First, Let’s Kill All Those Shallow Interpretations of Shakespeare

By Kevin Ryan, Esq.

You know that quotation from Shakespeare about killing all the lawyers? What are we to make of it? Critics of the legal profession (serious or half-joking) love to trot the phrase out to lend pedigree to their view that lawyers are all highly paid sharks bent on enriching themselves by impoverishing others, making everything worse (except their own bank accounts) through protracted litigation. Is there something bad and unwholesome about modern life? Well then, say the critics, blame it on lawyers. The phrase pops up at parties and political rallies, in the mouths of wannabe wits and candidates for office. The Eagles even stuck the line in a song, evidently because it captured Don Henley’s feelings towards people who look for a quick injection of cash for imagined injuries and the lawyers who take those cases to court. Even in Elizabethan times, so the critics would have it, lawyers were despised as mongrels seeking to steal your money through Machiavellian maneuverings. Generally, one hopes, these critics don’t really want to kill lawyers, let alone all of them, let alone “tonight,” as Henley’s lyrics urge. But they do want to convey the thought that the world would be a better place without lawyers, that there’s something sleazy, dirty, unsavory about the profession. And if you are in the legal profession, you’ve been overexposed to the phrase, often by acquaintances testing the waters of your sense of humor – you know the sort: a poke in the ribs, a wry smile, a comment about your line of work, “Shakespeare said we should kill all the lawyers,” ha-ha-ha.

From what we know of his life, it is likely that Shakespeare himself did not have particularly positive relationships with lawyers and the legal system: both he and his father were perpetually being dragged into court for one reason or another. Still, the idea that getting rid of lawyers would improve humankind is shallow and ignorant (we should not have to recite all the benefits lawyers have brought to us over the centuries) – and we should be very wary of attributing such an idea to a writer universally appreciated for his depth and intelligence.

The legal profession – filled with well-educated and competitive sorts – has not stood by while the quip from Shakespeare gets bandied about. And so we get the other side. Many employ the phrase in order to turn it on its head, using it as part of a defense of lawyers. The pro-lawyer faction wants us to consider not the words themselves, but the context in which they appear. The actual phrase is: “The first thing we do, let’s kill all the lawyers,” and it’s from King Henry VI, Pt. II. You’ve read the play? No, you probably haven’t, for it’s not one of the Bard’s best loved works. (Yes, I have, since you asked.) One wag even commented that the play would have been entirely forgotten had it not been for this one line; that’s probably too strong, but there’s no doubt this play is seldom read, let alone performed. Anyway, Shakespeare, as literate readers know, put this phrase into the mouth of a villain, Dick the Butcher, a follower of the rebel Jack Cade, who hoped to become king by disrupting the social order.

And there you have it – the makings of an alternative interpretation, one in which context makes all the difference. Justice John Paul Stevens, in Walters v. Nat’l Assn. of Radiation Survivors (1985), gave classic expression to this view: “As a careful reading of that text will reveal, Shakespeare insightfully realized that disposing of lawyers is a step in the direction of a totalitarian form of government.” Shakespeare, Justice Stevens believes, is telling us that eliminating lawyers permits tyrants to run amok on the rights and liberties of people; that’s why the Bard put the words into the mouth of a bad guy, a rebel, an anarchist. Shakespeare, we are subtly invited to conclude, knew the fundamental value of lawyers to civilization. Thus, far from being an attack on the profession, the exchange serves as a not-too-subtle defense of law and those who practice it against those who would establish tyranny (or, worse, anarchy – if you could establish anarchy).

But is this really any better than the crude “Shakespeare as lawyer-hater” interpretation? Having spent many of my (many) years in the groves of academe, I can hear the teeth-gnashing that this interpretation provokes. The Bard has been the victim, perhaps more than any other writer, of people hijacking a phrase here and a phrase there (like this one about lawyers) in order to enlist him in support of whatever position they want to espouse. I think it’s a fair observation about lawyers that, of all professional groups, they may be one of the most likely to commit this offense. Further, interpreting great literature (the teeth-gnashers would say) is a difficult, controversial, and endless endeavor. (Yes, I know: the notion of “great literature” is pretty darn fuzzy and controversial itself). And Shakespeare is notoriously challenging to interpret: library shelves are filled with competing attempts to explain the “meaning” of his works, and the Shakespeare industry rumbles on into the twenty-first century unperturbed by the passage of time. How can we know for certain what he meant, especially in a relatively obscure line in an even more obscure play?

