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Oral History of Abe Krash
Fifth Interview
December 16, 2013
This interview is being conducted on behalf of the Oral History Project of the Historical Society
of the District of Columbia Circuit. The interviewee is Abe Krash, Esquire, and the interviewer is
Stuart Pierson, Esquire. The interview took place on December 16, 2013. This is the fifth
interview.
Mr. Pierson: It is December 16, 2013 and we are at Arnold& Porter; Abe Krash is on the
opposite side of the table, Stuart Pierson here. We’ve designed this as a final
session with the D.C. Circuit Historical Society on the history of Abe Krash.
We finished last time talking a little bit about personal things and as you have
been directing the course of things throughout this, it’s your ball now.
Mr. Krash: Well Stu, in our last session we discussed various things through the 1970s,
and I thought that in our last session here today, we would talk about things in
the 1980s up to my retirement from the firm in 1992, and then talk about what
I’ve been doing in the years since I retired from Arnold & Porter.
Going back for one minute to something I realized that I had not mentioned in
the late 1970s. I was involved in a fairly significant matter for the Ford Motor
Company, who retained me to represent them in connection with an issue
under the Auto Safety Act. The question presented related to the appropriate
notice that had to be given with respect to a recall. This case was litigated in
the D.C. Court of Appeals. The Court of Appeals ruled in Ford’s favor. I did a
number of matters for Ford in the late 1970s and during the early 1980s.
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During the period of the 1980s, I continued to do a good deal of work on behalf
of Philip Morris and Miller Beer. I also was retained to represent a number of
other parties. I did a great deal of work for the Monsanto Chemical Company
in various matters, in the 1970s and the 1980s. I was retained by United States
Steel Company to represent them, and I was also engaged in representing the
American Broadcasting Company on some issues. I remained very busy during
that decade. One of the major clients with whom I was involved was Philip
Morris. The company had begun process of diversification in the late 1960s
when they acquired Miller Beer. They then acquired General Foods, and I
became the counsel representing those entities as well. In the 1980s, Philip
Morris made a very large acquisition when it bought the Kraft Company in
Chicago and I was one of the lawyers representing Philip Morris.
Mr. Pierson: Was there litigation?
Mr. Krash: No, there was no litigation. There was some negotiations that went on. But in
any event, Philip Morris did acquire Kraft Foods and we subsequently became
counsel for Kraft in a number of matters. By this point Philip Morris had
diversified quite a bit. Apart from the cigarette business, of course, which was
its primary business, they had acquired Miller Beer in Milwaukee and then
General Foods. Philip Morris also bought the 7-Up Company which I talked
about in our last meeting. They were located in St. Louis, and we then became
actively involved on matters on behalf of 7-Up. Arnold & Porter had a policy,
instituted I believe in the 1970s, of allowing partners to take a sabbatical if you
had been at the firm for a number of years. At any rate, you were allowed to
take a 6-month sabbatical; I had postponed taking that for many years. Finally
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around 1984, I did take that sabbatical with my wife. We went first to Paris
where we lived for four months. We had an apartment on the Isle St. Louis in
the midst of the city, and we traveled around France to various places, which
was enormously enjoyable. Paris, I thought, was one of the most pleasant cities
I have ever been in. There is a different experience for people when they come
to visit Paris for just a few days or a week, but if you live there for a while, as
we did, you really get to enjoy what an enormously, culturally, rich and
interesting city it is. We traveled a great deal during the sabbatical. We went
back of the Iron Curtain. We went to Budapest, Prague and then to Germany.
We went to Berlin. We were visiting in Berlin at the time of the Iron Curtain
and going from West Berlin to East Berlin was really quite an experience.
During the second part of my sabbatical, I was a fellow at Wolfson College in
Oxford. We lived in Oxford for several months during that fall semester there,
and I had a chance to get to know a number of people at Oxford. We travelled
extensively in England. We spent a lot of time in London; it is just a short train
ride from Oxford. We did travel around the country side and saw a good bit of
England, and we enjoyed that experience a great deal. Wolfson College is a
graduate college. I regretted that I wasn’t in one of the under graduate colleges.
While I was there I met the master of Oriel College, and he told me that he
regretted not knowing I was coming to Oxford. He said he would have
arranged for me to be a fellow at Oriel, which was an undergraduate college.
But at any rate, I enjoyed the experience at Oxford. I didn’t have much to do
there. I had hoped to do more than I did, but I did get to see a good bit of what
the University was like. I talked to a number of people and traveled in England
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a good deal and that was a very enjoyable experience.
