"Number 87-1279," the Chief Justice began. Methodically, he summarized the background of this momentous challenge to the Federal independent prosecutor law, brought by the Administration and by former top Reagan aides caught in the law’s toils. The Watergate-inspired law – which provides for a special court to appoint prosecutors independent of the executive branch to investigate alleged crimes by top Federal officials – stood as an affront to the sweeping, unfettered vision of Presidential power that has become part of today’s conservative political creed. Administration conservatives hated it with a burning passion. Now Rehnquist, their choice for Chief Justice, was announcing the Court’s opinion, making it clear that he had written it himself.

Finally, he reached the question on which his audience hung. "We now reverse the Court of Appeals in an opinion joined by seven members of the Court," he said, "and uphold the validity of the independent counsel provisions of the Ethics in Government Act."

With those words, Rehnquist dashed the hopes of his Reagan Administration benefactors, shattered his most ardent admirers’ bold theories of Presidential supremacy, and confounded the conventional wisdom that he would always vote the straight conservative line. He also moved Michael K. Deaver and Lyn Nofziger, close Reagan associates who are fighting to overturn criminal convictions won by independent prosecutors, a step closer to the prison gates. Rehnquist’s bland intonation gave no hint that this was a historic decision, one of a handful over 200 years marking out the boundaries between the executive, legislative and judicial powers.

"That is not only the most important decision of this term but one of the most important cases in all of constitutional jurisprudence," one insider at the Court said later. "It says that none of the three branches can ever again claim to be the absolute arbiter of anything."

Whether or not Rehnquist intended it to, the decision also seemed to say something else: that this is the Rehnquist Court – not the Reagan Court. Indeed, on that dramatic day the Court rejected the Administration’s position in five cases, while ruling in its favor in only one. Each time another loss was announced, Solicitor General Charles Fried, the Government’s lawyer, seemed to slump a bit deeper in his chair.

FOR SEVEN YEARS, PRESIDENT REAGAN, Attorney General Edwin L. Meese 3d and the fervent conservatives who surrounded Meese during his tenure had mounted the most systematic campaign in decades, perhaps in history, to reverse the ideological direction of the Federal judiciary. Marching under the banner of apolitical "judicial restraint" and reverence for the "original intent" of the framers of the Constitution, they sought to rein in the excesses of liberal judicial activism and bring Constitutional law in line with their own, sometimes activist, conservative political agenda.

But despite Reagan’s elevation of Rehnquist from Associate Justice, and his appointments of Justices Sandra Day O’Connor, Antonin Scalia and Anthony M. Kennedy, his Administration has lost more of the political blockbuster cases than it has won. It also lost the Armageddon of Senate confirmation battles last October when the nomination of the conservative legal titan Robert H. Bork was defeated by a decisive vote of 58-42.

It remains possible, however, that while losing these battles the Administration was winning the war. Some argue that the seeds of a future conservative victory were planted when the moderate-seeming Kennedy rolled through the Democratic-controlled Senate as smoothly as the Greeks’ wooden horse passed through the gates of Troy. Evidence for this theory began to accumulate in April when Kennedy, two months into his new job, tipped the balance in a dramatic 5-to-4 vote, joining the other Reagan appointees and Justice Byron R. White (a John F. Kennedy appointee who usually votes with them) in ordering the parties in a pending case to make new arguments on an issue neither party had raised: whether the Court should overrule its 1976 decision in Runyon v. McCrary, which had transformed a little-used 1866 civil rights law into a powerful remedy against racial discrimination in private transactions.

In bitter dissents, the four liberal Justices accused the majority of acting as judicial activists by gratuitously reaching out to unsettle well-established law. Liberals and civil rights lawyers shuddered. Had they defeated the dreaded Bork only to be done in by Reagan’s third choice, who won unanimous confirmation in the Senate largely because he had not tipped his hand on the big issues? Was a Reaganized Court laying the groundwork for the conservative counterrevolution that never materialized during Warren E. Burger’s 17 years as Chief Justice?

These questions, like the fate of Runyon v. McCrary, are likely to be answered in the Court’s new term. Beginning Oct. 3, the Justices will face a bucketful of politically charged issues – including affirmative action, drug testing, capital punishment of minors and, possibly, abortion – which could make this term a self-defining one for a Court that now seems poised either to move decisively to the political right or to continue down the road of pragmatic centrism, zig-zagging from left to right as coalitions change from issue to issue. ALTHOUGH THE POSSIBILITY OF DRAMATIC CHANGE is in the wind, the Court’s legacy from the Reagan years is one of continuity. Indeed, in the two areas in which the Administration battled most passionately to move the law to the right – abortion and affirmative action – the Court pushed in the opposite direction, albeit by narrow majorities. It left the law more hostile to governmental restrictions on abortion, and more friendly to affirmative action, than when Ronald Reagan took office.

Although Chief Justice Rehnquist dissented in the abortion and affirmative action cases, some(Continued on Page 94) this one!!!!! of his opinions for the Court stood in dramatic contrast to the reputation he had earned as the Court’s most conservative member. To close students of his writings, Rehnquist’s opinion upholding the independent prosecutor law was no great surprise, but it jolted many because it so soundly rebuffed the President who had appointed him. And some of his other opinions – endorsing the constitutionality of rent controls, subjecting to judicial review the Central Intelligence Agency’s dismissal of a homosexual employee, making it easier for defendants in criminal cases to plead entrapment – sounded almost liberal, surprising some colleagues and astonishing some of Rehnquist’s conservative admirers.

Perhaps most striking was Rehnquist’s opinion for a unanimous Court overturning a $200,000 jury award to the Rev. Jerry Falwell against Hustler Magazine, for "intentional infliction of emotional distress" by publishing a savage parody describing a fictional incestuous encounter between the television evangelist and his mother in an outhouse. Rehnquist’s opinion forcefully reaffirmed a line of decisions, beginning with Justice William J. Brennan Jr.’s landmark 1964 opinion in New York Times v. Sullivan, that bar libel awards to public figures unless they can prove that the defendant knowingly, or recklessly, made a false statement of fact.

In some 20 previous libel and privacy cases, Justice Rehnquist had rejected First Amendment defenses every time. As recently as the day before his June 17, 1986, nomination to succeed Burger as Chief Justice, he had joined a Burger dissent suggesting that New York Times v. Sullivan "should be re-examined." But in his Hustler v. Falwell opinion Rehnquist quoted liberally from New York Times v. Sullivan in ruling for the first time that public figure plaintiffs in "emotional distress suits," must, like those in libel suits, prove knowing or reckless falsity to win damages. What’s more, Rehnquist said this extension of the Sullivan libel standard "reflects our considered judgment that such a standard is necessary to give adequate ‘breathing space’ to the freedoms protected by the First Amendment."

What is going on here? "It certainly doesn’t seem like the Rehnquist of old," said one conservative former Supreme Court law clerk. "Maybe being Chief Justice brings one closer to the center. It may be that the best thing that’s happened to the liberal cause was the elevation of Rehnquist from Associate Justice to Chief Justice."

Some conservatives worry that Rehnquist has lost his ideological fire in the belly and become more concerned with "getting things out and doing it fast so that he can keep his tennis schedule and recess for the summer by July 4," as the former law clerk put it.

Some experts speculate that Rehnquist, like Burger, has voted against his true convictions in some cases to preserve what may be his most important power – that of assigning the opinion whenever he votes with the majority. By writing it himself or choosing a like-minded associate, the Chief Justice can assert considerable control over the specific wording, which in turn guides the lower courts in interpreting the decision.