But inconclusiveness of interpretation aside, Justice Stevens’s use of Shakespeare suffers from a host of difficulties. For one, it is painfully anachronistic. Shakespeare would’ve had no idea what a “totalitarian form of government” might be – in fact, it’s not clear that we do either, given the ongoing disputes among scholars about exactly what totalitarianism is and isn’t. Writing hundreds of years before the 20th century (and without the “benefit” of all that scholarship), Shakespeare could have had no inkling of the depth to which dictatorial power could extend into the everyday lives of people. He was aware of the force of royal absolutism: Queen Elizabeth was not reluctant to use her power to destroy her internal enemies (both religious and political), and her successor, King James I, did have grand visions of himself as an “absolute” ruler. But neither came close to being a totalitarian dictator: Elizabeth was not Hitler in skirts; royal power, even under the assertive James, did not come close to extending its tentacles deep into the everyday lives of individuals; and, in any event, James I ruled some years after Shakespeare wrote Henry VI, Pt. II. In short, Shakespeare could not have been saying anything about totalitarian government at all.

Even assuming we could agree (which, as I say, we can’t) on what “totalitarian government” is – that it’s something like Hitler’s Germany or Stalin’s Soviet Union – then we have to recognize the part played by lawyers in those very systems. Had it not been for the work of thousands of lawyers, those systems could not have functioned. And so the proper contrast may not be between totalitarianism on the one hand and the presence of lawyers on the other, as Stevens would have it, but between two kinds of systems, both of which make use of legal professionals (albeit in somewhat different ways). But that is not nearly so gratifying a portrait of lawyers as the Stevens camp likes to paint.

And finally, returning to the play itself, does it make any sense at all to refer to Cade and his anarchist henchmen as proponents of “totalitarian government”? Isn’t it rather the case that they proposed the elimination rather than the expansion of government? As for Shakespeare, he seems, if anything, to have been more disturbed by the threat of chaos represented by Cade and his band of thugs than worried about the prospect of a state that sees no limits to its power and that seeks to control every aspect of public and private life. He was, to be sure, wary of the royal power to shut him down (or worse), but it was the existing system that came closer to total power than anything the rude peasants tagging along with Cade might construct. If the views espoused by Dick the Butcher lay out a contrast to the rule of law, it depicts a world without law of any sort, not a world of total control by government.

Thus, even when we read the famous phrase in context, it is not all that clear what that context tells us. And it certainly doesn’t give us much insight into Shakespeare’s own views. Despite the comfort Justice Stevens offers a profession frequently laughed at, criticized, and even vilified, his interpretation of Shakespeare seems no sounder than those he opposes. Reading Shakespeare with Stevens may make us feel good, but that is hardly an appropriate standard of truth (certainly, we don’t use it as a standard in most other aspects of our lives). We may gain a feeling of superiority over those (other) “shallow” readers who cite the passage as if Shakespeare was endorsing the idea it expresses. But when examined more closely, this interpretation isn’t much deeper: it too just seems to be a way to snatch a line out of a play and make it mean whatever you want it to mean. And that, I suggest, falls short of the standards not just of critical interpretation, but of our profession as a whole.

Is Justice Ginsburg Out of Line?

By Kevin Ryan, Esq.

Three times in the past week Justice Ruth Bader Ginsburg has offered strong opinions on the presidential race and her views of Donald Trump as a presidential hopeful. “I can’t imagine what the country would be with Donald Trump as our president,” she told an interviewer from The New York Times. Previously, in an interview with The Associated Press, she said she didn’t “want to think about the possibility [of a Trump victory],” because then “everything would be up for grabs.” She has labeled Mr. Trump as an inconsistent “faker” who “says whatever comes into his head,” noting “he really has an ego.”

