being sage advice, it almost seemed like the response to that was that you didn't have the grit to, you know, do the job that -- >> little old lady. >> little old lady was the term they used when you were trying to be the trusted adviser and confidant of your adviser and doing your job and putting the brakes on causes them to lose confidence in you because they want somebody who is going to be aggressive and push the margins. i don't think that's at all unique to that setting in terms of -- >> if i can respond, i think it's an excellent point, but the power relationship between attorney/client varies very much. i mean, many times we say confidentiality should be as broad as possible because if a client knows that he or she could tell you everything that's going to happen, then you could convince them not to do it. so if someone comes and says, well, i'm going to do this and that's good because they know you're not going to turn them

in, the advantage of that is nor you to tell the client, don't do that, don't do that, and they will listen. yet, what i think we see in watergate especially is that the lawyers were in a much weaker position than the client when bob mardian goes to john mitchell, that's a big power difference. gordon liddy wasn't exactly a typical client who was going to listen to the lawyers' advice. there was some dispute with your cross-examination as to whether he told liddy to turn himself in there. >> also isn't there a question of whether liddy was his client, getting to that issue, because liddy did not work for creep technically. he worked for the finance committee, so he wasn't mardian's client and does that make a difference in how you approach this from an ethical standpoint? >> this is where the rule did not apply, but today it does. you know, jim could fit in there how that works in. >> let me add a layer here because i think this is a really

important point. personal relationships that develop between the lawyer and the client are the things that cloud the judgment and that cause the problem. when you represent an organization, you're hired about general counsel, the ceo, whatever, and you have a personal relationship. you play golf with them, and these are the people who you believe you represent in your own heart of haerts, that's who you're thinking about. that's who john was thinking about when he represented the office of the presidency. he felt he represented richard nixon and, you know, mardian the same way. he was very close to mitchell, had a personal relationship with him. and the problem is these personal relationships cause the difficulties. so the rule that's in place, the 1.13 says your organization is the client, not the constituents, and you have to be clear about that. and you have to tell them that you're representing the organization. let me just give one example out of this i think is very instructive here.

when -- during the first week if you listen to all the tapes of the first week, what you hear nixon saying -- and nixon wanted to get out of this. i didn't want to commit a crime. he wanted to get out of this situation, but if you hear and watch closely what happens during that week, nixon's concern that his friend, the personal relationship, mitchell is involved because mitchell had gone over to the committee to re-elect. he's the guy who authorized this ultimately, and nixon kept saying, did mitchell know, did mitchell know, did mitchell know? and at one point we played this tape where haldman comes in and says we should cut it off at liddy. he'll take the wrap. he'll say he authorized it, and we'll just cut it off at that point. >> mitchell. >> no, at liddy, at liddy, and let liddy take the rap, and nixon says, these are these personal relationships and how they get involved, he says i don't think we can do that because liddy will never be able

to explain why he had $250,000 at his disposal. it will affect mitchell, and he can't take it now. why can't he take it now? his wife was going through a very difficult time because of alcoholism and other matters. she was threatening suicide if he didn't get out of politics, and so richard nixon, who felt he owed his presidency to mitchell, who was his campaign guy in 1968, could not blame mitchell for this, and so, therefore, the cover-up happens, and it's very much related to this whole issue of personal relationships, and so i think what the rules are trying to do is to say you as lawyers, you need to step back and understand that you can't let these relationships decide how you advise your client. the organization is the client, and that's 1.13. and that's the big difference, i think, today from the rules back then. >> and jim has made a very good point, but let me ask a question

of arnie where liddy had no relationship with mardian, liddy was not his client technically, but liddy did try to become his client. liddy actually said he wouldn't talk unless mardian would take a dollar so they would have attorney/client privilege, and liddy was a lawyer so he knew about the privilege. did that have any impact on how things were handled? >> i think mardian actually handled it properly. when liddy offered him the $1, mardian explained very clearly, i am not your lawyer. i mean, he said to liddy, i am not your lawyer. i am the lawyer for the committee to re-elect the president, and he said i will tell john mitchell everything you tell me, but i will not tell anybody else, all right? now, the one thing that goes unspoken is that under the rule, all right, since the head of the

organization has the right to actually waive, so john mitchell could have said to mardian, if liddy told you that, i am now ordering you to go to the justice department, to go to the fbi. of course, liddy, knowing what he knew, wasn't really concerned about that, all right? but when you speak to an employee of an organization, there should be a speech. i am not your lawyer. i am the lawyer for the organization. what you tell me i will not disclose outside unless after i disclose this to the organization's head i am instructed to. if you want to get your own lawyer, you should get your own lawyer, i'm not your lawyer. at the time of watergate, there was no rule on that. there was no rule on that. the only rule was in an ec, an ethical consideration, not a dr.