But close acquaintances like Lewis F. Powell, Jr., who retired from the Court in June 1987, emphatically reject this theory. Another lawyer who knows Rehnquist well suggested what might be the most plausible explanation: that he knows he can rank among the great Chief Justices only if he succeeds "in massing the Court," that is, in finding enough common ground to lead the Court to a clear majority opinion in as many cases as possible, and to reach or approach unanimity in the most important cases. The Chief Justice often must set an example himself by giving ground on some points or reasoning in the ruling; by so doing, he can hope to lead his often fractious colleagues toward consensus on deeply divisive issues that fuse law with politics.

In a few cases, such as the Brown v. Board of Education decision in 1954 striking down school segregation, unanimity is important to discourage obstruction by those who would undermine the authority of the Court’s orders by raising the prospect that it might eventually back down from them (after new appointments have been made, for example).

In a more general sense, the Court enhances its prestige as the oracle of constitutional principle, and seems less like a squabbling set of nine life-tenured politicians, when it speaks with a strong authoritative voice. The Court, after all, depends on lower courts and the executive branch to enforce its decisions, and those decisions will be heeded as the law of the land only for so long as society respects the institution that issues them.

"Maybe he senses that he as Chief Justice has an obligation to accomodate his views to those of the majority when he can," the lawyer said. "But we’ll have to see whether it continues." And, he might have added, whether there comes to be or is already a new conservative majority that the Chief Justice can accomodate without having to bend his own long-held conservative views.

IN THE NEAR TERM, much depends on Justice Kennedy. Some who watched him closely this year predict he will be markedly more conservative than his predecessor, Powell (the pragmatic centrist whose vote determined the outcome of important cases with remarkable frequency) and will thus tip the Court’s balance firmly to the right. As a former law clerk observed, "The liberals might have been better off with Bork than with Kennedy, who may wind up being more conservative than Bork in some areas and better at building bridges to others because he’s easier to get along with." If this proves true, the irony would be exquisite.

Since coming to the Court, Kennedy has joined Rehnquist, O’Connor, Scalia and White in eight of the nine 5-4 votes in which the Court split into liberal and conservative camps. In one of the most ideologically explosive cases, the Court upheld Federal grants for religious groups, among others, to counsel teen-agers against sex and abortion. Kennedy’s concurrence, joined by Scalia, strongly hinted support for many kinds of government aid to parochial schools and other religious institutions.

As recently as 1985, Powell had cemented a 5-4 majority to strike down some important programs of aid for parochial schools that the Administration strongly supported. In this area, at least, Kennedy may already have changed the Court’s direction. Conservatives hope, and liberals fear, that he may also provide a fifth vote to narrow or even abandon judicial protection of abortion rights; to make it harder for minorities and women to prove job discrimination; to outlaw many affirmative action plans; to make it easier for states to impose and carry out death sentences; to narrow the procedural rights of criminal defendants, and to curb Federal judicial power to second-guess the management of such institutions as schools, prisons and mental hospitals.

If he did all these things, it would add up to the most dramatic reversal in the course of constitutional law in many years.

But while Kennedy and the Rehnquist Court seem more likely to narrow than to expand key doctrines favored by liberals, such as the constitutional rights to sexual and family privacy, nobody is sure how Kennedy will vote, perhaps not even the man himself. "You just aren’t prepared for this job by anything you’ve done before you come here," one Justice said recently. "Certainly things gelled for me rather differently than when I first came." Nor is it clear that the other Reagan appointees, or White, would join a headlong rush to the ideological right.

O’Connor in particular, whom Reagan seems to have chosen more for her sex than for her ideology, is said by some to see herself as a centrist not unlike Powell, albeit one who leans to the conservative side. She has split with fellow Reagan appointees in some important cases, rejecting, for example, the Administration’s all-out attack on affirmative action preferences, and joining Rehnquist’s opinion rebuffing the Administration’s challenge to the independent prosecutor law. And although she has consistently voted to uphold the power of states to restrict abortion rights somewhat, she studiously refrained from joining White, Rehnquist and Solicitor General Fried in 1986 in saying that Roe v. Wade, the landmark 1973 decision legalizing abortion, should be overruled.

WHATEVER DI-rection the Court takes in the coming term could be fleeting. The three most liberal Justices, Brennan, Thurgood Marshall and Harry A. Blackmun, are vigorous but will be 82, 80 and 80, respectively, when the next President is sworn in. And White’s former clerks have been trading rumors that he may retire soon after his 72d birthday next June.

As Blackmun said in a speech this summer, the Court could become "very conservative well into the 21st century if the election goes one way; if it goes the other way, who knows, maybe it won’t be."

This means that in calculating whether to try to get some pending cases into the Court in the coming term, liberal and conservative legal strategists must gauge the odds on a kind of daily double: If Michael Dukakis wins the election and the rumors about White’s possible retirement prove correct, the majority that may now exist for cutting back abortion rights, for example, could disappear before it has a chance to decide anything. That scenario suggests that liberal groups should try to keep abortion cases away from the Supreme Court for now. On the other hand, if George Bush carries the day, the future of abortion rights would look bleak indeed, a scenario that may tempt liberals to press abortion law appeals now, and hope for the best.

While today’s Court often does split into identifiable liberal and conservative camps, those camps are not monolithic. The nine Justices are fiercely independent people and, as Rehnquist put it in a 1984 speech, the Court is "far more dominated by centrifugal forces, pushing toward individuality and independence, than it is by centripetal forces pulling for hierarchical ordering and institutional unity."

Alliances shift from one case to the next; indeed, many cases pit against one another values prized by conservatives, such as free market economics and states’ rights; or values prized by liberals, such as labor unionism and freedom of conscience. Justices Blackmun and John Paul Stevens usually side with Brennan and Marshall, the most liberal Justices, but frequently split with them to join the conservatives, especially in ruling against criminal defendants. Brennan usually favors organized labor but dealt unions a major blow in a June decision invalidating labor contracts that require non-union workers to help pay for union political and organizing activities.

Each of the "conservatives" occasionally defects. Even Scalia, who sometimes seems to have displaced Rehnquist as the most conservative Justice, has taken liberal positions on some criminal law and free speech issues. Although he was the lone dissenter in the independent prosecutor case, he wrote a 6-to-2 decision handed down the same day that reversed an Iowa man’s conviction for molesting two 13-year-old girls, ruling that the use of a one-way screen to shield the victims from having to look at the defendant when they testified violated his right to confront his accusers "face-to-face."

There are leaders on the Court: Rehnquist at one end of the ideological spectrum and Brennan at the other combine coherent constitutional and political philosophies with exceptional abilities, personal charm and long experience. In an interview, Powell described Rehnquist as "one of the ablest and best-educated people I’ve ever worked with," marveling at his ability to conjure up literary allusions at the Court’s conferences. Brennan, meanwhile, in his 32 years as the Court’s most likable and politically adept coalition-builder, has had an especially powerful influence on the evolution of constitutional doctrine. Powell said that "Bill Brennan will rank among the top Justices of this Court" in the judgment of history; some consider him the most influential Justice of the 20th century.

But while the Court has leaders, it has no followers. All nine Justices are well above average in intelligence. Stevens, White and Scalia as well as Rehnquist and Brennan have especially powerful intellects, although White’s sometimes slapdash opinions do not display his formidable mind to best advantage. As Powell put it, "Each of us votes independently, and I don’t think a Chief Justice who tries to twist arms is going to get anywhere."

