June 3, 2011
Using Legacy of Watergate, John Dean to Teach Ethics
It was a telling list.
When John W. Dean III testified before the Senate Watergate Committee in June 1973, he handed over a list of names of those in the Nixon administration he believed had broken the law. His own name was on the list, along with 15 others.
Senator Herman Talmadge asked about an odd feature of the list: asterisks. Why, the Georgia senator asked, had the former White House counsel placed an asterisk by more than two-thirds of the names?
Because, Mr. Dean replied, each was a lawyer.
Mr. Dean told the senators that he thought, “How in God’s name could so many lawyers get involved in something like this?”
Mr. Dean was not the only one asking that question. In the years after the Watergate scandal, the American Bar Association demanded that law schools teach their students ethics. A portion of the bar exam was adopted in each state to test would-be lawyers on the issues. Over time, continuing legal education courses — required programs for members of the profession to retain active status — also came to include ethics offerings.
These courses rarely stir the soul, and the businesses that present them may dress them up as weekend getaways with plenty of opportunities for golf, or offer them online for those seeking a quicker and more convenient path.
But this month, an ethics course given in Chicago promises to offer something a little different: the lessons of Watergate, taught by Mr. Dean himself.
Learning ethics by studying Watergate might sound like learning about fiduciary duties by studying Bernard L. Madoff . That, Mr. Dean, 72, said in an interview, is the point. “I helped write the book of what not to do, so I’m hopeful that people can learn from that — and not make the mistakes I did.”
Those mistakes, which earned Mr. Dean four months in prison, are an integral part of the greatest American political scandal of the 20th century: the break-in at the Democratic National Committee headquarters at the Watergate complex on June 17, 1972, that was ultimately revealed to be part of a broad conspiracy of spying, payoffs and cover-up reaching to the top of the administration, and which led to Richard M. Nixon’s resignation on Aug. 8, 1974.
The half-day program focuses on the events of the week after the arrests of the burglars, when G. Gordon Liddy explained the extent of the White House “plumbers” operation to Mr. Dean, the White House counsel, and Mr. Dean’s involvement in obstruction of justice began. “That first week foreshadows everything, raises everything a lawyer can be confronted with, and it’s where the problems started,” Mr. Dean said.
The issues are complex, but come down to this: What are a lawyer’s obligations when his bosses are engaged in criminal acts?
James D. Robenalt, a lawyer in Cleveland who developed the course with Mr. Dean after they got to know each other over a shared interest in Warren G. Harding, said the course would contrast Mr. Dean’s very limited options at the time with those available to today’s lawyers, armed with reforms inspired by Watergate.
Mr. Robenalt said the course paraphrases the famous Watergate hearings question from Senator Howard H. Baker, Jr.: “What did the president know, and when did he know it?” The course asks, “What could John Dean have done, and when could he have done it?”
In 1972, Mr. Dean had few obvious options other than to serve his bosses, Mr. Robenalt said. Ethical standards were vague, and the requirement to zealously defend one’s client paramount. Under the circumstances of the rules in force in the District of Columbia at the time, the best a lawyer could have done might have been to resign rather than report the wrongdoing.
“The code prior to that time was homilies,” Mr. Robenalt said.
After Watergate, ethics rules slowly toughened from state to state, based on model rules developed by the American Bar Association and further toughened after the financial scandal at Enron, the Texas energy and trading company, through such legislation as the Sarbanes-Oxley Act, which imposed new standards for corporate oversight.
Under today’s rules, Mr. Dean would have an obligation to report wrongdoing up the ladder to the top of his organization, and could take evidence of crimes to law enforcement if the highest authority refused to act. “History could easily have been changed,” even if Mr. Dean only threatened to go public, Mr. Robenalt said. “The leverage alone could have changed the dynamic within the White House when it could still have been changed.”
After the debut course for the law firm of Skadden, Arps, Slate, Meagher & Flom, Mr. Robenalt and Mr. Dean will take their show on the road, with $300-a-head classes already planned for Ohio, New York, Washington and California.
Brian W. Duwe, managing partner of Skadden’s Chicago offices, said that the firm was looking for something that went beyond the usual ethics class, which often involves “people walking you through the canons, step by step by painful step,” he said. Expectations are so high for the Dean class that the firm is actually inviting nonlawyer clients to attend.
Society does not necessarily have a high opinion of lawyers, and “legal ethics” is the kind of phrase that elicits gibes about oxymorons. But Ronald D. Rotunda, a professor at Chapman University School of Law in Orange, Calif., and a Senate aide during the Watergate hearings, said that the overall effect of the ethics rules had been to sensitize lawyers to where the lines were drawn, and that has had an effect on their behavior. “We’re not quite in heaven yet,” he said. “We can’t make a bad person good.” But, he insisted, “Most people aren’t born bad — they’ll follow the rules as the rules get clearer.”
Legal ethics requirements are not the only reforms inspired by Watergate. Congress toughened federal election finance laws, authorized the creation of independent prosecutors, loosened the bonds of government secrecy and tightened the president’s powers to go to war without Congressional approval. “All those things have largely gone away,” Mr. Dean said, undercut over time by actions of the executive, legislative and judicial branches. Even the surge in investigative journalism in the wake of Watergate has ebbed, Mr. Dean noted, as newsroom budgets shrink. The upgraded legal ethics rules, he said, are “the only lasting legacy of Watergate.”
© 2011 The New York Times Company
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"The master class has always declared the wars; the subject class has always fought the battles. The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and everything to lose--especially their lives." Eugene Victor Debs
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