says, you know, the biggest tenant just gave me notice this morning that they're not going to renew, and the other side is about to pay $100 million for this mall or whatever, and i'm not going to tell them. and you as a lawyer under very old rules would just have to resign or go through with the transaction even perhaps, and today under the rules you would say to that person, look, you got to tell them about this because if you don't i'm going to, and that that's what -- that's the leverage that was meant to be put into this situation, and in situation like that, i think that is the right result for something like this. >> so before we move on to the next subject, i want to say you said your deal -- or your job as a transactional lawyer is to do whatever the client wants and i would say within the law. it's up to you as the adviser to say, well, you can't do it exactly the way you want, but if you restructure the deal, you could do it.

that is your role as a lawyer. let's move to another issue that was a big topic during the watergate, which was when your client is an organization, not an individual. it's not like gordon liddy coming in and saying to bob mardian, here is a dollar, represent me, so i can tell you everything. what happens when your client is an organization? how do you decide who you're representing and how to handle what you learn, who do you tell, when do you report up, when do you report out? >> let me just use bob mardian's situation. i think he handled it totally appropriately. in this situation, he had the committee to re-elect the president as his client. he told john mitchell everything he learned. john mitchell told him everyone was lying to him. he decided to walk away. bob mardian was only involved for about 30 days. it's not a question where you

have somebody who cannot get other counsel. in that situation i think that when you have a powerful organization where the upper levels are refusing to cooperate, withdrawal is the appropriate mechanism. in terms of noisy or not noisy, anything there was noisy. people knew he was gone. so where is bob mardian? he's not here anymore. everyone knew that. i don't have a problem with a noisy withdrawal, of stating that he's no longer representing and they can draw any conclusion they want. i don't have a problem with that. i do have a problem with saying, and i'm resigning because this is all the information i have heard. so i believe that the confidence belongs to the organization and that the top people, whether it's -- that was headed by one person, it was the director, so that's my position on that. >> so what the rule provides today, 1.13, is that when you

confront a situation like this, a fraud or a crime that you find out, what you're required to do is go to the higher authority than the person you're dealing with to report, and then if you're not happy with this, you can, if warranted, go to the highest authority within the organization, and the way the model rules are written, you're rird to get required to get to the highest authority. you get to the ceo, you're still not happy, you go to the board, and if you're still not happy, you go to the special committee of the board that's been formed for something like this, but you havehaust your remedied within the organization. the idea is try to cure it within the client. a lot of people write about this and say it's going to be a rare you a did committee that you get to that doesn't follow a lawyer's advice at that point. the whole idea is get it all the way to the top, and make it work. and only under the most extreme circumstances can you then report out. and even when you report out,

you can't just say i have learned all this stuff and here is everything i know. it's very limited, very tailored to the situation to stop what's going on. in john's case we point out that he would have had to report up the next highest authority. that would have been hall deman and ehrlichman, which he did talk to. what the rule today gives him that he didn't have back then, and if warranted, if those guys don't do the right thing, which they didn't, all the way to the president then, and then he gets to the president, the first week after the break-in, and, you know, we're not trying to say this would have happened, this is -- counter factuals are always difficult, but it's during that first week when positions are taken and the die is cast. so he needs to get all the way to nixon himself, not through a talking head, but himself and say, mr. president, what gordon liddy told me was they committed these past crimes, the ellsberg

break- break-in, the watergate break n break-in, and they want to pay hush money in the future, and nixon has the ability to deal with the situation directly rather than eight months later when he has to go in and say there's a cancer on your presidency. by then it is a cancer. it's not yet a cancer in that first week, and he has the ability to get to him, say do something about this, and then the question is, well, really, would it have made any difference with nixon? interestingly, one of the tapes that has not been transcribed that john has transskrand is on tuesday night when he comes back to the white house, and he's talking to 458d halderman after talking with mitchell and he says what mitchell talked about is why do we have the miami community form a defense fund for these people? that will be good politically because that will kind of activate people and they're already anti-mcgovern, and it will be an open and obvious defense fund as opposed to getting money in a bag, you know, in a park somewhere and that sort of thing.