Arm-twisting is not Rehnquist’s style, by all accounts. By his own, he was under no illusion that his elevation would allow him to impose his ideology on his colleagues. "I think the Chief Justice can exercise a certain amount of leadership on the Court," he said at his confirmation hearing, "but I do not think it is apt to be in a philosophical direction." Rather, he said, by skillfully using his prerogatives to lead off discussions of cases in the Court’s private conferences and to assign opinions, the Chief can "work toward a smoothly functioning Court."

Rehnquist has done that effectively, winning the praise of his colleagues, including Brennan and Marshall, who have told friends he is shaping up as a fine Chief Justice. He has won particular praise for fairness in assigning opinions and in parceling out the dull, technical cases on matters like tax law that the Justices call "dogs." Blackmun has welcomed this change from the regime of Burger, a childhood friend whose wedding he attended as best man but whose management of the Court he and his colleagues did not admire. "If one’s in the doghouse with the Chief," he said of Burger in 1986, "he gets the crud."

Rehnquist also runs the Court’s public arguments and private conferences with an easy wit and a brisk but informal approach that colleagues much prefer to Burger’s stuffier, longer-winded style. Says one participant in a monthly poker game in which Rehnquist is a regular: "The Chief Justice really keeps everybody moving fast. If people start telling jokes and talking politics and things like that, he says, ‘Come on, let’s move things along and play poker and stop the folderol.’ And I bet that’s the way he runs the conference at the Supreme Court."

So it is, other Justices say. "The Chief in conference is a splendid administrator," Blackmun said in July. "We’re not there all day long and part of the next day. We get through in a hurry. If there’s anything to be criticized about it, he gets through it in too much of a hurry at times. He cuts down interchange between Justices and always says, ‘Well, that can come out in the writing.’ . . . He’s cut down on the jokes that Thurgood Marshall likes to tell."

Rehnquist’s businesslike, almost severe demeanor when presiding at public arguments is leavened by occasional flashes of humor. When Jay Topkis, a prominent New York lawyer, was attacking a Louisiana law designed to require the teaching of "creation science" in any public school that taught evolution, he declared of his adversary’s argument, "I doubt very much it will fool this Court." Rehnquist deadpanned in response: "Don’t overestimate us." He then followed through by joining Scalia’s dissent from a 7-to-2 decision striking the law down.

ON OCT. 12, THE courtroom will be jammed with lawyers seeking some early clues about where the Rehnquist Court is headed. The Court will be hearing oral argument in Patterson v. McLean Credit Union, the case in which it voted to consider whether to overrule its 1976 decision in Runyon v. McCrary. Brenda Patterson, the plaintiff, is seeking compensation and punitive damages from her former employer in Winston-Salem, N.C., for what she says was hostile and demeaning treatment by racist supervisors. She charges that the company president, who hired her as a file clerk, warned her that she would be working with white women who wouldn’t like her because she was black. He made her do menial chores that white co-workers were not asked to do, she says, gave her an oppressive workload, denied her merit raises and promotion, and told her when she fell behind that "blacks are known to work slower than whites by nature." The company denies any discrimination took place.

Mrs. Patterson invoked the Civil Rights Act of 1866, which guarantess to all persons the same right "to make and enforce contracts" as "is enjoyed by white citizens." In its 1976 Runyon decision, the Court ruled that the 1866 law barred private parties from discriminating on grounds of race in determining with whom they would enter into contracts, including employment contracts. This transformed the law into a more potent remedy for racial discrimination, in some ways, than the 1964 Civil Rights Act (which does not cover the smallest employers or provide for punitive damages).

Originally, the Court agreed to review whether a Federal appeals court had erred in dismissing Mrs. Patterson’s racial harassment claim on the ground that the 1866 law bars employers from discriminating only in hiring, firing and promotions. But after hearing arguments on that point in February, the majority on April 25 raised the stakes by questioning whether the post-Civil War Congress had intended the law to cover racial discrimination in private transactions at all. In 1976, White had dissented sharply in Runyon, joined by Rehnquist. The April 25 re-argument order suggested that Justices O’Connor, Scalia and Kennedy, all new to the Court since 1976, were inclined to agree with them.

The re-argument order transformed the case into a cause celebre. Civil rights advocates organized an extraordinary display of support for the Runyon decision: 66 United States Senators, 145 House members, 47 of the 50 state attorneys general, prominent historians, more than 100 civil rights, religious and civic groups and others filed briefs arguing that Runyon was right on the intent of the Reconstruction-era Congress, and should be reaffirmed as an important embodiment of the modern consensus against racial discrimination.

In a 1976 opinion concurring in the Runyon decision, Justice Stevens agreed with Justice White’s dissent that the Reconstruction-era Congress had not intended to ban private racial discrimination. But he said the majority’s ruling was a logical extension of earlier decisions which, although perhaps incorrect on the original intent, had become "an important part of the fabric of our law," consistent with "the prevailing sense of justice today."

Whether such logic wins a majority of current Justices in Brenda Patterson’s case could say much about the direction of the Rehnquist Court.

William H. Rehnquist

Sixty-three years old . . . became an Associate Justice in 1972 and has been the Court’s most conservative member for 15 years . . . won Senate confirmation as Reagan’s choice for Chief Justice two years ago over bitter opposition from liberals . . . well-liked and respected by colleagues for an easy-going, efficient management style . . . published a book on the Court’s history last year . . . plays tennis and swims to help a bad back . . . a law clerk for Justice Robert H. Jackson during 1952 and 1953, he once complained that most fellow clerks had "liberal" views including "extreme solicitude for the claims of Communists and other criminal defendants" . . . practiced law in Phoenix and served in the Nixon Justice Department before Nixon picked him for the Court.

William J. Brennan Jr.

Eighty-two years old . . . the longest-serving Justice, with 32 years on the Court . . . a diminutive Irishman seen by admirers as one of the giants in the Court’s history . . . has served under Chief Justices Warren, Burger and Rehnquist and may have been more influential than any of them . . . an ardent champion of civil rights and civil liberties, who votes along with Thurgood Marshall to strike down every death sentence . . . has written landmark decisions on reapportionment, free speech, civil rights . . . was appointed by President Eisenhower, who later complained of Brennan’s liberalism . . . long the Court’s most adept political strategist and coalition-builder, with a knack for compromising just enough to get five votes while moving the law where he wants it to go . . . a gregarious charmer who seems to like almost everyone . . . says "if God spares me, I’ll be here" for a long time.

Anthony M. Kennedy

Fifty-two years old (shown at right in his Sacramento, Calif., offices in June 1987, after it was disclosed that he was a contender for a position on the Court) . . . Reagan’s third choice to replace Justice Lewis F. Powell Jr., after Robert H. Bork was rejected by the Senate and Douglas H. Ginsburg’s nomination was withrawn under fire . . . unanimously confirmed by the Senate because of moderate-seeming judicial opinions, thoughtful speeches and cautious testimony that did not reveal his views on many controversial issues . . . still a question mark, but his first few votes and opinions suggest he may be more conservative than Powell was . . . practiced law in his native Sacramento,taught constitutional law part-time at McGeorge School of Law in Sacramento, and served as a Federal appellate judge.