and the ecs meant we'd like you to do it but you can't be disciplined. there was no dr. it was an ec that said the lawyer is the lawyer for the organization. >> actually, what it said is the lawyer owes his allegiance -- >> it's even weaker. >> it's a very nebulous -- >> even weaker. but interestingly, and i'm not trying to say this proves mardian was not guilty, what he did was actually what the aba eventually adopted. he said to gordon liddy, i am not your lawyer, so i am not your lawyer. i'm going to tell john mitchell everything you tell me. all right. the question you asked on cross-examination, did you explain to liddy that mitchell could waive the privilege, mardian's response was, well, that was a risk that liddy had to take. but, of course, we all know liddy didn't worry about that because he knew that john mitchell knew as much as he did, so he was i don't think concerned that mitchell was

going to turn him in. >> because what he was saying was that mitchell was the one who was behind it all. so, of course, he was going to withhold it and not reveal this. >> but in other segment you that employee better be warned you're going to tell the boss and that the boss could very easily tell you to disclose it. i think that's very important. >> in fact, that's called the upjohn warning today. can i say one thing for this audience that jill had two moments that the were her shining moments during the watergate trial, and this is of mitchell, ehrlichman, mardian, et cetera. one was her rosemary woods moment when she got her to do the rosemary stretch and showed the 18-minute cat. the other was that she cross-examined bob mardian. now, bob mardian was a department of justice guy. if you see a picture of him, he's a tough guy, hard-nailed

guy. he was a little bit explosive in his personality. >> take away the little. >> so they put jill up to cross-examine him and she within a very short period of time got him angry, and he acted out, and it's part of the reason i think he got convicted. >> i think there's no question. and unlike rosemary where i took her as a witness based on timing, we actually did debate within the office whether i would cross-examine mardian because we knew of his explosive temper, and he was pretty generally disliked i think. to your credit, you find some good in him, but there are very few people who do, and we thought if we could get him to yell at me, it would be much more impactful than if he yelled at rick or jim, and that the jury would feel, oh, you can't treat that nice lady like that.

but then we thought that because of chauvinism he might not no matter how i provoked him, he might control himself, and it didn't take long. he easily exploded. >> what was the question you asked him? >> who knows. i don't know. >> prawhat's your name? >> probably. the jury hated him. the defense lawyers were all literally just jumping out of their seats, recess, recess, recess, and the judge called a recess. and they tried calming him down and part of the appeal was based on that if he had had his original lawyer of choice he would have honored that lawyer's advice and would have calmed down and that i wouldn't have been able to provoke him and that, therefore, he wouldn't have been convicted because it did play into the conviction. we'll never know. there was enough evidence of his actions that started before he was the lawyer but when he was

just a political operative, so i want to keep that in mind. this was not for violating attorney/client privilege that he was indicted. it was for alaskas that had nothing to do with that, but he did get significant information from liddy which he continued to withhold, but that wasn't the cause of his indictment. >> can i go back to just one point that i'd like to hear your thoughts about this because you mentioned about all the people disciplined, that they weren't acting as lawyers. i want to go back and explore that a little bit. as i understand the rules now that i have done a lot of reading, if you are a lawyer and you have a license to practice law, you are under the ethical rules wharf you're doing, whether you're practicing law, whether you're a ceo or president of the united states who is a lawyer, and, in fact, did he get disciplined as part of this nixon? >> he was disbarred. >> in california?

>> in new york. >> i think most people would be surprised to hear just because i'm a lawyer i have to follow all these ethical rules even though i'm not acting as a lawyer. i'm curious about that. >> some of the rules are specific about in the course of your representation, so not every rule is going to apply to every relationship one has just because they're a lawyer. the duty of confidentiality it going to apply to somebody you have a client relationship with. but in terms of lawyer misconduct, the rules allow for a lawyer to be disciplined when the lawyer engages in criminal or fraudulent conduct, and that is not confined to during the course of one's representation of a client. so, you know, that in part also applies to character and fitness when state bars are deciding whether they're going to admit somebody to the bar in the first instance. they don't just look at their

conduct as a law student. they're looking at their character as a human being and as part of that there's always one case that i teach where there was some egregious misconduct but also the student had not paid 2 -- or had received 250 parking tickets while attending law school. all of which had been paid or contested, but the number of them just showed a gross contempt for the rule of law. this was compounded by the fact that he imperson asonated a cop. i don't know if the parking tickets alone would have kept the court from certifying him. if we while buying a home lie on our mortgage documents that would be seen as conduct that is unfit to somebody who should

