14 SUPERLAWYERS.COM A TTORNE YS SELEC TED TO SUPER LA WYERS WERE CHOSEN IN ACCORDANCE WITH THE PROCESS ON PAGE 17.
that both sides would walk out of the
courtroom feeling they were properly
treated. I still marvel at how he did that.
You don’t have to be aggressive or mean
or hard-nosed. You can be a good person.
You should let your conduct be governed
by the exigencies of the client’s legal need
and the way the other side approaches
you and deals with you. Many lawyers are
really rational, decent people. Others have
Q: So back then, was it a tendency of
yours to see things more in a black hat/
white hat way?
A: Completely black and white, without
nuance, and I was fighting for the white
hat. Normally federal prosecutors like to
position themselves on the side of justice,
decency, everything every right-thinking
human would adopt. Sometimes in doing
so, they have to do things or deal with
witnesses, such as informants, who are
actually the antithesis of the values that
they are espousing in court. So I would
fight for the right to wear the white hat.
That, I think, caused some controversy.
As a practical matter, that still goes on.
But what I found is that when you fight for
something, you can still remain an amiable
and decent person.
Q: So how long did it take you?
A: To learn these lessons of common human
decency and politeness? About three decades.
Q: [Laughs] The other quotation is also
a bit old. It’s Justice Thurgood Marshall
in Wheat v. U.S.: “Mr. Iredale had proved
to be a formidable adversary. ... Were I
in petitioner’s position I'm sure I would
want Mr. Iredale representing me too.” A
A: It was a footnote. The case had to do
with a prosecution in which I represented
one defendant, and with the agreement
of the second defendant and of the first,
represented the second one. I went to trial,
and we won the case for the first guy and
resolved his case. Then we had the case
of the second defendant, and I got a good
resolution for him. Then the third defendant,
Mark Wheat, wanted me to represent him,
and the prosecutor objected.
This was an issue that had been
kicking around in the Supreme Court
years before—raised in an earlier case
called Flanagan v. United States. The
issue is the following: If in a case where
there is a potential conflict of interest,
but all defendants waive their right
to raise that issue in order to obtain
counsel from the lawyer they choose,
is it appropriate for the court to permit
that? The Supreme Court unfortunately
disagreed by a vote of 5 to 4. They said,
“Even though there is a waiver from
all defendants, the court nonetheless
possesses a residual power, or an
inherent power, to disqualify a lawyer not
only for actual conflicts but for serious
potential conflicts.” Rehnquist wrote the
majority opinion, Marshall dissented.
Q: And in his dissent, he was very
complimentary to you.
A: Yes. Because the idea is if a lawyer
knows the case or if the lawyer is
particularly adept in this field of law, then
shouldn’t the clients have the right to make
a reasoned choice?
Q: Is that common? For a U.S. Supreme
Court justice to compliment a lawyer in a
A: No, I really lucked out. I lucked out
because it’s rare that you’ll see a case that
is about a lawyer …
Q: In a positive sense.
A: In a positive sense. The majority said: Well,
he may have been a good lawyer, and that
can be considered, but that’s not dispositive.
The dissent, especially Stevens, said: Look.
The role of the lawyer in defending the
rights of citizens is central to our system.
The decision in Wheat, which denigrates that
right and which, in a sense, substitutes the
judge as the person who makes a judgment
for the defendant, in a sense a parochial
judgment, is not an appropriate way to treat
the adversary system.
Q: Sounds like you still disagree with the
A: Well, I understand the considerations.
What could be, on the one hand, a
rational decision by both A and B to
promote their joint interests by using
the same lawyer who has familiarity
either with the case or the court or the
procedures, can in fact be, sub rosa, a
manipulation by A to lean on B to remain
silent, to avoid testifying against A, or
to avoid problems by having the same
lawyer for both by putting the lawyer
in a position where he cannot hurt the
interests of either in order to help one
So I understand the rationale behind
the decision. So maybe our proposed
rule was somewhat too narrow. That is to
say, you want it to be a completely free,
voluntary and intelligent choice by both
defendants to go with the same lawyer, but
that requires some inquiry. Nonetheless,
with that caveat, I think two defendants
should have the right to elect to waive
their right to have separate counsel—if,
in their assessment for whatever reason,
including their strategic decision about
their likelihood of getting a good result, it
serves their interests. They should be the
person that decides that.
Q: So you would still be on your side.
A: I would, but I wouldn’t be so vehement
Q: Why criminal law for you?
A: When I was coming out of law school,
we had just gone through the Vietnam
War and Watergate. I had graduated from
a school where most of the graduates,
despite the general political climate, were
going to work for large firms whose clients
were corporations and very wealthy people.
I had become oriented in my thinking
toward left-wing causes.
A: It was the zeitgeist.
Q: But why personally for you?
A: Can I tell you something? So
many of these things are based on
psychological dynamics and your own
individual psychology. In my life, in my
development, I was the oldest of seven
children, and I always had problems with
my father. So that transfers to a general
anti-authoritarian view. We have a very