Letters to a Young Lawer Read online

  my assistance in achieving their predetermined goals.

  They understand that an advice-giver often becomes in-

  vested in helping the advisee act on the advice received.

  For example, students will often ask me my opinion of a

  particular judge or lawyer to whom they are applying.

  When I tell them that they would be well advised to work

  for that person, the next question often is “Can you write me a recommendation?” I think I can recognize the difference between those seeking advice and those seeking

  assistance. But flattery often blinds, and I suspect that I have sometimes been blinded myself.

  Inevitably, all advice is, at least in part, autobiographical. In this book, I try to be conscious of avoiding the mistake of telling you how to become me (not that you

  would want to!). Many people, over the years, have ex-

  plicitly asked me how they could design careers like

  mine. I realize, of course, that my career is unique, and xv

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  not easily subject to replication. Nor would many

  people want to have careers of such controversy and po-

  larity. In introducing me to speak last year, someone de-

  scribed me as having “the most fascinating legal practice in the world.” I have no idea whether this is true, but I can attest to the incredible diversity of what I do on a

  daily basis. My typical day can well include teaching a

  class in criminal law, having lunch with a group of stu-

  dents, taking a call from a death-row inmate, receiving

  an e-mail from a political dissident halfway around the

  world, considering a request to testify in front of a Senate committee, writing an op-ed piece for the New York Times, appearing on a nationally telecast show, getting a death threat from an irate viewer, giving discreet advice to a corporate executive or politician, consulting with

  the attorney general of a foreign country, becoming the

  target of an attack by Rush Limbaugh, Bill O’Reilly or

  some other right-wing talk-show host, being lectured

  by my mother and receiving an obscene phone call in

  the middle of the night complaining about one of my

  clients.

  My clients have included “a Dickensian lineup of sus-

  pects” (according to Fortune Magazine), both rich and poor, famous and infamous, loved and hated. I am fortunate in being able to pick and choose from among the

  nearly five thousand requests for representation I receive each year, and I can afford to select them without regard to whether they can pay a fee. I select only a small number of cases, about half of which are pro bono . They all xvi

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  have one factor in common: I am pissed off by an injus-

  tice being perpetrated against the person, whether he or

  she may be innocent or guilty.

  In choosing my clients, I have learned never to con-

  fuse celebrities with fascinating people, or high-profile cases with important ones. I turn down many celebrities

  and high-profile cases in favor of obscure people with no money but an important or compelling issue.

  Mine is by no means a typical lawyer’s career or a

  typical law professor’s life. Yet because I have partaken in so many different aspects of the life of the contemporary lawyer, I willingly share the insights gained through

  these adventures in the hope that some may benefit from

  my mistakes.

  My goal in writing this book is to encourage others

  to learn from my successes and failures, from my correct

  decisions and my erroneous ones.

  Among the questions that I am most often asked are

  “How did you get to where you are?” and “How did you

  design the interesting career you have?” The honest an-

  swer is “By complete accident.” I had no grand plan or

  careful design, and I had little guidance from others. I

  started out hoping to become a storefront lawyer in

  Brooklyn. (My mother even had the store picked out.)

  Then, when I did well in law school, I decided to be-

  come a law professor. Then I decided to take on a few

  clients in order to broaden my professional background

  and enhance my teaching skills. Then I decided to write

  popular columns and articles. Then I decided to write

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  books, which inevitably leads to giving public lectures.

  Finally I decided that I liked the mix. My lifestyle is certainly not for everyone. I work too hard, offend too

  many people, generate too much controversy and am

  too much of a provocateur. In a word, I have too much

  chutzpah. But I have experienced enough of the diversity

  of life and law practice so that perhaps my experiences

  can help others in making choices of their own.

  In this book, I offer a mix of practical advice about

  careers, philosophical ruminations about justice, psycho-

  logical insights into winning and losing — and even

  some speculations on whether it is possible to be both an effective professional and a good person (a “mensch,” as

  my mother would put it).

  What is most missing from this book is the interac-

  tive nature of the conversations I actually have with

  those to whom I am imparting advice. So let’s do the

  best we can. E-mail me your own reactions to my advice

  and I will try to respond. In that way we can turn this

  monologue into a dialogue. My e-mail address is

  [email protected]. For those, like me, who are not

  addicted to e-mail, my mailing address is Harvard Law

  School, 1575 Massachusetts Avenue, Cambridge, MA

  02138.

  With all these caveats in mind, I plunge feet-forward

  into the advice-giving business, hoping, perhaps, that I

  can avoid some of the pitfalls I have experienced, but

  knowing full well that I will trip over others.