Thurgood Marshall

Eighty years old . . . was the leading civil rights lawyer in the early battles to desegregate schools, arguing for the black children in Brown v. Board of Education . . . served as Federal appellate judge and Solicitor General before Lyndon Johnson made him the first black member of the Court in 1967 . . . the Court’s most liberal member, along with Brennan . . . cares passionately about equal opportunity for blacks and other minorities and fears "we aren’t gaining ground" . . . outspoken speech-maker who has denounced the original Constitution as a racist document and has ranked Reagan at "the bottom" among Presidents . . . likes to tell anecdotes and jokes, including the one about a boy who wanted eight of his autographs to trade for one of Willie Mays . . . says he was appointed for life and he will serve out his term.

Harry A. Blackmun

Seventy-nine years old . . . was conservative when Nixon appointed him in 1970 but slid across the ideological spectrum and now sides most often with Brennan and Marshall . . . often worries aloud that the Court is drifting too far to the right . . . has had hundreds of hate letters and threats since writing the 1973 decision legalizing abortion . . . tries to focus on the effects of decisions on ordinary people rather than on grand theoretical principles . . . says legal rules need to be tempered with "a little bit of compassion" . . . one of the hardest-working Justices, self-effacing but proud and sometimes prickly . . . tells homespun anecdotes in speeches about colleagues, their quirks and the Court’s inner workings . . . says Justices "are ordinary people, too" . . . his favorite opinion was one on baseball and antitrust that let him take "a sentimental journey" and quote from "Casey at the Bat."

John Paul Stevens

Sixty-eight years old . . . one of the most intelligent and imaginative Justices . . . his unwillingness to compromise is said to limit his effectiveness . . . sometimes has insights that impress scholars but are ignored by other Justices . . . "a maverick," says Blackmun . . . sides with the liberals in important areas like abortion and affirmative action but with conservatives in some key cases . . . broke tradition last summer by publicly endorsing Robert Bork’s nomination to the Court . . . had the best academic record in the history of Northwestern University Law School . . . served as a law clerk to Justice Wiley Rutledge . . . then practiced in Chicago, taught antitrust law and served as a Federal appellate judge before President Ford put him on the Supreme Court in 1975.

Byron R. White

Seventy-one years old . . . an All-American football player nicknamed Whizzer, a Rhodes Scholar, a top Yale Law School graduate and a law clerk to Chief Justice Fred Vinson in 1946-47 . . . served in the Kennedy Justice Department before appointment to the Court in 1962 . . . a formidable intellect but said by Justice Blackmun to write "sometimes in a manner that is hard to understand" . . . was no liberal to start with, has moved rightward over the years and now sides with Reagan-appointed conservatives most of the time . . . dissented, along with Rehnquist, in a 1973 decision legalizing abortion and urged in a 1986 dissent that it be overruled . . . lays traps for lawyers at oral arguments by demanding "yes or no" answers to loaded questions.

Sandra Day O’Connor

Fifty-eight years old (shown here in a 1987 portrait) . . . was a legislator and state court judge in Arizona before becoming the first woman on the Court, in 1981 . . . was a high-ranking law school classmate of Rehnquist’s at Stanford but had trouble getting job in private law firm because of sex discrimination . . . conservative on most issues but liberal on sex discrimination and stays fairly close to the center on politically charged issues like affirmative action and the death penalty . . . active on the Washington party circuit . . . Blackmun says she agonized over whether 15-year-old murderer could be put to death because "the soft spots in her armor . . . are children and women."

Antonin Scalia

Fifty-two years old (shown here during confirmation hearings in August 1986) . . . perhaps the most conservative justice on affirmative action, executive powers and property rights, but sometimes takes liberal positions on defendants’ rights and free speech . . . a former University of Chicago law professor who loves intellectual debate and complains there is too little of it at the Court . . . plays poker with Rehnquist, tennis with O’Connor, and jogs with Kennedy . . . likes to play piano and sing . . . "asks far too many questions" at oral arguments, says Blackmun . . . made Harvard Law Review, practiced in Cleveland, served in the Nixon and Ford Administrations and taught law before Reagan put him on a Federal appellate court and then the Supreme Court.

The post Rehnquist’s Court: Tuning Out The White House appeared first on Stuart Taylor, Jr..

Just before 4:30, Goodman stubbed out his cigarette and entered the cluttered, high-ceilinged courtroom, where he proceeded to promise the judge: ”The wrongs I have done are behind me.” But when the sentences were pronounced, they were tough: 12 years in prison for Goodman, 10 years for Weissman. The judge had not been moved by Goodman’s promise, which had a familiar ring for some in the courtroom.

Over his years as O.P.M.’s executive vice president, Goodman had made the same promise again and again, sometimes in tears, to the group of men who served as the company’s attorneys. And over the years, they had believed him – or, at least, they had acted as though they believed him – while they carried out his directions. As a result, their firm, Singer Hutner Levine & Seeman, has been accused by some lenders of complicity in the leasing company’s fraud.

Because of the special nature of the case, the details of the O.P.M. fraud and of the relationship between the company and its law firm have become publicly available to an extraordinary extent. The following article is largely based upon the many thousands of pages of depositions taken in a sweeping bankruptcy investigation. In them, Myron Goodman is portrayed as a volatile, ingenious manipulator of men and money – purloining a letter that contained incriminating evidence, threatening to hurl himself from his ninth-floor office window.

Singer Hutner is shown confronting a painful dilemma. Warned that it might be in the midst of a massive fraud orchestrated by its most important client, the law firm sought the advice of respected legal experts, and with their approval proceeded to close new loans for O.P.M. Even after learning that more than $60 million of these new loans was fraudulent, Singer Hutner kept its silence while bowing out of the picture. Thus Goodman was able to use new lawyers to swindle lenders out of another $15 million before his house of cards collapsed early in 1981.

Rooted as they were in the traditional lawyer’s maxim – my client right or wrong – the firm’s conduct and the experts’ advice raise serious questions about the theory and practice of legal ethics in America. These questions are being asked with ever-greater frequency today.

This nation’s adversary system of justice requires that lawyers represent a client loyally and zealously, even if the client is a criminal. The model legal ethics code drawn up by the American Bar Association in 1969 and adopted by most state bars prominently commands that lawyers keep in strict confidence any knowledge of a client’s past crimes. At the same time, however, the ethics code reminds an attorney that he may not ”counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.”

In practice, attorneys both inside and outside the courtroom are often forced to choose between these two broad principles. The line between what a lawyer must do to discharge his ethical obligation to his client and what he may not do without becoming his client’s accomplice in crime is sometimes so thin it seems invisible. Should a divorce lawyer go along when his clients conceal some of their assets to keep down the size of their alimony payments? Should a personalinjury lawyer go along when his clients fake or exaggerate their pain and suffering? Should a criminal-defense lawyer go along when his clients lie on the witness stand about their whereabouts on the night of the murder? On the face of it, the answer to all three questions may seem to most laymen to be a resounding ”no.” But to many lawyers it is not so clear. Suppose, for example, the attorney only suspects the truth. At what point should he stop giving his client the benefit of the doubt? What obligation does he have to investigate the facts? Under what circumstances should he resign from the case? At what point does he become responsible for preventing a client from performing criminal acts?

These issues – which figure dramatically in the O.P.M. case – have inspired fiery controversy within the profession. In fact, they have roiled the American Bar Association as it has sought to develop a new ethics code over the past five years. The latest version of the proposed new code is scheduled to be voted up or down at the annual meeting of the association in New Orleans next month. The decision will be made at a time when the profession is caught up in the process of change and re-examination.