I previously mentioned that I taught a seminar on litigation at the Yale Law
School in the late 1970s for two years and then I was invited back in the early
1980s and I taught a seminar there again for two years. I would travel to New
Haven one day of the week to teach that seminar. Sometime in the late 1980s, I
became president of The Friends of the Law Library of Congress. The Law
Library of the Congress has a great collection of books but it is largely
inaccessible to the general public. You can go to the library physically and sit
at the library and they’ll bring a book to you while you are sitting in the library,
but you can’t take it out. The only people who can check books out are
members of Congress and the Supreme Court. At any rate, the library is largely
inaccessible to the public except in this very limited fashion. The Library had a
practice of giving an annual award to a distinguished lawyer; it was called the
Wickersham Award, named after a former Attorney General. I was engaged in
the process of selecting individuals who would receive that award, and we
would have an annual dinner. At first we had it at the Supreme Court, which
lent us its facilities. The court room was opened for us. We did that for 6 or 7
years. We attracted a large attendance, and it was a lovely occasion. Justice
O’Connor then told me that we couldn’t have a fundraising event at the Court,
even though it was for the benefit of the Law Library of Congress which the
Court uses. I then arranged with the Congressional Library to have the
Wickersham award dinner held there. We had a dinner once or twice and then
they told me that we couldn’t have the dinner there because this was a fund
raising event. I said we’re trying to raise money for you; it is for the benefit of
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one of your divisions, the Law Library. But they told us we could not do it. At
that point, I threw up my hands and gave up. One other thing which I tried to
do was that I felt the Law Library should not be just a source or center of a
great collection of books, which it is. It has a wonderful collection, but I felt it
should also be a sponsor of law related activities, such as lectures and
seminars. I tried to get that started, and we had one or two events. I
experienced a good deal of difficulty in doing that. We never really got off the
ground. I was President of this organization for about a decade, beginning in
the late 1980s into the 1990s. I was disappointed that I wasn’t able to do more,
but the obstacles of doing more seemed to me to be insurmountable and I gave
up. I don’t know what’s left of the Friends organization. I lost contact with the
organization and therefore haven’t heard much about it for quite a long time.
My wife and I in the late 1980s took a trip to China. We had previously gone to
Japan and we wanted to go to China. It was a tourist trip. At the time there
were a lot of demonstrations in China. We had known that these were going to
be going on. We came up the Yangtze River on the last trip, I believe, on the
river. We came to Chungking and we were put up in a hotel at the outskirts of
the city, and I was very disappointed. I asked the concierge if we could go into
the city, and with some reluctance, he got us a car and we went into the city.
There we saw all these big demonstrations involving thousands of people. We
were stopped by a plain clothes Chinese police officer because we were taking
pictures, and he warned us to stop taking pictures. He didn’t take our camera
away. We were approached by many students and younger people who wanted
to know what the reaction was to the demonstrations in America. This was not
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just a demonstration of young people; this was a demonstration of both young
people and old people.
Mr. Pierson: Was it the same time as Tiananmen Square?
Mr. Krash: Yes, we went to Beijing, where Tiananmen Square was occupied and we saw
that. We were staying at a hotel about three blocks from the square. The streets
were being monitored by young people who had arm bands. You could not get
into the Forbidden City. We saw demonstrations there and we left Beijing
about a week or ten days before the troops and tanks moved in about a few
blocks from where we had been staying. It would have been extremely
dangerous if we had remained there for another week. I found China to be one
of the most fascinating places I have ever visited. It was just amazing. A lot of
the country’s great artifacts were looted or taken away by the Westerners, by
the British, French, and the Americans, so they didn’t have any great museums
that you could go to, or very little, anyway. One of the most interesting things
of all to do was to just walk the streets and to see what was going on in the
streets in the various cities we were taken to.
Mr. Pierson: They were teeming with people?
Mr. Krash: They were teeming with people. You got a sense of the enormous potential
capacity of the Chinese people. My wife went back a year or so later because
she was very interested in Chinese medicine. She went back a second time and
had the same impression that it is an exciting and interesting place. It also was
rather a frightening place when you saw how tightly controlled it was. You
could sense that it was a police state. It was an enormously rewarding and
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exciting trip, and I enjoyed it immensely.
Mr. Pierson: When did your wife go back?
Mr. Krash: She went back a couple of years after we were there. We were there in 1989,
and she went back I believe in 1991 and spent some time there. During the
period of the 1980s I was busy with representing the various clients that I have
mentioned in many different kinds of matters. It was the policy of Arnold &
Porter that when you reached age 65, you retired from all management
responsibilities. As I previously mentioned, I was a member of the Policy
Committee of the firm; I was a member of the Compensation Committee; I was
head of the Antitrust Practice Group. When I became 65 in 1992, under the
terms of firm’s partnership agreement, I stepped down from all of those
responsibilities, and I ceased to be active in the management of the firm. The
firm’s policy was called a step down, that is to say between the ages of 65 and
70 your responsibilities and income were reduced every year, a certain
percentage. It was called a phase down or step down, but you continued to have
an office and be busy and do whatever you wanted so I remained quite busy in
the firm doing various things. One of the major matters which I handled after I
retired in the mid-1990s was that I represented Kraft Foods, which as I said,
was a subsidiary of Philip Morris at that point, in connection with their
acquisition of the Nabisco Cereals business. The Attorney General of the State
of New York brought an antitrust suit in the Federal District Court in New
York against Kraft with respect to the acquisition, claiming it would restrain
competition in the cereals business.