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  Part ONE

  L I F E A N D C A R E E R

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  P i c k Y o u r H e r o e s C a r e f u l l y

  Lawyers tend to be hero worshippers. Perhaps because

  we often work on an ethically ambiguous terrain, we

  need to create larger-than-life role models to look up to.

  We airbrush the warts of our heroes and turn them into

  saints who could do no wrong. Eventually, we learn the

  truth and we become disappointed, if not disillusioned. I know, since I have been through the process on several

  occasions.

  My own legal heroes included Clarence Darrow,

  Oliver Wendell Holmes, Louis Brandeis, Felix Frank-

  furter, Hugo Black, William O. Douglas, Thurgood

  Marshall and William Brennan — as well as the two

  judges for whom I clerked, David Bazelon and Arthur

  Goldberg. They also included several of my law profes-

  sors at Yale and older colleagues at Harvard. I wanted to be like these giants of the law. I grew up in a community and family with few judges or lawyers. I vividly remem-3

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  ber asking my immigrant grandmother to introduce me

  to her friend Judge Berenkoff. She asked me why I

  wanted to meet Judge Berenkoff. I told her because he is

  a judge. Grandma laughed and told me that Berenkoff

  was a butcher. “Then why do you always refer to him as

  judge?” I asked. “Because that’s his name,” Grandma

  said. “Judge – G-E-O-R-G-E,” she said, spelling out his

  first name with her thick Yiddish accent. “Judge”

  Berenkoff was about as close as I would get to a real

  judge in my old Brooklyn neighborhood. So, I searched

  for role models and found them among these judges,

  practicing lawyers and law professors — some living and

  some dead.

  I read everything I could about my dead heroes.

  When I was a student, legal biography was generally ha-

  giography. I grew up in an age when most public figures

  were written about with praise. In my day, Clarence

  Darrow was beatified in Attorney for the Damned. Oliver Wendell Holmes was glorified in Yankee from Olympus.

  Thomas More was the hero of the play and film A Man

  for All Seasons.

  I’ll never forget the day I saw the great actor Paul

  Muni portray the great lawyer Clarence Darrow on

  Broadway in the play Inherit the Wind. As I watched

  “Darrow” (he was called “Drummond”) cross-examine

  “William Jennings Bryant” (he was called “Brady”), I

  knew precisely what kind of a lawyer I wanted to, and

  had to, become. I’ll also never forget the day many

  years later when I first learned that Darrow had al-

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  most certainly bribed witnesses and jurors in order to secure acquittals or hung juries in criminal cases. I was

  devastated. My hero not only had clay feet, his entire

  structure crumbled before me. I had been asked to write

  a review of a new book on Darrow by Geoffrey Cowan.

  The author, who was generally sympathetic to his sub-

  ject, made an overwhelming case that in the interest of

  leveling the playing field against the large corporations that payed for the conviction of his radical, labor union clients, Darrow had to pay the bribes. I was not persuaded. Whatever Darrow’s motives, the convincing evi-

  dence that he bribed jurors forever disqualifies Darrow

  from being a role model for lawyers. There is simply no

  justification for corrupting the legal system, even if it is done to level the playing field.

  In his book, Cowan had written that law schools do

  not teach about such devices as bribery. In my review, I

  agreed:

  The reason we do not teach such “devices” in law

  school is that they are not lawyers’ tools. They may

  indeed be the tools of revolutionaries and others who work outside the system, and they may perhaps even

  be justified by a revolutionary means-end calculus.

  But a lawyer, who does lawyers’ work, cannot employ

  such devices, regardless of the provocation. The lawyer may rail against the corruption of his opponents; the lawyer may expose or condemn — or perhaps even be

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  right to resign from the practice of law to become a

  revolutionary, if the cause is just and the provocation sufficient. But the lawyer may not become part of the corruption in order to fight for justice as a lawyer. If Darrow crossed that line, as Cowan convincingly

  argues he did, then he does not deserve the mantle of honor he has proudly borne over most of this century.

  Those of us who have long regarded Darrow as a hero

  will be disappointed to learn of his clay feet, but . . .

  the harsh claims of history must outweigh any

  inclination toward hagiography, even when the subject is one of the very few lawyers who have had plausible claims to legal sainthood.

