R.I.P. Ron Rotunda—A Man Responsible for Watergate’s Most Lasting Positive Impact

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Posted in: Constitutional Law

Wow, no one saw this coming. Verdict columnist Ronald D. Rotunda died on March 14, 2018. He was 73 years old, which to me is relatively young. While I don’t have the details of his departure, he sounded, when I spoke with him a few weeks ago, to be in good health and spirit. Reportedly, he had gone for a minor procedure in the hospital and died there of pneumonia. It is difficult to believe this brilliant dynamo of legal scholarship, wonderful erudition, and wily wit is gone. But his impact will remain, and it will affect all practicing American lawyers, if not more, for untold decades. Ron’s thinking and constitutional analysis may even affect whether Special Counsel Robert Mueller seeks to prosecute President Donald Trump. Let me elaborate.

I learned of Ron’s passing from the email sent by a mutual friend, who had been informed by Ron’s ethics book’s co-author, John Dzienkowski. For years, they have produced the book considered the best quick-reference guide (only some 2000 pages) for the American Bar Association’s Model Rules of Professional Conduct: Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility (this work is updated annually and published by the ABA’s Center for Professional Responsibility.) These rules, with varying degrees of modification, have become the standards for every state in the United States, as well as some foreign countries.

In the early paragraphs of their Preface, year after year, they note how the ABA’s attention focused, and refocused, on professional conduct of attorneys, because of Watergate. For example, in the 2008–2009 edition, which I treasure because Ron inscribed my edition, they note: “During the Watergate hearings, Congressional investigations disclosed political corruption, which led people to ask, where were the lawyers when politicians engaged in criminal and fraudulent acts?” And they note in the Preface to the First Edition, which they include in later editions: “The emphasis on legal ethics began in 1974 as part of what [former Vice President] Spiro Agnew referred to as our ‘post-Watergate morality.’”

Ron’s first job out of Harvard Law School, after clerking, was with the Senate Watergate Committee (1973–74), where he served as an assistant majority counsel, and we met briefly while I was testifying in June 1973. After the committee completed its primary work, Ron moved on to a teaching post at the University of Illinois Law School, where the dean told him that because of his work with the Watergate committee, he was assigned to teach a new course he was to create on legal ethics, along with other more traditional law school courses.

Because legal ethics and professionalism had been mostly ignored by law schools before Watergate, Ron found himself at the creation, so to speak, of a new legal discipline. Given his intellect, curiosity and scholarship, Ron not only assembled a course, but helped develop the discipline in his writings, and associations. I first learned of Ron’s behind-the-scenes influence from the man the ABA selected to restructure the thinking of the bar about this subject, Robert Kutak. Circa 1977 Kutak formed a commission to reevaluate the ABA’s Model Code of Professional Responsibility, which had been adopted in 1969. Kutak, who had returned to Omaha, Nebraska, by the time of Watergate, was a friend of mine in Washington. We had met when he worked as an attorney for Nebraska Senator Roman Hruska, and I was minority counsel of the House Judiciary Committee. After I published Blind Ambition (in 1976), Kutak asked me to come to Omaha to speak, and meet with some of his commission members and staff. It was then I learned that it had been my testimony before the Senate Watergate Committee that had provoked the ABA into action. Kutak explained to me during our visit that they wanted to draft a new code, but they wanted it realistic.

No principle is more fundamental in legal ethics than its commitment to confidentiality between the lawyer and his/her client. Nonetheless, Kutak and his commission wanted to address what happens when a lawyer confronts the situation I was in with Nixon, where I was trying to get my client to end a criminal coverup, but he refused. Kutak’s Commission on Evaluation of Professional Standards would lead to the ABA’s Model Rules of Professional Conduct, which were adopted in 1983. But the Model Rules did not fully address the problem I had to deal with until after the lawyers became involved in Enron, and Congress held hearings and enacted the Sarbanes–Oxley Act, which directed the Securities and Exchange Commission to adopt standards of professional conduct for attorneys appearing before the SEC.

Rather than have the federal government create ethical and professional standards, the ABA moved preemptively. In the end the ABA’s House of Delegates subscribed to the suggestions developed by Kutak and his commission. Yet in adopting variations of the ABA’s Model Rules, different states have also resolved issues differently, like the problem of the lawyer dealing with a client committing a crime vis-à-vis the overriding rule of confidentiality—so the matter is anything but resolved. (While this is not the time or place to raise the debate, I personally think the ABA’s current Model Rules resolve the problem nicely, and lawyers practicing in states that have largely followed the ABA standards can resolve problems that attorneys in other states cannot.)