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Mr. Pierson: Had the Federal Government passed on it?
Mr. Krash: The Federal Government passed on it. They did not impose any objection.
Mr. Pierson: So this is now during the Clinton Administration?
Mr. Krash: Yes, this is during the Clinton Administration, and this action is brought by the
State Attorney General of New York. We tried the case before Judge Kimba
Wood in the Southern District of New York. We weren’t able to resolve it
before trial. We tried it for three weeks in New York. The cereal business was
dominated by Kellogg’s and by General Foods; Nabisco was a relatively minor
factor, as was Kraft’s existing cereal business. Judge Wood ruled in our favor
after a three week trial. That was the last trial I had. It was the late 1990s. I had
a large team of lawyers there and we were there day after day until midnight
working each day to try this case, which was important to the Kraft folks,
needless to say. Judge Wood is an excellent Judge. She is very patient and as I
said, at the conclusion, she ruled in our favor. I concluded at the end of that
trial that I should probably stop trying to do trial work. I found it to be a real
challenge and wearing at that point. It was a lot of pressure and timeconsuming. But in any event, the outcome was successful. The Kraft people
were very pleased. At the same time, during the 1990s I was involved in a
number of other things. I participated in the writing of an amicus brief in the
Supreme Court in a case entitled Glucksberg v. Washington, which involved
the question of the constitutionality of assisted suicide. Nearly all states have
statutes prohibiting assisting suicide. When a physician gives a lethal drug to a
terminally ill person, that is assisting suicide, and it is a criminal offense. A suit
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was brought in Washington by some terminally ill patients and doctors arguing
that there was a right under the due process clause of the Fourteenth
Amendment to prescribe a lethal drug to adult, terminally ill patients with their
consent. That is to say, the argument was that doctors should be immune from
the statutory offense of assisting suicide if they prescribed a lethal drug to
mentally competent, terminally ill patients in those circumstances. That was
the argument.
Mr. Pierson: Did the statute require that the patient be conscious?
Mr. Krash: The Washington statute prohibited all assisted suicide. What we were arguing
was that statute which prohibited assisted suicide in general terms should be
inapplicable to doctors who prescribed it for mentally competent patients,
terminally ill with their consent under various protective procedures. We
argued that there should be a right under the due process clause for people to
die with dignity. The amicus brief was written on behalf of a group of
prominent American philosophers. The brief became known as the
philosopher’s brief. The principle author of the brief was Professor Ronald
Dworkin. He was a prominent professor of Oxford and NYU and also a
distinguished philosopher. He died a few months ago. I worked on our brief
together with him and some other Arnold & Porter lawyers. I thought Dworkin
was an exceptionally able and gifted person. He was very thoughtful. As I said,
we wrote this brief on behalf of this group of prominent, half of a dozen, major
American philosophers. Our principal argument was that doctors were
permitted, I believe in almost all jurisdictions, to withdraw life support systems
at the request of the family resulting in the death of the patient; we maintained
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that there was no logical difference between doing that and giving a terminally
ill patient at his/her request a lethal drug that would permit one to die with
dignity. That was a major point we were making. You could argue that giving a
patient a lethal drug is active and that terminating life support is passive, but
that argument wouldn’t wash because doctors are active in withdrawing life
support systems and they are active in giving a drug. There is one difference. I
think that one could say that in the case of a withdrawal of life support, such as
oxygen or food support, that the patient dies from the underlying disease or
illness, whereas when a doctor gives them the lethal drug, they die from the
drug. But in either case the doctors are aware that the patient is going to die.
