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Tuesday, August 14, 2012

Stephen Glass and the "Family Background" Defense

In preparing (or procrastinating?) to teach professional responsibility this fall after a hiatus, I have become fascinated by the litigation over Stephen Glass' application for admission to the California bar.  For those who don't remember, Stephen Glass was the New Republic writer who fabricated over 40 articles in the late 1990's, perpetuating what has been deemed "one of the greatest journalistic frauds in history."  He wrote some of them while enrolled at Georgetown Law School.  When he was fired after his lies were finally uncovered, Stephen first sought admission to the New York bar, but withdrew after learning that his application would be denied on moral character grounds.  His application to California was denied by the state bar, but Glass appealed and his application was twice approved by bar review board judges.  The California Supreme Court accepted review of the bar's appeal this year, making it the first attorney discipline case the state's high court will review in over a decade.

Lawyers and ethics experts are divided on whether or not Stephen Glass should be admitted to practice.  (See here for an article citing Deborah Rhode as in favor and Steven Gillers as in in opposition).  Those supporting his application point to the fact that he has undergone therapy to understand his behavior; that he has apologized to many of those he wronged; and that he should not be penalized forever for mistakes he made when he was in his early 20's.  Those opposing his application point to the magnitude of his deception (he invented reporter's notes, fake voicemails and faxes, and even enlisted his brother to act as a phony "source" to cover his tracks); the self-avowedly "mean-spirited" nature of his lies (several of which played on racial stereotypes of African Americans, including Vernon Jordan, as lazy and lecherous); the fact that he only sent apology letters years after his lies were uncovered, and sent them on the eve of his publication of an autobiographical novel for which he earned $190,000; his failure to return or donate any of the profits from his fraud; and the fact that he only fully disclosed the scope of his false articles when applying to the California bar in 2007, having not done so when applying to the New York bar in 2002, nor when the publications for which he had worked  sought his assistance in correcting the falsehoods in 1998.

The relative lengths of the two lists above probably reveals my bias, but I am firmly against Stephen Glass' admission.  I think his actions as a journalist, compounded by his self-interested and seemingly remorseless actions in the almost fifteen years since that time, make him ill suited to the trust people place, or should be able to place, in their lawyers.  I don't normally take these things personally but, as a member of the California bar myself, I would be very uncomfortable to be in the same category as Glass.  

The thing that most disturbs me about the Glass case, however, is that he explains--or tries to excuse?--his actions as the product of his parents' strictness and extreme pressure for him to succeed and (oh, horrors!) attend medical school.  The judge overturning the bar's denial of Glass' application gives tremendous credence to these tales of woe, citing his parents' hiring of a tutor to help Stephen learn rope climbing and their meticulously organized refrigerator as leading to lasting damage.  As Judge Honn wrote: "[Glass] grew up with deep feelings of inadequacy and low self-esteem, despite having an impressive academic record. . .The criticism hit him particularly hard.  He had trouble sleeping and felt he could never achieve success in his parent's eyes without going to medical school. . .[To get around this problem,] he decided to create articles with 'electricity' and excitement that even his parents would appreciate."

What's amazing to me about this is not only the fact that many people have parents who pressure them or are strict, and do not engage in massive and mean-spirited public lies for personal gain.  It is also that the majority of juveniles--and I mean real juveniles, not recent college graduates--adjudicated delinquent or convicted of crimes have grown up with serious family and socioeconomic deprivations.  For instance, abused and neglected children are 1.5 to 6 times as likely to be delinquent and 1.25 to 3 times as likely to be arrested as an adult; over 30% of young people involved in the juvenile justice have a learning disability; and the vast majority are from poor families and poor neighborhoods.  And, because poverty is highly correlated with race in America, there are tremendous racial disparities as well.  (See the CDF website for statistics, and Robert Schwartz's article on juvenile justice and poverty at 16 Geo. J Law & Pov 471 (2009).  Check out also Tamar Birckhead's great recent blog post about the disparities among poor kids and more affluent kids in the same communities here). And yet prosecutors, judges and we as a society, are routinely unwilling to forgive them their mistakes based upon a "family background" or environmental defense.  Instead, the U.S. continues to have one of the most punitive juvenile justice systems in the world.  