Watergate, which found the nation’s leading law officers snared in the my-client-right-or-wrong web, helped get things going. It was followed by a stream of cases in which lawyers were charged with complicity in securities frauds. Meanwhile, traditions that were central to the profession’s self-image have been eroded, as lawyers advertise their wares publicly and show ever greater willingness to sue one another. A new self-consciousness has led to the establishment of courses in ethics at law schools, a spate of articles on ethics in law journals and increasing concern that unless the profession reforms itself the Government might take a hand.

Singer Hutner’s experience with the O.P.M. fraud represents a dramatic illustration of the conflicts and moral ambiguities that have troubled thoughtful lawyers for many years and have now become a focus of heated public debate. Aschildren, Mordecai Weissman and Myron Goodman went to the same yeshiva in Brooklyn. They attended Brooklyn College together. In 1969, Goodman ended up marrying Lydia Ganz, whose sister had recently married Weissman. It seemed logical that the two men would become business partners, and so they did.

Weissman started the company in 1970 in a small office on Church Avenue in Brooklyn, and Goodman joined him a few months later. Weissman handled the marketing end, Goodman was the inside man, in charge of finances; they each owned half of the business. O.P.M. was Weissman’s name for the company – short for ”other people’s money.”

The company would borrow money to purchase computers and other business equipment and then lease the equipment to corporate customers. In theory, the lease payments to O.P.M. would be large enough to allow the company to service its loans with enough left over to provide a handsome profit.

The formula seemed to work magically. By the late 1970’s, O.P.M. had become one of the nation’s five largest computer-leasing companies, with 250 employees in 11 offices across the country, including plush headquarters on Broadway in Manhattan. It was buying multimillion-dollar computers from the likes of I.B.M. and leasing them to such corporations as American Telephone and Telegraph, Revlon and Polaroid. Prestigious banks, insurance companies and other financial institutions were glad to lend O.P.M. money, secured as it was by the obligations of the lessees to make lease payments and by the value of the computers themselves. Many of these lenders were recruited by Lehman Brothers, the company’s investment banker. O.P.M. also raised cash by selling legal title to the computers to individual investors seeking tax shelters.

The two owners of O.P.M. lived well. Goodman purchased the baronial Wardwell Estate (currently valued at up to $750,000) in Lawrence, L.I., where he lived with his wife and two daughters. He decorated it lavishly, adding a disco and a small movie theater. He pledged $10 million to Yeshiva University and became the youngest trustee in its history.

In 1978, Goodman and Weissman bought a bank in Louisiana, savoring this traditional emblem of corporate success. Goodman soon found a special use for the bank, however – a kind of illegal interest-free borrowing called check-kiting. He was detected by bank officials within six months, and in March 1980 O.P.M. pleaded guilty to 22 felony counts and paid a $110,000 fine. A tearful Goodman promised his attorneys that he would never stray again.

It was the first public indication of serious legal trouble at the company, but the case attracted little notice. Not until a year later would O.P.M. go bankrupt and the story of the Goodman-Weissman machinations begin to emerge.

Almost from the start, the company was basically insolvent and survived by means of fraud and bribery. A single computer would be used as collateral for two or three loans with different banks; the value of a given piece of equipment would be inflated to obtain larger loans. (Judge Haight, at the time of sentencing, told how ”Mr. Goodman would crouch under a glass table with a flashlight and Mr. Weissman would trace the forged signatures.”)

To win a place in the competitive computer-leasing market, Weissman bribed employees of potential customers, and the company offered lease rates far below those of its competitors. Moreover, the company offered lessors a risky bonus. In return for granting O.P.M. a long lease of, say, seven years, customers were promised that they could cancel the contract in the event a technological breakthrough made the computers obsolete.

Goodman was pushing the company toward ever bigger loans, building the shaky pyramid ever higher, when I.B.M. announced in 1977 a forthcoming new line of computers that would revolutionize the business. O.P.M. customers soon started lining up to cancel their leases. To avoid bankruptcy, Goodman resorted to fraud on a much grander scale than ever before, as Weissman’s role in the illegal actions diminished. He relied almost totally on leases supposedly entered into by Rockwell International, the huge California aerospace company. He used forged signatures, documents falsified to overstate the value of leases and computers, and loans obtained upon equipment that did not exist. Between 1978 and 1981, O.P.M. obtained from 19 banks, pension funds and other lenders more than $196 million in loans secured by phony Rockwell leases. These new loans went to meet payments on old loans until the company finally came crashing down in March 1981. Within the next year, Goodman, Weissman and five O.P.M. vice presidents would plead guilty to charges of fraud.

Andrew B. Reinhard was 26 years old, an honors graduate of Harvard Law School, when he joined a small New York law firm in 1969. When the newly created O.P.M. Leasing Services Inc. started casting about for a law firm, Myron Goodman remembered Reinhard, older brother of a boyhood friend. That was the start of the long, tumultuous relationship between the company and Singer Hutner.

All through the decade of fraud at O.P.M., Singer Hutner handled the company’s legal work. That included closing loans and supplying the legal opinions that lenders relied on as to O.P.M.’s title to computers and as to the legality of O.P.M. leases. The firm also handled the personal legal affairs of ”Myron and Mordy,” as the owners of O.P.M. were known to Singer Hutner lawyers.

As the computer-leasing company grew, so did Singer Hutner. By 1980, it employed 29 lawyers, with offices in New York and New Orleans; in that year, it collected more than $3.2 million in fees and expenses from O.P.M. – about 60 percent of its total income. Reinhard was the third O.P.M. director, along with Weissman and Goodman, and several other Singer Hutner lawyers were company officers.

Today, looking back on that time, Singer Hutner lawyers who have testified insist that up until June 1980, they had no inkling that their chief client was engaged in large-scale fraud; they thought O.P.M. a booming, legitimate business. (According to Goodman, however, there was one partner who was a knowing, although reluctant, participant in the Rockwell fraud – Andrew Reinhard, whom Goodman described in his deposition as his closest friend aside from Weissman. Reinhard was a major target of a Federal grand jury investigation last year but was not indicted. He invoked the Fifth Amendment to avoid testifying in the sweeping bankruptcy investigation, but through his attorney, he has denied any involvement in the fraud.)

The relationship between Singer Hutner and O.P.M. took a dramatic turn on June 12, 1980, when Joseph L. Hutner, a senior partner in the law firm, received an extraordinary visit from Myron Goodman. The O.P.M. executive indicated that he was troubled, that he might have done something wrong in his stewardship of the company – something he could not set right because it involved millions of dollars more than he could raise. But during the meeting with Hutner, which lasted for several hours as Reinhard and others shuttled in and out of the room, Goodman indicated he had no intention of telling Hutner any details unless he could be sure the attorney would not tell them to anyone else. Hutner could not give him such an assurance since the law firm also represented O.P.M. itself and thus might have to inform Weissman.

One of the matters troubling Goodman was a letter that John A. Clifton, O.P.M.’s chief in-house accountant, had told Goodman he was preparing to send to Reinhard. Clifton had discovered evidence of the Rockwell lease fraud. After consulting his own lawyer, William J. Davis, Clifton decided to turn the information over to Singer Hutner and then resign. He hoped thereby to avoid criminal prosecution while putting the onus on Singer Hutner to decide whether to blow the whistle on O.P.M. While Goodman was in Hutner’s office, the letter was delivered to Reinhard’s room down the hall.

