David Isbell Text of Interview: April 14, 2009

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Oral History of
DAVID B. ISBELL
NINTH SESSION – APRIL 14, 2009
Sinclair: This is the ninth and final interview of David Isbell’s oral history for the D.C.
Circuit Historical Society.
We’re going to begin today with two interesting anecdotes relating to David’s name—the
first one relating to his middle name and the Daughters of the American Revolution, and the
other relating to his family name. So with that introduction—
Isbell: My middle name is Bradford—so the full name, which I seldom use, is David
Bradford Isbell. I generally just use only the middle initial. But the reason for the Bradford is
that one of the New England Isbells, the first of whom came to Massachusetts in the 1630s,
married someone in the line of heritage of William Bradford—the William Bradford, who was
the first Governor of the Plymouth Colony. Over the years I’ve run into several other people
whose middle name was Bradford for the same reason as my parents gave me that middle
name—that is, they can claim descent from the William Bradford. (And my son Nicholas has
that middle name, as does one of my grandsons—the one who, tragically, is autistic.)
One of those people was a man named William Bradford Reynolds, who rose to some
prominence during the Reagan Administration. He was nominated and confirmed as Assistant
Attorney General for Civil Rights, which didn’t seem to be a particularly appropriate position for
him because he was very conservative and not a vigorous proponent of civil rights. He was later
nominated for promotion to the position of Deputy Attorney General, but that nomination stirred
up a storm of opposition, and failed of confirmation by the Senate. I’m not sure, but I think the
event I’m about to recount took place before the failure of that attempted promotion, but
certainly after he had become widely known for his conservative views.
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There came a time when I was asked whether Florence and I would be willing to host an
evening get-together of the Yale Law School Association of Washington (of which, at one time,
I had been President). The Association occasionally arranged such gatherings at the home of
some member, where there would be light refreshments served and there’d be a guest speaker,
who’d give a talk and then take questions from the audience. We had previously hosted such a
meeting several times, and whenever asked we’d agree to do so unless we had some prior
commitment for the date that was contemplated for the event. So we readily agreed to do it on
this particular evening, without knowing who the special guest was going to be. When we
learned that the guest was going to be Reynolds, Florence, who is a very committed supporter of
civil rights as well as civil liberties, was appalled, but I wasn’t about to rescind our acceptance of
the request that we host the event simply because we disagreed with the proposed speaker, so we
went ahead with it.
When Reynolds arrived at the door that evening, I recognized him immediately because
his name and face had been much in the media. Of course, I introduced myself and welcomed
him. A little later, in the light refreshments portion of the evening, I introduced Reynolds to
someone else, identifying him as Bill Reynolds, and he said, “No no; that’s Brad”—meaning that
he customarily used his middle name instead of his first name. By coincidence, I had had
occasion not long before that to make a calculation as to what portion of my gene pool would be
attributed to this great-great-great-great-great-great-great-great-great grandfather—twelve
generations back, I think—and I’d calculated that that number meant that unless there’d been
some intermarriage among his descendants along the way, William Bradford’s genes would have
accounted for no more than 1/4096th of my gene pool. And so in response to Reynolds’
insisting on being addressed as Brad, I said, “I’m sure your middle name is Bradford for the
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same reason as mine is—namely that you’re descended from William Bradford,” and then I
explained I had recently calculated how little of my gene pool was attributable to the Bradfords.
He said, “Oh, I’m closer than that.” Unfortunately, I simply laughed at that response, although it
occurred to me afterward that a better response would have been along lines of asking if he was
merely 11 generations away, and so could claim a 1/2048th Bradford component in his genetic
inheritance, or even 10 generations, with a 1/1024 .
th
I had made that the calculation of the portion of my gene pool attributable to this
distinguished ancestor in preparation for giving a talk in federal District Court in connection
with the swearing-in of new citizens. It was, I guess, the standard practice in the District Court,
that such swearings-in would be rotated among the judges of the District Court, and whichever
judge had the responsibility for a particular year’s ceremony would invite the incumbent
President of the D.C. Bar to give a talk to the new citizens. So I had prepared a talk that made
reference to the common trait of pride of ancestry among Americans who could claim multiple
generations of American forbearers, in order to make fun of that kind of thing, which really
doesn’t deserve to be taken seriously. In that connection, I was planning to tell the true anecdote
of Franklin Roosevelt’s addressing the Daughters of the American Revolution. Have you ever
heard of that?
Sinclair: I don’t think so.