They may be a few circumstances where a patient may not die if the life
support system is withdrawn but it is very rare. The essential argument was
that people in terminally ill conditions were suffering, and a doctor should not
be prosecuted for giving them a lethal drug. Anyway, I collaborated in writing
this brief. The Supreme Court decided against that position; it distinguished the
situation of the withdrawal of a life support system, which the Court
sanctioned, but the Court refused to recognize a constitutional right of doctors
to prescribe lethal drugs for terminally ill patients. In its opinion, the court said
the matter should be left to the states to further experiment and deal with. After
the case was decided and after I continued to read a good deal of things about
the subject, I changed my mind from the position we had taken in the brief. I
concluded that the court was probably right not to constitutionalize, to freeze
this right at this particular time. I came to that conclusion because I felt that
there is no consensus in the United States about this situation. There is a great
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diversity of opinions and views, and I thought for the court to have done what
we were advocating would be to freeze, as a matter of constitutional law, that
one is entitled to such a right. I concluded it was premature for the Court to do
that at this point. I distinguish a decision by the Supreme Court on this point
from action by a state legislature. If I were a legislator and the issue before me
was do you support a law allowing terminally ill patients to obtain a lethal
drug, under appropriate protective procedures, I think I would support such a
statute. But that’s different from saying the Supreme Court should do this as a
matter of constitutional law which because then it would have been recognized
as a right which a legislator couldn’t alter. I changed my mind about it. I have
followed the matter with interest as the years have gone by. There has not been
as much experimentation as I would have thought. In the Northwest part of the
country, in Washington and Oregon, I think there is now a statute permitting
assisted suicide in limited circumstances. You have to have two doctors, a
written consent, and a waiting period and there are various protections so it
won’t be abused. I understand that there is a very limited group of people who
have this right. What really troubled me as I come to my conclusion was that
there are people who are extremely sick, in pain, terminally ill and who want to
die in a dignified way. I think Justice Stevens in his concurring opinion in the
Glucksberg case expressed well my feelings and views when he observed that
people want to be remembered after they die in a certain way. This issue of a
doctor’s prescribing a lethal drug for terminally ill persons is a problem with
tremendous ethical and moral implications. It involves issues with respect to a
doctor’s role and function. It is a very complex and difficult issue. As I said: I
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subsequently came to the conclusion that it should not be recognized at this
time as a constitutional right, but I distinguish that from doing it as a matter of
legislation. I think basically my view still is that is a matter to be resolved
between the physician and the family and what really goes on I think in
practice is that people are terminally ill in this situation and they will receive
morphine or other things and they will die that way. But the issue is as I say
very subtle and complex. I still find it quite fascinating as to what is a proper
resolution of this issue.
Mr. Pierson: My wife and I were struggling with this. She recently lost some close relatives
and of course I’ve lost both of my parents. I think it is like anything else in the
ultimate events of life. There are so many different kinds of situations. I would
think only over time could society come to a consensus. I think really over
time.
Mr. Krash: I agree with that. I think we are not there yet by any means. Technology and
science has affected this issue a great deal. One other serious problem that was
pointed out by Justice Souter is the slippery slope involved. Once you start to
recognize a right for a doctor to dispense a lethal drug, whom do you
recognize? Do you recognize it for people with Alzheimer’s, for example,
would you recognize it for children seriously deformed. I noticed that recently
in Belgium, a law permits assistant suicide for children. I am really troubled by
that. But the question is who would you permit it for? There are serious
religious issues for many people, various people who have different beliefs
about this. Another point is that you think of the doctor as a healer rather than
somebody who is going to hasten death if he hands out a lethal drug that really
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alters the role of what the physician’s role is. So it is a very complex and
difficult issue. But as I said, at the end of the day, I still couldn’t get over
thinking about the people like the petitioners in Glucksberg who were suffering
from terrible, advanced illnesses and doctors who were, I think, extremely
decent people, wanting to help them. The question is in a moral, just, decent
society should we allow patients like that and doctors at their request under
various safe-guards to give them a lethal drug? It is a very difficult issue, and I
have spent many years thinking about it. I have read a lot of stuff about it. I
still find it is a very complex issue.
Shifting to another event that happened in my life, I had previously mentioned
that I had taught seminars on litigation in Yale. In the early 1990s, I was
approached by my colleague, Bob Pitofsky, who was the Dean at the
Georgetown Law School at that time. He asked if I would like to come down
and teach a class at Georgetown. Georgetown has had a practice for many
years of annually inviting a member of the bar in the District to come to the
school and teach a course. They call the person involved a Distinguished
Visitor from Practice. Every year they invite some member of the bar to do
that. Bob Pitofsky was Of Counsel in our firm, and a very good friend of mine
going back many years; he was also the Dean of Georgetown. He knew of my
interest in legal education, and he I asked me if I would be willing to teach a
course and be the visiting professor for one term at Georgetown. So I thought
about it, and I said yes I would be willing to do that, and they asked me what I
wanted to do. I said I wanted to teach first year law students and I’d like to
teach constitutional law. They checked me out and came back and said fine. I
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went there, and they were extremely cordial. I had a small first year class that I
taught. At the end of my first year in teaching this constitutional law course,
the Assistant Dean came to me and asked me if I would I be willing to come
back for a second year. This was without compensation, and it involved my
going down to the school a couple days each week and teaching this course. I
said I’d be willing to do that. I came to the school the second year and I taught
there. At the end of the second year, the responsible dean came and invited me
to return again and told me in substance I could teach anything I wished. They
welcomed me and made clear they’d like for me to come. I thought about that
and then I said okay. I returned, and I taught a course there on litigation; I also
taught a seminar on the legal profession, and then I taught what’s called the
Federal Courts Course. It’s the course on federal jurisdiction, which is a very
complex challenging course and a very important course.