The only conclusion I can draw from this contrast is that most people are only willing to accept an excuse that they can understand.  The largely middle class and white bar and bench can relate to strict or overbearing parents, but cannot fathom the deprivation and perils with which too many children grow up today.


Posted by Cynthia Godsoe on August 14, 2012 at 10:28 AM | Permalink


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Would we allow Bernie Madoff into the bar after 15 years of repentance? The magnitude of his deceit is too great to let him in.

Posted by: Concerned | Jan 17, 2013 2:41:44 AM

Does anyone know if Johnathan Perkins was allowed entry into the bar? I sure hope not. http://abovethelaw.com/2012/01/an-update-on-johnathan-perkins-did-he-get-his-law-degree/#disqus_thread

Posted by: AnonLawProf | Oct 31, 2012 9:33:10 AM

The simplistic, binary, automaton "thinking" which undergirds this post is frightening. While it's true that Stephen Glass was wrong to fabricate articles in The New Republic, it's equally wrong to trash a person's entire life without giving the person an opportunity to redeem himself. This is especially true when the wrongdoer was young when he made his mistake.

Stephen Glass did a bad thing when he made up stories in The New Republic, but that doesn't mean he's a bad person. Glass has been publicly vilified, threatened, precluded from maximizing his abilities, and labeled a monster for almost fifteen years. The guy has been through enough. Consequently, he should be given a second chance and accepted as a member of the California State Bar. By minting Glass as an attorney, the State Bar will be accomplishing two important goals simultaneously: 1) they will allow Glass to prove that he's worthy of the public's trust and 2) they'll show that every person is better than the worst mistake he's ever made.

Posted by: Jack | Oct 31, 2012 12:57:13 AM

Im a little unclear on your point -- do you mean family background defenses should only work for people who lie and not for other crimes/bad acts? Bizarre.

Sent from my iPhone

Posted by: Cynthia Godsoe | Aug 14, 2012 9:06:35 PM

If these hypothetical poor, juvinile minorities were accused of plagiarizing news articles then this post would make a lot more sense.

"Family background" defenses don't work in a lot of situations, whether you're white or not.

Posted by: Joel | Aug 14, 2012 8:09:10 PM

What an interesting issue. It seems particularly difficult when, as here, the substance of the original offense and at least part of what we want to see as rehabilitation is the same: telling the truth. To the extent Glass did not provide full accountings of the fake stories in the NY bar application in 2002, in other words, not only does it indicate a lack of rehabilitation, but it underscores the original lies as (potentially) a fundamental character flaw rather than youthful mistakes.

Posted by: Dara Purvis | Aug 14, 2012 3:39:17 PM

I blogged about this case here awhile ago and I'll reiterate what I wrote then, in furtherance of Paul's point: Journalism is a profession that shares many similarities with law and it is for that reason that I understand the Bar's special hesitancy with Glass' candidacy, as opposed to someone who engaged in other acts, even deceitful acts, in a different context.

Posted by: Howard Wasserman | Aug 14, 2012 2:37:24 PM

Thanks for the many thoughtful responses. I certainly agree with some of the above posters that Glass is not the only person to have engaged in massive deception and that public figures often seem not to be penalized for it in the long run. I also agree that his past acts are not grounds for permanent banishment from the law (although I certainly disagree that his acts brought no lasting harm to anyone but himself, and there was in fact a civil suit filed against him, by D.A.R.E., which he settled).

I would like to clarify some points in response to Kevin's post. First, I certainly am not saying that we should reject Glass' defense because the deprivations of poor juveniles are not often enough taken into account. Having represented youth in delinquency matters who have suffered documented abuse or neglect, I have urged these factors to be taken into account as mitigation. I don't believe it's "mocking" Stephen's explanation to say that no one involved, not even the mental health experts he called to testify for him, alleged that his parents abused or neglected him. While I support consideration of a person's circumstances in according liability or privileges--because admission to the bar is a privilege--I don't think any possible circumstance qualifies for mitigation.

