The Metropolitan
Corporate Counsel
®
www.metrocorpcounsel.com
Volume 14, No. 10
© 2006 The Metropolitan Corporate Counsel, Inc.
October 2006
Raising The Rule Of Law Banner,
For America And The World
The Editor interviews Michael S. Greco,
Partner, Kirkpatrick & Lockhart Nicholson Graham LLP, and immediate past
President of the American Bar Association.
Editor: Reflecting on your term of
office as President of the ABA, would
you share with our readers the high
points of this past year?
Greco: There were many high points to
my year as ABA president, more than I
can do justice to in a brief interview, but
I will discuss several.
The over-arching theme for my year in
office was renaissance — a rebirth and
reaffirmation of the legal profession’s
core values and America’s constitutional
principles.
My priorities involved protecting the
rights and freedoms of American citizens,
safeguarding the independence of the
judiciary and other institutions of our
democracy, balancing national security
and freedom, re-invigorating the longstanding public service and pro bono
commitment of lawyers, addressing the
legal needs of lower-income citizens,
advancement of women, people of color
and persons with disabilities in the legal
profession, and improvements to the
Association and the legal profession. An
ambitious agenda? Yes. But a great deal
was accomplished. To implement my initiatives I created two ABA commissions,
five ABA task forces and several special
committees.
I traveled on more than 300 of my 365
days in office to 45 states, Washington,
DC and Puerto Rico, and more than 25
Michael S. Greco
nations, delivered more than 275
speeches, testified before Congressional
committees, met with hundreds of government leaders abroad and in the U.S.,
and addressed and met with lawyers and
judges, bar associations and civic groups
and thousands of people throughout the
world.
In commenting on my initiatives, I
begin with my concerted effort this past
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© 2006 The Metropolitan Corporate Counsel, Inc.
year to unify the legal profession worldwide to advance and protect the rule of
law.
In November 2005, I attended a conference in Paris of some one hundred bar
presidents from all over the world and
addressed a subject that I had discussed
earlier at international bar leader conferences in Morocco, Prague and London:
the responsibility of our profession to
ensure justice and protect the rule of law
in all nations. I noted that I am an American lawyer but consider myself a colleague of every lawyer in the world, and
that they are my colleagues; that harm to
the legal profession in one nation is harm
to the profession in all nations; and that
harm to the people of one nation because
of the failure of the rule of law is harm to
all people.
During the Paris meeting the bar leaders present agreed to adopt, and I
authored, a Statement of Core Principles
to which the legal profession worldwide,
in the interest of the public, is committed.
It was adopted unanimously that day and
since then by dozens of bars across the
world. The ABA House of Delegates
adopted it unanimously in February at
our Midyear Meeting in Chicago. The
significance of this development is that
the legal profession worldwide increasingly is viewing itself as one unified profession, not as isolated islands, with a
shared commitment to help each other combat violations of the rule of law and denial of
freedoms anywhere on earth.
In addition to my efforts to unify the profession globally, in connection with the
ABA’s important and growing international
rule of law efforts that are now active in
more than 40 countries, including emerging
democracies in former Soviet republics, during the past year I negotiated collaboration
agreements between the ABA and the
national bars of China, Russia and Japan in
order to provide for mutually beneficial
exchanges of lawyers, legal knowledge and
expertise, and to advance justice and the rule
of law.
Editor: You mentioned the initiatives that
you pursued during your term. How have
these fared?
Greco:
As I mentioned, my initiatives
focused on reaffirming our profession’s core
values and protecting America’s constitutional principles and freedoms. I wanted to
re-invigorate the idealism of lawyers, to protect the constitutional rights of Americans
and the doctrine of separation of powers,
protect the independence of the judiciary
and legal profession from those in and out of
government who seek to diminish or marginalize the roles of lawyers and judges, and
to address the legal needs of America’s poor.
The ABA Commission on the Renaissance of Idealism in the Legal Profession
was my effort to revitalize the public service
and pro bono commitment of the legal profession, to help more Americans with their
legal needs, and provide more fulfillment to
lawyers that comes with doing good and not
just well. The Commission, under the splendid leadership of honorary co-chairs
Supreme Court Justice Ruth Bader Ginsburg
and Theodore C. Sorensen, and chair Mark
Agrast of Washington, DC, produced several
important new ABA policies and products –
including an on-line Best Practices Guide
and an inspirational DVD video featuring
Dennis Archer, the first African American
President of the ABA – that will encourage
increased pro bono and public service work
by lawyers in law firms, in-house law
departments, law schools and government
offices. Both are accessible on the ABA’s
website, www.abanet.org.
