16. Dershowitz on Ethics - Alan Dershowitz

Welcome to the Corporate Social Responsibility Podcast. I'm your host David Yosephon, associate professor of law at Santa Clara University School of Law here in sunny Santa Clara, California. I'm thrilled to have on the podcast today one of the great legal minds, one of the great lawyers of our time. And since our time is an important time, I will say one of the great lawyers of all time. When I was a kid growing up in New Jersey, we would spend all day in the summers playing wiffleball in the backyard and everybody wanted to be done madingly. And then we'd come in for dinner and argue and debate around the dinner table each night and everybody wanted to be Alan Dershowitz. I'm honored to have Alan Dershowitz as a guest on the podcast today. Dershowitz has had a long and celebrated career as a writer, as an attorney, representing some of the most notorious figures in the most prominent trials of our day. He taught at Harvard Law School from 1967 until his recent retirement in 2013. Although I'm in mind of Bob Dylan who's saying, "Let me die in my footsteps before I go down under the ground." And I think it will be a long time before American courtrooms and American letters or American podcasts will have to do without the contributions of Alan Dershowitz. So I'm so grateful Professor Dershowitz for you joining us in this conversation. Well, thank you. In my backyard, we all wanted to be Sandy Kofax. And look, I ended up being Alan Dershowitz. What could I do? Maybe that second best. Now Kofax against madingly, that's an ad that I'd like to see. Absolutely. So Professor Dershowitz, I want to start by putting to you a question that recurs at family dinners and in bars and maybe on wiffleball fields. Again and again, through each generation and that I think society is right to ask and that we as lawyers owe a good answer for. The question is this, how can a lawyer represent someone who they know is guilty? Yeah, it's the question that I get asked that every cocktail party I go to and every time I try to take a walk on the beach, people ask me that question. And it's a question that every criminal defense lawyer should be asking themselves as well because it requires a complicated and sophisticated answer. Wouldn't it be a better world in which all the guilty always got punished and which good lawyers didn't try and sometimes succeed and getting guilty people off. But then you have to ask yourself the systemic question, what would a legal system look like if lawyers refuse to represent people who they believe to be guilty? I have experience with this because I represent a lot of clients in the former Soviet Union and in the former Soviet Union you were not allowed to represent a client who the society, the government, the Communist Party believed to be guilty and if you said you believed them to be innocent, you would be flying in the face of what the communists were ordaining for all lawyers. And so many people went to jail, some to their deaths without being adequately represented. And so it's so important to represent everybody. You know, it starts in the Bible with Abraham arguing with God over the centers of Saddam. Abraham says to God, "Far be it from the will the judge of the entire world, not himself to justice." And Abraham became the lawyer for the day, and the first lawyer who represented the guilty centers of Saddam. And he didn't win. He got a concession from God if there were ten innocent people, God would spare the city. But it turned out there weren't ten innocent people. You know, then we move to other points in history where people either have refused to represent the guilty. The Talmud says, for example, that if in a death penalty case the son, Hedger, and the court unanimously ruled quickly that a person was guilty, that would mean that he hadn't been adequately represented and that his point of view hadn't been presented. The Catholic Church before they make somebody a saint has what's called the devil's advocate to make sure that all sides are fairly presented. And we all know the story of John Adams representing the obviously guilty Boston massacre British soldiers. We know many stories of Abraham Lincoln representing guilty defendants. It's very important part of the American tradition. And I think the end result is that fewer innocent people are prosecuted and fewer convicted because lawyers will represent both the guilty and the innocent. And the great many people in between, you know, most cases, I don't know of them. I clients guilty are innocent. When he first comes to me, he swears he's innocent, but it may turn out he's guilty or he may look guilty and he may turn out to be innocent. That's what we have a process to determine. But there are surely some in some areas of legal practice where we presume that the where the architecture of our legal system presumes that lawyers can know things, can know things that are important about their clients position. For example, you are not allowed as a lawyer to knowingly present false evidence. That's right. Yeah. And I know in some of my cases, I know my clients are guilty. And nonetheless, I represent them. How do I know? Because they tell me. Why do they tell me? Because I assure them that if they tell me they're guilty, I will still represent them though I will not put them on the stand. I will not allow them to testify. I will not make arguments that are inconsistent factually with what they've told me, but I'll still represent them. And so, you know, if you had a system that said, if you know your clients guilty, you can't represent them. Fewer clients would confide in their lawyers. And they would all assert their innocence completely, most still do today. And, you know, I had a case once. I can't go into it because it's confidential. Where I was absolutely certain, my client was guilty when I took the case. And I was wrong. It turned out the scientific evidence proved him to be innocent. It didn't prove him to be an angel, but it proved him to be innocent of the crime. And I was shocked because I thought I had a pretty good nose. And if the rule had said that if you know your clients guilty, you couldn't represent them. I wouldn't have been able to represent this guy. And I ended up winning the case. He ended up being vindicated. And almost everybody in the scientific community now believes he was