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Standing Tall for Liberty

david reich

Shortly after accepting the mantle of the American Bar Association in Chicago last August, Michael S. Greco made headlines by decrying attacks on the judiciary. He also publicly took exception to some provisions of the USA Patriot Act and the country’s handling of prisoners of war.

A lifelong advocate for liberty and public service—a calling influenced by the memory of sailing beneath the Statue of Liberty when he arrived here from Italy at the age of seven—Greco’s work with the ABA includes membership in the house of delegates since 1985 and chairmanship of several committees. A partner in the Boston law firm Kirkpatrick and Lockhart, Greco also has been president of the Massachusetts and New England bar associations.

In this interview, he speaks out further on timely legal issues and outlines his plans for the ABA.

You have cited the former BC Law School dean, Robert Drinan, S.J., as an example, mentor, and inspiration. How has he influenced you as a lawyer?

Father Drinan, who was dean when I entered the Law School thirty-six years ago—is a trusted adviser and close friend. I was honored when he joined my family in Chicago to see me take the ABA president’s gavel. I’ve been deeply affected by his view of the law as an engine for social justice and his dedication to public service. For me, he’s the embodiment of the lawyer as public citizen. Last year, when Father Drinan received the ABA’s highest award, the ABA Medal, for a lifetime of public service, he spoke eloquently about the law’s historic role in protecting the poor and powerless.

In my own career, and in my year as president of the American Bar Association, I have striven and will strive to follow his example. As ABA president, I’m making it a top priority to increase lower-income Americans’ access to the civil justice system. I’ve appointed a task force to develop
new strategies for reaching this goal. Studies show that 70 to 80 percent of the legal needs of poor Americans go unmet,
and that is unacceptable. I take seriously the words “Equal Justice for All,” which are chiseled above the Supreme Court
entrance, and I’m committed to making this eloquent promise a reality.

You’re an idealist, yet you’ve practiced in areas of law that aren’t typical choices for idealists, including real estate and
business law. What can an idealist accomplish in these practice areas?

Virtually every practice area, from tax law to public interest law, gives practitioners the chance to bring to their work high ethical standards and a commitment to public service. Also, don’t forget that every lawyer can serve the profession and society through volunteer bar association work and pro
bono or public service work.

This has never been truer than in the aftermath of Hurricane Katrina. Even before the storm had run its course, the ABA formed an emergency task force to address the countless legal needs that Katrina spawned. Thousands of ABA lawyers have volunteered to provide free legal services to storm victims for as long as it takes to get them back on their feet. Every section of the bar—tax, litigation, business law, alternative dispute resolution, criminal justice, the young lawyers division, and state and local bar associations around the country—is contributing to this effort, because the legal needs cover the full spectrum.

As for me, I’ve devoted much of my career to public service. For instance, I chaired the first-in-the-nation
Massachusetts Legal Needs for the Poor Assessment and Plan for Action, and I co-founded and co-chaired Bar Leaders for Preservation of Legal Services for the Poor, a national grassroots organization that helped preserve the Legal Services Corporation in the 1980s. And as chairman of the ABA’s Section of Individual Rights and Responsibilities, I helped lead the association’s call for a moratorium on the death penalty in states where its administration is constitutionally flawed.

Speaking of pro bono opportunities, you recently told the Boston Globethat lawyers today don’t get enough time for pro bono work.
Isn’t the underlying problem that the legal business, especially the big law firms, is increasingly following an industrial model, with associates’ work seen as a commodity?

I believe that all lawyers—younger and older—never lose the idealism that first attracted them to the law. But a number of pressures under the prevailing legal business model are making it difficult for lawyers to do pro bono and public service work. Billable-hours policies are one very important piece. The debt burden faced by graduating law students is another.

One of my initiatives as president is what I call the “renaissance of idealism in the legal profession.” I’ve appointed a commission charged with formulating real, practical strategies to get lawyers more time for pro bono and public service work. Making a greater pro bono commitment is not just good in itself; it’s also very much in the economic self-interest of large law firms. Many clients expect to see this kind of social commitment at their law firms. It also improves morale and employee retention, and, of course, it’s a tremendous benefit to society as a whole.

Let’s say the pressure to rack up billable hours continues, despite the ABA’s best efforts. Will lawyers need to follow other professions—schoolteachers, professors, nurses, and even some physicians—by unionizing?

I’m not sure a union is ever going to be the best model for lawyers. About 80 percent of practicing lawyers work in small firms or are solo practitioners, for whom unions aren’t practical. Bar associations probably will continue to be the best model for addressing the profession’s common concerns.

You’ve made a number of statements decrying attacks on the judiciary by some in Congress. What would you say to those who believe that in decisions like Roe v. Wade and more recently in Lawrence v. Texasand the gay marriage decision in Massachusetts, the courts are making law up out of whole cloth instead of letting social issues be hashed out in the legislatures, where they actually belong? Do these critics of the judiciary have a point?

First, people at all points of the political spectrum have every right to criticize rulings with which they disagree. That’s democracy. But the ABA takes issue with criticism that crosses the line into threats and intimidation—such as the threats by some members of Congress to seek impeachment of, or otherwise punish, judges involved in the Terri Schiavo life support case and other controversial cases.

