The Legal Advocate

NITA expresses its sincere sympathy at the loss of our friend and colleague, David M. Malone. Mr. Malone was a highly respected and long-time NITA faculty member, a prolific author of NITA books and guides, and the recipient of the 1995 Robert E. Oliphant Service to NITA Award. As a teacher who used video lectures in connection with his NITA books, and an adopter of presenting NITA-style lectures and webinars in the form of on-line learning, Mr. Malone contributed to NITA’s first video-enhanced e-book by teaching in over thirty videos embedded in that book.

To honor his memory, the NITA Board of Trustees and the NITA Foundation Board of Trustees have created the Malone Innovative Online Learning Memorial. Gifts to the NITA Foundation in his memory will be used by NITA to continue this work, with the conscious purpose of research, development, and execution as a means to innovate, adopt, execute, and expand online learning offerings. With this measure NITA gives tribute to Mr. Malone’s work, creativity, and adoption of NITA’s new forms of learning. To make a gift, please visit www.nita.org/Donate and select “Tribute Gift” to give in memory of David Malone through the Malone Innovative Online Learning Memorial. If you have any questions contact the NITA Foundation at development@nita.org or (303) 953-6845.

By Peter R. Bornstein, a sole practitioner who has taught at NITA for over twenty years.

Among lawyers active in bar associations, teaching at NITA, or concerned with legal ethics, the words ‘professional’ and ‘professionalism’ have come into vogue.  It is said that the rules of ethics as promulgated in the Code of Professional Responsibility, are binding rules for lawyers, and are enforced with severe penalties for their breach.  These set a floor for lawyer behavior, but professionalism is different from ethics. It is aspirational, inspirational, and elusive.  What does the word mean, and what is really said when a lawyer is called ‘unprofessional’?

In today’s society we have professional football players, professional police and fire departments, and professional hairdressers and cosmetologists.  Most states license plumbers, chiropractors, social workers, barbers, and electricians.  Does that mean that law as a profession is like financial planning, tennis, and nursing?  Of course, that’s not what we mean when we apply the term to ourselves—or is it exactly what we mean?  Is being a lawyer and practicing law only a regulated economic  endeavor, a business not much different than being an accountant or stockbroker?  The answer is that it is different—very different.

It is different because the law comes to society from ancient times.  It is different because the law is a learned profession, not a regulated business or paid occupation.  Historically there were four learned professional fields: the priesthood, the medical field, the military, and the law.  Each required a long and difficult period of study before admission and further study after admission.  Each limited those who were admitted by virtue of their competence and character.  Each had a mechanism for policing bad apples like a court martial or defrocking.  And each had an ethos, a mission, and a purpose higher and more noble, like “we do not lie, steal, or cheat, nor tolerate those who do,” or “do no harm,” or “equal justice under the law.”  The ethos and mission of the profession is to serve the whole of society.

Lawyers who belong to a profession are keepers of The Rule of Law and believe that they ought to have a just society—one governed by laws, not men.  Judge Russell Carparelli of the Colorado Court of Appeals has given the matter considerable thought.  He has developed a curriculum for teaching certain skills to lawyers and would-be lawyers.  He has developed an acronym to define the term: SECRET.   The acronym works as follows:

Service to clients, profession, community

Excellence in knowledge, skill, judgment

Commitment to preserving the Rule of Law

Respect & civility in all interactions

Ethical in all dealings

Trustworthy in all words & deeds

Judge Carparelli has elaborated on his acronym by adding that lawyers as a group profess that everyone is entitled to enjoy the rights and benefits conferred on them under the law and to have the law applied fairly and impartially, and lawyers profess to use their knowledge, skills and understanding of the law to preserve equality, fairness, and the integrity of our legal system.  He concludes by defining professionalism as the commitment lawyers make to these principles through conduct which demonstrates that commitment.

The reason lawyers are not like hairdressers or football players is because of their commitment to higher principles; and those who choose not to be committed to these principals are lawyers who are unprofessional.

In 1925, a teacher named John Scopes went on trial for teaching evolution in a public school in Tennessee.  At the time, this was against the law and Scopes was charged with a crime.  The “Monkey Trial” became a national sensation, especially after two of America’s biggest legal names, Clarence Darrow and William Jennings Bryan, became involved as counsel for the Defendant and the Prosecution, respectively. In 1955, Jerome Lawrence and Robert E. Lee, in response to the McCarthy era, wrote a play called Inherit the Wind, dramatizing that case.  And in 1960, Stanley Kramer (later to direct Judgment at Nuremberg) brought that play to the screen.  The film, starring Spencer Tracy and Frederic March, is a powerful indictment of governmental suppression of the right to think and talk about controversial ideas.

Tracy plays Henry Drummond, modeled on Darrow: a brilliant trial lawyer, rough around the edges, an agnostic who sees his job as defending the teacher’s right to think, to have “the same privilege as a sponge.” March pays Matthew Harrison Brady, modeled on Bryan: a passionate defender of his religious beliefs, a sincere opponent of evolution and a man trying to hold on to a fading political career.  The two opponents are portrayed as good friends, even though their beliefs are apparently 180 degrees from one another. You should also appreciate Gene Kelley (!) as E.K. Hornbeck, a cynical newspaperman, modeled on the great cynic, H.L. Mencken.

While the film has important elements that occur outside the courtroom, it is inside the courtroom where the primary tensions of the film work themselves out.  Both Tracy and March are brilliant (Tracy was nominated for Best Actor); their final confrontation is an epic example of great actors in the hands of a great director delivering great dialogue.  Before the opponents reach that point there is much jockeying for position, with Brady seeming to get the better of things with help from the judge, portrayed by Henry Morgan, best known to TV viewers as Col. Potter on MASH.

From a legal perspective, there is much food for thought in this film.  One point that has always struck me: who do these guys represent?  As the film progresses, you begin to realize that both lawyers have agendas that may not actually be the same as their respective clients’. This raises the question as to what a lawyer’s role should be in cases involving controversial issues: is it your job to advance the issue, even at the expense of your client’s rights—or freedom? What if your client changes his mind, and no longer wants to be a symbol – or a martyr? Should you let your strong beliefs about an issue impact how you try a case if those personal beliefs may actually be contrary to your client’s best interests? What’s more important: the legal process or the issue? And in a much larger context,  how and why, in the United States, did the courthouse become a place for social change (think Brown v. Board of Education or Roe v. Wade)?

Inherit the Wind was—and is—a film that rewards repeated watching.  Its subject matter still resonates today, not just on the surface issue of the role of religion in education, but about what we Americans are allowed to read about and learn about and talk about and think about—and whether we get to decide those things for ourselves.

This post was written by NITA guest-blogger Bob McGahey. 

WHITE PLAINS, NY, April 30, 2013 — In recognition of Jo Ann Harris’ significant contributions to Pace Law School and the legal community, Dean Michelle S. Simon has conferred upon her the title of Scholar-in-Residence Emerita. “Jo Ann Harris, a former Assistant Attorney General in charge of the Criminal division of the Department of Justice, has been a prominent white-collar crime practitioner,” remarked Dean Simon, adding, “We are very fortunate to have the benefit of her vast skill and experience.”

A nationally-known lead instructor for, and Board Member of, the National Institute for Trial Advocacy, Professor Harris joined Pace Law School in 1992 to develop the school’s trial advocacy program. She was instrumental in the creation of the Federal Judicial Honors Program several years later.

Commenting on the fact that there is only one Scholar-in-Residence Emerita on the Pace Law faculty Dean Simon said, “We hold Jo Ann Harris in the highest esteem.”