[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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