Mr. Pierson: Jurisdiction vertically or horizontally?
Mr. Krash: Federal Court Jurisdiction of all kinds. I used the famous case book by
Professors Hart and Wechsler. I did not have an appointment at the law school;
I was a visitor. They gave me an office, and they invited me to all kinds of
faculty events. I have not in any way participated in meetings relating to
appointments to the faculty. First of all, I don’t feel qualified to do that; it
would take an enormous amount of time; and I also felt that would be
inappropriate for someone who didn’t have an appointment to do that. I have
been invited to participate in graduation exercises. The folks at Georgetown
have been very welcoming and invited me to participate in the life of the
school, which I have enjoyed. Every year they’ve called me up, for almost 15
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or 20 years, they call me every year and ask me if I’d be willing to come back
and teach. I will be teaching starting in January 2014. I will be teach the
advanced Constitutional Law course in Georgetown.
Mr. Pierson: This is not the first year students.
Mr. Krash: No. At Georgetown, I’ll explain, the practice is that all of the first year students
are divided into small sections and they are required to take what’s called
Constitutional Law I, which consists of cases relating to the separation of
powers, federalism, and judicial review, and the basic structure of the
government. That is the Constitutional Law I course. The Constitutional Law II
course is an elective course in Georgetown for second and third year students
and consists basically of decisions with respect to the Fourteenth Amendment,
that is Due Process and Equal Protection issues, and First Amendment, that is
with Freedom of Speech and Freedom of Religion issues. These are exciting,
difficult and controversial issues, and it is an extremely interesting course to
teach. While it is an elective, the vast majority of the students take the course.
There are other professors who teach it. I teach one of the courses twice a
week. What’s been very nice for me is that it has been an opportunity for me to
meet many of the Georgetown Faculty. There are a number of excellent people
there; I have enjoyed meeting and talking with them and participating in the
life of school. I’ve been doing that regularly for about 20 years now from the
mid-1990s to now. As I said, I’ll be doing it again in mid-January, 2014.
Mr. Pierson: You’ve watched the Supreme Court go through a number of stages or versions.
Mr. Krash: Oh yes indeed. Let me say this, that one of the best ways to learn anything is to
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teach it. Although I have read a lot about Constitutional Law, still I find that
there are all kinds of things I don’t know. I continue to find things I don’t know.
I keep up with the Supreme Court decisions. I read nearly all of them as they
come down. I read a lot of the oral arguments, and I read a lot of the literature
in the law reviews. One of the things I came to realize was that teaching
requires an enormous amount of effort. If you are going to be serious about, it,
you have to prepare in a serious, conscientious way. I’ve done that and I try to
do that even though I’ve taught it before, there are still new cases coming out,
new articles being written, new issues that emerge. I have found it to be a
rewarding and interesting experience. The students are very good. Georgetown,
during the years I’ve been there, has evolved a great deal. There are many
talented, gifted young professors that they have recruited and they have a really
good student body. It is an intellectually exciting and good place, and I feel I’ve
been privileged to have this opportunity to be there. This all occurred following
my retirement in 1992. When you retire at Arnold & Porter, you have to give
up your palatial partner’s office, and you get an associate’s office. You get
secretarial support. It’s really quite a wonderful perk to have an office and
particularly all the support and facilities of a great law firm, which I fully
enjoy. If I want something from the firm’s law library, I just call up and they
are wonderfully responsive and helpful. Since I’ve retired, I’ve been coming to
the office nearly every day. That is really a matter of habit more than anything
else. But also I’ve been spending a couple of days a week at Georgetown. I
spend a good part of the day there. I pretty much ceased to practice after I
reached the age of 70 in 1997. The policy at the firm is that when partners
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reach retirement, they turn over their clients to younger men and women in the
firm and as I mentioned earlier, you withdraw from all administrative
responsibilities. I transferred my client responsibilities over a period of years to
the younger men and women and I withdrew from my administrative duties.
Mr. Pierson: How did the clients take that?
Mr. Krash: I think, on the whole, pretty well. You have to remember that the general
counsel with whom I dealt with were younger people. The problem was that if
I continued and went to meetings with the younger men and women, the clients
would look to me and the younger people wouldn’t really have the first chair
responsibility. I saw what was going on and I thought that wasn’t a healthy
thing. I thought that the younger folks should have their time in the sun, and so
I stepped back. Most of the clients were able to see that exceptionally able
attorneys were working with me. I was careful to cultivate the client’s
confidence in those people, and I was withdrawing slowly, but I did withdraw
and so in my early 70s I was pretty much withdrawn from most of the client
responsibilities. I found that at first the younger men and women would come
and consult me and seek my advice on various issues, but as time went, that
faded away pretty much, so I ceased to have clients with whom I had very
close contact over many years. In the last decade or so, I have had virtually no
contact with them at all.