I also have to say I am somewhat surprised by the tone of your post, Kevin. I'm not sure why I would be accused of acting out of "spite" towards Glass, whom I've never met. My post was not based upon a knee jerk reaction, but rather upon a quite thorough review of the available materials about the case and upon the standard an applicant like him must meet: "a lengthy period of exemplary conduct." While I of course expect people to disagree with me--and have had civil discussions about this issue with colleagues, students and friends with a range of views--I don't think I am holding myself out as better than anyone or that I merit sarcastic and snide asides. Simply, I believe that the law is an honorable profession and, since I both write and teach in professional responsibility and ethics, am deeply concerned about how the profession evolves and is responsive to the public. And while I respect the right of witnesses to testify for Glass, there were also many who testified against him and many of his witnesses apparently did not know the extent of Glass' subsequent actions (e.g. misrepresenting information in his NY bar application). You seem to imply that only people who know Glass, or who are present at the confidential bar trial, should be permitted an opinion on him. We are a self-regulating profession, which means that we should all care about, and are entitled to opine upon, these issues.

Posted by: Cynthia Godsoe | Aug 14, 2012 1:39:16 PM

Pressure to go to medical school? Let's call this the "Jewish mother defense."

Posted by: David Bernstein | Aug 14, 2012 1:33:39 PM

Glass was a law student when the bad stuff happened. He knew what was at stake. Keep him out.

Posted by: Jack | Aug 14, 2012 1:33:36 PM

I have appreciated Kevin's interventions on this issue from time to time, and, so to speak, I respect his respect for his friend. It has certainly made me think more, and less reflexively, about Glass's case. Unlike a poster above, I am inclined to doubt that the fact that Glass acted in this fashion presents a substantial risk of his falsifying a document in litigation, in a different profession, many years later. I haven't read the evidence in this case, although I am fully familiar with the history of his actions at TNR and elsewhere; I am not terribly familiar with his actions in the many subsequent years. I see no reason to think, as a commenter writes above, that redemption is impossible in this or many more cases.

On the other hand, I feel compelled to point out that however informal and unofficial a profession journalism is, it is a profession nonetheless. And Glass repeatedly, deliberately, blatantly violated all its core rules, and then violated them all over again by attempting to cover up his lies with more lies. I obviously take no position on what he is like now and whether his appeal ought to succeed or not. But I think there is nothing improper about pointing out again, given the passage of time, just how total his dishonesty and ethical failure was in his first, albeit youthful, experience of professional life. He was, without doubt, an utter fraud.

Posted by: Paul Horwitz | Aug 14, 2012 12:57:07 PM

Leaving aside the family issues, I think we should be extremely wary of allowing anyone who has been proven to have fabricated evidence to serve as an attorney. There is just too much of a risk that he would "suddenly stumble upon" a smoking gun document in a case that was otherwise going badly. It's not just that lawyers don't want to be vaguely associated with him because his mere presence gives us a bad name; it's that we in no way to face an opposing counsel with a confirmed history of lying and falsifying evidence.

Posted by: Charles Paul Hoffman | Aug 14, 2012 12:26:30 PM

Stephen Glass and I both grew up in the same upper-middle class Jewish neighborhood and both went to the same high school, Highland Park High School (in Illinois). Stephen was friends with my brother.

My parents put pressure on me. And a lot of my friends' parents put pressure on them. That was the environment in which we grew up. However, I agree with the post that it is ridiculous to blame what Glass did on his parents.

Part of the problem with Glass's case is that he has never taken responsibility for his actions. He has blamed his parents rather than owned up to what he did. He expressed little remorse until he applied for admission to the California bar.

I do believe that, under certain circumstances, Glass could be admitted to practice law. But he is not there yet. For now, the California Supreme Court should keep him out.