so it really -- it really could have made a difference in this first week had john been educated in these rules, steeped in them, had his antenna quivered, all these points, and had he then had the leverage to say to haldeman who blocked access to nixon, to everybody, not just john, you know what, i have got to get -- i have to report to the highest authority, and i have got to do it. and if you don't let me do it, then i think he could under the rule today report out. it's another big question that comes up, so it's a very interesting question in terms of watergate, what would have happened. >> and, laurel, did you have an opinion on this? >> i can't remember the original question. >> let's move on because i do have a specific -- i have a specific question for you which is, in your writing you talk about the third parties' interest, and i'd like you to talk about some of the pros and cons of putting a lawyer in the

position of having to be responsible, not just for protecting their client, but for protecting the public which might be in contradiction to their interests of their own client. >> yeah. i was sort of reading a lot about watergate and thinking about some other contemporary cases -- >> and she was 2 at the time. >> yeah, i was 2 at the time of watergate so i'm also approaching it from just learning about it from a historical perspective, but the interests of the rights of third parties was a theme that kept coming up in my mind, and that can come up in different ways, and i don't necessarily know that it's the lawyers' role to take on the responsibility of protecting the rights of third parties, but we should certainly be mindful of when we are harming them through our actions. and there are times when our actions, doing our job will

require us to harm good people, as one of my colleagues frequently says, and then, you know, the xasm that i just talked about with the alton logan case, there the lawyers were following the rules. that is exactly what the rules required of them, and that certainly harmed a third party. mr. logan spent 26 years in jail for a murder that he did not commit. and that is -- that was following the rules. when we think about it through that lens, that gives us an opportunity to think about reform. are the rules right? should we be thinking about amending those rules. if we think about the invasion of the interests of third parties, it might sometimes prevent misconduct. as i was reading through many of the disbarment orders, i sometimes think, if they had stopped and thought about what they were doing to another person, would that have given

anyone pause? and the one that really jumped out as i was looking through some of the orders was when bud krog was disbarred. the order disbarring him talked about, again, the breaking and entering into dr. fielding's office, that he was -- that he and other co-conspirators did without legal process, probable cause, search warrant, or other lawful authority, entered the offices of dr. fielding to steal information related to daniel ellsbe ellsberg's mental health care and that they did thereby injury, oppress, threaten, intimidate dr. fielding in the free exercise and enjoyment of the right and privilege secured to him by the fourth amendment of the constitution. what i found more interesting though is when he explained his

reasoning about why he decided to please guiplead guilty to th crimes and that reasoning is contained in his disbarment order, and he basically said i was on a trip with my family, and i had a chance to sort of assess my situation, and here i was, a defendant in a criminal proceeding but presently free, able to attend the church of my choice and be entitled to all of these due process rights, and it felt hypocritical. i felt like if he continued to defend my conduct, how could i do that when these are the same rights that i had invaded that i was now taking advantage of. so sort of the way i started think being it is if we as lawyers sort of constantly thought about how is our conduct, how are our actions impacting others, one, maybe it

would deter misconduct. two, it will give us opportunities to think about is the balance right or does there need to be reform. or, three, perhaps there are times where it is legally permissible, the course of action that our client is going to take, but it will harm third parts and maybe we should -- that's an opportunity to have a discussion about is this the right thing to do even if it fits within the letter of the law. and i sort of think about enron that way. there was a lot of, you know, where were the lawyers? it wasn't that they had engaged in misconduct that we can name the way we can in watergate, but did they think about all these people who were going to lose their retirement funds and the $70 billion of lost wealth and, you know, that's what a lot of the writing about that event is, were they asleep at the helm even though they didn't, you know, counsel their clients to break the law necessarily.

>> i think that's a very good place for us to maybe go to one last question amongst ourselves. >> can i comment on -- >> let me just say what i want to do because we're running out of time and i want to make sure we have time for audience participation, audience questions. so i'll let you give a twitter-length answer. >> well, there is one part of the watergate trial that hasn't gotten much attention and it just fits in very much like this. and this was a statement by james neil who was the main prosecutor. mr. mardian's lawyer, david bress, who had been the u.s. attorney in the district of columbia in the middle of the trial became very ill, and mardian moved for severance at that point because his lawyer, david bress, became very ill, and i think this is very responsive. james neil responded this way,

i'm just reading from my book, this is a terribly personal problem for me. i know dave bress. i have always liked dave bress. i'm terribly saddened by the fact he's seriously ill. okay? then he says, however, that as long as i am representing the government, i will not oppose this motion to sever. this is not based on any legal grounds. this is based on my own personal respect for david bress. all right? so to me what happened there was that the prosecutor, james neil, made a decision that was based on a factor other than the law, all right? the law, he felt, was clear that severance was not appropriate, but that out of respect, his own

personal respect, he would not have the government oppose the motion to sever. all right? and the judge denied the motion to sever, and when we worked on the appeal, we really thought how could -- i hate to say this, how can we use this against the government, all right, because as i wrote, this was i thought one of the most fair, heart wrenching things i had ever seen from a prosecutor who in the middle of the trial just said, you know, as a matter of law, this is not necessary, but i cannot oppose this out of my own personal respect for this man who i have nen fknown for so ma. in truth mr. mardian's conviction was reversed because of the failure to grant a severance, all right? this shows us i think an example of when lawyers do make