During a break in the meeting in Hutner’s office, Goodman and Reinhard strolled off, Goodman heading for the bathroom. Some time later they returned; Goodman had the letter. Accounts of how he obtained it differ. The lawyers say that Goodman snatched the letter unopened from Reinhard’s hand or seized it from the top of his desk. Goodman says this was a ”cover story” agreed upon between him and Reinhard – that in fact he found Reinhard reading the letter as he passed his office. By all accounts, Goodman took the Clifton letter with him when he left Singer Hutner that afternoon, still refusing to reveal what he had done wrong but insisting that it was all in the past.

Goodman was worried that Clifton might go to the authorities. He said he promised Clifton $50,000 to $100,000 in severance pay that, Goodman testified, was ”meant to induce him to keep his mouth shut.” Goodman also urged Hutner to talk with Clifton’s attorney, William J. Davis of Schulman Berlin & Davis.

In his description of their meetings, Davis said that Hutner seemed to be trying to persuade him that Clifton should keep silent and should take back his letter. Davis said the conversations were ”a kind of macabre dance around the issue,” so elliptical and hypothetical that ”nothing was fact, everything was possible.” He said Hutner seemed to know more than he let on, but seemed anxious to preserve a ”smoke screen” of deniability. Davis recalled: ”I had visions of him clamping his hands over his ears and running out of the office.”

Davis also said he had been prepared to give Hutner a copy of Clifton’s letter and would have told him ”as much as he wanted to know,” but that Hutner told him ”he didn’t want it, he didn’t want to know what was in it.”

Hutner gave a very different account of these meetings. He insisted he did not seek to have Clifton withdraw the letter, nor did he shrink from hearing about Clifton’s evidence. Yet Davis did give Hutner and Eli R. Mattioli, a younger Singer Hutner lawyer who attended one of the meetings, some crucial information. According to a memorandum prepared by Singer Hutner at the time, Davis said Clifton had evidence that O.P.M. had perpetrated a multimillion-dollar fraud and that the opinion letters Singer Hutner had drawn up to obtain loans for O.P.M. had been based upon false documents. And Davis also passed along, Mattioli recalled, an ominous opinion from Clifton – that O.P.M., ”in order to survive, would probably have to continue the same type of wrongful activity.”

Thus it was that in the middle of June 1980 Singer Hutner received what was tantamount to a stark warning that the law firm was deeply involved in a huge, ongoing fraud. Today, Davis recalls that he felt at the time that a turning point for Singer Hutner had arrived. ”Once you come into that kind of knowledge,” he says, ”a whole new set of rules drops on you.” Certain that Singer Hutner would have to resign and that O.P.M.’s fraud would soon be exposed, Davis says he ”just sat here waiting for the shoes to drop.”

It was a long wait.

The seriousness of the situation was not lost on Singer Hutner, which decided it needed some outside legal advice of its own. On June 18, the firm made an appointment with Joseph M. McLaughlin, who was dean of Fordham Law School at the time and is now a Federal Distict Court judge in New York. McLaughlin, one of Mattioli’s professors at Fordham, was a leading authority on the attorney-client privilege, under which lawyers are generally prohibited from revealing secrets confided to them by their clients.

According to McLaughlin’s deposition, Hutner, Mattioli and Carl J. Rubino, another Singer Hutner lawyer, arrived at his office on June 19 ”in a distressed state.” He said Hutner made it clear ”that he wanted to act in a way that would preserve the attorney-client confidence.”

But it soon became clear to McLaughlin that, given the apparent scope of the fraud and the law-firm’s close relationship with O.P.M., the central problem was one of ”ethics, professional responsibility.” He accepted a $5,000 check from Hutner as a retainer and proceeded to bring into the case a legal-ethics expert, Henry Putzel 3d, a former Federal prosecutor who had taught the subject at Fordham and who was practicing law in New York.

The next day, at a two-and-a-half-hour meeting in Hutner’s office, Hutner, Mattioli and Rubino gave McLaughlin and Putzel a detailed report on what they had learned from Goodman and Davis. The Singer Hutner lawyers stressed two major points, McLaughlin recalled in his deposition: they wanted to do the ethical thing, and they wanted to continue representing O.P.M. unless they were ethically and legally obliged to quit.

In conversations on June 25 and over the next few days, McLaughlin and Putzel gave Hutner and other members of the law firm the advice they wanted to hear. (The advice is described in detail in documents Putzel prepared at the time and in Putzel’s and McLaughlin’s depositions in the bankruptcy investigation.) Singer Hutner could ethically continue to represent O.P.M., giving the benefit of the doubt to Goodman’s assurances that there was no ongoing fraud. The firm could continue to close new loans for O.P.M. pending efforts to find out the details of Goodman’s past wrongdoing; such information would help them guard against any continuing fraud. Singer Hutner was bound to keep everything it had already learned secret, except from Weissman.

It was not necessary, Putzel advised, for Singer Hutner to check the authenticity of the computer-lease documents with third parties such as Rockwell before closing the new loans. As to the possibly false opinion letters and documents the firm had unwittingly provided to banks to obtain loans for O.P.M., Putzel offered another welcome opinion: Singer Hutner had no legal duty to withdraw them. He reasoned that leaving the victims of a past fraud in the dark was not an ongoing fraud.

McLaughlin and Putzel did recommend some steps aimed at stopping any efforts to commit new fraud. They said, for example, that O.P.M. should be required to certify in writing the legitimacy of each new transaction. Goodman was unfazed; he simply signed certifications he knew to be false. And he found ways to put off giving the law firm the kind of detailed description of his crimes that would have made the attorneys better able to judge the dangers of their position.

While McLaughlin and Putzel advised the law firm to press Goodman to confess to them and to his partner Weissman the details of his wrongdoing, they did not initially suggest that he be pressed too hard. One reason, as Putzel explained in a deposition, was his concern that the law firm’s obligations to O.P.M. might be inconsistent with giving Goodman’s secrets the fullest protection. Thus, a lawyer was found to represent Goodman’s personal best interests, while Singer Hutner theoretically concentrated on representing the best interests of the corporation – this though the corporation was virtually Goodman’s personal fiefdom.

Goodman’s new lawyer was Andrew M. Lawler, an old law-school friend of McLaughlin and, like Putzel, a former Federal prosecutor. In their depositions, McLaughlin and Putzel testified that they had placed great confidence in Lawler, and that Lawler had told Putzel that he knew of no ongoing fraud. This should, perhaps, not have been much of a surprise. Lawler’s information came from Goodman, and according to Goodman’s testimony, Hutner had given the executive a brief lesson in the attorney-client privilege, telling him that his disclosures to Lawler would be protected only so long as they did not indicate any ongoing fraud.

Meanwhile, as Goodman continued to stall, Lawler and Singer Hutner were dickering over the best way for Goodman to come clean about his past crimes. The object: to get at the truth but to do it in a way that would wrap it in the legal code of silence that is the attorneyclient privilege.

The advice offered by Putzel and McLaughlin in June and thereafter was predicated on Singer Hutner’s position that it did not ”know” of any ongoing fraud by O.P.M. McLaughlin testified in his deposition that ”it was basic black-letter law that they could not continue to represent O.P.M. if they were aware of an ongoing fraud, and that if they became aware, they would certainly have to resign.”

Thus a little too much knowledge can be a dangerous thing for a lawyer. Some criminal-defense lawyers, for example, privately acknowledge that they are careful not to ask defendants who come to them: ”Did you do it? Tell me everything.” One reason: The client might answer by confessing his guilt and then go on to insist upon giving a false alibi at the trial, and the lawyer could be deemed a knowing accessory to perjury for helping him give such testimony.

