Happy February! Many thanks to our featured bloggers for January: Dan Blinka, Nathan Petrashek, and Mike Morse. The new faculty blogger of the month is Alison Julien. The alum blogger is Chuck Clausen. And the student blogger is Jessica Franklin. The question of the month is “What is your favorite Wisconsin or Seventh Circuit case to teach?”
As the disaster in the financial markets continues to unfold, greed and avarice – the usual suspects – are being overshadowed by pervasive fraud as a prime mover. We have, of course, the infamous Bernie Madoff and now the “mini-Madoffs” upon whom we can heap large helpings of blame, but deceit, misrepresentations, and fraud seemingly resonate throughout the markets, as illustrated by the subprime scandal, the mortgage mess, and the flood of worthless consumer debt. And what was the role of lawyers in all this? Financial transactions of this sort inevitably involve lawyers at some stage. Investigations and lawsuits may soon give us a clearer picture of the role lawyers may have played in exacerbating the nightmare, but the question for today is whether lawyers could have, or should have, acted to prevent any of this. And my focus is not Sarbanes-Oxley or securities regulations, but on the fundamentals of lawyers’ professional responsibility.
Lawyers are not permitted to “assist” or “further” crimes or frauds committed by their clients. To do so – provided anyone finds out – eviscerates the venerable lawyer-client privilege and exposes both lawyer and client to civil and criminal remedies. This is comfortably familiar and uncontroversial. But what of the lawyer who is aware of a client’s fraud but who arguably has done nothing to assist or further it? Assume further that the fraud is on-going and not a past act. What is the lawyer’s duty or professional responsibility, especially considering that lawyers are enjoined not to disclose client confidences or privileged communications without client consent (and the reality is that few clients will approve of their lawyer’s whistle-blowing)?
Herman Melville’s novella “Billy Budd” has firmly secured its place in the law and literature canon, but a different law-related work by Melville is my favorite. Over the last twenty-five years or so I have almost annually read “Bartleby the Scrivener – A Story of Wall Street” (1853), being moved by it more each time.
The narrator of the story is a humane, tolerant lawyer who was formerly a Master in Chancery and who now presides over a small Wall Street law office. His employees include an office boy and three scriveners, the most eccentric of whom is Bartleby. Demonstrating a certain “pallid haughtiness,” the latter at first refuses to complete small assignments and then over time declines to do anything at all. His signature statement when asked to copy a legal document, to run an errand, or – ultimately – to seek work elsewhere is “I would prefer not to.” In one of the lighter interludes of the story, all of the characters, the narrator included, cannot stop using the word “prefer” in their own comments.
However, the story is neither farcical comedy nor romantic fantasy. With the lawyer/narrator as our introspective vehicle, we as readers are invited to make sense of Bartleby as a symbolic representation of humankind. Is Bartleby basically an alienated worker, doggedly copying documents to the detriment of his eyesight? Is he mentally ill, staring for hours out his small window at a black wall only three feet away? Does he display a hostile passive aggressiveness, refusing to be remunerated, fed, or simply helped?
The questions of course trump the answers. After the lawyer/narrator realizes Bartleby is sleeping in the Wall Street office, he grasps the true seriousness of the situation. The lawyer finds going to church useless, and he instead wanders the streets of antebellum Manhattan desperately trying to understand both Bartleby and the human condition. “My first emotions had been those of pure melancholy and sincerest pity,” the lawyer says, “but just in proportion as the forlornness of Bartleby grew and grew in my imagination, did that same melancholy merge into fear, that pity into repulsion.” The lawyer realizes that alms cannot solve the problem. It is Bartleby’s soul that suffers, and his soul cannot be reached.
In the end, the lawyer relocates his office on Broadway closer to City Hall, and the owner of the Wall Street building has the police remove Bartleby. He is taken to the Tombs, where he refuses to eat or communicate. The lawyer visits several times but to no avail. On his last visit he finds Bartleby curled up and dead with his face against a wall in the prison courtyard. “Ah, Bartlelby. Ah, humanity.”