innocent. I'm not talking about OJ Simpson. Okay. But so there's two different justifications than I'm hearing. One is that we should be suspicious of ourselves when we think that we know somebody is guilty. The other is that even when we do know somebody is guilty, there's still a value to the rule of law in representing them to affectivalers. Effectivalers can anyway. Now, that's right. And it's the second argument that I'm focusing on primarily. I mean, I have represented people that I know for certainty with guilty because they told me they were. Because there was a videotape or because evidence was overwhelming. I've won a few of those cases, be mostly because of government misconduct because the government domestic up the government did things that were terrible and unconstitutional. And I will continue to represent people who I know are guilty in order to reduce the number of innocent people who were brought to trial. And the number of innocent people who were convicted, you know, when we say it's better than 10 guilty, go free than one innocent, be wrongly confined. What we're saying is okay to have 10% or 9% of our prison population comprise the innocent people. That's far too much. And I think it's very important for lawyers to push the government hard in every single case guilty or innocent. So long as they do it ethically and within the rule of law. And so, yeah, sometimes I don't know, but I think the harder cases are when you do know. And I unabashedly say I will represent in a criminal case, and I think we have this thing which criminal cases and civil cases. But in a criminal case, I will represent somebody who I know for an absolute certainty is a guilty, but I will not make an innocent, a factual, innocent argument. I'll make other kinds of arguments, some of which will prevail. And so let me just take another run at it. Why is it, if you know the client is guilty? And again, we should be suspicious of ourselves, but in other areas, we accept that the lawyer knows thing and that those things and the system depends upon it. Okay, so in the case where you know the client is guilty, why is the, why exactly is the legitimacy or functionality of the system in the cases where the guilt or innocence is unknown? Or where the client is in fact not guilty? Why is the, why are there rights or protections implicated in the case of the client who is guilty? Why is the guilty? Because the client who's guilty still has rights under the Constitution. And those rights include the provoking and self-accrimination, the right to confront witnesses, the right not to have hearsay admitted against them, the right to have an exclusionary rule applied to evidence that was gaffed. And so it's important to vindicate those rights as well. Those rights are not only the rights of the defendant himself, but the rights of all of us. We have an exclusionary rule in order to disincentivize police from violating the Constitution. And so it's my obligation to raise exclusionary rule issues in cases of guilty clients. And in fact, in most, or at least in many cases, any exclusionary rule type cases, the defendant is obviously guilty because the evidence that you're trying to exclude is the smoking gun, the evidence of guilt, the evidence that will conclusively prove its guilt, and yet lawyers are obligated and should be obligated to challenge that evidence because the Constitution forbids that evidence from being used by the prosecution if the evidence was gathered in an unconstitutional way. As long as we have these rules that say that even guilty defendant should be acquitted if the evidence was improperly gathered, or let me give you another example. Let's assume I have a client and I know that he's guilty and I would act on that knowledge in any aspect of my life. But the evidence is just not there to prove it beyond a reasonable doubt. In a case like that, I will argue the lack of a reasonable doubt and the jury is supposed to say to itself even if this defendant is probably guilty, even if he's almost certainly guilty. As long as there's any reasonable doubt we must acquit and that's the legal system that we operate under. So even if you know to a civil certainty or to a high level of certainty that a defendant is guilty, the government still has to prove that beyond a reasonable doubt. And I've had several cases where my clients have almost certainly been guilty, but the level of reasonable doubt, beyond a reasonable doubt, hasn't been reached by the evidence. And so they are appropriately acquitted and I appropriately argue for acquit or in those cases. And so we're vindicating those rules of evidence and vindicating that standard of proof, that standard of proof in order that those standards and rules be robustly evacated. Not only the standards, but that's a very important part of it, but that prosecutors don't get lazy and that prosecutors understand that any time they indict somebody they're going to get a tough, zealous, determined, defense lawyer who's going to challenge them at every point. And that will disincentivize prosecutors from bringing in closed cases and bringing cases where they think they have a substantial chance of losing. So it's not just vindicating the rules, it's vindicating the whole system, the whole adversarial system, depends on zealous lawyers on both sides presenting the arguments. Now I would say by the way, the rule that I've just applied to myself does not apply to prosecutors. A prosecutor should not bring a case if he knows the defendant is innocent. Even if he has a very substantial probability that the defendant is innocent, they shouldn't bring the case. We have different standards, even though we have an adversarial system. It's a modified adversarial system. The rules apply to prosecutors than apply to defense attorneys. The system can survive if people who are there may be evidence against them, but the prosecutor knows or believes or has a strong level of suspicion that the defendant may be innocent, the system can well survive if those cases are in broad. But they can't, I think, survive as a fair system if prosecutors repeatedly broad cases against people who they believe might very well be innocent. Let me pursue another qualification you suggested a few moments ago, and that is that the lawyer's ethical responsibilities or rights are different in the civil than the criminal