Judge Robert Conrad's Law Day Address

Article Date: Wednesday, May 05, 2010

Words Matter

Ennobling the Practice of Law in the 21st Century

 

By Robert J. Conrad, Jr.¹

 

Judge Robert J. Conrad, Jr.

In these remarks, I intend to praise lawyers – some will think then that my remarks will be short. In doing so I won’t tell lawyer jokes because, as we are reminded by former Justice Sandra Day O’Connor: “lawyers don’t think lawyer jokes are funny . . . and other people don’t think they are jokes!”²

 

Before getting to my theme, I want to comment on two things related to judges. The first is about judicial authority. It does not work at home. The second is to remark on the scrutiny judicial remarks receive even if their origins are in doubt.

 

As to the first, shortly after becoming a judge, I came home through the front door after a difficult day in court and encountered a family busy doing other things. Clearing my throat, I indicated, somewhat pompously, that when a federal judge enters a room, it is customary for people to stand and acknowledge his presence. Let me pass quickly by my children’s incredulous looks and focus on my lovely, southern wife. The contempt registered in her single finger response was clear. I did not need to consult legislative history to know that judicial authority held no sway at home.

 

As to the scrutiny given certain judicial comments, let me turn to Chief Justice John Roberts’ infamous confirmation hearing. According to Roberts, more than 100 law review articles have been written about his testimony analogizing the role of a judge to that of an umpire. In fact, Google “Chief Justice Roberts” and “umpire,” and you’ll get over 300,000 hits. As recently as this May, The Washington Post opined against its relevance.³ What Roberts actually said, was:

 

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.

            - Supreme Court Nominee John Roberts, September 13, 2005

 

Roberts subsequently stated that he was only trying to make the point that a judge, like an umpire, should have no stake in the outcome: he or she should be neutral. That very point was made just two months before at a lower court confirmation hearing of a district judge. Two Senators showed up, but only one asked any questions. The more difficult of the questions posed was, “What would the nominee tell a 6th Grade civics class a federal judge does?” The nominee responded:

 

I think [a federal judge’s] job is to administer justice both in the criminal and civil context. I might make a sports analogy and say a judge’s job is to call balls and strikes, not to play on one team or the other, but to be the neutral arbiter of disputes in the courts.

            - District Court Nominee Robert J. Conrad, Jr., March 3, 2005

The references to umpires, their proximity in time and the presence of identical White House staffers at both hearings combine to create evidence of (in a former prosecutor’s mind at least) imitation.

 

Putting aside this obvious stretch to establish linkage to the High Court, we can glean a larger point that will become the focus of this essay. That is this: lawyers’ words, and also their conduct, matter. Not only what one says and does, but the manner in which it occurs, counts. Lawyers of course know this.

 

The professional conduct of lawyers was at the heart of Ozzie Ayscue’s remarks when he accepted the Mecklenburg County Bar’s Professionalism Award in 2004. Ayscue talked about beginning his practice of law in Charlotte over fifty years ago:

 

When I came to Charlotte, it was a small town. This Bar numbered fewer than four hundred lawyers. We all knew one another. We all knew we would be negotiating with the same lawyers, trying cases against the same lawyers and appearing before the same judges over our whole careers. We conducted ourselves accordingly . . . . Now Charlotte is a population center that has zoomed past one and a half million people. There are almost 3,500 of us in this bar. Too many of us are strangers to one another. Too often we treat one another as strangers . . . .⁴

 

No more than two years old when Ozzie began his practice, I never met the Charlotte lawyers he spoke of. But I did start practicing law in Charlotte when many of the lawyers I encountered worked together in the Law Building. I remember frequenting the law library there. And I witnessed a legal community where the lawyers pulled into the same parking lot in the morning, rubbed shoulders with each other during the day, and often ate lunch together. Our justice system was still, in the words of Judge Woodrow Wilson Jones, “an adversarial system,”⁵ but it was a system built on mutual respect and trust for one another. The City of Charlotte has certainly changed since then. Gone are the Law Building, Anderson’s Restaurant, the Coffee Cup and other landmarks of another day. Our Bar has changed with it. Undeniably, the electronic tools available to lawyers today make our practices more efficient, more persuasive, and more dynamic. They also have a tendency to make our interactions more robotic, our practices more isolated, and our advocacy more edgy. The size of our Bar, which has grown to now number in the thousands, allows us to compete with major market cities for top legal talent. But as we grow, our adversaries become more like strangers and less like the colleagues that once populated both our practices and our lives. As a result, the rational self-interest in moral and professional restraint has diminished. So what do we do? How do ensure that the practice of law remains an ennobling profession for us and the generations to follow?

 

I submit that our inspiration lies in heroic examples of leadership past and present. The modern psychologist Charles Barkley is wrong when he declaims responsibility as a role model. Whether sought or not, the practicing lawyer is a leader. In engaging in a winsome way in acts of leadership, it is good to look to others for the model. Looking to our past, two role models immediately come to mind: one fictional, and one historical.

