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Friday, December 30, 2011

Fabulists and lawyers

Character-and-fitness discussions usually do not make for national, mainstream-media news. But the last two weeks have featured a great deal of discussion about the California Bar application of Stephen Glass, the former journalist and editor at the New Republic who in the late 1990s fabricated all or parts of more than 40 stories. His story was famously depicted in Shattered Glass. The bar committee denied his application (just as the New York Bar committee was expected to do before Glass withdrew his application). A state court rejected the committee's decsion and was affirmed by a divided appeals court; the Supreme Court of California agreed to hear the case and briefing is ongoing. Meanwhile, opinion in the journalism and media community is sharply divided, with some particularly strident opposition from journalists who write about the media and journalism.

There is a close connection between journalism and law. The jobs are similar, as are the skills necessary to practice both and the types of people likely to be attracted to both careers. In particular, both depend on the ability to think, analyze, write, and, above all, tell a story. In their most idealized forms, both trade in "truth." And, for what it's worth, both typically rank fairly low in Gallup polls of respected professions.

I often question the character scrutiny that bar applicants go through, because much of it has little to do with the ability to practice law ethically and properly. But this case can feel different. Lawyer jokes (e.g., since when does lying disqualify someone from becoming a lawyer?) aside, an applicant who in the past has made up entire people, companies, organizations, and events--and documents and evidence supporting those--while working in an industry that is about telling the truth may not be trusted not to similarly fabricate testimony or evidence in litigation. The Bar Committee may be especially wary because what journalists do is so similar to what lawyers do.  And while it is easy to say we should give him a second chance because if he tries this again he will eventually be caught, it would be impossible to measure the systemic and individual damage his actions would cause in the interim--damage likely far greater than the reputational ding Glass caused the New Republic (whose owner supports Glass' application and has acknowledged that the scandal raised TNR's profile) and the institution of journalism.

One interesting question is whether we can read tea leaves in the Supreme Court's decision to take the case. Do state supreme courts regularly take cases where the lower court admitted the person to the Bar? Or does agreeing to take the case suggest a likely reversal and rejection of his application?

Posted by Howard Wasserman on December 30, 2011 at 09:31 AM in Current Affairs, Howard Wasserman, Law and Politics | Permalink


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I actually was not drawing any conclusion about Glass's case; rather, I was explaining why I understood the unique scrutiny in this case. In any event, from my reading of the case, the issue is less about Glass's past acts and more about his current contrition for those past acts.

Posted by: Howard Wasserman | Dec 30, 2011 11:47:06 PM

Sadly, what is lost in this post, as in so many others, is any attempt to deal with Stephen as an individual, instead of as a set of decade-old acts that may or may not reflect who he is now. I realize that not everyone knows -- or can know -- Stephen as well as I do, but it disturbs me how many people are willing to pass judgment on him without exhibiting any interest in what kind of person he is now, in 2011. In passing moral judgment, I understand looking at the acts instead of at the person. But in passing judgment on Stephen's fitness to practice law, I don't think that's enough.

I have posted my thoughts on Stephen, who I am privileged to have called a friend for many years, at Opinio Juris:


Posted by: Kevin Jon Heller | Dec 30, 2011 5:33:52 PM

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