have a law license even though it wasn't done in the course of representing a client or acting as a lawyer. >> because, laurel, wouldn't you say or would you say that one good example of what you're talking about when it's not in your role as a lawyer but it's covered by the rules would be our governor, our former governor, rod blagojevich, who -- >> yes. >> was disbarred because of his conduct that had nothing to do with his being a lawyer. he was being a politician and doing illegal acts and was disbarred for that. isn't that just a good example of how the rules apply in nonlegal context. >> right, right. and just to share with you because i happen to have it in front of me part of the order that disbarred president nixon, when the -- in describing his conduct the court said that mr. nixon improperly attempted to obstruct an investigation by the united states department of justice of an unlawful entry

into the offices of dr. louis fielding, a psychiatrist who had treated daniel else burg, improperly concealed and encouraged others to conceal evidence on unlawful activities of his staff, and improperly engaged in conduct which he knew or should have known would have interfered with the legal defense of daniel ellsberg. he was not acting in a lawyer role but because of that conduct, he lost his law license and he tried to voluntarily resign his license to the new york bar, and they really wanted to write the order disbarring him. so they declined his voluntary resignation and proceeded with disbarment proceedings. >> and, jill, if i could have one point here. the whole reason we're here today is because when john testified in front of the senate, he had created a document in which he was asked

who was involved, prebreak-in, most break-in. he wrote it out for his lawyer and then he put stars or asterisks next to the names of many people. when he was shown that during his testimony, he said, you know, what do the stars mean? he said, well, it means that they were all lawyers. and, you know, a full two-thirds of the people involved here were lawyers. gordon liddy was a lawyer. chuck colson was a lawyer. president nixon obviously was a lawyer. but, you know, all of these people were lawyers, and yet none of them had been trained in legal ethics. it was not mandatory. it was not required by the aba for a law school to be accredited. and john said, the words that resonated around the country, was how in god's name did so many lawyers get involved in something like this? so everybody -- for the public it was -- the reaction was, you know, really, how did so many lawyers get involved in crime?

at the highest levels, the presidency. and their big question was, can lawyers just sit back and know that crimes are going to happen like paying hush money and they can't do anything about it? you know, the defense of confidentiality, is that true? is that really our system? so that gives rise to all these reforms. you know, you all have to take ethics, you take a bar exam, cl e that we're doing, and the change in the model rules that was an outgrowth of all of this, and yet here we are 40 years later, and if i read the rule that still applies here in california, it says this. it is the duty of an attorney to maintain inviolate the confidence and at every peril to himself or herself to preserve the secrets of his or her client. imagine -- >> everyone thought it's going

to be narrow. when the debate came up, the aba really decided to broaden it. >> and why do you think that was and was that a good outcome? >> personally i agree with a very broad confidentiality role. >> because? >> i believe we need to encourage people to speak to lawyers and to get a client to come into a law office and talk to a lawyer is more important -- is very important because then i do believe in most situations the power that the lawyer has over the client will lead the client to obey the law and not -- and follow what shuck done. that's not always true but as a general rule, i believe to encourage open communication with the lawyer that broad confidentiality rule is better. that is what the commission recommended, a middle ground and the aba went further. having said that, as you mentioned before, i do not see a

national consensus among all the states. some of the states have required disclosure, some have permissive disclosure, some have limited permissive disclosure. one more point here about laurel's idea that -- and jim was commenting on being a lawyer and not being a lawyer. there was a defendant who was only a lawyer, and that was ken parkinson. >> describe what he did. >> right. so what happened was -- a picture up there has all five. them. they were the five defendants at the trial. ken parkinson is in the part. you have haldeman on the left who grew his hair out. bob mardian who could not grow his hair out. john ehrlichman, john mitchell, and ken par kkinson in the fron. when mardian resigned as the lawyer on thed nc civil case to go back to campaign work,

mardian had been the goldwater 1964 western states campaign manager for barry goldwater from arizona, and in 1968 he was the western states campaign person for nixon in '68. so he was more -- he wanted to get voched with the campaign. he agreed -- mitchell agreed he could leave the case, the dnc civil suit, and he hired an outside lawyer, ken parkinson and the favor mardian did for hiring parkinson led him to also be indicted. there are some overt acts in the indictment involving mardian that do not relate to wall as a raur. i think ken parkinson only, only get with his role as a lawyer.

he was found not guilty at the trial, all right? he was found not guilty at the trial. so the one person who was solely involved as a lawyer was found not guilty. mardian's defense was hifs solely voched as a lawyer and i should not be convicted. obviously the jury did not believe that in coming back with a guilty verdict. >> if i could make one follow-up comment. after watergate the aba decided to revisit the model code of professional conduct and they formed the commission, and their first draft of 1.6, while it did broaden confidentiality, it also contained new exceptions about when a lawyer could reveal confidences in order to prevent death or substantial bodily harm, and then also additional crimes or fraud that could harm financial interests. and that was rejected by the aba house of delegates.