context. Can you address whether a lawyer is rightful to represent a client in a civil case that they know is guilty or is liable? I would say that the rules are quite different. That the rule, the criminal case, is near absolute. That is that you are obliged to represent a client if other factors are present, and if you can do it ethically and reasonably, even if you believe your client is guilty. I wouldn't say the same obligation applies in a civil case. Civil case, particularly one not involving the government. If you have two people, equal status in the society, and Mr. A and Mr. B and they are showing each other, and you are asked to represent Mr. B and you have looked at the case and you know that Mr. A is right, and you know that Mr. B is lying through his teeth. I don't think there is a real compulsion to argue the case on behalf of Mr. B. I think the factors, the considerations that go into it are far, far less compelling. It becomes more difficult if it is a civil case being brought by the government or a civil case where the government stands behind it. I think that begins to be somewhere between a traditional civil case and a criminal case. Then there are the cases that involve basic civil liberties. I mean, I defend Nazis who want to make statements about my people or about other people. I hate their statements. I hate what they are saying, but the First Amendment is so important that I will represent people with whose views I fundamentally disagree. This is obviously not new with me. It goes back to Voltaire who says, you know, I will fight to the death for your opinion though I fundamentally disagree with it. So I think First Amendment case is a different. I think case is involving fundamental rights like the right to gay marriage, which I believe is and should be recognized as a fundamental right. It's an interesting question whether law firms should be on the other side of that case just to make sure the Supreme Court hears all sides of that issue. That issue was, of course, debated much now in the gay rights context that was debated a bit during the civil rights period when some of the best law firms in America represented the segregationists, which was the state, by the way, in those days, against individuals who were seeking justice. So I think it becomes much more complex when you get out of the criminal area, out of the First Amendment area, and into the civil area. And then you have to have kind of calibrated approaches when you're in the civil area. So let me ask you then squarely, as we're having this conversation, there was a story came out in the New York Times about a week ago describing a dynamic in which many prominent law firms around the country have very eagerly gotten involved in representing those clients who are trying to pursue the right to gay marriage and trying to pursue the recognition of a constitutional right to gay marriage. But the same story notes that those on the other side of the issue that are trying to argue that the Constitution does not require every state to recognize gay marriage. They're having a hard time getting the prominent law firms to take those cases. Yeah, I think it's all about that. And so what do you make of the ethics of law firms declining to take those cases because they presumably because the positions unpopular? Yeah, I don't get us anything to do with ethics. I think it has everything to do with money. Often are quite wealthy. I think Gays contribute disproportionately to political campaigns and they're very influential. Their cause is very popular today. And law firms, there are many, many lawyers in law firms. I know I speak to them who don't believe that gay marriage is a constitutional right. I happen to believe it is a constitutional right should be so recognized, but they're very good lawyers who don't. They're not taking this case, not out of principle or out of ethics. They're taking it because they know that their firm will be boycotted and pick it. It's a purely, purely 100% economic decision for most big law firms and most big lawyers. If it were up to individual lawyers, you'd get many, many lawyers arguing, look, we personally believe gay rights are important. We personally believe in gay marriage, but it's not in the Constitution. You can make a very powerful argument on either side of that case. So I don't believe this is an ethical issue for most big law firms. I think it's a money issue, political issue. I think the same thing is true for the most part, for lawyers who are jumping on the bandwagon to take the case. For many of them, it's a deeply ethical issue and a deeply moral issue. But for some of the law firms, at least, it's now a good political issue. It's a good money making issue. You always have to be careful to try to separate out financial motives from other motives. I'm reminded of one of my favorite bumper stickers, which shows a chicken saying, "I long for a world where my fellow chickens can cross the road without our motives being questioned." We always have to worry about how you question people's motives, but in this area, I don't think it's even a close question. I think the vast majority of big law firms won't go near opposing gay marriage because they know it'll hurt their business. But that surely doesn't exclude their choice from ethical assessment from a professional perspective. Is it appropriate for a lawyer and for a law firm that has, you know, martyled this Marshall legal talent and has an important standing in the legal community in their particular city or region to decline a despised client on the grounds that it's bad for business? Well, you know, again, it depends on the nature of the case. If you had a terrorist or an accused terrorist, a 9/11 terrorist who couldn't get a lawyer, I think a law firm should represent that person. if you're done. was resolved in a loss of business and it would be unpopular. Though I think most Americans today understand they adversary system and that you shouldn't condemn a law firm for representing somebody who's facing the death penalty or facing life in prison with the terrorism. In my view, I'm surprised. I was surprised that you couldn't get some law firm to be on the other side of this great constitutional issue. I'm not even sure how it will come out. I know how it will come out in five years and ten years. The gay marriage will be recognized as a