Jacob A. Stein (September 2006)

What inspired you to start publishing your reminiscences about practicing law in Washington?

I commenced writing a "legal spectator" column in the 1960's for an in-house publication of the Lawyers Coop. Around 1991, I was given the back page of Washington Lawyer and since then I have written just about every month. It was kind of the editors to indulge me. I can write anything that I want. It has turned out to be in some respects recollections of the local practice and the people who have come and gone over the years. I commenced practice here in 1948, and I believe I am the last remaining person of that vintage still going to court. I see things in a different light, let me say more light than I did years ago.

Do you try to write for a certain type of person or audience?

As far as the audience is concerned, I do not give that much thought. My writing is a self-indulgence. Some articles that do not seem to me too interesting trigger a lot of comment, and others that seem to me to have something worthwhile fall, as they say, like dead leaves.

Is your intention to educate or persuade your readers about a certain way of professional life, or is writing simply more of a fun hobby?

My writing, as I have said, is an exercise in self-indulgence. I hope that there is some coloration of the reasonably prudent man that comes through. My literary capital has names and events that are foreign to the young members of the bar. I teach courses at Georgetown University Law School. The students have never heard of Alger Hiss, most were born after Watergate, the impact of the 1930's depression is as old for them as the Civil War is for me.

I read where Mao was asked what effect the French Revolution has had on the ways of the world. He said that "it is too soon to tell." I have learned not to be critical of the students because they have big gaps in their education. They know things I do not know. They do not have yellow pads in the classroom. They have computers, and when the name of Alger Hiss comes up in class they put the name into Google and they have the story right away.

I have known more than a few eccentric Washington lawyers, and have always found their company rather reassuring. They seem to resist the tide of standard-issue practice and standard-issue lawyers. Do you get the same feeling? Also, who are your all-time favorite Washington characters?

The interesting and unique lawyers of years ago would have difficulty getting into a law school now. It was a practice that required a quick response in a trial where the preparation was thin and little was spent on preparation costs. Very few documents. All done off of an unlaundered cuff.

The lawyers who remain in my mind are Charlie Ford, a colorful criminal lawyer, and Dorsey Offutt, a lawyer I worked with. He rarely lost a case and seemed like a bumbler in court, but he knew the facts better than any opponent and he had a gift for selecting jurors who would like Dorsey himself.

Many of today's big firms in Washington, for example Patton Boggs and Berliner, Corcoran and Rowe, started out as vehicles for heavyweight politicians who had left government. How has this connection between national politics and legal practice contributed to Washington's legal customs and the Bar's sense of itself?

The Washington practice is made up almost entirely of big firms getting bigger, and there is an intense competition for clients who can pay big fees – big fees required to cover a punishing overhead. The law practice has not only changed, it has taken a turn into a business with all that that means. In time, the government will control it through agencies such as the SEC and FTC. There is no purpose in handwringing. This can be traced back to the inception of the corporation as the way to conduct business.

Your active efforts to preserve the Washington Bar's cultural memory, and your obviously eager audience, indicate that lawyerly customs and professional identity are not being transmitted as they might once have been. Do you feel that something has indeed been lost to Washington legal practice in recent years?

Much has been lost and it is beyond retrieval. How good it was is open to question. The law has always been plagued by one form of hypocrisy or another. The D.C. Bar Association, which had power, would not admit blacks until the 1950's.

In London, the Inns of Court have provided training, support and camaraderie for barristers and judges since at least the fifteenth century. Do any comparable institutions exist in Washington, particularly ones that provide training and acculturation for novices?

The specialized bar associations help lawyers learn the trade. I made strong and lasting friendships in the plaintiff's bar association. I also made friendships within the criminal defense bar. The Inns of Court idea has caught on here, and there are a number of Inns that are active. I participated in two of them, but I drifted away because I do not like to go out at night.

If you could change one element of Washington legal practice, what would it be and what effects would you hope it to have?

I would change the disciplinary rules. There are two practices in Washington, the big-time and the small-time. The big-time firms that represent big corporations are disciplined by their clients. The small-timers are over-disciplined. The Professional Rules no longer fit and there is an unfairness about it all.

Despite all the vicissitudes of modern professional life, which unique traditions and hallmarks of Washington legal practice do you expect to endure over the next decades, or perhaps even the next century?

The Washington practice, as I have said, is big-firm practice with non-equity partners, contract partners, partners in name only, partners who have nothing to do with the way the firm is run. All of this has the stamp of "who gets the business runs the firm."

In light of your experience as an independent counsel appointed to investigate Attorney General Ed Meese during the Reagan administration, how would you describe and judge the "independent counsel era" (1978-1999)? Also, do you believe that the demise of the independent-counsel statute was a good thing or a bad thing generally for the country, and specifically for Washington legal practice and traditions?

I think the concept is good but it has proved to be unworkable. The independent counsel has too much power and if he or she keeps the investigation going over six months, he or she becomes a political figure himself or herself. The independent counsels have gotten caught up in the patter that goes from Alger Hiss to Richard Nixon/Watergate to Clinton and now to Libby. There will be more perjury and politics if the Democrats get the House or the Senate.

You have been a defense attorney in some of the greatest scandals in twentieth-century Washington – Watergate and the Clinton impeachment. In both situations, your low-key approach was credited with saving your clients. How did your style in these instances compare with that of lawyers when you started out in practice? More generally, would you characterize yourself as a "traditional" Washington lawyer?

Style? I suppose style is a matter of style. It can be good in many versions. I have been shy about getting involved with the media. I was told by my elders that if you live by the press you will die by the press. Some lawyers use the media to enhance their popularity and it gets them clients. I might add here that several of the independent counsels hired press agents.

I would like to be able to appear in court as Gregory Peck did, and the lawyers in the English courtroom cases – the lawyer in the recent version of The Winslow Boy – but it cannot be done.

To conclude, what advice would you give respectively to law students, to new lawyers, and to established lawyers?

Behave yourself and find a way to get new business.

Mr. Stein was interviewed by Peter C. Hansen.

© Peter C. Hansen, The Legal History Project.