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Legally Speaking

 

Issue: June, 2009
Author: John M. Burman

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Ethically Speaking - Nelson Mandela: A Man and a Lawyer to Admire and Emulate

A few months ago, Wyoming Supreme Court Justice William U. Hill spoke to my Professional Responsibility class. He read excerpts from To Kill A Mockingbird. Both the excerpts and Justice Hill were inspiring. It is hard to imagine a lawyer who is a better role model than Atticus Finch, though there are those who find him less than the virtuous man and exemplary lawyer most of us admire. As I thought about Atticus Finch, however, I began to wonder if there are any “real” lawyers, rather than a fictional one, to admire and emulate.

A number of lawyers and judges came quickly to mind; all of whom are Wyoming lawyers. While I don’t want to diminish them, or this wonderful state, I began to ponder if there are national or international figures to admire. That is when the going got tough.

At the national level, we have a lawyer as President, though it seems a bit early to pass judgment on him. The last two lawyer Presidents, Bill Clinton and Richard Nixon, managed to disgrace the office and besmirch the legal profession along the way (President Clinton was suspended from practice for five years, which is essentially the same as being disbarred (a disbarred lawyer in Wyoming may apply for reinstatement after five years; so, too, a lawyer suspended for more than six months must apply for reinstatement), while President Nixon was disbarred.) One has to go back to Franklin Roosevelt to find a lawyer President who served with dignity and honor. And one has to go clear back to Abraham Lincoln to find a real lawyer; one, that is, who practiced for a substantial period of time and who was and is acknowledged to have been “an excellent trial lawyer.”

At the state level, things have gone much better. Since 1960, eight men have served as governors of Wyoming. Of them, five were, or are, lawyers, including the current one: J. J. Hickey, Stan Hathaway, Ed Herschler, Mike Sullivan, and Dave Freudenthal. All of them had distinguished legal careers before serving as Governor, afterwards, or both. All brought honor both to the office of Governor and the legal profession. Other outstanding Wyoming lawyers have served the state, and the nation, by holding federal offices. Teno Roncalio and Alan Simpson come immediately to mind. While it was tempting to write about one or more of these Wyomingites, I happened upon a lawyer who had sort of slipped my mind. A man who is, arguably, the greatest person alive, as well as a lawyer--Nelson Mandela.

Mandela came to my attention quite by accident. My brother had given me Mandela’s autobiography, Long Walk to Freedom, on CD. (I often exercise by riding a stationary bike. As I quickly get bored by riding and not moving, I have found that listening to books makes the time go quickly. An added benefit is that few law or law-related books are available in audio format, meaning that I “have” to listen to books on other topics). As fate would have it, I began to listen to Mandela’s autobiography, read by Danny Glover, while I was searching for a lawyer about whom to write—a lawyer that belongs on a pedestal, not just for being an excellent lawyer, but for how he led his personal and professional lives.

I must confess to great ignorance about Mandela, his country of South Africa, and the astonishing struggle to end apartheid in which he was a primary figure. While I had been dimly aware that Mandela had been in prison, that he had been released, that apartheid had ended, that he had won the Nobel Peace Prize, that he had served as the first black President of South Africa, and that Mandela is a lawyer, that was about it. I had no conception of the magnitude of the struggle or the enormous grace and dignity that Mandela has shown all, including those who imprisoned him, often under extremely harsh conditions, for 27 years.

As a lawyer, a leader, and a person, Mandela is an intriguing study. On the one hand, he was a leading exponent of the African National Congress’s (ANC) move from five decades of non-violence to a policy of deadly violence (while the sabotage of government installations was not aimed at people, death in war, Mandela says, “is inevitable,” and a person was accidentally killed during the first sabotage attack). He was the founder of the MK, the military wing of the ANC that embarked on a campaign of sabotage, and was preparing to move to guerilla warfare. (Mandela asserts that the violence was simply a reasonable response to the violence of the white South African government, which used deadly force to enforce its apartheid regime,8 such as the killing of 69 unarmed protesters (mostly shot in the back as they attempted to flee the gunfire), including many women and children, at the infamous Sharpeville massacre in 19609). It is, says Mandela, the oppressor who dictates the nature of a struggle, not the oppressed. Violence was, therefore, simply a form of legitimate “self-defense.”