decisions which go beyond the legal requirement to bring in their own personal morality, and i applaud the personal moral it. it in part led to reversal of the conviction. >> of course, i think what it shows is what a great lawyer jim neil was and what a fine, fine person who unfortunately has recently passed. >> absolutely. >> but was really a great person. i learned so much working for him, and i had the privilege of trying cases with him in private practice, and i learned a lot more even there. so he was a great guy. one last question for the panel and then we're going to take questions from the audience and, again, twitter-length answers. are we now with the current rules at the right balance in terms of both organizational representation and confidentiality or do you see a need for major changes in the

rules? >> yes. >> yes? >> you said twitter-length. >> yes, but is it yes to which question? yes, we're at the right place or yes, we need changes? >> i think the model rules are at the right place and i agree with arnie that the jurisdictions are all over the place, and so it still is a national issue and it's interesting that our profession does not have a national cde of ethics for lawyers. it's state by state, and so i think the model rules has got it right the way they put it together. so that's my answer. >> everybody else agree? laurel? >> generally, i think that they've got it right. i would be happier with a shall, if death or serious bodily harm is involved instead of may. >> i agree. i think the model rules which are only permissive, not required disclosure, are appropriate, but there's a great variation. tying it into this little symposium, i don't think watergate had that big an

impact. i think everyone after watergate thought that disclosure would be required. the watergate defense of hiding behind your lawyer, well, that should require disclosure. that did not occur. >> so any questions? scott? a microphone for scott, please. >> i think the panel's very good and we understand there are problems of confidentiality and disslow sure, but i think the panel is also illustrative of the reason why lawyers are headed in the direction of congress in terms of the public's respect or lack of respect. at the risk of using the word e his molg and losing the last four c-span viewers. >> maybe you should define it. >> it's the science of knowing, and arnold, as a good advocate,

used it exactly backwards. you started talking about mardian had this problem. his problem was the science of not knowing or better put the willful -- the willful ignorance. he, in fact, was facilitating an ongoing criminal conspiracy at creep. he knew it. he had been involved in ellsberg at an earlier stage. he knew all about that. he was as guilty -- i don't know how -- i have forgotten how the prosecution -- the indictment was drawn, but this was a man who was acting in a sinister fashion and you created a circumstances in which he's one more angel dancing on the head of a pin, which doesn't remotely reflect the role that he played. you can take all the bird droppings in the world and put them into a ball and paint it and make it an easter egg, but it's still what it was originally. and that's the problem i think of this -- of this view of ethics. yes, there's a problem with

confidentiality, but i'm stunned by knowing all the other things that mardian did. watt you're doing is defending him -- because you're defending him as an advocate, but that's what gives the public such dismay is that it's a slick profession. >> scott, you ought to say what you think. >> no, i'll tell you i believe in the adversarial system. no, no. i do. all right? i believe that one attorney represents one side, the other attorney represents the other side, and then a neutral fact finder makes the facts. you've concluded certain things -- and you have more facts than i do because you were an investigator. there were some other facts out there that were not presented at trial, whether they could have been hearsay or just tactical, all right, decision not to present it. our defense for him was, and he

was convicted, all right? i was part of the team that has the conviction reversed. those of us who represent him and other criminal defendants who have tend not to apologize that the trial was not fair, all right. that was it. if the court decided that severance was required and the unanimous decision, that's by definition in my mind not a fair trial. and then the decision was made not to retry him. and that was more a political decision, i would suggest, not to retry him. >> are you guys suggesting that you can be the advisor for a criminal conspiracy and as long as you're keeping the confidence of your conspiracy you have no obligation to the public? >> the current rules don't allow that. the rules going back all the way to 1908. >> the illustration you're using --

>> scott, you're on to something which i tried to point out earlier. mardian had a role in engaging in criminal conduct not as a lawyer but just as plain out doing things that were part of obstruction of justice. there is a point at which he became the lawyer for creep and in a particular lawsuit met with liddy, learned more information about the activities of the white house and creep, and then he left. he resigned his position. and brought in poor mardian -- excuse me, parkinson who ended up indicted in part because mardian did not disclose all the facts he knew. he didn't tell his co-counsel. and one of the reasons that was so bad for marty was, i believe, the jury didn't like when he was cross-examined and talked about what he did to parkinson.

