by Steven Lubet. New York: New York University Press, 2008. 272pp. Cloth. $27.95. ISBN: 9780814752210.
Reviewed by Mark C. Miller, Department of Government, Clark University. Email: MMiller [at] clarku.edu.
Steven Lubet, who holds the Williams Memorial Professorship of Law at Northwestern University, is a prolific academic author and a columnist for the AMERICAN LAWYER magazine. In this book, Lubet provides 43 short vignettes that deal with the issue of honesty in the practice of law. Most of the vignettes were adapted from newspaper and magazine columns written or co-written by the author. Taken as a whole, the short stories or case studies provide an interesting look at various questions of ethics and the law. I could see this book being used in the classroom to help students grapple with issues surrounding honesty and the law.
Lubet expresses the underlying theme of all of the short stories (generally each story is only a few pages in length) in the following sentences from the introduction, “Honesty is elusive for all of the players in the legal system – clients, lawyers, judges, teachers – even with the best intentions, because it is inherently difficult to recognize, communicate, and appreciate the truth. . . . Without basic honesty, our entire judicial system – with its structure of rights, autonomy, due process, and the rule of law – would collapse because we could not rely on the good faith of the human beings who administer it” (p.2).
The vignettes are divided into five different categories. The first category examines issues of when clients are not totally honest with their lawyers. One story explores the question of whether President Bill Clinton was honest with his lawyers before and after his now infamous deposition in the Paula Jones case. A second vignette ponders whether the Catholic Archdiocese of Boston went too far in vigorously defending lawsuits brought by those who claimed sexual abuse by priests. The chapter is entitled, “My Lawyer Made Me Do It,” and it explores whether the church was hiding behind the alleged advice of its legal counsel when it initially used extremely aggressive tactics to defend against the lawsuits brought by those claiming to have been sexually abused by the clergy. A third story explores the case of a Wal-Mart photo lab employee who was fired for going to the police with photographs that showed potential child abuse without first clearing her actions with her superiors. Another story talks about the incident where former Congresswoman Cynthia McKinney (D-GA) claimed racial discrimination when a congressional police officer stopped her from entering the Capitol because she was not wearing the appropriate lapel pin that would have identified her as a Member of Congress. Other stories deal with issues of tort reform, the conviction [*694] of Martha Stewart, or Oscar Wilde’s various civil and criminal trials.
The second section deals with issues that arise when lawyers are not totally honest with their clients or with the courts. One story discusses white lies that lawyers often tell judges when dealing with scheduling of trials, and the like. Sometimes these relatively innocent falsehoods can have serious future ramifications or can be used to prove a pattern of dishonesty when a lawyer eventually gets into trouble. A second story talks about a district attorney who pretended to be a defense attorney as part of a police interrogation of a suspected serial killer. Should he have been sanctioned for his deceit? A third story talks about a radical lawyer who may have helped her client continue committing acts of terrorism by facilitating communication between the jailed client and others outside the prison despite court orders not to do so. Another chapter in this section reexamines the lessons from the so-called Scopes monkey trial. Other stories deal with issues of lawyer malpractice, manipulation of juries, and the Gunfight at the O.K. Corral. Another vignette examines some of the legal issues surrounding the actions of Virginia Tech University during the recent shootings on that campus.
The third section deals with honesty among judges. Some of the chapters look at what federal judges say and more importantly do not say in their confirmation hearings. One story looks at whether Justice Scalia should have recused himself in any cases dealing with his good friend and duck hunting buddy, Vice President Cheney. One chapter looks at the question of whether federal judges are really as poorly paid as they claim to be. Another chapter looks at the public comments of the wife of Justice Thomas and asks whether judicial ethics rules should apply to judicial spouses. Other chapters deal with whether judges try to hide their prejudices in their courtrooms, for instance prejudices against Muslims. Other stories question whether specific judges are too hard on the lawyers who appear before them.
The fourth section deals with cases of honesty or dishonesty among legal academics. One chapter deals with issues of potential cheating among international students on a law school exam. Were the cultural expectations of the professor clearly communicated to the international students? Another chapter explores potential problems with new US citizenship tests. One chapter deals with the question of whether student applications for Fulbright awards should have been disqualified because they were postmarked too late by the faculty sponsor at their university. Some of these chapters question the honesty of various academic approaches taken by faculty who ignore the practical effects of their theoretical arguments.
Perhaps the most thought-provoking section compares the ethics of lawyers with those of medical doctors. One chapter looks at non-competition clauses in the employment contracts of doctors. Another examines medical malpractice lawsuits and the legislative attempts to limit damage awards in these cases. A third looks at the question of whether patients should be consulted before doctors prescribe antibiotics and other drugs that may have no effect on the patient’s illness. How much information [*695] do patients deserve from their doctors compared to how much information do they deserve from their lawyers? These chapters raise some very exciting points of comparison between the two professions.
Thus this book raises many interesting questions that might work well in certain classes on legal ethics. Many will want to read this book as a useful diversion from their other academic work. The author brings his own wit and charm to the story telling, but sometimes I wished that I heard less of the author’s voice on these issues because that would allow more space for students to make up their own minds on these controversial questions. My only concern is at times that the author presents his own opinions so forcefully that students might be unwilling to challenge his assertions. I think all of the stories in this book raise interesting and difficult questions about the role of honesty among actors in the legal system broadly construed. Some of the vignettes, of course, are more thought-provoking than others. But the book will ignite many conversations about the role of honesty in our legal and academic processes.
© Copyright 2008 by the author, Mark C. Miller.