Americans need fair, impartial courts that inspire public trust, and threats of reprisal for specific decisions simply have no place in our system. Now, you mentioned the President. It’s important to note that he has not endorsed these extremist calls, and in fact, Vice President Dick Cheney explicitly rejected the idea of impeaching judges for specific rulings. So even though any attacks of this kind worry us, it’s encouraging to know that many government officials reject them.

What about accusations by congressional Democrats that some of the recent court nominees are conservative judicial activists? Do these accusations have any merit?

Again, it is totally appropriate for members of Congress and the general public to consider ideology in how they evaluate judges and judicial nominees, but it’s also important to be fair-minded about this and not exaggerate the “activist” label. Judges have a clear role, but it is widely misunderstood. They apply the facts and the law to the cases that come before them, and their rulings can be overturned on appeal.

When you think about it, they are very much like referees in a sporting event. They have to make tough calls, and often those calls are going to be unpopular on one side or the other. And, as I said, their calls, as in instant replay, can be reversed.

The most important thing is for us to respect the referee even when the call goes against us. Our judges have to handle some very difficult cases, and we want them to apply the law without fear of reprisals or political manipulation. If we don’t protect our courts, they can’t protect us.

Our greatest concern is that selection of judges not be reduced to a litmus test based on one or two hot-button issues. That kind of simplistic approach doesn’t reflect the complexities of judging. Under canons of judicial ethics, judges cannot commit themselves ahead of time as to how they will rule in specific cases. This is not only a potential issue in Senate hearings on federal court nominees. It’s also an area of particular concern in states where judges are elected by popular vote.

Could you recommend a way to end the acrimony surrounding appointments to the federal bench and to assure that we have the best, most impartial judges?

There must be a return to civility in discussing our judiciary, because our courts depend on public trust to uphold the law. Extremist rhetoric undermines that trust. But I think we need something more. So many Americans have not been properly educated on the basics of American government. The ABA commissioned a survey, conducted by Harris Interactive last July, that yielded some very disturbing data. According to the survey, 48 percent of the respondents didn’t know what “separation of powers” means, and 40 percent couldn’t correctly identify our three branches of government. In fact, 22 percent thought the three branches of government were Republicans, Democrats, and Independents. Perhaps most troubling, 44 percent didn’t know the core responsibilities of the judicial branch.

We need to do a better job of educating the public about our democracy, so that all Americans will vigorously protect it. When people don’t understand their rights, it’s easy for others to take them away. That’s why I appointed a special Commission on Civic Education and the Separation of Powers, which is working to improve school curricula and to educate the public about the role of judges.

You are widely quoted as objecting to several provisions of the USA Patriot Act and the Bush Administration’s handling of the Guantánamo detainees. Even if you object to the government’s actions in these areas, do you grant that they may be necessary?

Ever since the horrific and tragic attacks of September 11, 2001, we are understandably struggling, as a nation, to reach an appropriate balance between preserving civil liberties and democratic values, on the one hand, and preserving our nation’s security, on the other. The ABA supports the US government in the war on terrorism, but we must not allow anyone to undermine the very liberties we’re fighting to protect. To do otherwise departs from our principles, harms our credibility, and accomplishes the objectives of the terrorists.

The ABA believes that there have been some unfortunate missteps in the war on terrorism. For instance, we have called for more than a year for a bipartisan commission to investigate allegations of detainee abuse and the shameful treatment of Iraqi prisoners by US military personnel. To date
there has been no action by the administration or Congress.

The ABA adopted a policy and filed an amicus brief in the United States Supreme Court arguing that US citizens have a right to judicial review of their detention, and should also have a right to contact and communicate with an attorney. This right of due process has been fundamental to our democracy and our liberties from the beginning. We were pleased when the Supreme Court in June 2004 agreed with our position in Hamdi v. Rumsfeld. We also have urged that for foreign detainees the use of military tribunals be very limited, and that if any tribunals are used, they conform to fair trial standards.

Finally, as you mentioned, many in the ABA have continuing concerns about certain elements of the USA Patriot Act that go too far in invading privacy rights and violating civil liberties.

Did the changes Congress made this year when they reauthorized the Patriot Act at least begin to address those concerns?

Many provisions of the Patriot Act are noncontroversial and are needed in the war on terrorism. However, a few—for example, the so-called sneak-and-peek searches and roving wiretaps—also apply to ordinary criminal cases, and they afford limited judicial review. The ABA is very concerned about them, as are observers from all sides of the political spectrum, because they represent erosions of the civil liberties of all Americans.

The most worrisome provisions were renewed by Congress this year, so we will continue to monitor this law with some concern, and continue to call for sunset provisions so that the most intrusive elements of the Patriot Act are periodically reviewed.

In general, how would you describe our government’s current attitude toward the rule of law?

As I said before, September 11 presented our government and our nation as a whole with a terrible and unprecedented challenge. The federal government bears the trust and duty of protecting our citizens from attack, and I don’t think anyone should be lightly criticized as they do their best to carry out that duty.

We are all determining how to balance the values that have made us a great nation—the liberties guaranteed by the US Constitution—with the need to defend ourselves from future attacks. But I do believe this: The Constitution has seen our nation through many crises, and if we affirm its values, it will see us through this one as well, with our liberties intact.

David Reich is a Boston freelance writer and a frequent contributor to this magazine. His last story was on the new bankruptcy law.