[Congressional Record Volume 144, Number 74 (Wednesday, June 10, 1998)]
[Extensions of Remarks]
[Pages E1090-E1093]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    INDEPENDENT COUNSEL STARR ADDRESSES THE MECKLENBERG COUNTY BAR 
                              ASSOCIATION

                                 ______
                                 

                         HON. JOHN CONYERS, JR.

                              of michigan

                    in the house of representatives

                        Wednesday, June 10, 1998

  Mr. CONYERS. Mr. Speaker, I enter into the Record the following 
transcript of a speech made by Independent Counsel Kenneth Starr to the 
Mecklenberg County Bar Association in Charlotte, NC on June 1, 1998.

Remarks by Whitewater Independent Counsel Kenneth Starr at Mecklenburg 
               Bar Foundation, Charlotte, North Carolina

       Mr. STARR: Thank you very much. Thank you, Bill. It is a 
     great pleasure to be here among a number of friends and new 
     friends, in this great and very dynamic city, building upon a 
     rich tradition of wonderful lawyers, some of whom have graced 
     the leading courts in the country, including the Supreme 
     Court of the United States. So thank you for your very kind 
     invitation.
       And let me also say at the outset how grateful I am to the 
     sponsors for directing the very generous gift to the Burger 
     Library Project at the College of William and Mary. I was 
     privileged to serve as a law clerk to the late chief justice, 
     and this, as you might imagine, for those who have been 
     privileged to serve as law clerks for federal judges, is a 
     labor of love when one is given the opportunity to be 
     supportive in some way or another of a project that one knows 
     that--as