In 2006, I decided to give a lecture at the Georgetown Law School on changes
in the legal profession from the time that I had begun to practice in the 1950s. I
revised the lecture and then published the article in the D.C. Bar Journal. The
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article was entitled The Changing Legal Profession. As I said in the article,
there are five or six major ways in which the profession has changed from the
time when I entered the profession.
First of all, when I began practicing law in Washington, DC in the early 1950s,
the firms were very small. The largest was Covington & Burling, which
consisted of about 50 or 60 lawyers. The Hogan firm consisted of about 30
lawyers. One of the great changes that has occurred in the profession since the
time I began to practice is the enormous growth in the size of the law firms.
When I started at Arnold & Porter, it was a firm of twelve lawyers; it is
presently a firm of about 800 lawyers. The Hogan firm now consists of a
couple of thousand lawyers, and the Wilmer, Hale firm consists, I believe, of
over 1200 or 1300 lawyers. A related development was the emergence of
branch offices. That was almost non-existent in the 1950s. But it is now
common place.
Second, another change is that the legal profession became very much more
competitive than it was when I began. Law firms now compete for practice in a
way that would have been unthinkable in the 1950s and 1960s.
The third thing that has changed is specialization. When I began to practice in
the 1950s, and certainly it was true up until the 1970s and 1980s, we were
generalists. We felt that we could handle anything that came in. As I previously
mentioned, I represented clients in anti-trust matters, auto safety matters, SEC
matters and I represented the cigarette industry in the FCC fairness doctrine
case. I represented clients in all kinds of matters before different agencies. I
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handled many legislative matters. I handled international matters. What has
happened in the profession since the last quarter of a century, is this
tremendous specialization so that clients now want to retain lawyers who they
regard as experts. If a client has an environmental problem, it wants lawyers
who have spent years practicing in the environmental area. If a client has a
securities problem, they want people who have done that; if they have an
antitrust problem, the same. Specialization very dramatically transformed the
legal profession.
The fourth thing that has changed, I think, is the demographics. When I began,
there was a great deal of discrimination against women, an enormous amount
of discrimination against black lawyers, and there was discrimination against
Jewish lawyers; Catholics were also subject to discrimination. One of the
things that has happened over the years, is a development that I regard as very
healthy, is the fact that a lot of the barriers have broken down. Not completely,
but there are now much greater opportunities for women, much greater
opportunities for black lawyers and for other minorities than there were a half
century ago. The demographics of the firm are very different. In my firm, we
have many women, we have many minority lawyers and that was not true in
the 1950s and 1960s. There were a lot of barriers. I don’t mean to suggest that
all discrimination has been eliminated from the legal profession, but the
situation has dramatically altered from what it was when I began.
The fifth thing that has changed involves developments in technology. In 1960,
we copied documents in a very cumbersome way. I remember going to the law
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firm of Sherman & Sterling in New York at that time and the lawyer there
showed me a copy of a document they were copying and it was on typewriting
paper. It was clear and you could easily write on it. I was told that the
document was reproduced by a process developed by a small firm in Brooklyn
called Haloid Xerox. I was astonished. We didn’t have computers until the
1980s. I remember going to Sperry Univac. I represented Sperry as I
mentioned earlier in the 1970s, and I saw the beginning of the computer
industry. The computer has profoundly transformed the practice of law. For
example, I don’t see how you can have many branch offices without a
computer because you couldn’t communicate about conflicts and other things
very rapidly. It would be very cumbersome and very difficult to do.
Mr. Pierson: When I was in the Justice Department in the late 1960s, early 1970s, they had
just acquired something called magnetic card machines. These were magnetic
cards which were the processor for CD and tape disks and there was one of the
few times where the Government was actually a little bit ahead of the curve.
Mr. Krash: Well, it took quite a while for it, but those of us in my generation were largely
computer illiterate. It was really hard to adjust. Not only the computer, but of
course the iPad, the new sophisticated telephones and the internet have
transformed the way law practice is conducted. Technology has had an
enormous impact on the way the law profession is conducted.
