THE canon of ethics for lawyers is very restrictive; simply put, a lawyer cannot be on two sides of the same case. This restriction binds not only the lawyer but also his partners. Traditionally, male lawyers have shot that restriction full of holes.
The canon of ethics was written long before lawyers married each other. Lawyers did not marry each other for a basic reason: until recently, women were not allowed to be lawyers. When I entered law school in 1968, our class numbered more than 150, with six first-year female law students. By the end of the first year, three had dropped out.
Mrs. Clinton and her female contemporaries are trailblazers. No established precedents were set that concerned conflict-of-interest charges caused by marriage. Certainly none accounted for a lawyer who was married to the chief executive of the state. The issue was not debated or considered, since women were not welcome into the ranks of lawyers.
The current legal standards concerning conflict-of-interest that are being imposed upon Hillary and Bill Clinton are being determined after the fact and because of their ``revolutionary status,'' namely, a lawyer married to a lawyer. But if one applied such legal ethics in their purist form to Mrs. Clinton, her marriage to the governor of Arkansas would have made her almost unemployable as a lawyer in Arkansas.
Given the customary restrictions prohibiting lawyers from conflicts of interest, Mrs. Clinton had few options in Arkansas. She could not do state administrative law because her husband's employees would be either opposing counsel or the appointed administrative law judge. She could not do estate work because her husband's employees would be auditing her clients' inheritance tax returns. Income tax work would be out for the same reason. And she could not ever do criminal defense work because her clients would be candidates for clemency or commutation from the governor.
Not only would these restrictions apply to her, but they would also be applicable to any firm with which she worked. Remember: Not only is this lawyer disqualified but every member of the lawyer's firm is also automatically disqualified.
With that purist and expansive interpretation of the canon of ethics, would the Rose Law Firm have hired Mrs. Clinton? Could any firm hire a lawyer who came with so many limitations on the ability to practice law, which would automatically impose such restrictions on the entire firm? Of course not.
But such an approach has never been adopted by lawyers. Take the more familiar situation of fathers as judges with sons who are lawyers. Applying purist logic, a judge should never hear a case being handled by the son or by lawyers associated with the son. However, that happens all the time. Federal judges with sons in the United States Attorneys Offices continue to try criminal cases so long as the son is not directly involved. Lawyers have always made gradations and distinctions in applying the canon of ethics. Wholesale disqualifications almost never occur.
Mrs. Clinton's actions must be evaluated against this background. We are entering a new era in legal ethics where lawyers now marry lawyers, and spouses of lawyers now end up as the chief executives of states, even the nation. Those who would rush to judge Mrs. Clinton should keep this historical perspective. The Opinion/Essay Page welcomes manuscripts. Authors of articles will be notified by telephone. Authors of articles not accepted will be notified by postcard. Send manuscripts by mail to Opinions/Essays, One Norway Street, Boston, MA 02115, by fax to 617 -450-2317, or by Internet E-mail to OPED@RACHEL.CSPS.COM.