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     law clerks like to refer to their judge as either ``the 
     judge'' or ``the boss''--that the boss would say, ``That is a 
     good thing, and I'm very grateful.'' So I am very grateful to 
     you.
       Let me also say that in light of the comment about Arthur 
     Miller--how many wives was that?--(laughter)--thankfully, I'm 
     about to celebrate my 28th wedding anniversary. I was 
     thinking about the dog. (Soft laughter.) The dog bit Arthur?
       Ms.   : Mmm-hmm. (Affirmative.)
       Mr. STARR: Now I have argued against Arthur and with 
     Professor Miller, and he's a very distinguished advocate and 
     so forth. But I have a solution. Not only do I have the same 
     wife for the last 20--almost--8 years; we've also had a 
     limited number of dogs. (laughter.) And I've got a dog for 
     Professor Miller--(laughter)--who is a dropout from obedience 
     school. (Laughter.) No Phi Beta Kappa, he.
       Thank you again for your hospitality.
       Several days ago the nation was once again shocked when a 
     15-year-old boy walked into a school in a little community in 
     Oregon, of all places, Springfield by name, and opened fire--
     I should quickly say ``allegedly.''
       One can only wonder what lies behind this horror. The 
     pundits are already thinking and commenting. Some may say 
     it's easy access to guns. Some say it's the culture of 
     violence in the mass media, on television and our movies. 
     Others say it's parental failure, breakdown of families, 
     parental responsibility and the like. But it seems to me that 
     when we gather together as a legal community, we cannot lose 
     sight of the broader cultural backdrop, and to look at these 
     unspeakable tragedies of life against that backdrop.
       A very thoughtful person, Professor Steven Carter of the 
     Yale Law School, has recently written yet another thoughtful 
     book entitled simply, ``Civility''. And in this book--perhaps 
     you have seen it; it's, again, as his books tend to do--
     gathering a lot of attention, and rightly so, he discussed 
     what he calls the de-civilization of American society. 
     Professor Carter characterizes civility, a term that is 
     very familiar to the legal profession, in a very 
     intriguing way. He says, ``It's the sum of the sacrifices 
     that each of us as individuals make in order to live as 
     part of organized society.'' The sum of our individual 
     sacrifices.
       Now, Professor Carter suggests, rather unhappily, that 
     Americans are losing their sense, as a people, of civility. 
     While individualism, and indeed, rugged individualism is a 
     long and cherished tradition in American society, Professor 
     Carter is seeing something different. Nothing wrong with 
     being individualistic and asserting individual autonomy, but 
     he says there is a cultural difference. His thesis is that, 
     increasingly, Americans see themselves traveling through 
     their lifetime journeys alone. Many believe that--again, 
     Professor Carter's thesis--they should be able to act in a 
     self-centered, egocentric, selfish way, and indeed, to act in 
     whatever manner suits their interests, as they determine it 
     at the time, regardless of the effect that it may have on 
     others.
       This callous disregard for civility, that sum of self-
     sacrifice, Professor Carter argues is threatening to this 
     society. In his view, it threatens our very safety, but even 
     more than that it threatens our political foundations, our 
     democratic way of life.
       Many observers believe that the legal profession, 
     notwithstanding its greatness and its traditions, has 
     likewise not been immune from this disease of selfishness. 
     Justice O'Connor put it this way: she said, ``Many lawyers 
     appear to have forgotten the integrity and civility--'' 
     notice her marriage of the two, integrity and civility--
     ``that once distinguished our profession.'' She used the term 
     ``many lawyers,'' not all. Many seem to have forgotten these 
     twin pillars of integrity and civility.
       A striking example of what is said all too frequently, 
     namely the low public esteem of the profession, is the fact 
     that notwithstanding that 25--count them--of our 42 
     presidents has been lawyers, and some are icons. Think of 
     them. Mr. Jefferson; Mr. Madison; Mr. Lincoln. Lawyers, and 
     successful lawyers; practicing lawyers, lawyers who knew 
     courtrooms, knew how to try cases.
       Notwithstanding that storied past, one of the candidates in 
     the Washington, DC, mayoral primary is campaigning on this: 
     ``Vote for me because I am NOT a lawyer.'' Now that's in 
     Washington, DC. Makes one wonder. Times have changed. It was 
     150 years ago, not too terribly far from here, that one of 
     the great courtroom lawyers of his day, Daniel Webster, had 
     this boast: ``Show me a man who is dishonest, and I will tell 
     you, he is not a lawyer.'' We would say, ``He or she is not a 
     lawyer.''
       The lawyer of yesteryear was seen as a person who upheld 
     the law and who stood steadfast against recklessness, against 
     tyranny, and indeed against prejudice. As recently as 1960, 
     which some of us do remember, a Southern novelist named 
     Harper Lee wrote a little story. She expanded on what had 
     been a short story, and you know it. She created this 
     marvelous character, a lawyer named Atticus Finch, in ``To 
     Kill a Mockingbird.''
       Atticus Finch strove to find the truth while defending a 
     black man who was wrongly accused of rape in a segregated 
     community. The hatred that was directed against the innocent 
     defendant even sparked a lynch mob, and Atticus had to stand 
     and control that mob. And in acting in the story very bravely 
     in the pursuit of truth, Atticus taught his children, through 
     whose eyes we saw the story unfold; the town itself; and now 