constitutional right but nobody can be absolutely certain about how it's going to come out this time in front of this court and even if it is recognized, it will probably be five to four. If you have a five to four issue, it is quite surprising that you won't even get any law firm prepared to be on the foresight or even possibly the five side. But again, I think it's the force of economic pressure and it's also a great tribute to the gay rights movement that has learned how to use its economic, moral and political strength to frighten the way law firms from even suggesting that they might be on the other side of this issue. Look what happened in some states that try to pass statutes that could be used to justify people not participating in gay marriage events as businesses. They were threatened with all kinds of economic boy cuts and essentially they were all backed down. So gay power has really been flexing its muscle very considerably, both its moral muscle and its economic muscle and its political muscle. I think we must be cautious to distinguish our political commitments from our ethical assessments. You know, it seems to me, I'm a strong component of gay marriage and interpreting the constitution to require the states to recognize gay marriage. But when, you know, if I consider the case of Debo Adegi-Balai who was, who President Obama had nominated to the civil rights, to head the civil rights division of the Justice Department and his nomination was not approved by the Senate because of a Debo Adegi-Balai's past association with representing Mu-Mia Bujamaal who had been convicted of killing a police officer in Pennsylvania. And many lawyers and ethicists and prominent lawyers spoke out condemning the Senate for associating a Debo Adegi-Balai with his representation of Mu-Mia Bujamaal that was wrongful to associate with him and, you know, he was just, he was just being a good lawyer in that case. So it, but it seems to me that as a demographic or political matter, many of the same people who were, who were supporting a Debo Adegi-Balai and condemning folks for associating him with his client, might find themselves, if they're not careful, celebrating the fact that gay rights groups have put pressure on law firms not to argue the other side in the gay rights marriage. Well, he just made a major discovery that there is hypocrisy in America. There is hypocrisy among civil rights advocates, human rights advocates, people on all sides of the issue. For the most part, people don't care about ethics, they don't care about principle, they just want you on their side. And they're prepared to make any ethical argument to get you on their side. Ethics has become a tool, an argument card that's played in the political arena. So I'm not surprised that you get the very same people trying to find rationalizations for why you would not condemn somebody for representing one group and then condemn them for not representing another group. Hypocrisy is rampant. Now, you can make distinctions in those cases. One case was a criminal case, potential death penalty life in prison in case. The other case is a case involving a principle. But I don't think that's what really motivates the distinction, or motivates the distinction is that people on the hard left support this guy in Philadelphia. And they oppose those lawyers who are opposed to gay marriage. It's as simple as that. It's who's ox is being gourd. So be careful about confusing ethical arguments with pure partisanship, which is what mostly dominates. I mean, if you want to look at what the basis is for most decision making, you will find it's heavily financial, largely ideological, and in a very, very tiny way ethical that the ethics are almost always used as an after-the-fact justification for the politics of the money. Follow the money. As you have had a long career in the law, is it your assessment that that pecuniary motivation getting in the way of ethical identification? Is it a bigger problem in the practice of law today, or has it been with us as you say, since biblical times? It's a very big problem today. The problems in the old days were very different. When I graduated law school, we had a part-type system of law practice. They were firms for Catholics, they were firms for white Protestants, they were firms for Jews. They were even firms for German Jews, as is English and Polish Jews. The whole system was in a part-type system. There was no room for women. There was almost no room for African Americans. There was no room for openly gay people. Today that's a little change. The law firms are much, much better. The bottom line is so much more compelling today, following the publication of the American lawyer, where virtually every lawyer's salary or income and earnings are on the front page. There's a lot of competition among law firms for who earns the most to partner. I think we're seeing a lot of ethically questionable actions being done by big law firms in the name of money. To that credit, some law firms have ethics counsel and they really do follow their advice. Other firms have ethics counsel just to give them cover for doing what they want to do. I hear you saying that in some ways the profession is more inclusive, more ethically oriented than it was when you graduated law schools and in some ways matters are worse. That's right. That's right. There are some people who see an association between the two. When the practice of law was a gentlemanly practice engaged in by white Anglo-Sex and Protestants who met together at the same clubs and were able to work out deals over a martini on the golf course. I don't want a stereotype and I guess I am stereotyping, but it was a negative stereotype at the time. It was easier to work in a kind of collegial way, but when law firms opened up to everybody and there was a much greater diversity in every possible way, you're going to get many, many more views of what ethics are and should be and many more conflicts and they're not going to be able to be resolved at the country club over a martini. As you look on the broad horizon, thinking about the prospects of our society generally and the work of the profession within it, are you sanguine about the prospects for the rule of law as the fundamental organizing principle of human society? It's a mixed picture. I can't tell you I'm optimistic or pessimistic. I'm a little bit