On the other hand, before, during, and after his imprisonment, Mandela has consistently been astonishingly gracious in his dealings with everyone. And while none of us is likely to reach the stature of Nelson Mandela, or embrace violence as a justified means to a great good, he displayed, under extreme conditions, traits to which we can all aspire in our everyday lives as lawyers and as human beings—traits which we can admire and emulate (without having to confront and try to answer the question of when is deadly violence justified).

Mandela was 46 when he was sentenced to life in prison (at the time of his conviction, he was in prison serving five years for leaving the country without permission and inciting others to disobey various apartheid laws). Before his imprisonment, he had been “underground” for about a year and a half, leading the MK in initiating a campaign of sabotage against the government. Before going underground, he had worked as a lawyer for over 15 years, so unlike many lawyers who become political figures, he had actually practiced for a significant period of time. During his years of practice, Mandela and Oliver Tambo had founded the firm of Mandela and Tambo, the first all African firm in South Africa. The firm spent much of its time defending the African victims of the government’s apartheid policies. The firm was often nearly overrun with clients and potential clients. While he was a skilled lawyer, people flocked to the law office because it offered more than just legal representation. It was a haven where many persons sought shelter from the apartheid storm which was raging all around.

A comfortable and safe environment is something we can all provide, even if a refuge from the government is not necessary (though to persons accused of crimes, the government may be the “enemy” from which protection is needed). Our offices should be inviting, both physically and otherwise. Neither requires significant expense or effort. But we often don’t think about how one feels when one walks in the door. For me, it is always useful to consider how I feel when I walk into a “foreign” environment, such as a physician’s office.

First, I am put off by a “cold” environment—one where I am just a number or a condition. A waiting room that looks like a waiting room, especially one with uncomfortable furniture, and out-of-date magazines, does not attract me. We all know that a person’s first contact with a staff member is vitally important to how that person feels about the firm, or hospital or whatever. Staff members who, either by training or natural inclination, treat me well,12 create an expectation, at least on my part, that I will be treated just as well by the doctor or whomever I am waiting to see.

Second, I am surprised at how “little” things make a big difference to me, and, perhaps, to others. Some years ago, I went to a physician’s office. My wife went with me. After a very good experience with the staff, we were ushered in to see the doctor. He quickly examined me, speaking all the time in a low voice to a secretary who made notes for the file. The doctor never even acknowledged my wife, and to learn the results of a test he had had me take, I had to cross-examine him. We then left, with the doctor never having asked about or acknowledging my wife. As we left the office, I told my wife that I was not going back, and that I did not care if he was the best doctor in the world; I could not stand him (I even found myself wishing he had committed malpractice—nothing too serious because I would have loved to sue him).

How many prospective or actual clients feel the same way about us? We will never know because they won’t come back. But we can rest assured that they will tell their friends about us, and they won’t come either. By contrast, another doctor I see regularly is a wonderful man. One never waits; he is always on time. And he makes us (I always go with my wife) feel special. He always asks, “what concerns do you have today?” When it isn’t possible to effectively address or treat the concerns, he is great about admitting the limits of what he can do. As with lawyers’ clients, I want to be told the truth, even if it is not what I want it to be.

I will never forget the first time I met this doctor. He knew I was a law professor and we talked a bit about teaching. He told me that when he had graduated from medical school, he had been selected to present an award to the outstanding professor. He had gone to that professor, and told him that he knew he would never have another teacher to compare. The professor had replied, “Yes you will. Your patients will be your most important teachers. Listen to them.”

The same is true of lawyers. While in law school, a student’s most important teachers are his or her peers. After law school, a lawyer’s most important teachers are the lawyer’s clients. While it is often contrary to our nature, we need to listen to our clients. They can teach us a lot, if only we will listen and concede that we actually do not know everything.

We also need to think about the physical environment in which we meet clients or prospective clients. Often, we meet them in our offices. The lawyer is usually seated in a large, comfortable chair behind a large desk often cluttered with files, books, etc. The client or prospective client sits in a smaller, less comfortable chair on the other side of the desk. There simply is no physical layout that could do more to enhance a non-lawyer’s feelings of inferiority. Further, lawyers’ desks are often strewn with information about clients—information that is probably confidential. We should not forget that lawyers have an ethical obligation to “act competently to safeguard confidential information.” Having a desk covered with confidential information between a lawyer and a client or prospective client is not acting competently (it’s not hard to read up-side-down or see what is on a visible computer screen).