     countless Americans, including schoolchildren who across the 
     country happily read this story; some have only seen the 
     movie. But whether one has seen the movie and Gregory Peck 
     or, hopefully, have read the book, have learned important 
     lessons that a lawyer taught about justice, about basic human 
     decency, about tolerance. Now in contrast to this very noble 
     and trustworthy soul, today's popular culture portrays 
     lawyers as greedy and unethical people who will cheerfully 
     hawk their services--and, indeed, their very morals--to the 
     highest bidder.
       Whether it is the character Bruiser in John Grisham's 
     novel, also a movie, ``The Rainmaker'' or Al Pacino in last 
     year's movie ``Devil's Advocate,'' popular culture now sees 
     lawyers as anything but seekers of truth and justice. No 
     Atticus Finches in the movies.
       Today's fictional lawyer will do anything for the client. 
     No longer is he or she portrayed as being accountable to 
     society as a whole for the authority, responsibility, and 
     indeed power, that the lawyer is able to wield through the 
     justice system. Now many of us, and certainly many here in 
     this room, question profoundly whether this portrayal of 
     modern day is fair, because each of us, I am confident, knows 
     a great many lawyers out there who fall much more on the 
     spectrum of Atticus Finch than they do to Bruiser.
       But we still have to concede that the profession has 
     changed, and we face a host--we all know them--of both 
     economic and structural issues quite familiar to everyone in 
     the room. But now to speak personally, one of these issues 
     has been as baleful to our profession as its apparent loss of 
     respect for truth. Too many of today's lawyers take Mark 
     Twain's old aphorism very much to heart. As Mr. Clemens said, 
     ``Truth is the most valuable thing that we have, so let's 
     economize with it.'' (Laughter.)
       Not Atticus Finch. Mr. Finch embodied two of the most 
     important, and indeed noble, values of our system, loyalty to 
     the client and yet respect for truth. For Atticus, these two 
     values were not in conflict. The quest for the truth was very 
     decidedly in his innocent client's best interest. What 
     happens when those values do conflict?
       When a search for the truth is not in the client's 
     interest, which value should guide the lawyer's conduct? 
     Lawyers have faced this question for some time, indeed I 
     would say for generations. But the balance that the modern-
     day profession strikes appears to me to have changed.
       As a great lawyer practicing in Boston, Justice Louis 
     Brandeis, one of the most creative lawyers of our century, 
     sided unapologetically with the search for the truth. Before 
     becoming a Supreme Court justice, he consistently lifted up 
     and sought assiduously to follow this credo: Advise a client 
     what he should have, not what he wants. It sounds so odd to 
     many ears, now.
       Now, skip ahead a generation and Charles Curtis, a lawyer, 
     very successful, in Boston, declaring a generation after the 
     Brandeisian credo, quote, ``One of the functions of the 
     lawyer is to lie for his client.'' The Brandeis-Curtis 
     debate, as it were, even though they were never on the same 
     platform, continues to rage today among practitioners and 
     scholars alike. But the modern day image of the lawyer is the 
     Speilbergian image, if you will, of lawyers as hired guns, 
     suggests that at least a good many lawyers have given the 
     appearance, at a minimum, and perhaps have decided to pay 
     less than scrupulous regard for the truth, the truth.
       Now this choice, to the extent it is being made each day, 
     is most unfortunate. It goes to the basic moral foundation of 
     our system. Truth indeed is intended to be the primary goal 
     of our judicial system, because without truth as a 
     foundation, justice cannot predictably be achieved. Our rules 
     of evidence and of procedure demonstrate this. And after all, 
     at a very basic level that all of us as citizens understand, 
     witnesses are not directed, ``Tell whatever is in your 
     interest. Be creative, be imaginative.'' Now, they are sworn 
     to tell, in these wonderful words, ``The truth, the whole 
     truth, and nothing but the truth.''-
       Countless judicial opinions have reaffirmed this, ``this'' 
     being it is the truth and not the service of clients, is the 
     legal system's abiding value. One of the more famous examples 
     that I followed rather closely was a decision from just a 
     decade ago, in a case called Mix (ph) against Whiteside. The 
     defendant in that case was a gentleman by the name of 
     Whiteside, and he indicated to his attorney that he intended 
     to commit perjury on the stand, thought it might go better 
     for him if he did.
       The attorney, quite properly, threatened to withdraw from 
     the representation, and in effect, he prevented Mr. Whiteside 
     from getting on the stand and lying. Now, Whiteside was 
     convicted. Beyond a reasonable doubt is a difficult standard, 
     but the jury found it, and so he's on appeal, and he says, 
     among other things, ``I was deprived of the effective 
     assistance of counsel within the meaning of the Sixth 
     Amendment because my lawyer declined to allow me to lie on 
     the stand.'' Speaking for the nation's highest court, and 
     overturning the court of appeals that had accepted the 
     argument----
       Mr. STARR: Thank you--(laughter)--Chief Justice Burger, for 
     whom again, I was privileged to clerk long before this 
     opinion was written, very forcefully disagreed. And I know 
     it's not polite to read from opinions whether you're arguing 
     a case or especially subjecting you to an after-luncheon 
     address, but these words are so powerful and simple and they 
     are brief: ``We recognize counsel's