One of the differences that has occurred is the way lawyers are viewed by the
client. I think what has happened is that there has been a change in the
relationship between lawyers and clients. I think that lawyers are now regarded
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much more as technicians in the way that accountants might be. I don’t mean to
say that many lawyers don’t enjoy very close relationships with their clients,
but I think that has changed. When we sent out statements for legal services in
the 1950s and 1960s, we always sent a statement to clients for legal services
rendered in whatever the amount was (e.g., $22,000.00) and that was that. I
was almost never questioned about a fee statement. Today, clients insist on
very detailed computer breakdowns of the time spent on each matter for each
of the lawyers in the firm. Part of the explanation for the change is that clients
now have General Counsels who are very knowledgeable. When I began to
practice, they weren’t as experienced, but the General Counsels now are very
sophisticated and supervise the work done by the law firm much more closely
than was true when I practiced law. Some of the changes that have occurred, in
my view, are good changes. The demographic and technology changes I think
are good changes. Some of the other changes, I’m more skeptical about. I think
what has happened with firms like Arnold & Porter is that we have gone from a
partnership mode to a corporate mode. I think that is true in terms of the
relationships among people within the firm and the relationships of people
within the firm to clients. It would have been unthinkable for firms like ours
who had partners who reached a certain age to reduce their status in some way,
to pay them less income because they didn’t have the same kind of practice we
formerly had. We wouldn’t have thought of doing that. Moreover, there was not
the movement of lawyers from one firm to another. People came to a firm and
regarded the firm as a place with which they remained throughout their career.
The extensive movement of partners from one firm to another is a major,
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dramatic change. It occurred very rarely in my day, whereas today it is
commonplace. There is much more mobility, and people feel free to shift from
firm to firm. I think that the pressure on younger people also is very different
from when I was a young lawyer. What was then expected was that if one
worked hard and did excellent work, you could anticipate rising within the firm
and becoming a partner. Today that is not true. I think firms now want to know
whether young associates are going to cultivate a practice for the firm before
they are advanced to partner status.
Mr. Pierson: Abe, may I ask you how are all those changes of the profession have affected
our courts?
Mr. Krash: Well, It is hard to say. I think judges have become more skeptical of lawyers
perhaps. But that would be hard for me to demonstrate. What has also
happened is that the enormous expense of litigation has caused people not to
try to resolve matters by the litigation process. It is so expensive,
unpredictable, cumbersome and burdensome. Many clients just want to avoid
litigation if they can possibly do so. You have all these alternative resolution
procedures now that have developed.
Mr. Pierson: And so there are fewer cases going to trial?
Mr. Krash: I think so. The other thing is when I began to practice half a century ago, the
idea was that the practice of law was regarded as a learned profession. I think it
has become a much more of a business than it was then. Of course, it was
always a business, because it was a way of making a living, but if you have
very large law firms, which is what we now have, they are under enormous
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financial pressures. They have enormous expenses for overhead for staff and
facilities, and there are much greater financial pressures, than existed when I
began.
Another thing that happened was that beginning sometime around the early
1980s, particularly during the era of the great corporate takeover fights, what
happened was that the lawyers who were involved in these matters saw that
their counter-parts, people with whom they had gone to law school who were
working in investment bankers firms, were making enormous incomes. These
lawyers felt, well why shouldn’t I be making an income of comparable level.
The result was enormous pressure to make a lot of money. I have previously
mentioned that there was no such thing as branch offices at the time when I
began. You were a New York firm, or a Cleveland firm, or a Chicago firm, but
today, of course, it is common for firms to have many branch offices. Once you
do that, there are several implications that you have to appreciate. First of all, it
is almost impossible to have a common firm culture, because you haven’t
grown up together. It is impossible to know your colleagues in the same way.
How can you possibly know somebody well if your practice is in Washington
and you have partners in Los Angeles or London? You just don’t know them.
That really changes the whole atmosphere of practice. I think that there are
efficiencies of the practice that now accompany the things you can do, which
you couldn’t do previously. But it also alters the practice and the way we think
of ourselves as lawyers and colleagues. So those were very profound changes
during that time.
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At the end of our last session, there were several things that you asked me to
think about. You asked me to think of distinguished lawyers I’ve known and
also judges. You have to bear in mind that during the period when I was a
young lawyer and growing up as a lawyer, that Washington was a very small
legal community. There was a division between so-called local lawyers and the
people who had kind of a national practice, such as we did. But we still knew
many lawyers all around town. It still was a relatively small town in many
respects. Of the people I’ve known in my time, I would say, as I said
previously, that Abe Fortas was one of the best lawyers I ever knew, measured
by any standard. He was an extraordinary able man. There were many other
lawyers in Washington of outstanding ability. I had a lot of respect for Lloyd
Cutler, who I thought of as a person of a wide range of capabilities and talents.
