How Lawyers Can Prevent a ’Cancer on the Presidency’: John Dean

June 30 (Bloomberg) -- If the Watergate affair occurred today, it might have turned out very differently.

Rather than a defeated Richard Nixon being forced from office early by his own secretly recorded and incriminating conversations, there should have been a joyous farewell on the South Lawn of the White House on Jan. 20, 1977, as the president flashed a final victory sign, stepped into his helicopter, and headed off to a respected place in U.S. history.

Rather than Nixon’s top aides going to prison, many of us might have gone on to even higher public service. Everything would have been different if, instead of compounding the problem that confronted the White House with the arrests at the bungled bugging and burglary of the Democratic National Committee headquarters at the Watergate complex -- an activity that had not, in fact, been the work of the president or his staff -- we had taken action to ensure the criminality never reached into the White House.

On June 17, 1972, when the arrests occurred, I was a 34-year-old White House counsel, a midlevel staff person who was asked to deal with the mess. My suggestion that we bring in someone experienced in criminal law was instantly rejected. Instead, with my limited background (I had worked on some criminal legislation while on Capitol Hill), I became the “deck officer” dealing with the burgeoning disaster. Because the rules of legal ethics have changed so much, lawyers today wouldn’t address the problem confronting the Nixon White House as I did. Now they are in a stronger position to prevent wrongdoing before things go too far.

Duty to Office

The rules were created largely because of the Watergate debacle, and they have been further refined because of later scandals, such as the one that led to the collapse of Enron. Had these ethics rules been in place in June 1972, I would have understood that my duties were to the office of the President, rather than to the man in the Oval Office. Had that been the case, I believe it might have even made a difference to Nixon, not to mention others.

Today’s rules make it clear that a lawyer represents an organization, whether it’s a corporation, a union, a partnership or a governmental agency, and not what lawyers call the “constituents of the organization,” such as the officers, directors or even the chief executive officer. This requires lawyers to approach their work thinking about the interests of the organization as a whole and not the personal agendas or problems of management. These rules also require lawyers to “report up” within an organization if wrongdoing is uncovered, and if the highest authority inside doesn’t act to correct things, lawyers can “report out” to other authorities.

Code of Silence

Not surprisingly, these rules are highly controversial among lawyers, and they have not been uniformly adopted in every state. By long tradition lawyers have guarded their clients’ confidences and secrets. Telling on a client, even for egregious ongoing crimes, was anathema to the profession. After all, without the confidence conferred by confidentiality, how could a lawyer effectively represent his or her client?

It’s a fair question. There is a tension here. Lawyers need to know it all -- the good, the bad and the ugly -- in order to serve their clients. Yet in an organization setting, the individuals who work on its behalf need to be accountable first to the organization. The individuals are not the client; the organization is.

Today, lawyers have the leverage and duty to be more proactive and to force clients to do the right thing, especially where fraud or crime can be prevented.

Whistle-Blower Role

The debate on this issue has lasted four decades and is only now being resolved. The majority of the bar has concluded that lawyers can better serve their clients if they are able to stop wrongdoing. Based on personal experience I believe this is the correct position. The fact that lawyers can take these steps makes it less likely they will have to.

Many lawyers still resist these rule changes. They remain uncomfortable taking on a watchdog or whistle-blower role. So improvement will not come overnight. But it will come as lawyers see how the “reporting up” requirement alone can prevent nascent Enron- and Watergate-type problems. I’m confident we’ll find that many people who run organizations, if kept apprised of dangerous issues, generally will want to do the right thing.

After the Watergate burglary 40 years ago, I wasn’t able to communicate with President Nixon until eight months into the coverup. By then we were all too deeply involved, including the president. My warning that there was a “cancer growing on the presidency” proved painfully correct. Under today’s rules, perhaps, that warning could have come long before the scandal had grown into a constitutional nightmare.

(John Dean, along with Cleveland lawyer James Robenalt, operates the website and runs a continuing legal education program using the lessons of Watergate. The opinions expressed are his own.)

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