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     duty of loyalty and the overarching duty to advocate the 
     defendant's cause. But it is manifest that that duty is 
     limited to legitimate, lawful conduct by the attorney 
     compatible with the very nature of a trial as a search for 
     the truth.''
       The chief justice continued, ``The responsibility of an 
     ethical lawyer as an officer of the court--'' what a ring to 
     it, an officer of the court--``dedicated to a search for the 
     truth is essentially the same whether the client intends to 
     commit perjury or to bribe witnesses. A lawyer simply cannot 
     allow the client to commit a fraud on the court.''
       His final words: ``The suggestion sometimes made that a 
     lawyer must, quote, ``believe his or her client and not judge 
     him'' in no sense means that a lawyer can honorably be a 
     party to presenting known perjury.''
       Now to many of us--(inaudible)--the Whiteside seemed like 
     an easy case, and the result there was, you'll be pleased to 
     know, 9-zip, against Mr. Whiteside. (Laughs.) Perhaps the 
     more difficult question that lawyers face day in and day out 
     is at what point does a lawyer's manipulation of the legal 
     system become an obstruction of truth?
       That issue raises tricky, difficult questions, and I think 
     that the answers are found in the position recently advocated 
     by a professor at the Yale Law School, Akhil Reed Amar. ''Our 
     adversary system,'' Professor Amar has very convincingly, to 
     my mind, argued, ``is not an end, but a means to an end. 
     Pleadings, discovery, and the examination of witnesses are 
     not the goals, they are only tools to be employed in a moral 
     enterprise--the search for truth.'' Anthony Kronman, who is 
     dean of the Yale Law School, has expanded on this idea in his 
     very troubling book about our profession called, ``The Lost 
     Lawyer.'' As Dean Kronman observes. ``The good lawyer is not 
     only an advocate, but he or she is also a councilor. A good 
     lawyer, acting as advocate in court, must use arguments to 
     convince others--juries, judges--of the strength of the 
     client's position. And that good lawyer, or other lawyers, 
     acting as councilor, must urge the client against steps that 
     are likely to impede the quest for truth, steps that, as most 
     experienced lawyers and judges will say, will be recognized 
     by juries for what they are.''
       This vision, by Dean Kronman of Yale, of the virtuous 
     lawyer, rather than the ``lost'' lawyer, has particular 
     resonance when we talk not about the lawyer for an individual 
     or the lawyer for a private corporation, but when we're 
     speaking about a lawyer for the government, a lawyer for the 
     people, whether it's a prosecutor or some other government 
     lawyer. That public servant lawyer owes a duty not to any 
     individual, but to the people as a whole.
       Surprisingly, the basic proposition, grounded in history, 
     tradition and common morality, is the subject to controversy 
     as we speak. But the principle has been resoundingly 
     reaffirmed by two federal courts in the last year. The courts 
     have considered whether the evidentiary privileges that are 
     available to private lawyers are also available to government 
     lawyers paid, as Bill was emphasizing, at taxpayer expense.
       The 8th Circuit Court of Appeals in St. Louis, last year, 
     flatly rejected the argument. and it did so in fairly 
     emphatic language, which again I would like to share to you. 
     It's very brief: ``The strong public interest in honest 
     government and in exposing wrongdoing by public officials 
     would be ill served by recognition of a governmental 
     attorney-client privilege applicable in criminal proceedings 
     inquiring into the actions of public officials.''
       The court went on: ``We also believe that to allow any part 
     of the federal government to use its in-house attorneys as a 
     shield against the production of information relevant to a 
     federal criminal investigation would represent a gross misuse 
     of public assets.'' Strong words.
       Just a few weeks ago, these principles were emphasized and 
     reaffirmed by the distinguished chief judge for the United 
     States District Court in Washington. She is Judge Norma 