In 2009, while working on my book The Nixon Defense: What He Knew and When He Knew It (2014), I tracked Ron Rotunda down, and much to my delight, learned that he had proceeded from Illinois to George Mason School of Law (Virginia), and then to Chapman University’s School of Law (Orange, California), which was only about 45 minutes from my home. The reason I wanted to talk with Ron was that I had discovered he had become one of the nation’s leading scholars on legal ethics and professionalism; he not only had the leading desk book, but the leading text book, and endless essays on key topics. Because I knew he had first-hand familiarity with Watergate, I wanted to talk to him about creating an ethics course based on Watergate.

From the moment we first talked about it he thought it a terrific idea and explained to me the exact testimony I had given before the Senate Watergate Committee that rang a bell at the ABA, so he felt it uniquely fitting for me to teach “continuing legal education” (CLE) courses. I explained to Ron the concept my CLE co-presenter, Jim Robenalt, and I had come up with, and Ron offered countless invaluable suggestions. He became our unofficial authority, always willing to add thoughts to the program, or address questions that had arisen in teaching the course.

The Watergate CLE, as it is known, spread by word-of-mouth, and we have presented evolving variations of the three-hour program to over 150 different audiences (and estimated 30,000 attorneys have attended), and because we regularly mention Ron, after the program others who teach or work in legal ethics and professionalism have told me of his intellectual impact in the field. His 55-page Curriculum Vita only hints at this impact. In addition, both officers and professional staff at the American Bar Association have told me of his impact on legal ethics, explain it is substantial. I wish I knew more of this, for Ron was too modest in personal conversations to discuss such matters. I find his role important because the impact of Watergate lasted about a decade, and then began to fade.

However, one of the scandal’s lasting impacts has been on the legal profession. To become accredited by the ABA, law schools much teach ethics and professionalism. To become admitted to the bar to practice law, everyone must pass a multistate ethics and professionalism exam, which is not easy. To keep a license to practice law, most states require that attorneys take continuing legal education courses, which must include ethics. As the impact of Watergate, or “post-Watergate morality,” faded throughout most of the land, it did not fade for the legal profession. Ron Rotunda should be given credit for this impact, for he devoted his professional career to developing modern legal ethics.

When an opening at Verdict occurred in early 2014, I suggested to Ron and to Justia (Verdict’s publisher) that he would make a great columnist. Both agreed. I knew Ron leaned to the right on most issues, and having read his other writing, I knew he always had good reasons for doing so. He was not an ideological conservative, rather a thinking conservative. And while I do not always agree with his conclusion, I always enjoyed his columns, following his thinking, and in addition to the mass of scholarly writing he leaves, I recommend his collection on Verdict. I will miss his intellect and insights.

In our last conversation, a few weeks ago, we drifted into a recent discussion I’d had with Philip Lacovara, a former deputy solicitor general and counsel to the Watergate Special Prosecutor. Phil and I discussed his memorandum for Watergate Special Prosecutor Leon Jaworski (and Cox), laying out the case that a sitting president could be indicted. (In 1973 the Office of Legal Counsel (OLC) at the Justice Department created the policy that a sitting president could not be indicted; in 2000, the OLC again reached this conclusion.) I told Ron it seemed he and Phil had ended the political debate on this issue, with Phil coming from the left and Ron from the right, so there could be no real legal question that Trump could be indicted if Mueller developed a case, and Deputy Attorney General Rod Rosenstein was prepared to change the existing OLC regulation.

I had recently read Ron’s long-buried memo to Independent Counsel Ken Starr on indicting President Bill Clinton. While Ron was not sure that the New York Times had his final draft, which they had been provided by the National Archives, and he was not happy with some of the redactions, he still believed his reading of the Constitution was correct—a sitting president is not above the law, regardless of his (or her) politics. But just as he told me in this conversation, he explained to Verdict readers why he felt Mueller could NOT indict Trump. We then had an obtuse conversation about OLC regulations, when and if they could be changed. Suffice it to say, he explains his position in the Verdict essay.

Rest In Peace, Ron. You departed too soon, and while we will miss you, you left behind much of your wit and wisdom, and your irrepressible intellect, in your writings. It’s a thought-filled legacy, for which many will thank you.