so while the initial draft did broaden, it did then include these important exceptions, but that was not ultimately adopted by the house of delegates. there were two more subsequent attempts to include those exceptions which did not pass and it was not until after enron that we finally see permissive exceptions where lawyers could in certain circumstances reveal confidences to prevent things such as financial fraud, and i'll just make one side note in terms of confidentiality. i think there is no consensus and it is something that we revisit and in other context also. in illinois a few years ago there was a nationally publicized case where two public defenders had defended a man who told them that he had committed a murder -- he was on trial for killing two police officers. while they were defending him, another man was arrested in a

different murder, and their client said, hey, that guy who is on murder for killing that mcdonald's security officer, i did that one, too. ha, ha, isn't it funny? somebody else is being convicted for that. so they had to keep that confidence, and one thing they did do was they asked their client if they could reveal that confidential when he died because usually our confidences survive death. we have to keep them even after our clipts are no longer alive, and they expected their client to be executed fairly shortly because of the murder conviction of the two cops, and he agreed that they could reveal that confidence -- >> he actually signed a document, didn't he? >> no. it was an oral agreement that was then documented in an affidavit that the two public defenders prepared. well, it turned out he managed

to evade the death penalty and he lived for 26 years, and so they kept this affidavit in a lock box under one of their beds, and then once he finally passed away, they came forward and alton logan is now a free man. and the public just, you know, oh, they just hate lawyers when they hear stories like that, and it also causes a lot of lawyers to really reconsider, did we have the right balance there? you know, in terms of when we keep confidences. we do have massachusetts and i believe one other state in their rules do allow for the breach of confidences in order to prevent wrongful incarceration. there has been some talk about proposed amendments that would allow the breach of a confidence after death. that would basically allow in the rules what they did by client agreement. so this balance is an ongoing dialogue in the profession that

can come up in lots of different areas. >> i wouldn't to turn now, we've talked a lot about the confidence issue, and it comes up not just in the esoteric areas or in something like watergate. i had a pro bono case where the client stayed that she was going to kill her boss, who had accused her of sexual harassment. and i went to my firm and said, what do i do? do i have to warn him? could she really do this? and it was a major cause celeb within the firm. we went to the bar association. they couldn't decide. i finally decided i would ask her psychiatrist if she would violate her kf den and tell me whether it was likely she would do it and the psychiatrist said, no, she wouldn't really act that out. so i fired the client and warned her that if she did anything she

was no longer my client and if she made any further threats that i would reveal them, and as far as i know the gentleman was never murdered but these things come up in the strangest of way. >> i think that was the point i was trying to make. i think most people that come and tell you they're going to kill somebody aren't going to do it, all right? and to get -- >> but you don't want to have to worry about if they do. >> but to get them into your office i think is a big value, and for them to know it's confidential, to get them into your office with confidentiality, that's why when you asked me my. i'm in favor of a broad confidential rule because i think if they had someone to talk to, they knew you wouldn't turn them in, they talk to you, and they did it. it's not going to work in every situation. that's why i feel that way. >> can i argue a little bit with him on this point?

i feel very strongly the opposite. i think the reason there was such a debate within the aba and especially after enron that they did finally adopt these rules allowing reports to point out that i think the public looks at us, as lawyers, as not just playing the advocate role. i think they look at us as having a public hat and trying to keep care of the public good. i come from a family of lawyers, small town of lawyers. my dad and grandfather were lawyers. when something like this came up, they worked things out to the public good. i'm not so sure they worried about client confidences as we do today. the point is i think the public looks at lawyers and they believe lawyers are playing a role that is a public role. and i think that is our job, too. i do think there are points where we need to exercise our

judgment and we need to force clients to do the right things so that crimes don't happen, especially economic crimes, which is what a lot -- what the aba was about and all these people who lost money in enron while lawyers knew what was going on. so i think it is the right balance to have the limited ability to report out. i don't think that that chills client communication. people who are bad actors are bad actors, and they need to have strong lawyers. and other people who will listen to you are not going to be chilled by the fact that they think you could say something about it. so i feel pretty strongly that the aba came to the right result and that most jurisdictions now have the right result. >> could i take a small issue? >> sure. >> while i agree, i think the public does see us both as advocates and public servants, i don't think anybody feels that way about their lawyer.

that's a general concept but once it comes to they've hired a lawyer for something -- recently somebody said i want a lawyer, give me a recommendation. i want a bulldog, a pit bull, it's maybe a little different in the generic versus what clients expect of us and how we have to as lawyers help manage those expectations about we are not there to help them win by any means whatsoever. there are limits to our role. >> one thing that's important in this discussion is lawyers in litigation are advocates and that's one thing, but lawyers in transactional deals really are not so much the advocates. they're supposed to be in there making sure this deal is done according to what their clients back. the best example, ron, i think you give in your book. you have a closing, and you get to the closing, and your client, who you have done