Now, no matter what one thinks about Mr. Trump or his candidacy, such comments from a sitting Supreme Court justice seem to cross the line. Historically, justices on the Court have shied away from making political statements – and they certainly have refused to take a public position on candidates for national election. That does not mean, of course, that they did not have such positions – only that they didn’t state them bluntly in public as Justice Ginsburg has done. Many (including the Times editorial page) see Ginsburg’s remarks as unwise, unethical, damaging to the prestige of the Court, and (in Trump’s own words) “highly inappropriate.” An article in Slate talks of Ginsburg risking her legacy. More conservative news and opinion sources have heaped abuse on her.

And there’s something to all that criticism. Her entry into the political mudslinging festival may well damage her reputation and it may backfire, aiding rather than impeding Trump’s candidacy. Should the litigious Mr. Trump ever bring a case to the Court, her comments provide strong reasons for recusal – what are the chances that she can be impartial in such a case, given the vehemence of her comments? The possibility of a Trump victory in November only makes this problem worse, for then there will undoubtedly be a host of cases before the Court involving his administration. Many have hinted that Ginsburg’s forays into political commentary are unethical, though I have yet to see a clear case presented for exactly why this rises to the level of a violation of judicial ethics. (The ABA Journal contains a decent discussion of the arguments each way.) And her comments will surely accelerate the increasing tendency for the public to see the Court as a political body that decides matters not on the basis of law as such, but on the basis of firmly held political views loosely papered-over with legal argument. Highly inappropriate? At least strikingly out of the ordinary and contrary to the ways the game has previously been played.

The controversy raises important questions (in addition to the questions about the merits or demerits of a particular candidate). What is meant by “the rule of law”? What is the proper relation between the political branches and the (supposedly non-political) judiciary? What kinds of behavior do we (should we) expect from our judges? Does a citizen check her freedom of speech at the courthouse door when she assumes a seat on the bench? Is the Supreme Court a body of wise women and men, a kind of Platonic guardian class conducting a philosophy seminar, in which Truth and Justice emerge from objective discussion and mundane politics are set aside? And what if someone (a judge or any other public servant) truly and deeply believes that a particular candidate or political position constitutes a threat to the nation or the principles upon which the nation is founded? Should they simply shut up because speaking would undermine the dignity of their institution? (Ginsburg supporters, and perhaps Ginsburg herself, will point to the caving in – the refusal to stop, think, speak, and act – of German and Soviet judges not all that long ago.)

These questions are fundamental. They should be asked, thought about, debated. Justice Ginsburg’s actions may initiate a healthy public conversation about the answers – if only we can get past our penchant for wild assertions and over-the-top claims, a penchant that seems to be growing worse. No, I don’t know the answers. (My students always hated that about me: they wanted answers and I had only questions.) Socrates said that the unexamined life is not worth living, and that means we need to grapple with the tough questions about how we live, personally and as a people. In that regard perhaps Justice Ginsburg has been the gadfly we need at a critical moment in our history.

What do you think?

Thanks for checking in,

Kevin

What Do You Want Us to Be?

“So, if you want to reinvigorate the blog, you’ll need to write something regularly. How about starting this week?” She meant last week, and she gave me a look that carefully hid her recognition that this was unlikely. I said, foolishly, “Sure, I can do that” – not at all getting the irony of her question. Well, as it turned out, that first post was late in starting and Ben rode to the rescue with a fun post on the MCBA staff – and I was left to come up with something this week.

But that’s easy. I want to share a vision of the future of bar associations in general – and of this bar association in particular. I believe strongly that the bar association of the future will differ significantly from the bar association we know today. This is in part due to larger changes in economy and society, and in part due to generational shift. The fast pace of technological development means that bar associations need to be nimble and, if they are to keep their members, they must ride on the crest of the wave of change rather than trailing behind. And everyone who has studied the characteristics of Generation Y – our next generation of lawyers – has concluded that they expect different things from their association than do the Baby Boomers and Generation X. If we are to survive as a professional association, we need to begin now to provide those things, and do so in the manner expected by a generation reared on the Internet, used to having things work online quickly and efficiently, and seeking a wider range of benefits from their associational activity than continuing education and a handful of price reductions on services and products.

