Walking on Broken Glass

There has been a fair amount of commentary on the decision by the Supreme Court of California denying Stephen Glass's admission to the bar of that state.

Fairly typical is this response, from Slate's David Plotz:

Stephen Glass, the disgraced New Republic journalist, and once my friend, lied to me most of the times we spoke. My wife Hanna Rosin was one of his closest confidantes at the New Republic, and he played her for a fool, too, and even tried to get her to defend his lies to the magazine's editor. In The Fabulist, the dreadful, self-justifying novel Glass wrote a couple of years after his disgrace, he depicted the Hanna-like character as conniving, sleazy, and disloyal, and the Hanna-like character’s husband as even worse.

So, needless to say, I don’t like Steve. And I don’t trust Steve.

Even so, today’s California Supreme Court decision denying him admission to the California bar is misguided and cruel, a verdict that embodies what is wrong with American law. The Supreme Court spends 35 smug, self-righteous pages finding him morally unfit to be a lawyer in California. His “turpitude” required him to show overwhelming evidence of rehabilitation, but the court found his apologies self-interested, his confessions incomplete, and his pro bono work insufficient. Lawyers must be utterly devoted to “honesty,” the justices assert—a claim that only lawyers could make about law with a straight face—and Glass isn’t.

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Admitting Stephen Glass to the bar would help the people of California who need lawyers. He has proved that for 10 years. But the Supreme Court and the California Committee of Bar Examiners don’t care about that. They care about telling themselves that their profession is saintlier than it is, and they’re superior to the reformed liar who wants to work with them. But law isn’t holy orders. It’s a job.

Andrew Sullivan agrees, and the decision itself quotes former New Republic editor Martin Peretz describing the process as "an act of stalking." (Opinion at p. 20)

Now, I'm equivocal on the appropriate outcome here, but let's just be clear about Plotz's reasoning: He's not actually engaging with the rationale offered by the Court. The Court grounded its reasoning in the fact that the evidence of rehabilitation was severely undercut by the evidence that Glass had given misleading and incomplete information to the New York State Committee on Character and Fitness in his (unsuccessful application for admission to the New York State bar in 2002, and, further, that Glass's testimony at the hearing before the California authorities regarding the New York proceedings and his efforts to redress the harm he had done was likewise evasive and misleading by turn, concluding that "[t]he record also discloses instances of dishonesty and disingenuousness occurring after Glass's exposure,up to and including the [California] State Bar evidentiary hearing in 2010." (Opinion at 28.) Thus, Plotz's condemnation of the California Supreme Court on the basis the evidence established Glass's rehabilitation is at variance with the grounds set forth in the opinion, undermining his rhetorical questions, "Exactly how much longer would he need to work in this dedicated way for the justices to forgive? One more year? Five? Ten? How’s never? In the Bible, Jacob served 14 years: Would that be enough?"

So why am I equivocal?

Well, I believe in forgiveness, and in second chances, and, while Glass has not been (assuming the Court's summary of the record before it is correct) truthful about his past, it is impressive how many people in his new chosen profession believe in him now. (Of course, this may just mean that he's a better con man than those lawyers and other professionals think.)

But on the negative side, look: Lawyers have many, many chances to mess people's lives up, if they go into any of the fields that deal with them. It isn't enough to say, with Plotz, that case citations and record citations can be looked up and verified. Often, yes. But in oral arguments? Or with an overburdened trial part judge who is often hard-pressed for time, or relying on clerks? And factual submissions may not be tested until trial, which doesn't take place in the overwhelming majority of cases in California--95% in 2001. Not to mention Glass's own clients--will their cases be viewed with special skepticism based on the identity of their lawyer, even if they don't know about his past? And, even more mundanely, what about billing? With all the ways attorneys can overcharge clients, either any firm or any client he works with would be at serious risk. So it's not so simple.

I'm not saying the California Supreme Court reached the only reasonable result here. But it is hard, frankly, to see it as unreasonable, either.