Whether or not Singer Hutner purposely shielded itself from knowledge of O.P.M.’s ongoing fraud is in dispute. In a ”memorandum to the file” after his meetings with Hutner in June, William Davis expressed concern about Hutner’s ”apparent willingness to stick his head in the sand and ignore these problems.” Hutner says Davis was lying.

Singer Hutner and Putzel discounted Clifton’s suspicions that the company would have to continue engaging in fraud to stay in business. As Putzel wrote in a later letter to Hutner, ”Your firm was in the possession of no fact which in any way indicated the commission of an ongoing fraud.” And he and Singer Hutner also accepted O.P.M.’s explanations of some strange happenings -bills of sale for computers that O.P.M. apparently did not have the money to buy; a signature on a document that looked to Mattioli like a forgery; the sudden resignation of an outside accounting firm because of its suspicion that Goodman and Weissman had been looting their corporation at a time when it was insolvent.

On July 15, for example, Alan S. Jacobs, a Singer Hutner partner who handled O.P.M.’s bank financings, discovered that O.P.M. had given the law firm two bills of sale, supposedly for different leases and different bank loans, that contained identical equipment descriptions and serial numbers. Jacobs consulted with Putzel and then checked with O.P.M., which told him there had been a typographical error. He accepted the explanation and a ”corrected” document. Both the original and the corrected version proved to be phony.

Meanwhile, the lawyers were becoming increasingly upset at Goodman’s continuing refusal to disclose the details of his wrongdoing. Late on the afternoon of July 22, in the middle of what Putzel recalled as ”the worst lightning and thunderstorm I have ever seen in New York over the East River,” Hutner telephoned Goodman and set a deadline for him to tell Weissman what he had done. Goodman responded with threats to hurl himself out the window of his huge, luxuriously appointed office.

”It was right out of a Grade C movie,” recalled Putzel, who was in the room with Hutner. ”There was wild lightning, claps of thunder, Hutner pleading with Goodman to be rational.”

All through this summer of nondisclosure, Singer Hutner continued closing loans for O.P.M. without checking the legitimacy of underlying Rockwell leases. Some were legitimate, but leases securing loans of $22 million in June, $17 million in July and $22 million in August proved to be fraudulent.

In the first week of September, Goodman finally told Hutner some of the details of the fraud he had first hinted at in June, and Hutner explained it all to Putzel over lunch at the Yale Club in New York. In his deposition, Hutner recalled the meeting. ”I wanted to get the hell out” of the connection with O.P.M., he said. ”I was just disgusted, and I wanted (Putzel’s) acquiescence.” The two men tentatively agreed that the law firm should quit as O.P.M.’s counsel – though Putzel advised that the firm was not ethically obliged to do so because, he still assumed, the fraud had ended before June.

”What struck me as so, frankly, evil about this,” Putzel said in his deposition, ”was that the lawyers had been manipulated in this fashion.” It was now apparent, he said, that ”the attorneys were the instruments, the unwitting instruments, of the fraud by Goodman.”

Over a period of two weeks, the members of the law firm discussed the question of quitting O.P.M. in a series of heated and emotional meetings. Meanwhile, Singer Hutner closed two more loans that proved to be fraudulent. For the first time, the law firm tried to check with Rockwell the legitimacy of the leases by mailing a verification form to a Rockwell executive in California. Goodman later recalled that when he heard the form was on its way, ”I just went totally bananas.” Goodman’s O.P.M. henchmen intercepted the document at Rockwell and forged the executive’s signature.

Singer Hutner voted formally to resign as O.P.M.’s general counsel on Sept. 23 in a daylong series of meetings punctuated by expressions of concern about the effect of a possible O.P.M. bankruptcy on the law firm’s fees. Goodman was in the firm’s offices that day and bitterly accused the lawyers of disloyalty, seemingly unabashed by their knowledge that he had used them to swindle banks out of tens of millions of dollars. He also described McLaughlin and Putzel as ”white-shoed and ultra-Fas-cist attorneys” and warned the Singer Hutner lawyers to ”keep their mouths shut.” Later that night, according to Mattioli, Goodman stood at the head of the law-firm’s staircase, shaking with anger, and shouted, ”If you do this and bring down the company, I will bring down this firm.” Weissman was also in the law-firm’s offices that night, incongruously assuring those who would listen that O.P.M.’s business was better than ever and that its prospects were excellent.

Singer Hutner quit O.P.M. gradually, completing the process in December 1980. The lawyers assumed that an abrupt withdrawal would cause O.P.M. to collapse; they would handle legal business until Goodman, who had vowed that he would eventually pay back the victims of the fraud, could find new counsel. Singer Hutner’s decision was in accord with Putzel’s advice that the law firm could not drop its client ”like a sack of potatoes.” The withdrawal, he said, ”had to be accomplished in a manner least likely to cause injury to the client.” Still, Singer Hutner had cause to worry about its own potential liability during the withdrawal period, and the firm took steps to prevent new fraud. Its lawyers refused to proceed with new loans unless Goodman authorized them to check out the collateral with third parties such as Rockwell. They also demanded that O.P.M. cease new ”tax-shelter” financings entirely, because they would almost certainly involve violations of the Federal securities laws.

Singer Hutner also moved to guard its income during the withdrawal period. Fearful that Goodman would refuse to pay its fees, and that they might be uncollectible if O.P.M. went bankrupt, the law firm announced in late September that it would do no more work for O.P.M. unless it received ”an advance retainer against our customary time charges.” It demanded and received $250,000 for the withdrawal period, along with $250,000 for services already performed.

Once the decision to quit O.P.M. was made, Singer Hutner had to determine what to do with its knowledge that it had been part of a giant fraud. On Putzel’s advice, the law firm kept the facts to itself, telling nothing to the corporations and bankers who had been defrauded. Based on Goodman’s increasingly implausible assurances that the days of fraud were over, Putzel said that the executive’s secrets were still protected by the attorney-client privilege. Singer Hutner accepted that view, even after Goodman acknowledged on Sept. 29 and 30 that the outstanding fraudulent loans totaled $80 million to $90 million, about three times the amount he had confessed earlier in the month. And the law firm held fast even after receiving the worst news of all, that Goodman had been using Singer Hutner to close fraudulent loans from June through September.

The law firm responded to inquiries from lenders and other interested parties by saying that Singer Hutner and O.P.M. had ”agreed” to part ways. (”Was that not a lie?” Hutner was asked, during the taking of his deposition. ”It was inaccurate,” he replied at first, later amending that to ”more accurate than not, if not totally accurate.”)

This stance played right into the hands of Goodman. He was able to continue obtaining fraudulent loans while spreading the suggestion that he had dismissed Singer Hutner and assuring business contacts that there was nothing wrong with the loans.

The close-mouthed stance was also called for by Putzel as the appropriate way of dealing with the lawyers who would fill Singer Hutner’s shoes – in spite of the considerable risk that Goodman would simply lie to the new attorneys. Thus he advised Singer Hutner that it must honor Goodman’s demand that Gary R. Simon, the O.P.M. inhouse lawyer who was preparing to handle new loan closings, be kept in the dark.

