The Sanctity of the Guild

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This poignant reflection on the well-known Stephen Glass saga is revealing in many ways for our profession, especially for those of us in the professionalism field. One can always see narratives of transgression and redemption play out in this line of work, but it tends to be harder to gauge or guess how those narratives are heard, what effects they have. Rosin’s article is insightful as she explores her place in the narrative, and in the professionalism debate that ultimately surrounded it.

Rosin may not realize how bruising some of her reflections on our profession can be; or then again, maybe she does. “Since when did lawyers become the measure of purity anyway?” is not the kind of observation that very many people shy away from these days, yet it particularly stings in this context. Glass is well-known for having invented whole stories, quotes, people, in ways that were scabrous and offensive. There is a legitimate question about whether he should be allowed to be a member of this profession in light of his history of doing that (of course the California Supreme Court resolved that question by denying admission). It is not necessary for admissions or disciplinary systems to be considered our ethical betters, our vanguard of purity, in order to recognize the propriety of the vetting process in this case.

But journalist Melanie Thernstrom, as recounted by Rosin, asked an important question too, suggesting that there may have been more to the inquiry than forcing Glass to atone one by one for each false story: “Like, was it 27 or 42?” Part of the admissions system’s function in this case was to determine the likelihood of Glass resuming the role of the fabulist, and the way it chose to gain assurance that he wouldn’t was to ask whether he had made every conceivable effort to let truth be known and falsehoods corrected. This process was ongoing even in 2010 as the admissions matter proceeded to hearing, and the allegation was raised that Glass had been untruthful regarding his efforts in a previous application to be licensed in New York (representing that he had “worked with” several magazines to correct all known errors, when in fact the efforts fell short of that). Glass’ former editor expressed shock and outrage that the truth and reconciliation process hadn’t been completed, as if the incompleteness could only ever signify a continuing unwillingness to be forthcoming. The court faulted Glass in a similar way.

Yet Thernstrom’s question – that of a nonlawyer, an outsider to the admissions process or lawyer professionalism issues – seems apt to ask. Why the insistence on marching Glass through an effort to correct every single falsehood? It is well known that he did what he did many times, for a long time, before being caught. Why was each particular instance a reflection on Glass’ then-current fitness, when the whole was known?

In their 2012 article “Apologies and Fitness to Practice Law: A Practical Framework for Evaluating Remorse in the Bar Admission Process,” 37 ABA Journal of the Professional Lawyer (2012), Mitchell Simon, Nick Smith, and Nicole Nigowetti defined a “categorical apology” that can be used in character and fitness cases where past misdeeds of applicants are at issue. The apology, in the authors’ formulation, contains thirteen elements, which bar authorities can examine to determine the sincerity of the apology, and the overall remorse of the applicant. (Id., at 67). The first element involves the degree to which the applicant has “corroborated the factual record” (Id.) The inquiring body must “require the applicant to render transparent all facts material to judging the transgressions,” and there must be no “attempt to suppress or evade” by the applicant. (Id.)

What Thernstrom questioned in the Glass case is not whether Glass should have been required to “corroborate the factual record,” but the degree to which he should have been required to do so. How much was enough? This is an important question for advocates for bar applicants, or for any lawyer who represents a client seeking to express remorse. Could it not have been said that Glass had been open about his transgressions? According to Rosin, he was painfully so, to the point of being somewhat annoying in his over-confessions. Was that not enough to ensure what Rosin called the “sanctity of [our] guild”?

The counter-argument again falls back on candor: Glass was not candid with New York when he claimed to have made greater efforts to correct falsehoods than (the court believed) he really had. And yet again that candor reaches back truly only to the completeness question. Of what significance was the perfect completeness of this aspect of Glass’ rehabilitation? The stories were written before the Internet changed modern life and modern narratives forever, so much so that the concern that Glass could have caused harm to readers, particularly with his whole-cloth fabrications, seems antiquated. Disturbed by something you read? Just go to the next thing; there’s content everywhere. Upset that you read a story that turned out to be untrue? Click on, click on; write your own piece slamming Glass for his loathsome pantomimes. This is not to condone lying (or the pathetic caricatures Glass conjured in his youth), but to consider the real effect of false journalistic narratives like Glass’ in the media, and in reality, today. It’s also to ask: can Glass, or any applicant with a history involving deception, weave a blanket of remorse that covers – in a material way as required by the “categorical apology” standard – all misdeeds? What good is it to revisit or demand individual corrections of so much slag?

The hearing and appellate levels of the California admissions system recommended Glass for admission, but the California Supreme Court declined to accept that recommendation. Glass and his advocates made the record they could make – there appear to have been imperfect answers particularly on the questions regarding the New York bar – but in any event it was the record they needed to make. There are imperfections in every trial record, and the standard is not, and should not be, to require a bar applicant to show a perfect record of redemption.

Glass in particular had a hard row to hoe in that way; the California court seemed bent on taking even the unquestionably positive aspects of the trial record and turning them on him. The court went so far as to decline to give weight to Glass’ extensive psychotherapy, citing to precedent holding that treatment is of little moment because it tends to benefit only the applicant. The court did not acknowledge, or even mention, the idea that the therapy fixed or controlled a problem in a way that would prevent Glass from acting badly in the future, hence protecting the public and the profession. Nor did it consider the alternative: if Glass, or any applicant, does less, or does nothing, to address a psychiatric problem that affected prior misconduct, what result then? The court put Glass, and really any applicant, in a can’t-win position. Want admission? Then you shouldn’t have done what you did. Think you took steps to fix the problem? No, you were just being selfish.

What can an applicant’s advocate do in the face of that, or in the face of what the scholarly literature acknowledges is patchwork, inconsistent, and highly case-specific precedent? The “categorical apology” standard proposed by Simon, Smith, and Nigowetti is a good and thoughtful one (and I’d like to explore more aspects of it later). Based on what I’ve read, Glass’ advocates (or Glass himself) presented an appropriately “corroborated…factual record” under that standard, even if perfect corroboration was not achieved. Perfection cannot and should not be required.

 

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