pessimistic because I think students that graduate with dollar signs in front of them and many of them have their careers all marked out and they know what they want to do, how much they want to make and where they want to make it. I think ethics often play a secondary role, but students are also, there are many students who graduate with a high level of sensitivity, they want to do the right thing. The problem is the profession doesn't always reward doing the right thing. We pay so much more to lawyers who are just looking to make the super rich, mega rich and the mega rich even richer and we don't treat as well students who want to devote their lives to human rights and civil liberties and particularly unpopular causes. It's easy today to be a gay rights lawyer. It's easy today to be a women's rights lawyer. It's not so easy to represent really despised people or groups or individuals and that's where the challenge of law really, really comes about. I want to be respectful of your time and I've been grateful for this conversation. I think it's been illuminating and inspiring. Before I let you go, though I want to ask you a more personal question if I may about your professional life and that is you have been an extremely prolific writer and an extremely productive lawyer. I want to ask you if you can reflect upon your own success and how it is that you have been able to do so much in your professional lives. Do you have work routines that you settled on early in your professional life that have enabled you to be as effective as you as you have been or did you just like like Sandy Kofax get a board with an outstanding arm and write it to write it to my hands. What have you done to be so productive that we might learn from? Well first of all I started out as a bomb. I was a terrible high school student. I graduated with a 68 average from the Ashiba high school. I couldn't get into college. I was turned down at even at the Ashibi University which in those days would admit almost anybody and I just made it into Brooklyn College by the skin of my teeth. Then I became a very very determined student. I really wanted to prove that my high school was wrong and I became a straight-A student in college and law school. I've worked very very hard. I work every day. I've published 32 books and you know I've had 250 cases or something like that and I've taught 10,000 students in the 50 years of teaching. But you know just show you how fragile life is. So I'm 76 years old. I'm retired. I have a wonderful family, wonderful life. I've had all these successes and then suddenly on December 30th 2014, day before a new years, some woman who I never met and didn't know says I had sex with her when she was 16 years old and two lawyers, prominent lawyers, Paul Cassal and Brad Edwards, filed a legal document accusing me of this horrible horrible crime without doing any adequate investigation of preparation. And suddenly headlines all over the world of blaring the fact that this famous Alan Dershowitzer, everybody knows as a prominent lawyer, is a child rapist. And my life changes. People look at me differently. Now the judge threw the whole thing out and said that it was impertinent and outrageous basically to have it included. And I believe personally that these lawyers, professionally I believe these lawyers should be disbarred for engaging in the unethical behavior of making a false accusation. I've now learned that they in fact pressured the client into making this accusation against me and I believe they knew I should have known it was false. So you know you have your life, you live it, you live it well and then you become the subject of this scandalous accusation. You know fortunately I keep very careful records and I can account for every single day of my life during the relevant period of time and I can prove that I could not have been at the places at the times in the circumstances she said I was. So you know I will be completely and totally vindicated and these lawyers will be disgraced and the client may very well go to jail for perjury. But nonetheless my obituary will include a reference to the fact that I was accused. And so no matter what you do in your life, you can find that you can be the victim of a false accusation. And it really changed my attitude toward what we were talking about early on in this program, false accusations. I mean I am the first client in my life that I know for absolute certainty didn't do it. In every other case this and this in doubt. In my case there is no doubt but in the minds of some people there might be some doubt and there I'm sure some who would say anybody who would associate with me after that accusation was made is wrong. So you know this has helped me really understand what it feels like to be falsely accused. I previously understood it intellectually but I never understood it emotionally until this case. And so it's been an educational experience for me to know what it feels like to be like one of my clients falsely accused. And in my case in a black and white situation not that there was a question of consent or whether I knew how old she was. I didn't know her. I never was with her. I never touched her. I never had any contact with her and I can prove that now to 100% certainty. But nonetheless the idea of being accused like this really gives you a sense of how it must be for other people. You know I have the resources to fight back. I have the access to the media to fight back. I have the determination to fight back. And there are many who don't have that. And if they're falsely accused who do they have to defend them? They have their lawyer to defend them. That's why it's so important for lawyers to be out there defending people whether they've been falsely accused or whether the accusation is a true one. And having been through this episode yourself and still going through it now has it altered has it altered your view of the of the soundness of our legal system. Yes. And in what ways are you do you know how to keep you in the form? Oh absolutely. Today under our legal system I can accuse you of the most horrendous horrible crime just put it in a pleading even if it's irrelevant and be exempt from any defamation action or any other kind of action. And you can make false accusations and be protected by the legal system and I'm going to see that changed. I also as I said I want to