Conflicts of Commitment: Legal Ethics in the Impeachment Context
Rhode, Deborah L., Stanford Law Review
During the impeachment proceedings against William Jefferson Clinton, a recurrent theme involved the rule of law and the role of lawyers. One memorable exchange occurred between Henry Hyde, Chair of the House Judiciary Committee, and Father Robert Drinan, a Georgetown law professor appearing on behalf of the President. What does it mean, Hyde asked rhetorically, when the nation's chief law enforcement officer "raises his hand in a lawsuit, swears to tell the troth and then doesn't ... does that erode, diminish, depreciate the rule of law ...?" "I suppose the answer is yes," Drinan responded, but "that is not the right question." To which Hyde responded: "I will do the questions, you do the answers."(1)
One lesson of the impeachment proceedings is how much it matters who gets to frame the questions. And to a considerable extent, that prerogative belonged to lawyers, both as prosecutors and defenders. Their role in the proceedings prompted renewed attention to longstanding issues of professional ethics. Familiar criticisms surfaced and resurfaced with numbing predictability. Lawyers were condemned as evasive, hypertechnical, greedy, self-serving, and amoral. The bar's defenses were equally familiar. Lawyers were applauded for upholding commitments to the rule of law, procedural fairness, and constitutional standards.
On balance, however, too much of the lawyering on display inspired too little public respect. In her New York Times column, Maureen Dowd summarized a common view: The nation's finest legal minds had managed to "bollix up everything and make a ton of money doing it." The process seemed awash with lawyers, with "more lawyers to fix the problems of ... lawyers."(2) And then, of course, came the parade of lawyer-pundits attempting to make sense of it all.
I cannot resist joining that procession, if only to help shift its direction. The recent impeachment proceedings raised crucial questions concerning lawyers' responsibilities to clients, to the system of justice, and to society generally. The process also revealed broader problems in regulatory structures. As a specialist on legal ethics who worked as senior counsel for the House Judiciary Committee minority members during those proceedings, I have a particular stake in placing those questions in broader perspective.
I also have views and constraints that are shaped by this experience. Obligations of confidentiality and concerns about objectivity prevent me from commenting or relying on the work of the House Judiciary Committee and its legal counsel. All of the sources for this article are part of the public record, and all of it was written after I left my position. Although I have tried to be as fair and accurate as possible in analyzing the ethical questions at issue, my prior role cannot help but affect my assessment. Personal involvement in a partisan proceeding inevitably shapes perceptions. As an ethics professor writing about ethics, I would be irresponsible not to acknowledge the potential for bias in my own analysis.
But neither does it follow that the appropriate response would be to avoid all discussion of matters connected with the experience. The legal ethics issues involved in the impeachment process are ones in which legal ethics scholars and the entire legal profession have a considerable stake. It would not advance the long-run interests of either group to disable academics who work on policy issues from incorporating their insights in later research. In this, as in many other contexts involving conflicts of interest, disclosure, rather than disqualification, seems the most responsible course.
What follows is an analysis of issues of professional responsibility surrounding the Clinton impeachment proceedings. The picture that emerges is by no means a complete portrayal of lawyers' roles in that process. The profession can be rightfully proud of many attorneys' performances. And on some of the less commendable conduct at issue, the full facts are unavailable. …