Isbell: Well, the Daughters of the American Revolution, or DAR, took great pride in
being able to trace their American ancestry back to the 18th century. And, when Roosevelt had
spoken before the DAR, he had tweaked them gently about that by addressing them as “Fellow
Immigrants.” I also planned to make self-deprecatory reference to my own ability to claim one
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of the original Pilgrims who arrived in America in 1620 as an ancestor, by pointing out how
minuscule a portion of my genetic inheritance could be traced to him.
As I entered the courtroom on that occasion, however, I noticed that sitting in the jury
box were a group of women who can best be described as Helen Hokinson women. I don’t know
whether that name will mean anything to you, but Helen Hokinson was a cartoonist for The New
Yorker whose cartoons always involved women of a certain age—sort of middle class, maybe
upper-middle-class women, and generally with an ample bosom. These women in the jury box
just looked like that kind of woman, and they all had badges on their chests. I looked closely
and realized they were from the DAR. They were there to make a little speech of welcome to
the new citizens. So, happily, I saw that before it was my time to speak and so was able to avoid
making fun of the DAR, although I did talk about the statistics of my relationship with my
ancestor, William Bradford.
Sinclair: Saved by the bell!
Isbell: Yes!
Sinclair: Now, the other interesting anecdote relating to your name has to do with your
family name, and is referred to in your notes as “Extraordinary Circumstances.” We’ve briefly
discussed it, but I don’t know the details. Please enlighten me.
Isbell: Well, this has to do with the relative rarity of the name, the family name Isbell.
Have you ever met another Isbell?
Sinclair: I have not.
Isbell: Ever seen the name before?
Sinclair: It was not unfamiliar to me, but I couldn’t place it specifically.
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Isbell: Well, that could have been because the name got some public exposure when I
was President of the D.C. Bar. Anyhow, most people I meet, unless they are from the Deep
South, where the Isbell line seems to have been more fertile than in New England, where I came
from, have never met another Isbell. And until the incident I’m about to recount, I had only met
two Isbells who were not in my immediate family.
Sinclair: So what was that incident, and when did it occur?
Isbell: It occurred, probably, sometime in the 1970’s, at a time when I was preparing a
case for trial in Pittsburgh, and I called Florence from Pittsburgh to tell her when I was coming
home. She, at that time, was the staff director of the local affiliate of the ACLU, and she had a
private line in her office. I dialed the number of that private line, and a woman answered. I
knew from her voice that she was not Florence, so I said, “I’d like to speak to Mrs. Isbell,” and
she replied, “This is Mrs. Isbell.” It turned out that I had dialed the area code for Western
Pennsylvania rather than the one for D.C., and I’d reached a woman in the Pittsburgh area whose
phone number, aside from the area code, was the same as Florence’s private line, and whose
family name happened to be Isbell. So that was an interesting coincidence, but it was not the
end of this story. About a year later, I was walking around the firm’s offices for no special
reason, and I noticed that there was a secretarial nameplate saying Miss Isbell, so I went into her
office and introduced myself, and then told her the story about my phone call from
Pittsburgh—and she said, “That was my mother.”
Sinclair: Wow!
Isbell: You know, you could write that up as a sort of O. Henry short story, and you
couldn’t sell it. It’s just too improbable!
Sinclair: Right, exactly. That’s amazing!
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Isbell: But it is a true story and that young woman is still at the firm. She’s married
now, no longer named Isbell, but when I run into her in the halls, I address her as Cousin.
Sinclair: Now, let’s turn to the “taper-down and move to senior status period” in your
career. Why don’t you start by telling us about the firm’s policy for tapering down and moving
to senior status?
Isbell: The firm agreement, as it affected me and others of my seniority in the firm,
provided that when a partner was going to reach the age of seventy during the firm’s fiscal year,
he will acquire senior status as of the start of that fiscal year—which is to say, on October first of
the previous calendar year. That status meant he or she would no longer be a partner in the sense
of sharing profits, or of having a vote on partnership matters. He or she would no longer be
expected to practice law, although he could continue to do so if he wished to do so, in which
case he bore the title of senior counsel rather than partner. He could also choose to give up the
practice of law entirely, and would then be called a retired partner. In either case, he would be
entitled to a pension whose amount was a specified fraction of the average of five years best
earnings as an active partner. Prior to the age at which one became senior, there was at that time
a five-year “taper-down” period, during which in each successive year, his take from the firm
was diminished until, upon reaching senior status, it would be at the level of the pension.