see these lawyers disbarred for engaging in what I believe in my heart of hearts. It's my opinion but I believe it to have been unprofessional, unethical and irresponsible behavior. And I intend to prove that in court this there's so many me to defamation for saying that. And fortunately since the days of Thomas Jefferson truth is a defense to defamation. And I will prove a that I express opinions which I'm entitled to do under the First Amendment. And to the extent that I stated any facts that were believed to be true by me at the time. So I'm trying to use their lawsuit against me to establish their unethical behavior. And I think I will succeed. So I hear you saying that at the that certain elements of of your own ordeal have have have have have deepened your commitment to the legal principles that you've been vindicating on behalf of others throughout your career. But also suggesting avenues for for reform with with respect to legal standards and the practice of law. I agree with that 100%. Now it has vindicated my career to me that representing people who are accused is critically important to the operation of the system. But it also shows me the need for reform. I wasn't aware of this. I didn't know you could put something in a legal pleading and hide behind what's called the litigation privilege. Remember what they said in the legal pleading is they accused me of this terrible crime without an affidavit without seeking to prove it. They didn't say they want to prove it. They just said there it is like a drive by shooting or like graffiti scribbled on a bathroom door but using the legal system and then leaking it to the press to get maximum press coverage putting in Prince Andrew who they knew would get international press coverage and doing it for in my view financial gain. And that to me is conduct that should not be regarded as ethical by the legal profession. I'm going to fight and use this case to demonstrate that we need to change the law and hold lawyers accountable for using the legal system to defame innocent people. They picked on the wrong innocent person and they will regret that decision all of their lives. You know we I teach the litigation privilege in my ethics class and but I think that it probably is and a a doctrine that has been under theorized. Perhaps until now and undoubtedly there this your call your case will be the point of departure for for deeper study of the matter and perhaps reform. Are you pursuing a statutory reform of this doctrine or urging judicial innovation or both well statutory form to begin with and rule reform as well and there has to be ethics reform as well. They have to be clear unequivocal rules preventing lawyers from abusing litigation to include defamatory material and then deliberately leaking it to the press in the in the expectation that the press will then pick up on the litigation privilege be able to publish this material without fear of any consequences. If somebody made the same statement on a courthouse staff a they be liable for defamation and be the press wouldn't be able to report it unless the press did the investigation and determine it was true which of course they couldn't do in this case because it was untrue any any checking with me I could have proved very quickly that uh. it couldn't happen i couldn't have been where she said i was at the time she said i was under the circumstances she said i was it would have been very very easy to prove that if they just checked but newspapers didn't have to check this will they do say that this is in a litigation so you get a double privilege to get a litigation privilege and a journalistic privilege that exempts them from any kind of accountability for willfully deliberately and maliciously planting lies in a litigation now the judge in the case slapped them down And then said that striking this in pertinent outrageous material is sanctioned enough. In other words, they use the word sanction against these lawyers. And so I think they probably have to report that to various organizations that there has been a sanction imposed. And I know that there are lawyers in Florida who are bringing disciplinary charges against these lawyers for their unethical and their view and in my view behavior. Right. So it might be that so the lawyers could be punished as a matter of professional ethics for making the charge, for making the statement, but the litigation privilege insulates them against liability. Well, maybe not. I mean, it may be not. If the judge found that the inclusion of my name in the pleadings was irrelevant, then it may that finding may trump the litigation privilege or may take it outside the litigation privilege. Also, they have, if they leak to the press, that may take it outside the litigation privilege. Also, if they commented about it and they have commented about it, that may take it outside the litigation privilege. That's now being litigated in the state courts in Florida. And what can be said on behalf of the litigation privilege that this is an occasion where we have, where adversarial processes in place and any charges that are levied, they can, there's a discursive arena where they can be. No, the right way. Because I wasn't a party, I wasn't a party to the lawsuit. They put this in a lawsuit that I wasn't a party to. So I have no standing. I can't object to it. I can't oppose it. My motion to intervene in the case was denied. The judge on his own struck this. But there is no remedy. It's not part of an adversarial process. If they had accused me to my face in a lawsuit where I was a party and I could respond, that's one thing, but they didn't do that. They put it in a litigation that I wasn't even a party and they had behind the litigation privilege. I don't want to give anything to be said for it in that context. Also, they could easily have just put it under seal initially and given me an opportunity to go to the judge and say, "Strike it because it's false." The judge did strike it, but you can't unring the bell. And it's still in all the newspapers. If you Google me, you will still find the accusation. If I'm lucky, you will also find the fact that the judge struck the allegation, but the headline always trumps the vindication. The accusation always trumps the vindication. So there's something very skew of the system. And I'm going to be using the last part of my career to fight against