Professor Rebecca Roiphe has a Ph.D. in American History and experience as a prosecutor, a background that serves her well in her field of expertise, legal ethics. In recent weeks, high-profile new stories about Attorney General Jeff Sessions and former Acting Attorney General Sally Yates have elevated questions of legal ethics to the national stage. Below, Professor Roiphe discusses her work.
You’ve observed that notions of what is or isn’t ethical are often based on tradition rather than hard and fast laws. In light of that, how does history guide your knowledge of the field?
History gives context. You see echoes of past behavior, and you put the pieces together in a different way. It’s similar to an anthropologist going to a different country and observing how things work there.
If people violate professional traditions or norms, is that inherently bad?
No, but it’s something you have to attend to. Traditions, norms, and professional codes come from doing work over and over again and developing a custom or practice. It is important to recognize that there is something valuable about these unwritten norms. Law and institutions are part of what protects democracy, but ethics and custom are critical as well.
How does your former role as an Assistant District Attorney inform your approach to ethical questions?
A prosecutor has a unique job. Your client is the public. It’s a combination of being a lawyer and being a public official because you have to assess what is in the public interest throughout your case. Immediately, you have to decide whether to prosecute—a decision that will affect someone’s life and the community. It’s very weighty, and you’re forced to grapple with it. I view that as a huge obligation and as part of a lawyer’s responsibility. That experience is partially why I approach legal ethics questions the way I do. Even when you have an individual client, you still have an obligation to the legal system and the rule of law as a whole.
Is that something you try to instill when you teach Professional Responsibility?
Absolutely. In my classes, I use a problem-based method that puts the student in the position of a lawyer faced with an ethical question. We look at examples of people who haven’t gotten it right, like the senior attorney in the 1977 Berkey-Kodak antitrust litigation case who lied to a federal judge to conceal documents. In addition, his associate saw these events unfold but did not say anything due to a mix of loyalty and uncertainty of what to do. They were both wrong. Sometimes we also screen television or film clips, which can help animate these issues. Ethics is difficult to teach in the abstract. The reality is that as a lawyer, you’re going to be put into these real-world positions where you have to make a call, where there is a grey area. I try to train students to recognize complex questions and not simply defer to what a client or supervisor wants you to do.
Is that difficult for inexperienced lawyers?
It can be. Lawyers want to believe that their supervisors and mentors mean well. But if you do something unethical at the request of your supervisor, or even if you go along with someone else’s unethical behavior, the system can suffer, and there can be professional consequences.
How has social media affected legal ethics?
It raises all kinds of issues. I taught a CLE on this topic a few years ago. For example, can you contact a witness by “friending” the person on Facebook given that there are rules regarding contact with represented and unrepresented persons? If you assume an identity when you friend the person, might that implicate rules regarding honesty? In addition, attorneys have been reprimanded for using social media to talk about their cases. In the prosecution following the Orlando Pulse nightclub shooting, one of Assistant District Attorneys assigned to the case was asked to leave after he posted thinly veiled racist, homophobic comments on Facebook.
You have a forthcoming article in the Boston College Law Review. What is its focus?
My co-author [Professor Bruce A. Green of Fordham Law School] and I did a comprehensive review of the law governing prosecutor conflicts of interest. Guidance on this issue comes from everywhere you might imagine—the courts, legislatures, and bar associations. Prosecutors’ conflicts are unique because they have to act with disinterest. Acting with disinterest means being free of personal beliefs and motivations that make it hard for the prosecutor to serve the public interest. We propose changes within a prosecutor’s office to make prosecutors more aware of the process of decision-making, so they can develop an ongoing transparency about how conflict-of-interest decisions are made. Many people who write about this issue argue for more regulation. But we’re arguing that prosecutorial discretion, not regulation, can really improve things. People shy away from very difficult ethical decisions at work—they’re hard and upsetting. Yet prosecutor discretion is an important part of our system. As long as we have that piece, we need to attend to it. The more you add regulations, the less prosecutors will think independently about these questions.
In the News
Wisconsin Public Radio: Legal Ethics Expert Discusses Calls for U.S. Attorney General Jeff Sessions To Resign
View the forthcoming Boston College Law Review article, “Rethinking Prosecutors’ Conflicts of Interest,” here.