Stephen Glass's Catch-22?

Since September, we've been following the efforts of disgraced journalist Stephen Glass to gain admission to the bar -- and following the energetic efforts of the State Bar of California to keep him out. The case has attracted lots of attention and this article from American Lawyer Media gives the lowdown on the high-powered appellate lawyers, Jon Eisenberg and Kent Richland, on Glass's side. (Glass's trial counsel, Arthur and Susan Margolis, remain very much on Glass's team.) An excerpt from Glass's brief:

"Here is the [admission] committee's logic." [] Glass should not be admitted to the practice of law until he re-establishes himself in journalism; Glass can never re-establish himself in journalism; therefore Glass should never be admitted to the practice of law. Joseph Heller would smile."

Comments

[Monroe Freedman]

Let's set aside what is said to be the committee's reasoning, and consider the question: Should someone who appears to have been a pathological liar over an extensive period of time be a member of the bar?

[Steven Lubet]

There is no flaw in the committee's logic, much less a Catch-22. The argument by Eisenberg and Richland only shows that they don't understand either syllogisms or Joseph Heller.

To put it more clearly, here is the committee's actual position:

Major premise: Glass should be admitted to the bar if and only if he can re-establish himself as a journalist.

Minor premise: Glass cannot re-establish himself as a journalist.

Conclusion: Glass cannot be admitted to the bar.

A Catch-22 occurs only when the minor premise contradicts the major premise, which is not the case here. (Glass's lawyers do a little sleight of hand, but substituting "unless" for "until" in the major premise.)

[John Steele]

Thanks for the comments. What about that major premise? Would that mean that any professional permanently barred (de facto or de jure) from his/her original profession is necessarily ineligible for the law? I'm assuming that given the severity of his original actions, Glass has no practical chance of rehabilitating himself within the field of journalism.

[Steven Lubet]

My comment was directed only to the logic of the committee's argument, not the merits. Nonetheless, the major premise makes much sense to me.

The reason that Glass cannot practice journalism is that nobody will ever trust him again. Trustworthiness is also an essential requirement for admission to the bar. So the California Supreme Court is confronted with an applicant who cannot be trusted with something as relatively unimportant and transient as writing a magazine article, and they have to decide whether he can be trusted with something as weighty and permanent as people's lives and fortunes.

I try to keep an open mind about these things, but it strikes me that Glass's attorneys are facing an uphill struggle.

[David Cameron Carr]

This California Supreme Court would not have accepted the Committee of Bar Examiner's petition unless they had grave doubts about the State Bar Court's decision.

[John Steele]

David, thanks. That was my speculative conclusion but it's nice to hear it from someone with your experience.

[Stephen R. Diamond]

The Supreme Court's question is whether Glass has provided sufficient evidence of his rehabilitation to warrant bar admission. California law doesn't authorize a per se rule that long-term pathological lying warrants permanent exclusion form the profession. But Glass's showing of rehabilitation unimpressive. (See "Now it’s Judge Honn’s turn to be the state-bar establishment laughing stock: The Stephen A. Glass embarrassment" -- http://tinyurl.com/878s9pr)

[Stephen R. Diamond]

"What about that major premise? Would that mean that any professional permanently barred (de facto or de jure) from his/her original profession is necessarily ineligible for the law?"

As a practical matter, this will be decisive. There's no way the California Supreme Court is going to announce that someone too dishonest for employment as a journalist can become an attorney. An unusual instance where the politics of an ethics' case lines up with an otherwise just outcome.

But in the *analysis* of Glass's unethical conduct, the salient issue of dishonesty leads astray. The ethical foundation of lawyering isn't general honesty but loyalty, which, of course, requires strict honesty within the agency. Lawyers lie—and properly so. What is negotiation but a calculated series of lies? How many attorneys have threatened litigation they have no intent to initiate? In law, the ethical duty of loyalty coincides with the contractual duty to the client. But in journalism, the fundamental ethical duty is to the readers, while the contractual duty is to the publication and its editor. This is another factor leading to confusion about this matter. Glass's most significant misconduct for purposes of being admitted to practice law is his _disloyal_ dishonesty on a mass scale, deceiving a readership of more than 100,000.

[Stephen R. Diamond]

"So the California Supreme Court is confronted with an applicant who cannot be trusted with something as relatively unimportant and transient as writing a magazine article, and they have to decide whether he can be trusted with something as weighty and permanent as people's lives and fortunes." — Steven Lubet

While I agree with Steven Lubet's ultimate conclusion that (at the least) Glass's attorneys have an "uphill fight," the reasoning above is uncompelling. Surely failures of trust in matters unimportant and transient don't serve as good predictors of trustworthiness in weighty and important matters—for the obvious reason that people in general are more concerned to be ethical in large matters.

The conduct we consider criminal doesn't necessarily correspond to the conduct we consider most odious. (See Leo Katz's new book, _Why is the law so perverse?_ for a brilliant analysis of this and related paradoxes.) Deceiving a mass public "merely" about the truth concerning matters of public interest, then deriding the integrity of readers who challenged Glass's veracity, is "weighty and important."