The ABA Commission on Civic Education and the Separation of Powers addressed
the deplorable fact – documented by an
ABA-commissioned Harris Interactive survey conducted when I took office – that
nearly half of Americans cannot identify the
three branches of government, the meaning
of the separation of powers doctrine or
checks and balances, or a judge’s core
responsibilities. Americans who do not
know their constitutional rights are illequipped to protect those rights and the
institutions of their democracy, such as an
independent judiciary, and they are easy
prey for those who would abuse those rights.
The Commission, led by the honorary cochairs, Supreme Court Justice Sandra Day
O’Connor and former New Jersey Senator
Bill Bradley, and chair Robert Rawson, a
distinguished business litigator and former
Chairman of the Princeton University Board
of Trustees, proposed new policies adopted
by the ABA that will help improve civics
education in U.S. schools.
The ABA Task Force on Access to Civil
Justice, which was chaired by Justice
Howard Dana of the Maine Supreme Judicial Court, addressed an idea whose time, I
believe, has come in America: to provide
desperately needed legal services to millions
of poor Americans, 70-80% of whose legal
needs annually go unmet, through the creation and recognition of a defined right to
counsel, paid by the state, for certain serious
legal problems that threaten basic human
needs such as family, shelter, and health.
At the ABA’s Annual Meeting in Honolulu in August, the 550-member House of
October 2006
Delegates, in an historic vote for the Association, the legal profession and society, voted
unanimously to adopt a policy supporting
creation of a defined right to civil counsel for
America’s poor. The policy will aid advocates for equal justice in all the states when
they ask courts, legislatures and others to
recognize such a right for our vulnerable fellow citizens. I believe that this new ABA policy will help define the legal profession and
our society in this century.
Editor: And the other initiatives you
developed over the past year?
Greco: I also appointed two bi-partisan task
forces – the ABA Task Force on Domestic
Surveillance in the Fight against Terrorism,
and the ABA Task Force on Presidential
Signing Statements and the Separation of
Powers Doctrine – both comprised of distinguished constitutional scholars and former
government leaders and judges, to protect
Americans’ constitutional rights, the doctrines of separation of powers and checks
and balances, and America’s democratic
form of government.
The Task Force on Domestic Surveillance
carefully considered the U.S. government’s
troubling program of warrantless spying on
American citizens and issued a unanimous
report and recommendations urging the President to respect the roles of Congress and the
Judiciary, to comply with the Constitution
and existing federal laws, and urged immediate corrective action by Congress and the
Courts. The ABA House of Delegates at its
February 2006 Midyear Meeting in Chicago
adopted the Task Force’s recommendations
by a near-unanimous vote.
The ABA policy states essentially that the
President must consult with Congress before
adopting a program that invades the privacy
rights of American citizens protected by the
Fourth Amendment, and urges Congress to
hold hearings to investigate what the surveillance program involves. Congress in discharging its constitutional powers and
obligation to the American people should
insist on full information about the program
before enacting any amendments to the Foreign Intelligence Surveillance Act (FISA).
I testified before the House Permanent
Select Intelligence Committee on proposed
amendments to FISA, which Congress
enacted in 1978 because of earlier governmental abuses of citizens’ privacy rights.
FISA includes fundamentally important protections: it allows the government to do surveillance under certain circumstances, but by
requiring a particularized warrant issued on
probable cause, it also preserves Fourth
Amendment protection against unreasonable
searches and seizures. The ABA’s position is
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© 2006 The Metropolitan Corporate Counsel, Inc.
that any amendments to FISA must preserve
those fundamental protections. Their elimination from FISA would effectively eliminate the Fourth Amendment.
The Task Force on Presidential Signing
Statements, comprised of conservatives and
liberals, constitutional scholars and former
government officials, thoroughly considered
the misuse by a president of signing statements that indicate an intention not to
enforce new laws enacted by Congress. The
Task Force’s unanimous report and recommendations concluded that such misuse by
any President of signing statements violates
the Constitution, encroaches unlawfully on
the powers of Congress, and poses a direct
and grave threat to the separation of powers
doctrine. The Task Force urged immediate
legislative action by Congress and judicial
review by the Supreme Court of the United
States to resolve the serious constitutional
issues presented.
At the August 2006 Annual Meeting the
ABA House of Delegates adopted the Task
Force’s recommendations by an overwhelming vote. Congress now must discharge its
constitutional responsibility and protect not
only its powers in our democratic government, but also prevent dangerous erosion of
the separation of powers doctrine.
