Stephen Glass, the infamous journalist whose writing career collapsed under an avalanche of lies, is not being allowed to practice law in California. The California Supreme Court concluded early this year that Glass, then a law clerk for a Beverly Hills plaintiffs firm, had failed to meet ”his heavy burden of demonstrating rehabilitation.” Glass admitted to fabricating parts of more than 40 articles published in the late 1990s, including for The New Republic and other journals that touched on hot-button topics such as race and politics and won him worldwide recognition.
“The ruling today vindicates the idea that honesty is of paramount importance in the practice of law in California,” State Bar President Luis Rodriguez said in a prepared statement, in that a “significant deceit sustained unremittingly for a period of years” cannot be excused.
In the UK, an ex-Paul Hastings partner was disbarred this year instead of being given a 3-year suspension over an embellished résumé with a slew of phony accomplishments. Dennis Thomas O’Riordan, a former Cadwalader Wichersham and Taft regulatory partner, claimed to have been admitted to the bar in New York, earned two bachelor’s degrees and a doctorate from Oxford University and a master’s degree from Harvard University, and received the designation of an Eldon Scholar at Oxford Law, all of which he did not dispute were false.
Sara Down, head of professional conduct at the UK’s Bar Standards Board, said in a statement that “the BSB felt strongly that the sentence of suspension did not go far enough and that allowing Mr. O’Riordan to return to [practice] would, given the extent of his dishonesty, have diminished public confidence in the profession and discredited the bar.”
Perhaps you’ve heard in the news lately the tale of Ajai Mathew Mariamdani Thomas, who was born in Michigan, raised in Florida, and graduated from Duke University in 1995 with a degree in biomedicine, ethics and public policy. Note “ethics.” After graduating from college he worked at the National Human Genome’s Office of Genome Ethics in Bethseda, where he wrote three papers on the topic of medical ethics. Ethics again.
Mr. Thomas entered Harvard Law School in 1997 where he was a semifinalist in the annual moot court competition, was an editor of the Journal of Law and Technology, and cofounded the school’s Society of Law and Ethics. Yes, ethics.
Although Thomas received “excellent grades” while attending Harvard, he allegedly created a phony transcript giving himself some As in place of some Bs and B+s, and used that transcript to apply for a federal appellate court clerkship. After his transcript was determined to be touched up, Thomas fabricated a forensic report in support of his appeal to the Harvard disciplinary panel. The Harvard Law School faculty voted to expel him on September 17, 1999.
In 2003, Thomas received an MBA from Stanford Business School and went to work first for a Boston hedge fund and then SAC Capital. Along the way, Thomas changed his name to Mathew Martoma, which you may recognize as the name in the news. According to The New York Times, Martoma received a $9.4 million bonus in January 2009 as a reward for his performance the prior year in SAC’s health care group. But having lost money for SAC in 2009 and 2010, he was fired in September 2010.
Over the last few months Martoma has been on trial for his role in what prosecutors have called “the most lucrative insider trading scheme ever charged,” culminating in over $275 million in profits and avoided losses, over 4 times the amount of insider trading gains that Raj Rajaratnam was sent to prison a record 11 years for. He is set for sentencing later this month, and the prosecutor is recommending 8 years.
These and other instances of questionable to absent ethics may seem a little over the top in so far as their relevance to your practice. You haven’t, after all, altered your CV, or changed your name to obscure problematic details about your past, or absconded with millions of ill-gotten gain. But there are plenty of examples out there of questionable ethics that may hit closer to home.
Early this year, The Legal Intelligencer reported that, after the assertion of 17 separate defenses in a 298-page brief and a mediation procedure, K&L Gates agreed to settle for $24 million a $500 million malpractice suit. Beverage manufacturer Le-Nature’s bankruptcy trustee Marc S. Kirschner alleged that K&L Gates and managing partner Sanford Ferguson were hired in 2003 to conduct an internal investigation of possible insider fraud and failed to detect any. Kirschner claimed that failure allowed the company to sink deeper into debt for the next three years until a massive insider fraud came to light, the company went bankrupt and its former CEO Gregory Podlucky was sent to prison for 20 years.
According to other news reports, “Kirschner ripped the firm’s former management committee chair Sanford Ferguson… calling him a corporate attorney who had not been actively practicing law for a number of years before helming the investigation. Kirschner pointed to Ferguson’s time both chairing the management committee and subsequently working directly for a software company and a resort company before returning to the firm and heading the investigation as evidence that he was unprepared for the task. Kirschner also said that Ferguson violated Pennsylvania’s rules of professional conduct by failing to bring a lawyer with experience in complex fraud investigations into the inquiry.
“Instead, according to Kirschner, Ferguson left the bulk of the day-to-day work in the investigation to the firm’s associate Paul Berks, who lacked key experience in corporate fraud issues. Kirschner said that Ferguson frequently left interviews, or did not participate at all, leaving Berks fully responsible.”
We can be assured and maybe even proud that regulatory boards here and across the pond have standards about ethics that they aren’t afraid to enforce, at least in some cases. But are we doing enough when it comes to dealing with and even preventing the less glaring, less obviously optic instances of ethical lapses?
A report commissioned by the UK legal profession’s three main watchdogs – the Solicitors Regulation Authority, the Bar Standards Board and the Institute of Legal Executives’ Professional Standards–was delivered June 25, 2013 after two years of preparation. In part, it calls for students to be taught an enhanced sense of ethics and professionalism so they have a better understanding of “the relationship between morality and law, the values underpinning the legal system and the role of lawyers in relation to those values.”
We could start by requiring that sort of dialogue in all law schools and then by including questions about subtle ethical dilemmas on all bar exams. But ultimately this is a firm-by-firm, lawyer-by-lawyer issue that strikes at the heart of your and your firm’s integrity and reputation and that determines the extent of your clients’ loyalty.
There are steps to take to minimize the risk of ethical lapses. Are you taking them?