He was a very gifted person. I knew Edward Bent Williams slightly, and he
was certainly one of the best trial lawyers of his generation. Hugh Cox,
Howard Westwood and Charles Ho of Covington, whom I never really knew,
were enormously respected lawyers in my time in Washington. There were a
number of younger men in Washington, for whom I have great regard. One of
them was Bob Wald, who was Patricia Wald’s husband. We were very good
friends. As I previously mentioned, I have the utmost regard for Patricia Wald;
she recently received the Medal of Freedom from the President. I was also very
good friends for many years with Fred Rowe, who was a partner in the
Kirkland firm. He was the author of a book on the Robinson-Patman Act. He
retired some years ago. He was a person with outstanding abilities. Dan
Margolis and I were good friends; there have been many exceptionally able
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people within my own firm, such as Dennis Lyons, who was the president of
the Harvard Law Review and a law clerk to Justice Brennan, who was certainly
a person of extraordinary ability. He was one of the most capable people I have
ever met. There were many other outstanding lawyers here at Arnold & Porter
over the years, I include such people as Stuart Land, Bud Vieth, Jerry Hawke
(who served in the Government as head of Federal Deposit Insurance
Company), Melvin Garbow, Paul Berger, Walter Rockler, Jim McAlee, Mike
Curzan, Bill Rogers, Peter Bleakley, Murray Bring, David Kentoff, and Bruce
Montgomery. I was privileged as I mentioned earlier to have exceptionally able
younger people working with me, including among others, Daniel Rezneck,
Jerome Chapman, Len Becker, Robert Weiner, and Merrick Garland, (who is
now Chief Judge of the U.S. Court of Appeals). Robert Winter, Melvin Spaeth
and Jerome Chapman worked together with me on many matters and I have
high regard for each of them. There were other very gifted people who worked
together with me, such as Brooksley Born, who has been a great champion of
women in the law.
You asked me about judges that I’ve known. One of the outstanding judges I
encountered was a judge in New York. His name is Edward Weinfeld. I
thought he was a person of extraordinary thoughtfulness and ability. He was a
superlative District Court Judge. I did argue in various courts of appeals
throughout the country. I met briefly Judge Henry Friendly, but I never
appeared before him. I regard him as probably the greatest federal appellate
judge in the last 30-40 years. He was an extraordinary individual. I also have a
lot of respect for Judge Richard Posner, whom I know slightly. There were
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many fine judges in the District, for whom I have great regard. I thought very
highly of Judge Harold Leventhal, who regrettably died at an early age, but he
was a very gifted man and a very fine judge. I knew Judge Bazelon quite well.
We were friends. I believe Judge Gerhard Gessel was excellent.
You asked me, reflecting on my own experience; what I would say was the
virtue most prized among lawyers. I think most lawyers would agree that, good
judgment is probably the most valuable quality. I’ve given a lot of thought over
the years to how you teach good judgment. I don’t know how you can teach
good judgment. I don’t think you can. I think you may be able to teach it to
some extent by example. I learned it by being around people older than myself
and watching them. Another virtue which I think is critical is what I call moral
courage. It is the ability to stand up in court before a judge who is critical of
your position and respectfully and firmly stand your ground. It is the capacity
to reject a client’s demand for an opinion which you know it is not wise or
prudent or correct. It is the ability to stand up on behalf of someone who is
being discriminated against. Again, I don’t know how you teach people moral
courage. I’m not sure that it can be taught. It is a quality that is maybe innate.
To some extent, I think you learn it by seeing other people who encourage you
to stick your neck out. Those two qualities, that is good judgment and moral
courage, are two of the qualities which I believe distinguish the very best
lawyers. The other thing I would say I have learned is that there is no substitute
for preparation. I’ve never known anyone who was a first rate lawyer, in my
judgment, who didn’t have to work hard. There is just no way out. That is the
nature of the beast. In terms of mastering the facts of the situation and getting
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on top of it, it just requires enormous work. You really have to work very hard.
Another thing that has struck me is that people who were, not necessarily the
most gifted in terms of their ability to take a law school exam, turned out to be
excellent lawyers, because they had virtues such as imagination, the capacity to
persist, good judgment, and good inter-personal relations.
Mr. Pierson: I’m deeply impressed by your summing up. I have nothing to add.
Mr. Krash: I should conclude by noting that the past year, 2013, was the fiftieth
anniversary of the Supreme Court’s decision in the Gideon case. I am the only
survivor in our firm among the four lawyers who were named in the brief we
filed on behalf of Gideon. I was invited by many organizations who wanted to
commemorate the decision to participate in seminars or panels, or to give a talk
about my experience with the case. I participated in a very fine seminar on the
representation of indigent defendants at the Yale Law School. I spoke at the
Judicial College in Reno and to the Public Defenders in Charleston, South
Carolina. I learned a good deal about the right to counsel. It was a very
interesting and enjoyable experience.
I am sometimes asked if I would be a lawyer if I had a chance to start over
again. Nobody in my family was a lawyer. When I went to law school, I never
even thought about being a lawyer. I thought about being a newspaper man. I
found that the practice in the period from 1950 to the 1980s was very
challenging and I especially enjoyed that period. I think that there are presently
exciting, challenging and worthwhile things for young people to do in the law.
It is just tougher than when it was when I began.
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Mr. Pierson: Thank you very much Abe, this has been a remarkable event for me and I hope
for you too.
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