Posted by: Gregory Duhl | Aug 14, 2012 11:32:37 AM

I should add that, though I was not one of his character witnesses, I have had the privilege of knowing Stephen for many years.

Posted by: Kevin Jon Heller | Aug 14, 2012 11:28:41 AM

So we should reject Stephen's explanation for his actions because society doesn't accept similar explanations for the actions of poor children? That makes no sense. You are absolutely right that the legal-system's unwillingness to consider the family background of the poor is indefensible, but that argument supports at least considering Stephen's family background -- not rejecting it simply out of spite. Or do you believe that only material deprivation can affect how a person perceives and responds to the world?

I am also struck by the ease with which, after mocking Stephen's psychological explanation of his actions, you so confidently diagnose his character deficiencies. It must be nice to be able to be understand people without actually meeting them -- I have no idea what's wrong with Judge Honn, who reached the opposite conclusion after listening to Stephen, and with the 20 or so people who supported Stephen's admission to the California Bar, a group that included law professors, psychologists, and the former owner of The New Republic. If only those benighted souls had your rare power of insight, the legal profession would clearly be the better for it.

Posted by: Kevin Jon Heller | Aug 14, 2012 11:13:19 AM

I agree with your take on Glass on all counts. The extent of his deception and coverup when caught. The degree to which he still covered up that extent even after being caught, only "admitting" what was already proven at each step. The blaming on family pressure. All of it.

But I note that such coverups and deception, while seemingly at the apex in his case, are not really all that different from what some well-known political scandals have involved, so perhaps Glass needs to adopt some partisan positions to earn some defenders from one camp or another.

Take John Edwards. He didn't just lie about the affair and the baby, but was plotting to manufacture evidence (like a poopy diapeer with some other kid's poop!) to cover it up. After caught on some parts (the affair), he still denied other parts (the parentage). The only thing separating him from Glass, in my view, was that he didn't pull it off for as long.

Or take the Clinton affairs. I know it upsets some folks to bring it up, and I'll readily agree that many or the attacks -- such as an impeachment effort by a House led by that great family man Newt Gingrich -- were hypocritical political grandstanding. But that shouldn't diminish our full appreciation for how far Bill and his team went in denial and in falsifying evidence. Procuring a false affidavit from Lewinsky? Accusing Flowers of doctoring the audiotape of the phone call, in which he said to just "deny, deny" everything?

He also admitted only what had come out at each step, still denying other parts. To this day, I'm convinced he would have stuck to his denial re Lewinsky -- attacking her as crazy -- if it were not for the infamous DNA on the dress.

And Hillary, as helpful enabler, went on TV to blame his affairs on his family background. Yes, his was a more troubled childhood than Glass's upscale "pressure," but still, it was a pretty weak claim.

Yet Clinton is not only the respected elder of his party, but he now gets that backhanded "respect" from his former enemies, of the "Obama's so bad, not like good ole Bill" variety.

Nixon, too, reached all those crazy levels of coverups, and on one hand was abandoned by his party and forced to resign, but on the other hand, he, too, came back to wise-old-man status.

So why is Glass so far beyond redemption, when similar deception and sociopathic behavior by politicians does not earn the same type of condemnation, except from the given politico's political or ideological opponents?

Posted by: another cynic | Aug 14, 2012 10:57:53 AM

It is almost certain that a white man gets a considerably fairer shake in this country's courts than any black juvenile ever will.

With that said, Glass wrote fake articles in a news magazine fifteen years ago and was caught at it, with no lasting harm done to anyone or anything except his own reputation. It wasn't a crime, nor did it give rise to a civil action. If the ethics committee of the California state bar or the ABA want to make an example of liars in the profession whose misstatements and omissions really hurt people, they could start with a dean or director of admissions at almost any law school in the last ten years.

Posted by: Morse Code for J | Aug 14, 2012 10:57:43 AM

Great post. Very thoughtful. Another example of cognitive illiberalism.

Posted by: P | Aug 14, 2012 10:46:03 AM

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