Friday, November 13, 2009

"A Good Lawyer Knows The Law, A Great Lawyer Knows The Judge"


A few days ago I went off on the generally declining standards in our profession, the business community, and in society as a whole.

I heard another piece of those declining standards on WLRN this morning, as Peter Galbraith offered a spirited defense of his undisclosed investments in Kurdish oil fields which will net him $100 million or more.

Glenn Greenwald lays out the issue nicely:

Galbraith was one of the most vocal Democratic supporters of the attack on Iraq, having signed a March 19, 2003 public letter (.pdf) -- along with the standard cast of neocon war-lovers such as Bill Kristol, Max Boot, Danielle Pletka, and Robert Kagan -- stating that "we all join in supporting the military intervention in Iraq" and "it is now time to act to remove Saddam Hussein and his regime from power." As intended, that letter was then praised by outlets such as The Washington Post Editorial Page, gushing that "it is both significant and encouraging that a bipartisan group of influential foreign policy thinkers, veterans of both Democratic and Republican administrations, has signed on to a statement of policy on Iraq that makes sense on the war." Throughout 2002 and 2003, Galbraith appeared in numerous outlets -- including repeatedly on Fox News and with Bill O'Reilly -- presenting himself as a loyal Democrat firmly behind the invasion of Iraq. In 2002, he was an adviser to Paul Wolfowitz on Kurdistan.

After playing a key role in enabling the invasion of Iraq, Galbraith first became one of a handful of U.S. officials who worked on writing the Iraqi Constitution, and after he resigned from the government, he then continuously posed as an independent expert on the region and, specifically, an "unpaid" adviser to the Kurds on the Constitution. Galbraith was an ardent and vocal advocate for Kurdish autonomy, arguing tirelessly in numerous venues for such proposals -- including in multiple Op-Eds for The New York Times -- and insisting that Kurds must have the right to control oil resources located in Northern Iraq. Throughout the years of writing those Op-Eds, he was identified as nothing more than "a former United States ambassador to Croatia," except in one 2007 Op-Ed which vaguely stated that he "is a principal in a company that does consulting in Iraq and elsewhere." When he participated in a New York Times forum in October, 2008 -- regarding what the next President should be required to answer -- he unsurprisingly posed questions that advocated for regional autonomy for Iraqis generally and Kurds specifically, and he was identified as nothing more than the author of a book about the region.

What Galbraith kept completely concealed all these years was that a company he formed in 2004 came to acquire a large stake in a Kurdish oil field whereby, as the NYT put it, he "stands to earn perhaps a hundred million or more dollars." In other words, he had a direct -- and vast -- financial stake in the very policies which he was publicly advocating in The New York Times, The Washington Post, and countless other American media outlets, where he was presented as an independent expert on the region.
Galbraith's defense was basically that there is no conflict -- his investments in Kurdish Oil are entirely consistent with his advocacy of Kurdish autonomy and control over their oil fields.

I couldn't help but think how disingenuous this is, and how often we see this in legal briefs nowadays.

Remember in law school how there was some loose governing feature which reigned in absurd or ridiculous arguments -- the "red face" test. You just weren't supposed to make an argument that you knew yourself was preposterous.

Yet Galbraith did just that -- the issue was not whether he personally has an inner conflict between his business investments and his public advocacy. That has nothing to do with anything.

The issue is whether it was unethical for Galbraith to pretend to be an "independent expert" and hold himself out as a disinterested observer yet fail to disclose he would personally and financially benefit from the policies he advocated.

Any moron can see this, yet Galbraith very happily and vigorously acted as if what he was saying made perfect sense.

We see arguments like this all the time in the law nowadays -- non sequiturs that have nothing to do with the issue at hand yet sound superficially appealing and noncontroversial in the abstract. Listening to Galbraith this morning I almost felt he was pathological -- he was utterly convinced that what he was saying was entirely logical and reasonable, yet it was totally irrelevant to the issue at hand.

(Perfect for motion calendar!)

I think it's the same dishonesty and disrespect for the intelligence of the listener that would make a lawyer like Scott Rothstein boast that "a good lawyer knows the law, a great lawyer knows the judge."

I understand when people outside the legal profession say something like that -- it reflects a certain cynicism regarding the legal process and feeds a negative public perception that already exists of lawyers and the law.

But for a lawyer to put this saying prominently in a law office evinces a deep disrespect for his profession and for the judicial process as a whole. It says that the law is subservient to personal relations, and that judges will bend or violate the law outright based on who is making a particular legal argument.

We see this factor all the time in our profession -- businesses seeking to hire attorneys want someone "connected"; when hiring local counsel it's always important to know someone who "knows the judge."

Older lawyers -- the kind Rothstein imagined himself to be -- delight in their ability to walk up to a judge and slap them on the back and call them by their first name, an ego-stroking exercise for both the judge and the lawyer.

I have no problem with familiarity -- we make judgments all the time based on levels of trust and respect and reputation, all of which arise from empirical experience and the people we deal regularly with as lawyers or judges.

But at its core there is something corrosive and rotten about a lawyer broadcasting loudly his ability to bend the system to his will based on who he knows.

Scott has disgraced our legal community in ways large and small, and it should give us all pause over the superficial nature in which money, influence and personality somehow bought instant respect from judges, lawyers, and colleagues who all should have known better.

Indeed, whatever lulled us into "buying" Scott Rothstein has to be dissected and analyzed, and our behaviors modified, or else it will be deja vu all over again and we'll all be scratching our heads and wondering why.

18 comments:

  1. Ditto. Needed to be said.

    ReplyDelete
  2. Dude, that post is way too long for the common lawyer to understand. Can't you just post another picture of cleavage?

    By the way -- why no comments re hot ASAs and PDs? Are they just not there?

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  3. Galbraith needs to stay off the radio.

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  4. @10:19-it's Friday, he will.

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  5. I predict Rothstein gets a public reprimand from the Florida Bar for all of these shenanigans.

    ReplyDelete
  6. Very well written but I have a judicial fundraiser to attend.

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