Also, we should strive to equalize the inherent power imbalance that comes when clients consult lawyers. The easiest way to do that, while also preserving confidentiality, is to meet with clients, or prospective clients, in another room, seated at a round table (there is no position of power at round tables). Plus one does not have to clean one’s office before meeting with someone else—a real boon to those of us who tend to have cluttered offices. (The physician I admire equalizes things by meeting in an examining room, and he is always sitting down. He is never in a more comfortable chair; he will often sit on a low stool while we sit on the chairs).

In the early sixties, Mandela and most of the leadership of the ANC, of which Mandela was a part, and the PAC (the Pan African Congress) were arrested, tried, and imprisoned for treason, usually for life. While not receiving the death penalty was seen as a “victory,” life in the South African penal system must have been a foreboding prospect. Although written in 1995 after his release from prison, Mandela says his, and their (the rest of the ANC leadership and the PAC leadership) imprisonment was a great “opportunity.”

It seems that the ANC and the PAC had become competitors, each laying claim to the mantle of being the better vehicle for ending apartheid. The distance between the two groups, which had the same ultimate goal, was, as is often the case when individuals or organizations don’t agree, due largely to a lack of communication. Not surprisingly, the absence of communication had led to misunderstandings and hard-feelings.

Mandela regarded the imprisonment of the collective leadership of the two groups as a great opportunity to begin to bridge the gap between the groups, which should have been working hand-in-glove. A reconciliation of the leaders in prison would, he hoped, lead to a reconciliation of those still on the outside. The silver lining, in other words, to the dark cloud of being imprisoned for life with the leaders of the “other” group was that they, the leaders of the two groups, would have time to get to know and understand each other. And that is what happened, at least to an extent.

That trait, seeing an opportunity in what appears to be a completely bleak situation, is one that lawyers need on a regular basis. Consider, for example, representing a parent who has just lost primary custody of a child to the other parent. While the client is likely to dwell on what he or she did not get, the lawyer can help to shift the focus to what the parent did get. For example, how the parent now has the chance to make the most of what he or she did get (regular visitation), and what he or she did not get (daily responsibility for meeting the child’s needs). In such circumstances, one can say, “I only have every other weekend, etc.,” or one can say, “I have every other weekend, and I’m going to work on how to improve my relationship with our child during that time, and I am going to enjoy the times I don’t have to be responsible for the child.” So look for the silver lining. Find it, and focus on it; not on the “bad” things that may have happened.

One of Mandela’s remarkable attributes is his care and concern for other persons--all of them–even those who are the “bad” guys. Throughout his imprisonment, he made a point of getting to know his “warders” (jailers). While he knew that they, and not the higher-ups, such as the Minister of Justice, were the ones that could make life a bit easier (by providing an extra blanket, etc.), Mandela also seems to genuinely like others. And while one can be said to be “sucking up” to others who are in a position to help, it is not sucking up to treat others decently.

At times, a new prison commander would be brought in to crack down, but Mandela appeared to understand why they were there, that they were constrained by their orders, and they were still human beings with some redeeming qualities, though they may be well-hidden.

Mandela also notes that it is just as necessary to free the oppressors as it is to free the oppressed. Until that happens, those who work for the oppressors, such as nasty jailers, are not free either.

Perhaps the most amazing display of Mandela’s care and concern for others came when he was told he would be released the following day. Though Mandela had been in prison for 27 years, he asked to have a chance to say good-bye to and “thank” his warders and their families before he left the prison. Though they were no longer in a position to do anything for or to him, Mandela still obviously cared about them. And so before he returned to a waiting world, he planned to take the time to say farewell to the men who have been charged with keeping him behind bars. When plans changed and Mandela did not get to say good-bye to the warders, he is upset. “I was,” he writes, “greatly vexed that I did not have a chance to say good-bye to the prison staff.”

It is this incident, wanting to say good-bye to and thank the guards who can no longer help (or harm) him in any way, that rather convincingly shows Mandela’s amazing capacity to care for others. And it is, once again, a trait we can, and should, all emulate.

Upon his release, Mandela was driven to Cape Town. On the way, he noticed a number of white persons standing beside the thousands of blacks who were lining the road to catch a glimpse of him. He knew that South Africa could never have a free, non-racial society (his goal) without the involvement and support of the whites and other races. Moved by their open show of solidarity, Mandela had the car stopped so he could talk with and thank some of the whites who were risking so much to stand with their African brothers and sisters. “At one point,” he says, “I stopped and got out of the car to greet and thank one such family and tell them that the South Africa I was returning to was far different than the one I had left.”