Fearing that Goodman would use Simon, who was inexperienced in closing loans, to commit new frauds, Singer Hutner in October prepared for Simon a memorandum specifying ”due diligence” verification procedures that should be used in all O.P.M. financings. But before the memorandum was delivered, it was shown to Goodman for editing; the final memo had nothing in it to make Simon suspect something was wrong with the Rockwell leases.

It soon became apparent that Simon was unlikely to discover the fraud. At one point, he told Mattioli that ”if something is wrong with those deals, then I want to know it today.” Mattioli did not respond.

A similar series of events was played out with Kaye, Scholer, Fierman, Hays & Handler, one of New York’s largest law firms, which Goodman invited to step into Singer Hutner’s place and close new loans for O.P.M. Hutner wanted to warn Peter M. Fishbein, a Kaye Scholer partner and an old friend, to stay away from O.P.M. In his deposition, Hutner quoted Putzel’s response to the notion: ”Oh my God, that is exactly what you can’t do.”

Fishbein phoned Hutner in October 1980 asking ”if there was anything he should be aware of” in considering Goodman’s invitation. Hutner told him only that ”the decision to terminate was mutual and that there was mutual agreement that the circumstances of termination would not be discussed.” Two years later, Hutner testified that ”this specific thing caused me more personal pain than anything I can recall during the course of the entire O.P.M. thing, including learning that Myron was a thief.”

The end result of Singer Hutner’s close-mouthed policy: Goodman was able to use the unwitting Gary Simon and Kaye Scholer to close more than $15 million in loans for O.P.M. in December 1980 and early 1981 that were secured by fraudulent Rockwell leases. The use of outside counsel like McLaughlin and Putzel has increased significantly during the post-Watergate decade as law firms have been exposed to increased public and Government scrutiny. Attorneys are more and more finding themselves in the unaccustomed role of defendants charged with complicity in their clients’ illegal activities, or as targets of Government investigations of securities frauds.

Aside from the old saw that a lawyer who represents himself has a fool for a client, lawyers who find themselves in potentially compromising circumstances are often willing to pay for the expertise of a specialist. That is particularly true in cases involving the fine points of legal ethics, about which many lawyers are quite ignorant. But lawyers, like other people, also hire specialists as a precautionary move, seeking advance legal clearance before taking action that might later become the focus of a lawsuit or a criminal investigation. And the more prestigious the specialist, the better.

Joseph McLaughlin, for example, given his considerable stature in the New York legal fraternity, seemed an ideal man for Singer Hutner to have in its corner. That was reflected in his fee, a healthy $12,500 for 25 hours work; that averages out to $500 an hour, a rate more than double what senior corporate lawyers in New York’s big firms ordinarily charge their clients. It was about four times the rate charged by Putzel.

In his deposition, McLaughlin testified that he professed no expertise in legal ethics (except to the extent that it overlaps with the attorney-client privilege) and that he hardly knew anything about ”the mechanics” of Singer Hutner’s work for O.P.M. He minimized his role, calling himself a ”sort of avuncular … senior adviser” with no time ”to get down to the nitty-gritty of this thing.” In part, he said, that was because he was busy that summer of 1980 ”running for office, in effect” – that is, jockeying for a judicial appointment. He was eventually named to a Federal District Court judgeship. At year’s end, he was a leading contender for a position on the New York Court of Appeals, the state’s highest court.

After O.P.M. came tumbling down, Singer Hutner, and four codefendants including Rockwell and Lehman Brothers, became the targets of a spate of multimillion-dollar lawsuits. The suits, brought by lenders, accused the law firm of being an accomplice in the O.P.M. crimes, on the ground that the attorneys knew or should have known they were part of an ongoing fraud. A tentative settlement of the lawsuits has been reached whereby the five defendants would pay $65 million; Singer Hutner’s share would be about $10 million. But the law firm still maintains that it acted in conformity with the ethics code, as interpreted by Putzel and McLaughlin. And Putzel said in a recent interview, ”I am in my own conscience absolutely convinced that the advice we gave was correct ad-vice based on what we knew at the time.”

Even the lawyers’ lawyers have lawyers in the O.P.M. case, and those representing Putzel offered a written brief that summarized their client’s attitude toward legal ethics. Under the adversary system of justice, they wrote: ”A lawyer’s primary obligation, loyalty and responsibility must be to his client, rich or poor, likeable or despicable, honest or crooked. Lawyers are not ordinary people: they sometimes are duty-bound to stand up for and protect liars and thieves.”

Whether or not Singer Hutner violated the ethical code, a basic question remains: Is there not something wrong with a code that can plausibly be used to justify the extreme lengths to which Singer Hutner went to protect its criminal client? Indeed, there is growing concern both inside and outside the legal profession that the current rules make it too easy for lawyers to condone or even actively assist their clients’ ongoing crimes, frauds and cover-up conspiracies.

This concern has found expression in some of the reforms contained in the proposed new American Bar Association model ethics code, which is to be voted on next month after more than five years of often acrimonious debate. Put together by a special commission of prominent lawyers, the new code would cover issues ranging from advertising of legal services to conflicts of interest. But the controversy centers on provisions dealing with the kinds of dilemmas that confronted Singer Hutner. The new proposals are designed to make it clearer that lawyers’ customary vows of loyalty to their clients and silence about their guilty secrets must sometimes give way to a higher duty to keep their own hands clean – even to the point of blowing the whistle.

The current ethics code, in its tilt toward the client, reflects in part the economic self-interest of its authors. The code was written by lawyers and for lawyers who get paid to help clients do what they want to do. Lawyers are not paid to place restraints on their clients.

”I suspect many lawyers have thought that they have a privilege to assist, at the periphery, projects that are criminal or fraudulent,” says Geoffrey C. Hazard Jr., a Yale law professor who was the principal draftsman of the proposed new model ethics code. The failure of the current rules to emphasize ”the seriousness of a lawyer’s helping a client to commit a crime or fraud,” he says, may help explain why so many lawyers became ensnared in the Watergate cover-up.

The whistle-blowing provisions of the proposed new code are not universally admired. John C. Elam, a past president of the prestigious American College of Trial Lawyers, is the leader of that group’s opposition. He denounces the proposals as ”a tremendous assault on the traditional role of the lawyer.” If clients cannot be sure that their lawyers’ lips are sealed, he reasons, they will not disclose plans that might be illegal, and lawyers will not have any opportunity to persuade them to obey the law.

For all the heat of the debate, Geoffrey Hazard and most other critics of the current ethics rules stop well short of proposing abandonment of the fundamental premise that attorneys must ordinarily do their utmost to advance their clients’ interests and keep their secrets. For example, there is something approaching a consensus among experts that a criminal defense lawyer should do his best to get an acquittal even for a client he knows is guilty of murder. The argument concerns where the fine lines should be drawn. For instance, while it is clearly proper for a lawyer to move to suppress illegally obtained evidence that would establish his client’s guilt, most experts would disapprove of a lawyer’s helping a client to concoct a false alibi.

If the new code had been in effect in the fall of 1980, Putzel’s advice that Singer Hutner could not alert the victims of the O.P.M. fraud, or even the lawyers whom Goodman used after Singer Hutner had quit, might have been different. One proposed rule says that lawyers may blow the whistle if necessary ”to rectify the consequences of a client’s criminal or fraudulent act in the furtherance of which the lawyer’s services had been used.” Another states that a lawyer must not ”fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.”

Joseph Hutner, for one, says that these particular changes might not be such a bad idea: ”I would have been much happier protecting the other lawyers, and in particular my close personal friend Peter Fishbein, from getting in bed with a criminal.”

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