  These academic words, however, concealed a per-

  sonal disappointment — even grief — that I did not feel

  comfortable revealing. Unlike the police chief in

  Casablanca, who expressed mock shock at learning there was gambling at Rick’s Place, my shock was real and

  deep. It continued for weeks. I was consumed by how

  Darrow had tricked me into believing he was the kind of

  lawyer I wanted to be. Though Darrow was long dead,

  my anger toward him was very personal — the kind you

  might feel toward a close friend or lover who has be-

  trayed you. I’ve never gotten over it.

  It wasn’t as personal when I learned that most of my

  other heroes had clay feet — or at least one clay foot.

  The process of disillusionment was more gradual. I was

  let down more slowly when I discovered what horrible

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  values Oliver Wendell Holmes had privately espoused in

  his letters to friends. He favored sterilization — perhaps even murder — of “incompetents.” Holmes wrote ap-provingly of killing “anyone below standard” and “put-

  ting to death infants that didn’t pass the examination.”1

  In upholding the constitutionality of mandatory sterili-

  zation laws, he approved the sterilization of a woman

  who was mistakenly classified as an “imbecile.” Thou-

  sands of people, many of whom were misdiagnosed,

  were sterilized pursuant to the Holmes precedent. Even

  the Nazis cited this precedent in support of their pro-

  gram of racial eugenics.

  My anger at Felix Frankfurter, whose chair I cur-

  rently occupy at Harvard, was pretty intense when I read

  about his refusal to help the Jews of Europe during the

  Holocaust, but I had already met Justice Frankfurter by

  that time, and I didn’t like him — I found him to be

  petty and sycophantic — so the disappointment was

  muted. Not so with Justice Black, who I knew had been a

  member of the Ku Klux Klan before his elevation to the

  High Court, but who I thought had gotten over his early

  racism. Then he spoke to a group of law clerks during

  the year I was clerking on the Supreme Court, and it be-

  came evident that he still had some lingering racial bias.

  He also struck me as an extremely rigid man, not open

  to new ideas. Justice Douglas, who was open to ideas,

  was nasty to the law clerks, the secretaries and the other court personnel. He also got into a fight with Judge

  David Bazelon, for whom I had clerked, which revealed

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  something about him that surprised me. Bazelon had

  been asked to speak at a private club to which Douglas

  belonged. The club excluded Jews and blacks. Bazelon,

  who was Jewish, declined the invitation, saying that he

  would not speak at a club that he, and others, would not

  be eligible to join. Douglas called him on the phone and

  started to berate him for his “narrow-mindedness.”

  Bazelon signaled me to pick up the other receiver and

  listen. I couldn’t believe what I was hearing. Here was

  this paragon of racial and religious equality, trying to

  convince my boss to compromise his principles and

  speak to a segregated club. Bazelon stuck to his guns,

  and Douglas slammed down the phone in anger.

  My other heroes — Louis Brandeis, Thurgood Mar-

  shall and William Brennan — had lesser faults, but still, when I learned about them I was disappointed. Brandeis

  had engaged in some ethically questionable behavior as a

  lawyer, because he sometimes considered himself “coun-

  sel to the situation,” rather than advocate for a particular client. Marshall was often poorly prepared when he argued cases, even important ones in the Supreme Court.

  Brennan refused to hire women law clerks for many

  years, and fired a law clerk — at the insistence of Chief Justice Earl Warren — when the clerk’s left-wing activities became the subject of critical media reports. I still admire these three justices enormously, even with the

  knowledge that they weren’t perfect.

  The same is true of the two judges for whom I

  worked. When you interact with someone on a daily ba-

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  sis, their virtues and their vices become magnified. “No

  one is a hero to his butler,” says an old English saw, and no judge can ever be a flawless saint to his law clerks. But Judge David Bazelon and Justice Arthur Goldberg both

  served as imperfect role models for me in many impor-

  tant ways, as have some of my professors and older col-

  leagues.

  So please, no heroes and no worship. Look up to

  people who have admirable traits, but understand that all have human foibles, some more than others. Expect to

  be disappointed, especially if you ever get to know per-

  sonally those you look up to. Learn to live with the dis-

  appointments and still emulate those characteristics of

  your role models that warrant emulation. But even sin-

  gular characteristics will rarely be without flaws.

  Law is an imperfect profession in which success can

  rarely be achieved without some sacrifice of principle.2

  Thus all practicing lawyers — and most others in the

  profession — will necessarily be imperfect, especially in the eyes of young idealists. There is no perfect justice, just as there are no absolutes in ethics. But there is perfect injustice, and we know it when we see it.

  I can only imagine how so many law students, who

  were taught to revere the justices of our Supreme Court,

  must have reacted when they came to believe that five of