For the first 20 years of his imprisonment, Mandela and the rest of the ANC and PAC leadership were sent to Robben Island, known as the harshest maximum security prison in the South African penal system. Early on, Mandela asked for permission to plant a garden. His initial request was denied, as were many that followed. Showing a tenacity that seems to be an integral part of his character, and one that everyone, including all lawyers, should emulate, Mandela didn’t give up. He kept asking. Finally, his request was granted, and Mandela took on the laborious task of getting plants to grow in the rocky soil and harsh climate of Robben Island.

After a few years of careful attention, the garden began to produce. Its fresh vegetables added immeasurably to the otherwise spartan diet of the inmates. Nevertheless, Mandela routinely saved and gave the best produce to the guards. Again, one may say he is just “sucking-up,” but one wonders what reason there was to do so when serving a life sentence at the harshest outpost in the South African penal system? Whatever the reason, Mandela’s generosity paid large dividends. He clearly benefited from the respect he gained from others for his generosity. Tending the garden also gave Mandela a sense of control—something which is normally absent when one is incarcerated, and which is a great treasure to him.

A sense of control is important to all of us. Lawyers need to remember that it is not our role to tell clients what to do. Rather, it is our job to provide clients with enough information and explanation that they can make informed choices about what objectives to seek, and then we need to consult with them about the means to be used in attempting to achieve the client’s objectives.

Mandela also draws an interesting parallel between gardening and leadership. Just as a gardener must cultivate his or her garden, a leader must cultivate his or her followers, doing whatever is necessary to bring out the best in them.

Perhaps the most remarkable scene occurred when Mandela stood up to a warder, refusing to perform the demeaning act he had been ordered to perform. Refusing to obey a guard is tantamount to suicide. When the guard again ordered Mandela to act and threatenrf him if he did not, Mandela said, “If you lay a hand on me, I’ll take you to the highest court in the land. You will be as poor as a church mouse.”

Mandela admits his action in standing up to the guard did not come from courage; he is not sure why he acted, nor is the reader (or listener). The best explanation I’ve heard is from a friend who suggested that Mandela acted out of habit. It was not Mandela’s habit, that is, to perform or tolerate demeaning acts. If true, that suggests that the habits we form and follow are of paramount importance. If we develop the habit of being a “good” lawyer, we will usually, if not always, be one. By contrast, if our habit is to be a poor lawyer, that will be the likely result when we are called upon to act, especially when we don’t have time to think–when we just have to act, something which happens frequently in court. It is common for trial lawyers to have to make instantaneous decisions. Those decisions will likely be based on our habits, good or bad, and so our habits better be good ones.

Mandela also reminds us of the importance of the rule of law and the role of lawyers in maintaining that rule. Mandela was, he says, forced to go underground, was then arrested, tried, convicted, and imprisoned for being an “outlaw.” He became an outlaw, he tells us, because the government made him one by passing and enforcing laws to support the apartheid system. Mandela and tens of thousands of others became criminals simply by being members of the ANC and by doing things, such as traveling outside the country without government permission, that we do without a second thought. He became an “outlaw,” in short, “because of what [he] believed” (in racial freedom). He freely admitted that he was guilty of violating the laws, but the laws were morally wrong, and the government was guilty for its repressive actions, which had driven the ANC to violence after 50 years of non-violence.

After his release from prison, Mandela began negotiations on behalf of the ANC with the government to end apartheid. F. W. de Klerk, the last white President of South Africa, who shared the Nobel Peace Prize with Mandela, found Mandela to be a “remarkable” negotiator. While Mandela doesn’t discuss his skill in his autobiography, de Klerk says that, among other things, Mandela’s respect for the white government negotiators and his lack of bitterness toward them, despite the long imprisonment, were impossible to counter-act. During the negotiations, Mandela exhibited another trait that all good lawyers share.

The most effective lawyers are the ones who know as much about the other side’s case as they do about their own. According to a contemporary, Mandela spent his long imprisonment “making it his business to get into the heart and mind of his adversary.” Negotiating to end apartheid was then no different than negotiating to settle a lawsuit or make a deal. As Mandela knew, “you’ve got to understand your adversary.” He did, and it gave him a large advantage as a negotiator and politician. It can do the same for lawyers.