As executive director of the Monroe County Bar Association I want to find ways to make the bar central to your success as a lawyer. This means a wide range of things. When you want legal education about the latest developments in your field of practice, you know the MCBA will provide that education. When you need basic training in a new practice area, you can find that training through the bar association. When you need training on office systems or new technological tools, the MCBA provides that training. When you have a question about how to manage your practice, the MCBA has the answer. When you need advice on what systems and technologies you should adopt in your practice, you can get that advice from the MCBA. When you need to do legal research, the MCBA provides a platform for you to do that research easily and at little or no cost. When you need forms or other resources to make your practice go more smoothly and meet your clients’ needs, you can find those forms and resources via the MCBA. When you need information or have concerns about your mental or physical health, you can turn to the MCBA for useful, timely, and accurate information and assistance. When you have concerns about the welfare of our community, you can count on the association to share those concerns and offer opportunities for you to address together with other professionals. When you want to explore new ways to advance your career, you can count on the MCBA to let you know what’s out there and help you take advantage of your chances. When you are looking for ways to expand your practice, the MCBA is the place you turn for help. And when you want to connect with other legal professionals, whether to network or just to have fun, the MCBA offers ways to make that possible.

I hope you will let us know how we can best help you in your professional (and to some extent your personal) life. We are open to all ideas, no matter how big, no matter how “out of the box” (a cliché I don’t usually employ, but it fits here), no matter how unusual or weird they might be at first glance. What do YOU want from the MCBA? How can we make you more successful? How can we make your life easier? I urge you particularly to think out into the future – for the profession and the nature of law practice are changing, and in order to be successful you need to accept that fact and, to the extent you can, step into the flowing stream.

So please tell us what we can do to help you achieve your goals in the coming years. Every member of the MCBA team – all those folks Ben introduced you to in our last post – is open to your ideas and will bring them to the rest of the group for discussion and planning. Of course we can’t promise to do everything you ask of us, budgets and time being what they are. But we can guarantee that your suggestions and ideas will be taken very, very seriously and that, if we can do so within the constraints provided by our overall mission, our budget, and our schedules, we will do what we can to make the Monroe County Bar Association all that you want and need it to be. We look forward to working with you in the days, months, and years to come.

So there, Liz, I wrote a blog post. We’ll keep this up, regular posts being the sine qua non of successful blogging. Oops, Latin. Must be that Jesuit education, which pokes its head up now and again. I used to tell my students (no matter what course it was) that one of the benefits of the class was they got to learn Latin. Same goes for readers of this blog.

Valete,

Kevin

Thoughts From Our Incoming Leaders

Hello Bar View readers! I know that it has been a while since our last post but things have been busy.

There are only a few months remaining until we pass the torch and swear in our new MCBA and Foundation leadership… but who is counting, right? We have been through many changes this year and are looking forward to our working with the MCBA’s new Executive Director (that blog is coming soon).

Many of you may already know our incoming MCBA President Mark Moretti and our incoming Foundation President Elaine Cole, but this post should help you learn a bit more about them and their vision for the MCBA and the Foundation.

Mark Moretti, 2016-17 MCBA President

MorettiMark_P

Mark Moretti received his Juris Doctorate from the State University of New York at Buffalo Law School in 1978 and currently practices in the areas of commercial, tort, construction and real property litigation, and property tax, title issues and condemnation. Moretti joined Phillips Lytle in 1980 and since then has been listed on Best Lawyer’s in America and Upstate New York, Super Lawyers and was named as Best Lawyer of the Year for 2012 in Construction Litigation. He also serves in the NYSBA House of Delegates and is a fellow of the American Bar and New York State Bar Foundations.

