Ethics-Gate

Watergate Hearings Forty-two years ago this week, on June 17, 1972, police arrested five “burglars” associated with the Committee for the Re-Election of the President (CREEP) for breaking into the Watergate office of the Democratic National Committee. Since then, the “-gate” suffix has been used for scandals across the globe.

I recall so well the feeling of being both fascinated and appalled, glued to my T.V. set, as I watched the sordid testimony unfold during the Senate Watergate hearings.  At a CLE program last year, I heard former White House counsel John Dean recall that in the summer of 1972 he made a list of all those who could face criminal charges from Watergate and put an asterisk next to the name of every lawyer. His incredulous reaction: “How in God’s name could so many lawyers get involved in this?” encapsulated my reaction as well.

Lessons Learned From Watergate

What I have learned since then is that perhaps the most lasting impact of Watergate has been in the ethical rules and self-regulating aspects of our profession. The American Bar Association’s earliest code of conduct was in place in 1908, and the ABA adopted its Model Code of Professional Responsibility in 1969. However, it was not until the Watergate scandal concluded, and public opinion of lawyers dropped dramatically, that the ABA earnestly turned its focus to setting ethics standards.

Dean was one of twenty-one lawyers indicted on criminal charges for their participation in Watergate. Dean, who had shredded evidence, said he did not even realize that he was obstructing justice until he finally read Title 18 of the United States Code. Head of the “Plumbers” (Nixon’s break-in squad) and lawyer, Egil “Bud” Krogh, Jr., remarked that the era’s laissez-faire attitude toward ethics left them “completely unprepared.”

Both Dean and Krogh pled guilty to their charges of obstruction of justice and violation of an individual’s civil rights, respectively, but both served only a few months of their sentence. Now, both Dean and Krogh present CLE ethics training programs, and more than 40 states require CLE ethics training.

Change In Legal Ethics

In the years following Watergate, the laws regarding legal ethics began changing. In 1974, the same year as Nixon’s resignation, the ABA required law schools to teach legal ethics. Also, states started adding ethics sections to their bar exams. In 1977, the ABA created the Commission on Evaluation of Professional Standards, chaired by Robert Kutak until his untimely death in 1983. The commission developed what would become the Model Rules of Professional Conduct (MRPC) which were adopted in 1984 to replace the Model Code of Professional Responsibility. Though the ABA initially rejected the Kutak Commission’s recommendation that lawyers representing an organization be permitted to disclose confidential information concerning legal violations by officers and employees, more than 40 states adopted the recommendation.

Eventually, the Enron scandal caused the ABA to reconsider and take up Kutak’s disclosure rule in 2003. Illinois’ 2010 revision of their Rules of Professional Conduct also adopted the disclosure rule and now almost perfectly mirrors the ABA’s Rules.

In fact, there are now multiple permissible exceptions to the client confidentiality provisions of Rule 1.6, including to prevent a client’s crime or fraud. Similarly, a lawyer has the obligation under Rule 3.3, Candor Toward the Tribunal, to take reasonable remedial measures if a lawyer comes to know that a client has testified falsely in a deposition or court proceeding.  We attorneys, as officers of the legal system, have an obligation to protect the adjudicative process from criminal or fraudulent conduct. In a similar vein, in fairness to the opposing party or counsel in the adversary system, Rule 3.4 bars the destruction or concealment of potential evidence.

The Model Rules of Professional Conduct also cleared up who a lawyer’s client is. Dean and Krogh believed that their loyalty, and attorney-client privilege, lay only with President Nixon. In reality, it should have been with the Office of the President. Rule 1.13 provides: “A lawyer employed or retained by an organization represents the organization…[He] owes allegiance to the organization and not to any constituent or other person connected with the organization,” including owners, officers or employees. After Enron, a “reporting-up” requirement was added at Rule 1.13(b), meaning lawyers must report constituent misconduct to higher authorities.

The Watergate lawyers also should have been aware that the predecessor rule to Rule 8.3 of the MRPC required them to report other lawyers’ crimes or conduct involving dishonesty, fraud, deceit or misrepresentation. Although nationwide, professional discipline for violation of Rule 8.3 has been rare, the Illinois Supreme Court took a firm stand, In re Himmel, holding lawyers to a high standard of self-regulation. That Himmel has been seminal in underscoring the self-regulation responsibility of lawyers is reflected in the annual reports of the Attorney Registration and Disciplinary Commission. In 1988, there were 154 attorney reports of misconduct in Illinois; in 1989, the year following the Himmel decision, there were 922. From 2003 to 2012, an average of 519 attorney reports of misconduct were made each year.

Through considerable and sustained effort, lawyers have set themselves straight—or at least straighter—since Watergate. Regardless of what any individual may think of lawyers, they should at least acknowledge that proper safeguards have been put into place.  For that, we can thank, in large part, the Watergate fiasco.

 

 

John Edwards, our intern from Loyola University Chicago School of Law, contributed to this post.

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Jayne Reardon
As a prior trial lawyer, Jayne leads lawyers to embrace the transformative possibilities of future law practice. As a prior disciplinary counsel, Jayne is passionate about promoting the core values of the legal profession. She is a graduate of the University of Michigan Law School and the University of Notre Dame. Jayne lives in Park Ridge, Illinois with her husband and those of her four children who are not otherwise living in college towns and beyond.
Jayne Reardon

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