There is little difference between apartheid in South Africa, with its separate schools, separate restaurants, separate beaches, separate seating on public transportation, laws against Africans voting (laws requiring, in short, racial separation in everything), and America’s segregated south, where racial separateness was mandated in a thousand ways and the Jim Crow system which effectively prevented non-whites from voting into the 1960s.

Racial discrimination infected the legal system, too, both here and in South Africa. Just as the result of Tom Robinson’s trial for allegedly raping a white woman in Maycomb, Georgia, despite Atticus Finch’s brilliant and courageous defense of him, was a given, the result of Mandela and other African leaders standing trial in South Africa for treason was a foregone conclusion. A black man standing trial in Alabama in the 1930s would be found guilty by an all-white, all-male system. So, too, an African standing trial in South Africa in the 1960s could expect the same result from an all-white, all-male system. A common feature of both systems, however, was brave lawyers—lawyers who zealously and competently represented their clients, even though the results were pre-ordained by the racist views of other participants in the systems.

Now that the U.S. has an African-American president, it is easy to forget that it was not many years ago that African-Americans in the South lived in a rigid apartheid system in which they were denied many of the freedoms enjoyed by whites. The critical role of lawyers in establishing and maintaining the rule of law which eventually triumphed cannot be underestimated. As Shakespeare so famously wrote, if we want anarchy, “the first thing we do, let’s kill all the lawyers.” That is true, whether in America, South Africa, or anywhere else in the world, as it is lawyers, striving to uphold the rule of law, who are the only barrier that stands between a government and the people.

On the evening of his release, Mandela gave a speech. It began with these words: “In the name of peace, democracy, and freedom for all . . .” He wanted, he writes, to tell the people “that I am not a messiah but an ordinary man who had become a leader because of extraordinary circumstances.” An ordinary man? Hardly. A leader. Undoubtedly extraordinary circumstances? Yes.

Summary

Most things in life do not happen overnight. When imprisoned, Mandela was the leader of the military wing of the ANC, leading a campaign of sabotage that would likely “graduate” to guerilla warfare. Whether that was justified under the circumstances is a difficult question. Writing years later, after serving 27 years of a life sentence, Mandela is obviously a different man. Just as the title to his autobiography suggests, it was “a long walk to freedom.” Along the way, Mandela grew immensely, so much that when released he felt, he says, “like my life was beginning anew” at age seventy-one. The man who wrote the autobiography is clearly not the man who was sentenced to life for sabotage and other “treasonous” acts. Even so, he displayed remarkable traits from the beginning of his imprisonment, and even before.

While it is not surprising that Mandela changed during his confinement, what is surprising and amazing is how he changed. He emerged as an incredibly gracious man—one who would not treat others the way they had treated him. His commitment to freedom for everyone, the oppressors and the oppressed alike, sets him apart from most of us. Ultimately, the theme that comes ringing through is that while Mandela’s body was in prison for 27 years, his spirit never was. Somehow, he was able to remain as free as the birds he enjoyed watching frolic around the lime quarry at Robben Island, where he toiled for 13 years.

I would like to think that 27 years of prison, often under harsh conditions, would not make me bitter and vindictive, especially when the imprisonment resulted from wanting the kinds of freedoms we take for granted. With luck, I won’t ever have to answer the question, as I hope to never serve one day, let alone over 10,000 (27 years) in prison. How one does not become bitter and vindictive is, quite frankly, a mystery to me.

No one that I know wants to emulate Mandela’s experience, and thereby spend many years in prison. We should, however, want to emulate the personality traits discussed above. They may be “small” things, yet they can make us better lawyers, and better persons (the two are not inconsistent). Perhaps most of all, Mandela’s desire for freedom for all, which manifested itself in the quiet dignity with which he bore himself and treated everyone else, even his “enemies,” is a characteristic which we can all admire and emulate.

John M. Burman is the Carl M. Williams Professor of Law & Ethics and teaches professional responsibility at the University of Wyoming College of Law. If there are issues you would like to see addressed in this column, Professor Burman may be reached by e-mail at jmburman@uwyo.edu.

The views and opinions expressed and included in "Ethically Speaking" are those of the author only and do not constitute an opinion, finding or viewpoint, official or unofficial, of the Wyoming State Bar or the Board of Professional Responsibility.



Copyright © 2009 – Wyoming State Bar

     

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