     Hollaway Johnson. She wrote, ``A private organization, such 
     as a corporation, and a government institution differ 
     significantly especially in the criminal context.'' And she 
     emphasized, ``Government attorneys are paid by U.S. 
     taxpayers.'' And she quoted the 8th Circuit's very pointed 
     observations about the duties of the public lawyer, the 
     government lawyer.
       These principles aren't new, nor should they be in the 
     slightest bit controversial. They should admit of universal 
     approbation. As District Judge Jack Weinstein (sp) stated 
     some 30 years ago, ``If there is wrongdoing''--if--``if there 
     is wrongdoing in government, it must be exposed.'' The law 
     officer has a special obligation. His or her duty is an 
     obligation to the people and to the law, and his (own?) 
     conscience requires disclosure; not hiding, disclosure. Then 
     in fulfilling their duty to the people, government lawyers 
     traditionally have urged upon courts not to create new 
     testimonial privileges to keep evidence out, to keep evidence 
     away, from fact-finders. And in the same vein, government 
     lawyers have historically said: ``Courts, don't expand the 
     old and ancient privileges. Keep them, but don't expand them 
     because they're obstacles to the search for truth.''
       Now litigants often try, as they're, entitled to do, to 
     concoct new privileges by contending that their relationship 
     is just as important as the attorney-client relationship, on 
     the spousal relationship or the priest-penitent relationship. 
     But the problem is, the're arguing in the wrong forum. This 
     is, in very broad compass, a legislative task. Congress is 
     the proper forum for new federal privileges to be recognized 
     in federal grand jury proceedings. An example from another 
     field makes the point--and you will be pleased to know I am 
     drawing to the end. I saw that look: ``Is he going to keep 
     going? Are we now going to have a law''--no, we're nearly 
     through.
       For many years the accounting industry, our brothers and 
     sisters in the CPA community, have urged and indeed have 
     pleaded for the creation--and many of you are familiar with 
     this--of an accountant-client privilege. The argument is that 
     accountants deserve the same protection as attorneys, and 
     some very interesting policy arguments have been advanced 
     to further that argument. But this effort has been 
     resoundingly rebuffed by the courts. I'm not saying 
     attorneys aren't--that accountants aren't important and 
     the like, but rather saying no, you can't have a 
     privilege. And indeed, the effort was finally resoundingly 
     defeated by a once again unanimous Supreme Court. No such 
     privilege, the court said, is going to be created.
       And accordingly, the accounting industry has quite 
     appropriately and properly turned to the Congress of the 
     United States. And indeed, as we speak, on Capitol Hill right 
     now there's a pending bill which, if enacted, would give 
     accountants a narrow privilege in certain civil proceedings.
       The point is this: If you want to expand an existing 
     privilege to apply it in a new or unusual area, the place to 
     go is Congress, not federal courts. The courts should not and 
     cannot be in the business of creating new legal privileges 
     from whole cloth, and lawyers ought to tell their clients 
     that.
       The search for truth and the proper counseling of clients 
     is equally appropriate outside litigation. I know that there 
     are people in this room who try to avoid courtrooms, so let 
     me say just a brief word in that respect.
       What third party will intelligently agree to a one-sided 
     transaction? What court will allow a transaction then to 
     stand if it's based on deception, the hiding of facts, or 
     affirmative misleading and misstatements?
       Perhaps Elihu Root, a former secretary of state, a United 
     States senator, and a renowned lawyer in his own right 
     earlier in this century, put it most succinctly: ``About half 
     the practice of a decent lawyer consists in telling would-be 
     clients that they are damned fools and they should stop what 
     they're doing.'' (Laughter.)
       Lawyers have great influence in our society. (Chuckles.) I 
