ExpertClick - Senator Orrin Hatch: Ethics Hero

Alexandria, VA

Monday, February 09, 2004

Legal Ethicist Says Utah Senator Deserves Praise for Stand on Leaked E-mails; GOP Lawyer Misapplied Legal Ethics By Reading Democrat Memos

GOP Senator Orrin Hatch is being lambasted by conservatives and Republicans for his position in the Judiciary Committee e-mail scandal, in which a legal counsel to Senator Bill Frist read and circulated e-mails from Democrats outlining strategies to defeat the administration's judicial nominees. The Senate Judiciary Committee Chairman has declared the conduct of Manuel Miranda unethical, and called for an investigation of the conduct of Republican staffers in the incident. The February 6 resignation of Miranda, and his unapologetic defense of his actions have intensified the criticism of Hatch by conservatives such as columnist Robert Novak, Rush Limbaugh, and Paul Weyrich.

But legal ethicist Jack Marshall, president of the Washington D.C. based ethics firm ProEthics, proclaims Hatch an "ethics hero" who "deserves praise and respect from conservatives and liberals alike; in fact, from anyone who wants to elevate the ethical climate in this country"

"Hatch's critics are just wrong," says Marshall. "They are defending ethically indefensible conduct…reading other people's mail, essentially…because of what the indefensible conduct uncovered, namely, that Democrats on the Judiciary committee were engaged in some dubious tactics to defeat President Bush's judicial appointments.

Senator Hatch is saying that the end does not justify the means, that an unethical action does not become ethical retroactively just because it uncovers another unethical or even an illegal act. This is a difficult ethical principle but an important one, and Hatch is courageous to stand up for it so publicly and unequivocally"

What does Marshall think about attorney Miranda's defenses of his actions?

"Rationalizations, and disturbing ones from a lawyer," he says. "Miranda justifies his unethical behavior by saying "no laws were broken," what I call "the Al Gore Fallacy" Many activities that violate no laws are terribly unethical; this was one of the lessons of Enron. As a lawyer, Miranda well knows that ethical violations often don't violate any law. But it gets worse: in his statement he put the blame on the Democrats who wrote the memos, saying,

"The bottom line here is that the technology staff of the Democrats was negligent. They put these memos in a shared hard drive. It was like putting the memos on our desk"

This is an offensive argument, says Marshall. "The real bottom line here is that Miranda knew that the memos were not intended for him, and read them anyway. That's unethical. If someone leaves a memo on your desk, it is reasonable for you to believe they intended you to read it. That wasn't the case here"

Marshall adds : "Particularly objectionable is Miranda's claim that "legal ethics" permits him to read an inadvertently transmitted confidential document. First of all, he's wrong. Virtually all states and the District of Columbia hold that if a lawyer receives such material and knows it isn't intended for him, he should not read it and should inform the person who sent it. And there's nothing about leaking such materials to the Wall Street Journal. Second, legal ethics have nothing to do with this, which isn't a situation where the special rules governing lawyers apply. This is a situation where common decency, honesty, and ethical principles like the Golden Rule apply. "

"All Americans owe a debt of thanks to Senator Hatch for having his values in order, and having the courage to act on them even when it runs counter to the political interests of his own party. If we give our elected officials the message that we appreciate and reward ethical conduct, we'll get more of it"

Jack Marshall

President

ProEthics, Ltd.

Alexandria, VA

703-548-3754

703-548-0695

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