 

To Kill a Mockingbird, the novel that inspired countless young people to pursue the practice of law, is posited as an example of heroic legal leadership. The hero is Atticus Finch, although from all appearances, there is nothing spectacular about him. Jem and Scout, his children, find their father merely “satisfactory.”⁶ Finch finds himself no more than satisfactory, possibly less. He defies all the “lawyer” stereotypes that we’ve come to accept and, at times, aspire to: Finch has no big clients; he’s not engaged in politics; he’s not a judge. He’s running a small town practice and just getting by. But then he is asked to represent an innocent African-American man in an unpopular case, in a segregated and racist place. And he doesn’t shirk from the task. He stands by his client with zealous advocacy. Although his client is ultimately convicted, Atticus Finch makes a valiant fight for justice, with eloquence and dignity befitting the representation of a fellow human being.

 

While this is a work of fiction, it teaches there is fulfillment in the pursuit of justice in an imperfect world and in a system that is as good or bad as its participants make it. Atticus Finch’s quiet but unwavering commitment to the greatest of our ideals helps us see and celebrate kindred acts of service by real-life attorneys among us.

 

My second example is a historical rather than fictional character, although his life also inspired numerous literary works. In the words of his best friend, who was asked to describe this lawyer:

 

He gave every client true and friendly counsel, with an eye to their advantage rather than his own, generally advising them that the cheapest thing they could do was to come to terms with their opponents.

 

If he could not persuade them to do this, he pointed out how they might go to law at least expense; for there are some people whose character leads them to delight in litigation . . . .

 

It has always been part of his character to be most obliging to everybody, and marvelously ready with his sympathy; and this disposition is more conspicuous than ever now that his power of doing good is greater. Some he relieves with money, some he protects by his own authority, some he promotes by his recommendation, while those whom he cannot otherwise assist are benefitted by his advice.

 

No one is sent away in distress, and you might call him the general patron of poor people. He counts it a great gain to himself if he has relieved some oppressed person, made the path clear for one that was in difficulties or brought back into favor one that was in disgrace.

 

No man more readily confers a benefit, no man expects less in return . . . .        

 

This is the profile the Dutch Renaissance humanist, Erasmus, gave of Thomas More.⁷ More was called by Samuel Johnson “the person of greatest virtue these islands ever produced.” He lived in England at the beginning of the 16th Century. At that time, More was successively an accomplished student of the law, a barrister, an under-sheriff, an ambassador, and ultimately served King Henry VIII as Lord Chancellor of England. Because he died upholding his conscience on a religious matter, he is often falsely thought of as a clerical figure. But he was a lawyer, indeed a lawyer’s lawyer. His approach to law and life (to More they were one and the same) is captured beautifully in Robert Bolt’s play, which also became an Oscar-winning movie, A Man for all Seasons.

 

As the story unfolds, More has fallen from Henry’s favor over the issues surrounding the King’s second marriage. More initially is willing to acknowledge Henry’s status as “the Protector and Supreme Head of the Church of England” with the proviso “as far as the law of Christ allows.” But Henry wants “more of More” and ultimately, for conscience sake, More refuses to swear to the Act of Succession. Rather, he maintains a disciplined silence on the subject. He reasons, like a true lawyer, that under the law his silence implies, if anything, consent. His silence, he believes, will prevail against any charges of treason. Anticipating an upcoming interrogation by Thomas Cromwell, Henry’s chief minister, More takes comfort in the fact that Cromwell, like him, is a lawyer. His only concern is that Cromwell is also “a pragmatist,” and in this regard More likens him to a devil.⁸ Those around him mistake More’s cunning for idiosyncratic stubbornness. His son-in-law, Roper, accuses More of resorting to a “legal quibble.”⁹ His friend Thomas Howard, the Duke of Norfolk, accuses More of evading disclosure with “these lawyer’s tricks.”¹⁰ But More is convinced that he has the better argument—that his case is airtight, and this faith in the legal system guides his every action.

 

Steadfast in his refusal of the oath, More withstands his first round of Cromwell’s questioning. Later, he meets his daughter and Roper, who inform him that there is to be a new oath. Ever the lawyer, More’s first inquiry is to discern the language of this new oath:

 

More (Very still): What is the oath?

 

Roper (Puzzled): It’s about the marriage, sir.

 

More: But what is the wording?

 

Roper: We don’t need to know the (contemptuously) wording—we know what it will mean!

 

More: It will mean what the words say! An oath is made of words! It may be possible to take it. Or avoid it.¹¹

 

This passage perfectly explains Thomas More’s philosophy as a lawyer. Words matter. And a nation based upon laws – laws that are written, laws that are known – is a just, secure and free nation. It is the manipulation of a nation’s laws in the hands of pragmatists or ideologues that leads to instability and uncertainty in the law.

