There’s just one catch. Some experts believe that Toobin, as a matter of lawyers ethics (which the judge declined to consider), shouldn’t have written the book. They fear that he’s violated the bedrock rule of the profession - that lawyers are not supposed to reveal their clients’ secrets or to criticize the clients publicly, even after the representation has ended. This proscription is designed to give clients every reason to trust their lawyers. Toobin, with the independent counsel’s office as his client, certainly has caused it embarrassment. “The First Amendment isn’t a license to betray your client,” says Stephen Gillers, a New York University law professor. For his part, Toobin says his “conscience is clear” and that he has an obligation to tell the public the truth.
Of course, prosecutors have been writing for years about their big cases, most notably Watergate. The difference with those books, though, is that they typically didn’t skewer their offices - nor were they published during the pendency of an investigation. Defense memoirs, too, are common, but they usually dwell on the brilliance of the authors rather than the defects of the clients. Walsh, who is appealing the legal decision, seems to have picked up on the ethics wrinkle. Last October he drafted a letter to the bar disciplinary panel in New York (where Toobin is licensed), charging Toobin with professional lapses - which, if true, could result in punishment ranging from a private reprimand to disbarment. The letter was never delivered, though a copy mysteriously turned up at the U.S. attorney’s office in Brooklyn, where Toobin now works as a prosecutor. Toobin calls it “a document designed purely for intimidation.”
If the ethics police are correct and Toobin did in fact cross the Rubicon of responsibility, it would suggest that lawyers involved in important public matters can never become journalists or historians of events they know firsthand. In Toobin’s case, that would mean we wouldn’t get to hear his take on Oliver North, CIA abuses and why Elliott Abrams of the State Department escaped indictment. Those may or may not be particularly valuable insights into Iran-contra, but they are the direct observations of a participant nonetheless.
Must the peculiar ethics of lawyering be the enemy of history? Geoffrey Hazard of Yale Law School suggests some practical statute of limitations. “If you push this, it would make it improper for a lawyer to research the law practice of Alexander Hamilton,” he says. In other words, wait for a decent interval. That rule protects clients - and lawyers, too. How long will Toobin have to wait for his colleagues to fully trust him again?