these abuses of the system and to fight against the abusers of the system, the lawyers who abuse the system and who should, in my opinion, suffer the ultimate consequence of being disbarred. Well, I think it may be, let's say it's going to be the next part of your career. I don't think it's going to be the last part of your career. It is the current part of my career. I'm devoted a lot of time to it. And probably my 33rd book will take some time before I publish it. By the way, my next book that's coming out will be a very interesting one. It's called Abraham, the biblical character Abraham. The first, but certainly not last Jewish lawyer. And it's a story about lawyers through history and how they were influenced by the biblical patriarch Abraham. It'll be out in October. Well, that's great. I look forward to seeing that. And perhaps you'd be willing to come back on. We could talk about that book at that time. Sure. And we'll follow the work that you're doing on this litigation privilege issue. And I'm very deeply grateful for your reflections on that fundamental question that perhaps turns out, can't be answered quickly on the Will Fibon Field or strolling down the beach, but hopefully those who have this occasion to listen to this podcast might have a more satisfying answer. Well, I congratulate you on this podcast. I think you're doing a great job. And I think your questions were superb. So thank you for giving me an opportunity to dialogue with you on this issue. It's been a thrilling honor. Thank you, Professor. Thank you, be well. All right. There it is. There's my interview with Alan Dershowitz. I wanted to add one further justification that we sometimes offer for how it is, why it is that a lawyer can and should represent a client who the lawyer knows is guilty. Dershowitz and I discussed two justifications. That the lawyer should be skeptical about whether or not they do know the client is guilty. But that is ultimately not a satisfying justification given that we do accept that we sometimes know things. We know things in our personal life. And even in our legal system, we accept that a lawyer knows things and that that knowledge is allowed to be operative with respect to the kind of defense that a client is entitled to. And so if the lawyer knows that a witness is going to lie, the lawyer is forbidden as a matter of professional ethics from calling the witness. If the witness does lie in many states and the lawyer knows the witness has lied, the lawyer has an affirmative obligation to repudiate or remediate that lie. And so that framework presupposes that the lawyer knows things, the lawyer knows that the client is lying. So we must accept, if we accept that rule, we must accept at some level that the lawyer can know that the client is guilty. And so we need further justification other than the lawyer doesn't know the client is guilty for why the lawyer can ethically represent the guilty client. Dershowitz made a compelling case that he's been making for 50 years that the integrity of our justice system depends upon lawyers giving full-throated defenses to every defendant in every prosecution, at least in criminal prosecutions, at least in, he seemed to be arguing enforcement actions where the citizen is pitted against the government. The vitality of the defenses that we put in place to protect the vulnerable and individual, the innocent individual against the dominating power of the sovereign are so fragile and so important that they must be continuously vindicated in every case so that they're available when the state is really going after an innocent man or woman. That's the essence of the argument that I heard Dershowitz making and it is an argument that you commonly hear, though perhaps not as eloquently or persuasively as Dershowitz puts it. And yet as I reflect on that justification, it strikes me that it ultimately is a matter of faith. It's not a matter of logic. It doesn't logically follow that to vindicate the full functionality of our justice system on behalf of the wrongly accused. We need to vindicate every element of that system in cases where we know the defendant is guilty. It just, maybe it's not true. Maybe that's not the case. Maybe the system is strong enough to be available to protect the rights of the wrongfully accused, even if we don't provide those who are guilty with the defense, with the lawyer, with the lawyer that's willing to work hard for them. Maybe the system still could survive. In other words, the analysis that Dershowitz gives, the defense that Dershowitz gives, isn't a proof. It's not a logical proof. It's not something that if you tune a microscope carefully enough and have a powerful enough lens that you can finally see, "Ah, yes, that is right," or climb high enough up on the mountain top, like the biblical figures that Dershowitz referenced, "You're not going to find that justification, ah, yes, it really is there on the tablets, highest up on the mountain." But rather, this is the justification that we, as lawyers, as a legal community, have developed and have passed down as our lore, as our legend, as our mythology, that we're committed to, that we have faith in, that we believe provides the foundation, the moral foundation for the rule of law that we treasure, and that we value so much. Maybe we value that rule of law, we treasure it so deeply that we are committed to over-determining its survival, doing more to assure ourselves of its well-being than we think might be minimally necessary. So even if it's not minimally necessary to defend those who we know are guilty, we do it anyway just to make sure that our system is going to be strong in those cases where the weak, the wrongfully accused, need it. But one final justification that Dershowitz and I didn't get around to talking about, but I'm sure that he would concur with, if we had, and that is the importance, even when we know somebody is guilty, of heinous crimes, the importance of reducing a story, a narrative of conviction that is coherent and persuasive and tractable, believable as being complete and fair so that the community at large, who maybe doesn't know as well as the lawyer knows, as well as insiders know that the defendant is guilty, those in the community at large can have a narrative that they can commit to. And it is the legal process that produces a narrative, a story, a persuasive