An Interview with Ted Sorensen on legal ethics

JG: Given your work over the years in government, at law firms, and in the classroom, you're an authority on the subject of legal ethics. that's a timely subject, with all that's gone on recently in corporate America.
TS: I think it's very timely and I think Jungle Law needs commendation for showing interest in this topic at a time when corporate greed and corruption have become all too common. This is a time to emphasize that the law is a profession, not a business. Dishonesty in the form of, well, mendacity at the highest levels of government has made the country cynical. It's a time to remember, especially if you're a lawyer, that the legal profession is one in which the honesty and ethics of the professional are absolutely essential and are depended upon by clients. And at a time when violence in this world has become all too common, peaceful adjudication of disputes—which is what the law is all about—becomes all the more central, and it means that the integrity and the competence of lawyers are what our society depends upon.


JG: Do you think the profession has lost sight of that?
TS: I think that there has been a sense of mission lost, or at least eroded, over the years. There is not the same emphasis on professionalism and on ethics. There is more emphasis on the bottom line. Part of it's your fault, Josh. I'm sorry to say that too many lawyers in the younger generation—because of the competition for jobs in a downward economy and because of the necessity to repay student loans—think that the eye must be focused on the bottom line. They think all the emphasis that some in my generation, and earlier, placed on pro bono and the noble goals and purposes of the profession is all a little old-fashioned in a day of dog-eat-dog.

JG: So it sounds like you're implying that?
TS: I was just kidding. I didn't mean you.

JG: I know, but it's true. my generation expects to get paid outrageous sums of money as first-year lawyers.
TS: More than I made until my forties.

JG: Right. we have to pay off loans, so we have to make more, so they increase the hours, and then maybe you start running into ethical problems because you have to produce so much. what can be done to fix that?
TS: Well, I would hope that the many bar associations, and publications like the one we're doing this for, would remind lawyers, particularly young lawyers, that what sets the law apart are those noble ideals, including ethical standards. And I don't think that there's going to be a reversal of the emphasis on billable hours. There probably won't be a sudden disappearance of the temptations to lie or fudge expense accounts or borrow something from the client. All those temptations, I suppose, are there.

JG: Most law schools have required ethics courses, but should schools be doing more?
TS: When I was young I read about a professor at, supposedly, Harvard who had a student who said, "Yes, professor, you've told us that's how the matter is handled, but don't we need to discuss how it should be handled?" He was asked to transfer to the divinity school. We do need to make [ethics] a centerpiece of legal education. And that should be doable because the study of ethics is a fascinating study on its own. You can use the case method. There are a lot of interesting case-dilemmas that face lawyers. I hope that will be increasingly revived in law schools as well as in post-college courses offered by [bar] associations and legal education organizations.

JG: I assume you've faced ethical conflicts with clients. How have you handled them?
TS: My area of the law has primarily been not as a litigator but as a negotiator or advocate. Where I have been asked to either negotiate or advocate a result that is contrary to my own principles, I have simply declined on grounds that I would not be effective doing that and that the client ought to get some lawyer who would be effective. He's entitled to have the most effective representative he can, and that's not going to be me. It would be unethical of me to tell the client I could take that position when I couldn't do a good job. Secondly, I have, in the international arena, found often enough that if a client resorts to unethical means, or if a lawyer helps a client resort to unethical means, that's going to end up not helping the client. A one-sided, overreaching international contract, for example, which is obtained through illicit or improper payments—sooner or later, those payments are discovered and the contract becomes the subject of a lawsuit or a scandal and it's terminated. And the fact that competitors from other countries do it doesn't mean that a U.S. corporation can do it.

JG: There have been a number of lawyers deeply involved in corporate scandals. has the government properly addressed those situations?
TS: I don't want to be too harsh on people whom I don't know, but I hope a few people will go to prison. That will get the attention of the rest of the community, whether it's the business community or the legal community. If they only pay fines after they've made ill-gotten millions, that doesn't deter anyone. If they only get a slap on the wrist, that doesn't deter anyone. But some time in prison would get everyone's attention.

JG: Do you think lawyers have an obligation-not just to CEOs and shareholders-but to the Bar, to step in if they observe unethical corporate behavior?
TS: They absolutely do, and they would be serving the best interests of their client as well as their profession and their community if they would step in. There are too many lawyers who think that their job is to demonstrate how much skill they have in getting around the rules, bending them, and stretching them.

JG: Any other advice for young lawyers and students?
TS: I would recommend that every lawyer—early in his career, middle of his career, either one-enter public service for a time. It's an opportunity for a lawyer to get a new perspective on the community or country the lawyer should be serving. It does not pay financially the same way private practice pays, but, in terms of [psychological] compensation—the satisfaction that you have helped your country, that you have helped your fellow citizens, and your fellow human beings in the world—that is a satisfaction greater than any other.

Josh Gottheimer just graduated from Harvard Law School. He was chief speechwriter in the presidential campaign of General Wesley Clark, where he worked with ted sorensen. he previously worked in the Clinton administration, and is currently a speechwriter for John Kerry.

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