation to their client. In a democracy, we tend to gamble. And that gamble, it seems to me, is that the person alleged to have engaged in the most heinous crime imaginable is still entitled to confidentiality and ethical representation. Even if it might mean that person is ultimately not convicted of a crime.
People might call it a technicality, but it's not what I call it. I call it making sure the constitutional guarantees to the right to privacy are upheld. I think lawyers must do their duty in that regard if they are representing such clients. And the government has to understand that even though these alleged acts are reprehensible, nobody's guilty until twelve folks say so. By acting ethically, prosecutors are in fact upholding the constitution regardless of what happens in an individual case.
It's easy to talk like this. To do it in reality is a whole different problem. What we’re witnessing to day is that, in light of the horrible things that are happening, like 9/11, that there is a rush in many ways to suspend the constitution and personal liberties in a way that is very frightening. That is not the way a democracy can thrive. It is a gamble. But it’s a gamble worth taking because ultimately the country must sustain its freedoms or we're going to succumb to the same kind of totalitarianism that we are allegedly fighting.
Matthew Hennessey: Is there a significant body of literature devoted to ethics in international law or international institutions?
Jeffrey Brand: You know, I say with almost absolute certainty that the answer is 'no'—which is a very unfortunate statement. It is in the context of international law and international threats to American security that the need for ethics, and remembering ethical standards and obligations is critical. We have a long and sorry history of using international threats to do unethical things. You can start with the Alien and Sedition Acts of 1798, work yourself through to the nightmare of Korematsu [v. United States]. It's always the international threat that seems to trump ethical actions and the freedoms that we cherish. So the answer to your question is no. It's a shame because it's the area that most deserves development and enforcement of standards because it's where ethics are most threatened and most vulnerable.
Matthew Hennessey: Thanks so much for speaking with me today.
Jeffrey Brand: I’ve really enjoyed the conversation. I really have. I’m grateful for what the Carnegie Council does.