so it all gets very complicated. i agree with you completely there are some obligations and that lawyer confidentiality, i agree with you, is important and we need clients to tell us the truth, but i think we do have an obligation not to engage in conduct ourselves that is criminal. and i think that most of the cases where the lawyers got in trouble were because they were engaged in crimes. they weren't ethical lapses. they were actively engaged in criminal conduct. criminal conduct becomes an ethical violation and you can become disbarred for it and it's still a crime whether you get indicted for it, convicted for it or not, it's still a crime. i think you're right on target. >> scott, you raise a very good point that's a good point at the end of this day. which is our profession has always regulated itself through our supreme courts, state by state, and the first time that

the federal government stuck its hand into our profession was after enron when it said, okay, if you guys aren't going to regulate yourself we're going to tell you, you have to do this. it's a report up requirement if you're involved with the s.e.c. and their requirements, mandatory requirements. that's the first time the government ever -- and that's across the board. that's every where. not state by state. it trumps the state. that's the reason that the aba accepts these more rigorous rules in 2003. they say okay there can be permissive disclosure. they were so terrified of the government coming in and regulating the profession. the point being it is our job as lawyers to regulate our profession and we don't at our peril. >> at the suggestion of john edwards. >> john edwards suggested that. >> professor? >> let me go back to one of the consequences of watergate, which

was the requirement that law schools train lawyers in professional responsibility. do we have any way of knowing what difference or how much difference that has made in the way that lawyers behave? >> i think every major report on legal education in a sense this requirement has come in has criticized how well we're doing in that area. and certainly i think we're doing a lot of good things in that area but the most recent report from the carnegie foundation, that was one of the areas that they pointed out that, you know, sort of we have three main goals in legal education. we want to teach knowledge about the law. we want to teach skills, how to put that knowledge into practical execution. and we want to teach professional identity.

part of teaching professional identity is lawyering and legal ethics although not in its entirety and so most -- it is a required course to be aba accredited school and most schools it's either a two or three credit course. but there's still a lot of discussion about should it just be in this one course, do we need to do a better job of the pervasive method where we try to incorporate ethical situations and that decision-making process in more across the curriculum in other courses? the increase in clinics and externships gives students an opportunity in their classroom component to think about some of these ethical questions.

still an area where there's a lot of room for improvement. many have seen it get worse in terms of decline in civility, sort of the changes in business structure, and the focus on the bottom line and the need to keep the clients happy, and clients want you to make their matters personal if you're in an adversarial situation. so there's been, you know, many supreme court commissions on professionalism and additional efforts, but i think we still have a lot of work to do there. >> let me ask a question. how many of you are law students, raise your hand. keep them up. and keep them up now if you think you've learned anything about ethics that will help you to answer the kinds of questions we've posed today. >> that's good. >> that maybe answers the question then. >> we have some real cynics over here then. >> i have to say sort of depending on my mood and how solid i feel, i frequently ask

my students the first day of my professional responsibility class how many would be there if it wasn't a required class? and i don't -- it varies, the numbers. but for many of them they wouldn't be there if they didn't have to be there and that makes me wonder how are we not communicating sufficiently the importance of this. it's the only class really for you. >> good point. >> john? >> as i mentioned earlier in my talk, the watergate, post-watergate reforms the only place they exist today of all the multitude that came out are in law schools, in the legal profession, so this is the only place it's happening. hopefully it is effective, and it is having an impact, but it exists nowhere else, so at least it has remained a constant within the bar. >> and i want to say that i mentioned last night and you

said today that one of the worst things that's happened is the campaign finance reforms that occurred after watergate have been obliterated and we're into a situation now where we have horrible negative ads that come from unlimited corporate funding without any transparency so we don't know who is giving the money and it's not a good situation and we do need to get some kind of legislation that will fit constitutional parameters and protect the public from that. >> a couple of other comments. many major law firms have an ethics counsel full time, a general counsel to keep the firm out of trouble. we find that the older lawyers, the ones who never took an ethics class are more likely to get sued for malpractice. based on the ethics rules. the insurance companies have

said its problems are not incompetence which used to be the old -- if you got statute of limitations, conflicts of interest, disqualification and other violation of the ethics rules. we got more and more lawyers disciplined. there's a lot of problems out there to be sure but there's some suggestion that more lawyers are becoming sensitive. the other thing is that i'm troubled -- actually, scott, i'm troubled by this notion in the alden case where the lawyers did the right thing by keeping their mouths shut. i talked to these lawyers. they never told their clients once, they thought they would be executed. maybe we could work out a deal for you if you confess to this other thing. or why did you tell us this? do you want to be cajoled to do the right thing. lawyers can ask their clients to do something right. this never occurred to them. let's keep quiet. they didn't ask the client about waiving. and they could have.