story that can convince us generally that this person is indeed guilty. And the legal process that involves that defendant getting a full-throated defense is necessary to produce that persuasive narrative. And producing that narrative is crucial, not just for contemporary society, but for the future, for the defendant's descendants, their family, their kin, their children, a generation hence, two, three generations hence. If they don't have available to them the record that their ancestor was convicted of that crime in a fair way with a process that produced evidence and produced witnesses and had a deliberation that resulted in a determination of their guilt then their ancestors might be restless or might seek vengeance which will disrupt the peace, the calm, the order that we so deeply desire and civilize society. So even if we know today, even if we know that a person is guilty and even if that knowledge is widely understood today, the rule of law desires intergenerational justice, intergenerational calm and fairness and peace. And so even if we know somebody is guilty today, we need to convince future generations that that person was guilty. The knowledge that we have now might not be as easily accessible to future generations. And so we need to create a record that demonstrates that knowledge and the way we create that record is through the legal process by going through the steps that involve a lawyer, a defense, evidence, deliberation and conviction. Are these adequate justifications? I'm persuaded, I'm persuaded. But we have to keep telling ourselves and each other these justifications from generation to generation in order to energize ourselves and recommit ourselves to the defense of the rightly accused and to provide explanation for those who are seeking to understand how it's ethical and morally justifiable for lawyers to represent these heinous individuals. I loved how Dershowitz said that people come up to him on the beach in airports, asking this very question and from his tone, you took it that this really happens to him and he really has to have this conversation routinely as all lawyers do and should be prepared to have. And finally, I want to reflect on the accusations against Dershowitz, the allegations of sexual misconduct with an underaged girl that were raised in the pleadings in a civil lawsuit in which he was not a named party. I knew about those allegations before I contacted Dershowitz and asked him to participate in the podcast to discuss this foundational issue of legal ethics that I wanted to pursue. I had read about those allegations and I had also read Dershowitz's unconditional denial, unconditional denial that he had done any such thing or ever even met the woman making the accusation. I had previously read that he intended to file defamation charges against her and seek disciplinary action against the lawyers who had facilitated the accusation. Honestly, I had read and digested that material months ago through my ordinary reading of the newspapers and I suppose blogs that cover the legal profession, et cetera. The matter wasn't on my mind when I contacted Dershowitz to participate in the podcast. And after he agreed, I then did reflect on whether or not I should ask him about the issue or have any part of our interview involved treating that matter. And I decided that wasn't the subject of the podcast, it wasn't the reason that I had contacted him. I wanted his learned opinion and benefit of his longing experience in the law on this fundamental question of legal ethics. And so I resolved in my own mind that I would not raise the question that I didn't think it was relevant to this podcast and I wouldn't discuss it one way or the other. I concluded that it was ethical for me to do so, that it was ethical for me to not address it. But then you heard in the podcast, he brought it up. He raised the issue and used the occasion to defend himself. And I was perfectly happy to have him raise the matter and perfectly happy to provide him this forum to make his statements in connection with it. I did think that maybe I-- he thought that I was prompting him. When I turned at the end of the interview, I genuinely wanted to ask him about his productivity as a scholar, as a lawyer. It's something that I'm interested in is how do people work, especially people operating at the highest levels of intellectual production? What are your work habits? How do you get so many words down on a page? When do you sleep? What do you eat? Do you meditate? Do you exercise? Do you pray? Are you just gifted? I wanted to know. So I turned in the conversation to ask him. I said I wanted to ask you to turn in and ask him more personal question. And that's what I had in mind. I thought maybe he thought I was going to the allegations and that prompted his disquisition. But obviously, he was prepared to talk about it and not at all shy or hesitant, too. So I felt that it wasn't at all unfortunate that the conversation took that turn. And I felt satisfied by what he had to say about it. Interestingly, as we turn to that discussion of that sorted matter, sorted and publicly controversial matter, the conversation itself took a more technical legal turn as we discussed the litigation privilege, which I'm reading now from Blacks Law Dictionary, the bounded giant hard copy version, which sits on my shelf. Litigation privilege, a privilege protecting the attorneys and parties in a lawsuit from defamation claims, arising from statements made in the course of the suit. Note that there is no aspect of that definition, which precludes professional discipline against attorneys in connection with statements made in litigation. Will follow developments in Dershowitz's pursuit of reforming the litigation privilege or his pursuit of remedy for the wrongs that he feels he has suffered in connection with this affair? All right, that's it. That's it for now. I'm grateful to Dershowitz for participating in the podcast. And I'm grateful to you for listening to it and grappling with these difficult and complex matters. Subscribe to us on iTunes. And follow us on Twitter @DavidYosophon. That's @DavidYOSIFON @DavidYosophon. And I tweeted out whenever I post an episode in this podcast series. I find myself at once wanting to do legal theory and play woofable ball. And then I find with great satisfaction. I can do both. Thank you for listening.