Professional Ethics: A Vital Historical Perspective

Yale History Professor Timothy Snyder has written two books of immediate importance: On Tyranny – Twenty Lessons From The Twentieth Century and The Road to Unfreedom – Russia Europe America. The Road to Unfreedom explains Russia’s goals for Europe and America and describes many of the means, including massive amounts of disinformation, Russia uses to achieve its goals. The Road to Unfreedom explains what is happening now to advance anti-democratic impulses in Europe and America. It is a fascinating and chilling book. On Tyranny is a short book listing twenty lessons from the Twentieth Century on how to resist the pull of tyrannical forces. Lesson number 5, is entitled “Remember Professional Ethics.” It applies to all professions but especially to lawyers. Here is Lesson 5 in full:

When political leaders set a negative example, professional commitments to just practice become more important. It is hard to subvert a rule-of-law state without lawyers, or to hold show trials without judges. Authoritarians need obedient civil servants, and concentration camp directors seek businessmen interested in cheap labor.

Before the Second World War, a man named Hans Frank was Hitler’s personal lawyer. After Germany invaded Poland in 1939, Frank became the governor-general of occupied Poland, a German colony where millions of Jews and other Polish citizens were murdered. He once boasted that there were not enough trees to make the posters that would be needed to announce all of the executions. Frank claimed that law was meant to serve the race, and so what seemed good for the race was therefore the law. With arguments like this, German lawyers could convince themselves that laws and rules were there to serve their projects of conquest and destruction, rather than to hinder them.

The man Hitler chose to oversee the annexation of Austria, Arthur Seyss-Inquart, was a lawyer who later ran the occupation of the Netherlands. Lawyers were vastly overrepresented among commanders of the Einsatzgruppen, the special task forces who carried out the mass murder of Jews, Gypsies, Polish elites, communists, the handicapped and others. German (and other) physicians took part in ghastly medical experiments in the concentration camps. Businessmen from I.G. Farben and other German firms exploited the labor of concentration camp inmates, Jews in ghettos, and prisoners of war. Civil servants, from ministers down to secretaries, oversaw and recorded it all.

If lawyers had followed the norm of no execution without trial, if doctors had accepted the rule of no surgery without consent, if businessmen had endorsed the prohibition of slavery, if bureaucrats had refused to handle paperwork involving murder, then the Nazi regime would have been much harder pressed to carry out the atrocities by which we remember it.

Professions can create forms of ethical conversation that are impossible between a lonely individual and a distant government. If members of professions think of themselves as groups with common interests, with norms and rules that oblige them at all times, then they can gain confidence and indeed a certain kind of power. Professional ethics must guide us precisely when we are told that the situation is exceptional. Then there is no such thing as “just following orders.” If members of the professions confuse their specific ethics with the emotions of the moment, however, they can find themselves saying and doing things that they might previously have thought unimaginable. Snyder, Timothy, On Tyranny – Twenty Lessons form the Twentieth Century, pages 38-41.

My takeaway is that lawyers are part of a very important group governed by the Rules of Professional Conduct and other parts of the law of lawyering. Snyder’s lesson applies directly to government lawyers and lawyers acting on behalf of the government but we are part of the same group as those lawyers, which gives us the right if not the duty to speak out when we see violations of the rule of law, legal ethics and the law of lawyering.

Negligent Entrustment in Pictures

Bushmaster adBushmasters ACRDaniel BardenSandy Hook victimsThese pictures are from an excellent article in The Guardian, which you can find here. Negligent entrustment is one of the legal theories in the case against Remington, the manufacturer and distributor of the military weapon used to slaughter 20 six and seven year olds and six adults who tried to save them. If you are interested in understanding the theory of negligent entrustment, read The Guardian article. Given the history of mass violence in this country, the porous background check laws plus the sad fact that Congress has not already banned the sale of military weapons to the public, it is all too foreseeable that it is simply a matter of time before there will be another mass slaughter of innocents by a deranged or enraged or ideologically motivated killer using one of Bushmaster’s products or one similar to it designed and intended to kill as many people as quickly as possible. To see the language Remington uses to advertise its products, read the article by clicking here. Here is some of the marketing language Remington uses:

We build each Bushmaster rifle with you in mind.

Your purpose is our purpose.

We serve in law enforcement and the military. We win 3-gun and long range rifle shooting events.

When you need to perform under pressure Bushmaster delivers.

Your new rifle is a Bushmaster.

The finest AR platform style rifle in the world.

Ready for anything. Prepared for everything.

Undermining an already vulnerable Supreme Court

Of the three branches of government the Supreme Court is the least powerful and most vulnerable. It, like the rest of the judiciary, is entirely dependent on the Congress for its budget and for the filling of judicial vacancies. Perhaps most importantly it has no means of enforcing its decisions. Rather, it is almost entirely dependent on the belief that its decisions are legitimate and worthy of being obeyed. The Court is supposed to be different from Congress and the Presidency both of which are overtly political institutions subject to the push and pull of power politics and political calculation. Perhaps for that reason, Congress’s approval rating is at an all time low. The push and pull of politics has yield gridlock and partisanship. The public has lost its faith in the Congress. Some have lost their faith in the Presidency. What would happen if the Supreme Court came to be considered as nothing more than an extension of the Congress? Might the Court lose its capacity to earn the public’s respect and willingness to voluntarily comply with it decisions?

I fear that the Republicans’ refusal to hold hearings on the Merrick Garland nomination is another step toward creating the belief that the Court is nothing but an extension of the partisan, gridlocked Congress. Consider, for example, Sen. Charles Grassley’s searing and unwarranted criticism of the Court as reported by MSNBC. Sen. Grassley claims that the Court is purely political and therefore must be brought under the absolute control of Congress, which is why there must be no hearings on the Garland nomination as if Judge Garland were some kind of liberal equivalent of Justice Scalia. The Republicans are in essence arguing that the next Supreme Court nominee must be nominated by a Republican president. They have no faith in the Constitutional process by which the President nominates and the Senate gives its advice and consent. If that process were allowed to unfold as intended, the Senate would almost certainly confirm Judge Garland for he is no radical judge. The Senate has already confirmed him once and by all accounts he is a moderate, careful, humble jurist. The Republicans only have faith in their own power to control the Court. Their attitude and the way they are exercising their power can only lead to the conclusion that the Court is not a court of law but rather a pure extension of partisan political power. Imagine what would happen if the Supreme Court were viewed as nothing more than an annex of Congress. The public’s acceptance of Court decisions would almost surely suffer as would the notion that we are a nation of laws rather than of men and women.

One can only hope that the Republican’s will reverse course, hold hearings on the Garland nomination and confirm him to be the next Justice of the Supreme Court.