I appointed the ABA Task Force on Hurricane Katrina as that hurricane was still
raging in order that the legal profession
could provide free legal services to victims
of Katrina and other hurricanes that devastated the Gulf States in the fall of 2005. The
Task Force coordinated an unprecedented
effort by thousands of lawyers to provide
desperately needed legal services to tens of
thousands of hurricane victims, and the
work continues as the legal needs of victims
continue to surface.
The response of the legal profession to
this tragedy has been magnificent, and I am
proud of our many colleagues across the
U.S. who have provided and will continue to
provide desperately needed legal services.
The ABA Task Force on the AttorneyClient Privilege for two years now has led
the Association’s efforts vigorously to
oppose the U.S. Department of Justice’s
assault on American citizens’ attorney-client
privilege, and to protect the fundamental
right of Americans to representation by
counsel without federal government interference or coercion, as guaranteed by the
Fifth and Sixth Amendments to the Constitution.
As a result of the efforts of a coalition of
organizations led by the ABA that includes
the U.S. Chamber of Commerce, the American Civil Liberties Union, the Association of
Corporate Counsel and other concerned
groups, the U.S. Sentencing Commission in
April unanimously voted to remove from the
Sentencing Guidelines the prosecutorial
incentive to coerce waiver of the privilege
and work product doctrine.
Despite strong opposition from almost
every quarter in the legal and business communities, and others, the Department of Justice is still holding firm to what is a
misguided policy that actually hinders rather
than helps the fight against corporate misconduct. In early September, a group of ten
former Justice Department officials that
includes three former attorneys general, one
of whom is my law firm colleague Dick
Thornburg, sent a letter strongly urging that
the Department abandon the coerced waiver
policy.
At the ABA’s urging, the matter is now
being addressed by Congress. During the
annual ABA Day in Washington in May,
Senator Arlen Specter, Chairman of the Senate Judiciary Committee, agreed to my
request that the Committee hold hearings on
this important subject. The first day of hearings occurred on September 12, with the
ABA providing testimony. A House committee has also held a hearing.
This issue, as do the issues addressed by
the ABA Commissions and Task Forces,
demonstrates the important role that the
American Bar Association plays in protecting the rights and freedoms of the American
people and the foundations of our democracy.
Editor: This past year has been an extraordinary one, for you and for the ABA.
Greco: Yes, it has. If the hundreds of letters,
emails and telephone calls I have received
from American citizens, lawyers and nonlawyers, judges and legislators, and the hundreds of editorials, op-ed articles and letters
to the editor appearing in newspapers
throughout America, as well as commentary
on the Internet, are a reliable indication, the
American people appreciate the ABA’s
efforts, and those of America’s lawyers, on
grave legal issues that speak to the hopes
and fears, and the desires of Americans to be
both secure and free in this era of terrorism.
To anyone, whether conservative or lib-
October 2006
eral, who may question the ABA for taking
an “activist” role on these issues, I respond
that the ABA through its 411,000 members
exists to defend the Constitution and the
rights of the American people. Every lawyer
takes a solemn oath to do just that. So does
the President, and every federal and state
government official in America — to uphold
the Constitution and the rights it guarantees
to all Americans. Conservatives and liberals
both want to defend and nourish what is
good, and decent, and cherished in America.
Freedom and justice, and preservation of our
republic are not partisan issues and should
never be.
Adlai Stevenson once said that “freedom
rings wherever opinions clash.” That is a
succinct statement of what a healthy democracy must encourage and protect – open discussion and exchange of views without fear
of reprisal or personal attacks on one’s patriotism or integrity. The fundamental principle of freedom of speech and assembly
which the founders wrote into the very first
provision of the Bill of Rights has protected
us and has defined us to the world.
In my farewell address to the ABA House
of Delegates in Hawaii I quoted from the
speech that President John F. Kennedy was
to have delivered in Dallas on November 22,
1963: “We in this country, in this generation,
are – by destiny rather than choice – the
watchmen on the walls of freedom.” Today
the lawyers of America, by choice and
necessity, are the guardians at the walls of
freedom.
Issues such as torture of detainees, denial
of due process, secret surveillance of American citizens, and disrespect for the doctrine
of separation of powers and checks and balances, and more, have been addressed in
ABA policies in the fight against terrorism.
These are not partisan issues. They affect all
Americans, define us, and threaten harm to
our freedoms and the fabric of our republic.
It is my hope that – with government
leaders setting the example – we will be able
to move beyond the ill will and hostility that
now characterizes so much of our public discourse. Americans today must do what the
colonial patriots did before us – protect and
preserve our freedoms with every ounce of
might and against every threat – whether
from without or within our country.
The American Bar Association will continue to do its part.