 

I concentrate on this relationship between Thomas More and his son-in-law Roper to make the point that it is the lawyer’s duty to pursue justice and individual dignity, to maintain respect for the integrity of an oath,¹² to correctly apply the law and, where appropriate, principles of equity, often times in the face of brute force and power. In this context, More reveals himself fully as a lawyer and as a man of conscience. While putting himself in harm’s way to satisfy his conscience, More carefully advises his daughter and son-in-law against doing the same. Aware that he is no longer the controlling influence in his daughter’s life, More concentrates on using all his lawyer’s skill to influence, guide and ultimately protect his son-in-law and, derivatively, his eldest daughter. It is a remarkable subtext to the story that underscores More’s dual qualities as a principled man and faithful advisor to those around him.

 

When his son-in-law complains that More would give the devil the benefit of law, he admits the fact freely. As Roper’s impatience grows, More counsels against lawlessness in the name of righteousness:

 

More: What would you do? Cut a great road through the law to get after the devil?”

 

Roper: I’d cut down every law in England to do that!

 

More: Oh? . . . And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat? . . . This country’s planted thick with laws from coast to coast—man’s laws, not God’s—and if you cut them down—and you’re just the man to do it—d’you really think you could stand upright in the winds that would blow then? . . . Yes, I’d give the Devil benefit of law, for my own safety’s sake.¹³

 

Lest Roper miss the point, More clarifies his philosophy. “If the parties will at my hands call for justice, then, all were it my father stood on the one side, and the devil on the other, his cause being good, the devil should have right.”¹⁴

 

I use these character sketches of Atticus Finch and Thomas More to suggest that a lawyer committed to the zealous representation of a client, concerned with personal integrity and governed by the rule of law, can practice our profession with honor and with great service to the cause of justice and individual dignity. Throughout history, lawyers have practiced law nobly. However, the question before us remains: do we still?

 

To begin to answer that question, I would first turn to two federal judges, recently passed, and pause in admiration for both. I am speaking first of Judge Brent McKnight, whose exhortation to be accurate in the law’s application and excellent in its expression resounds as powerfully today as it did at his investiture seven years ago.¹⁵ I speak also of Judge Robert D. Potter, whose passing I mourn every day. His reputation as “Maximum Bob” obscured his passion for justice and his compassion for those who earnestly repented from past wrongdoing.

 

There are also those practicing among us today who, within the profession and without, use their legal skills, their compassion and their sense of duty to raise the bar of justice.

One thinks initially of the many brave attorneys, men and women, who serve in reserve status in our military branches. They risk life and limb, and sacrifice time with their families, as well as professional advancement, to secure our safety and liberty.

 

Consider also the self-sacrifice inherent in one of your colleague’s service in Iraq, investigating and assembling evidence of the heinous crimes against humanity committed by Saddam Hussein and his regime. I assure you that her qualifications were found not in her height, weight or military training. They were found in her lawyer’s skills and her passion for pursuing justice for victims in Iraq.

 

Or read one of your colleague’s eyewitness account of the execution of a client and consider again, or for the first time, the moral implications of the death penalty. Consider also the recent example of attorneys for the prosecution and defense in a capital case in federal court—who strove mightily on behalf of their respective clients, but who during jury deliberation were observed engaging each other in mutual, professional respect.

 

Consider still that one of your own is quietly donating a kidney to a fellow lawyer so that person will have a new lease on life. [I would hazard a guess you won’t read about that in any media treatment of lawyers].

 

Or that one of your own serves as president of the board of directors for A Child’s Place, a non-profit organization with the goal of eliminating the impact of homelessness on children in Charlotte; another serves on the board of directors of Room at the Inn, a safe haven and source of hope for pregnant mothers and their children. Another currently serves as founder and president of a cycling organization that has raised over 3.7 million dollars for cancer research; another diligently raises money for research to fight juvenile diabetes.

 

Consider how these noble values are personified by the Charlotte School of Law, one of the few law schools in the nation where pro bono work is a mandatory part of the curriculum. The Charlotte School of Law focuses on areas of Mecklenburg County that are historically under-served, and its students and faculty provide a wide range of services, including second-chance opportunities to convicted felons who have paid their debt and yearn to make meaningful contributions to society. The list goes on and on and on.

 

So, as to whether the practice of law can continue to ennoble, inspire and lead communities to justice, individual liberty and human dignity in the 21st Century, many of your colleagues have said, “Yes.” But will it? This is a question that each of you must answer, by your words, actions and representation: case by case, and client by client.

 

I shall end where I began, with a child’s impression of a father who is “satisfactory.” That father is elevated in her eyes, and in the eyes of the community, through his legal representation of an innocent man, falsely accused. As the trial concludes, Atticus Finch packs his briefcase and walks a lonely, defeated walk out of the courtroom. As he walks by, appreciative members of the African-American community, relegated to the balcony, rise, one by one, in a show of tacit respect. In the stillness of that defeat, one says to Finch’s child, “[s]tand up. Your Father’s passing.”¹⁶ There is hope hidden in the despair of defeat; in the proud, confident and gracious bearing of these witnesses at the balcony, there is the hint of a new day. Although evil has held sway for a time, it will not last. A lawyer has done his duty.

 

It is for this type of quiet service to justice that praise is due lawyers.