Please take a look at our Question and answer session below:

What is your Vision for the Bar?
My vision for the MCBA is one where all members of our legal community work together collaborating for the good of the profession we have chosen; making this community one in which justice for all is served; and to make the profession respected and appreciated by our community.

What do you think is the biggest challenge to the MCBA in the coming year and how do you plan to improve it?
Certainly one of the biggest challenges is to integrate our new Executive Director into the MCBA. After having Mary Loewenguth as Executive Director for more than 14 highly successful years, we are very pleased to welcome Kevin Ryan as our new Executive Director. It’s always a challenge to follow a highly accomplished leader, but I’m confident that Kevin brings his own unique skills and strengths to the table, and will be very successful. One of my main goals is to lay the foundation to put him in a position to succeed for many years to come.

Why did you decide to take this role at the MCBA?
I’m one of those individuals who has for many years been interested in the work of Bar Associations, both the NYSBA (where I formerly served as Chair of the Trial Section and continue to serve on its Executive Committee and for many years in the House of Delegates) and in work of the MCBA where I have served as Chair of several Committees and as a Trustee, Treasurer, and President-Elect. I enjoy it because lawyers and judges are involved, not for personal financial gain, but rather because they understand and appreciate the fact that the practice of law is a very special and distinguished profession and the vehicle by which each of us, in performing our own roles, serves justice and the greater good of our society.

What do you like to do outside of the Bar for fun?
I enjoy poker, swimming, pickleball, boating, fishing and reading as activities outside of the Bar Association and work. But, I must admit that I also still enjoy the excitement of representing people and entities in solving problems and developing and implementing a litigation strategy which prevails for them.

Elaine Cole, Foundation of the Monroe County Bar, President, 2016-17

Cole, Elaine
Elaine Cole attended the Catholic University of America’s Columbus School of Law and was admitted to practice in 1978. Cole served as the District Tax Attorney at the New York State Department of Taxation for over 22 years, and retired from this position in 2012. She is a past Chair of GRAWA’s Nominating and CLE Committees, a past Co-Chair of GRAWA’s Program Committee and championed the Foundation’s Jazz for Justice Campaign in both 2011 and 2012.

Read the Question and answer session below to learn more about Elaine:

What do you hope to happen during your time as President on the Foundation?
Thanks to the great leadership of Bruce Lawrence, the Foundation has completely rewritten its bylaws, launched a planned-giving initiative with all the other Telesca Center partners, and refocused our investment strategy.  That incredible list of accomplishments clears the way for our Directors to concentrate on our mission:  raise money to fill the unmet legal needs of our community.  The Foundation receives very generous contributions from approximately 10% of MCBA members.  But we need the support of the other 90%.  We know they are equally generous, but they are not receiving the message about the impact the Foundation’s grants have made.  So, my goal is to dramatically increase the number of supporters by getting our message out there.

What excites you about your new role at the Foundation?
Does being terrified constitute excitement?  I am following recent dynamic presidents, such as Judge Elizabeth Wolford, Audrey Peartree, and Bruce Lawrence.  While I feel that I cannot come close to their accomplishments, I am excited to take the Foundation to a higher level of awareness and participation by our terrific Bar members.

How would you encourage creative thinking within the Foundation?
Our Directors are talented and committed, but we’re not expert fundraisers.  So, we have begun to use outside consultants to give us the guidance we need to do our best work.   We will use the advice we receive to stimulate ourselves, and encourage each other, to think of approaches unique to each of us, to reach our colleagues.

What do you do outside of the Bar for fun?
Working with the incredibly talented people in our Bar is fun!  But, now that my husband I are retired, we travel both in and outside the country, often in the company of our family and friends.  We spend much of the winter in Florida, and love the fresh seafood all around us.  I golf VERY BADLY, so the company of my golfing buddies has to supply the fun on the course.

Thank you to Mark and Elaine for sharing some of their thoughts on their upcoming leadership roles. We look forward to seeing many of you on Thursday, June 23 in the evening when both Mark and Elaine will be installed as Presidents of their respective organizations.

Thanks for checking in

Ben Freeland