     heard a hearty ``amen'' down there--we have an ``amen'' bench 
     here. (Laughter.) And as Justice O'Connor has recognized--let 
     me turn to her very modern voice--``Ethical''--what a 
     wonderful word--``Ethical standards for lawyers are properly 
     understood as a means of restraining lawyers in the exercise 
     of the unique power that they inevitably wield in a system 
     like ours.''
       Dean Kronman of Yale describes the lawyer of yesteryear, 
     the great lawyer of the past, as a lawyer statesman; a person 
     who not only uses the law to benefit society, but helps to 
     develop and refine the law so that it can effectively serve 
     our highest and noblest goals. To that end. Sol Linowitz, the 
     distinguished lawyer, business person, ambassador, points out 
     in his also troubling book, ``The Betrayed Profession'' that 
     lawyers of the past played a pivotal role in developing and 
     securing the liberties that Americans today take for granted. 
     In fact, Ambassador Linowitz observes other countries have 
     similar constitutions and similar Bills of Rights, but they 
     don't enjoy our liberties, and largely because those 
     countries, in his words, ``Lack a bar, a legal community with 
     sufficient courage and independence to establish those 
     rights.'' According to Dean Kronman, the lawyer statesman has 
     virtually disappeared from our lives. And the lawyer 
     statesman in the last generation has turned instead into a 
     lawyer technician--Dean Kronman's haunting description. And 
     more broadly, that the legal profession itself has become a 
     business.
       But, you know, even if this rather gloomy diagnosis is 
     accurate--and I like to resist it, I truly do--but it hardly 
     excuses lawyers from doing their duties. As a distinguished 
     professor at the Harvard Law School, Mary Ann Glendon very 
     aptly states, ``Any business, including law, thrives best on 
     cooperation and honesty.''
       In short, even as technicians, if that is what we have 
     become on a specialized world, lawyers have a duty not to use 
     their skills to impede the search for truth. Imagine the 
     disaster that would consume our profession and indeed our 
     society if lawyers let down their moral guard and simply 
     shrugged when clients declare explicitly or implicitly to 
     commit perjury. No longer in such a world would decisions by 
     our courts be based on a balanced assessment of truth, 
     fairness and justice, and no longer would our society (face/
     faith?), as it continues to do, in our legal system.
       This search for truth, closing on a more cheerful note, 
     advances our profession. I believe that lawyers have a very 
     well-deserved sense of professional pride and a belief that 
     what they do day in and day out has a potential to be 
     worthwhile, rewarding, socially constructive and personally 
     fulfilling. Lawyers serve clients, but they also serve the 
     broader interests of our legal system and society. And in 
     that process, it is important for us as lawyers to maintain a 
     certain degree of independence and detachment. otherwise, we 
     are in danger of becoming that which our ancestors vigorously 
     resisted, the

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     concept of the indentured servant rather than professionals. 
     As the educator and lawyers Robert Maynard Hutchins once put 
     is very well, ``There are some things that a professional 
     will not do for money.''
       The result is this: We cannot, whether in public life or in 
     private practice, look solely to our clients for leadership. 
     Lawyers too have a right, but they also have a 
     responsibility, to exercise independent judgment. And at 
     times, that means saying no to the client. You can't do it. 
     We can't argue it. It means sticking up for the right thing, 
     as our (lights?) lead us to believe what is right.
       And in that process, we are, when we are at our best, 
     guided not simply by the client's interest, but by that other 
     pillar, the search for the truth. And that, it seems to me, 
     is the path away from the seedy underworld of Grisham's loser 
     and a rediscovery of the inspiring path that Atticus Finch 
     urged us and urges us today, to walk upon.
       Thank you very much.

       

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