So I started the taper-down process on October 1, 1993, the start of the fiscal year in
which I would have my 65th birthday, and then five years later, in October, 1998, I acquired full
senior status. After my class, and maybe one more class, the firm agreement was changed both
to move up the compulsory senior status to age sixty-five, and to abbreviate the taper-down
period to two years. Under both the earlier and this revised firm agreement, a partner could also
take senior status earlier than the mandatory time. I’m not sure exactly where things stand now,
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but I’m pretty sure the compulsory senior status is still sixty-five. I must say I was glad that it
wasn’t sixty-five at the time I reached that age.
Sinclair: Why?
Isbell: I rather resented being put out to pasture at seventy, and would have resented it
the more if it had come earlier. But I must confess that I’ve gotten well adjusted to it by now.
Sinclair: During the taper-down process, were you working fewer hours?
Isbell: Well, since our take was reduced, I must confess, I reduced my time progressively
too, although I have since heard it said that the idea of the taper-down period was that the partner
would continue to do revenue-generating work at the same pace as before, and his reduced take
would accumulate savings for the firm that would help to finance his pension after he acquired
full seniority.
Sinclair: Did you enjoy the taper-down process?
Isbell: Well, at first, as I’ve said, I somewhat resented it. I didn’t like the idea of not
practicing, which was going to be the eventual result. But I think during that taper-down period
I got accustomed to the idea and I found myself with a leisure that I wasn’t used to having. That
turned out to be pretty easy to get used to. In addition, I wasn’t totally loafing during the taperdown period, and I’m still not doing so, though I have eased off significantly in the last few
years. I had taken on two new good works projects in 1992, partly in anticipation of the
upcoming taper-down period—the Veterans Consortium Pro Bono Program and the Disability
Rights Council—both of which we discussed in our last session. Also, as we’ll discuss later in
this session, in 1995 I undertook the preparation of a summary of the law of lawyering in the
District of Columbia, which was truly an enormous project. And, in 1996, I started teaching a
course in Professional Responsibility at Georgetown, in the spring term, while continuing with
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the Civil Liberties Seminar at the University of Virginia, so it hasn’t been a totally leisurely and
nonprofessional life I’ve lived since acquiring senior status.
Sinclair: Why, at sixty-five, did you still feel—Did you still have energy? You still had
energy and you still wanted to do it? You didn’t want to give it up? Was that it?
Isbell: Yes.
Sinclair: By the age of seventy, had you changed your mind? Were you a little bit more
willing to let go?
Isbell: Yes, I can’t say I was totally reconciled to the idea, but I was getting used to it.
Sinclair: You said there was an option to go retired or to go senior and still practice. Why
did you choose senior counsel?
Isbell: Well, because I wanted to continue to at least have a hand in practice. I knew I
wanted to continue to teach, although it really wasn’t necessary for me to have kept my senior
counsel status in order to teach. Teaching isn’t the practice of law, so that a lawyer who’s no
longer admitted to a bar would be engaged in the unauthorized practice of law by teaching law.
But I was also still handling matters that did involve actual practice, and billable time. I was
interested in them and I wanted to keep doing them—and to stay being available to do them,
too—although now I’ve finally gotten to the point where I’m more likely to refer a would-be
client to a colleague in the firm or else to a lawyer in another firm.
Sinclair: Since the time you took senior status, about how much have you worked per
year? How many hours or so?
Isbell: Well, I believe I reported to the firm somewhat more than 1,000 hours for the
fiscal year ending September 30 of last year. That doesn’t mean that number of billable hours,
of course; most of the time I report is not billable—teaching, for example, or working with good
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works organizations of various sorts—or, one of the things I’m now actively engaged in is, as a
member of the Committee on Admission and Practice of the U.S. Court of Appeals for Veterans
Claims, investigating possible disciplinary actions against practitioners before that Court.
So, I still report time, though the reportable time is seldom more than five or six hours in
a day, and often much less, since not everything I do at the office is of interest to the firm at all.
Sinclair: Five days a week?
Isbell: It does continue generally to be five days a week, although my starting hours tend
to be later and my departures earlier. I also feel free to take a particular day off or even a week
or more off if I’m so inclined and the time in question hasn’t already been committed for
something that will require my presence at the firm. In fact, this last summer (2009), I took five
weeks off, at home, to enjoy a series of visits by my son and my daughter who live in London
and Paris, respectively, and by five of their six children.
Sinclair: Has your billable work mostly focused on counseling, or has it been litigation?
Isbell: I haven’t done any litigation for some years now—in fact, the disciplinary matter
involving the former federal Judge Abraham Sofaer, which I will describe a little later, which
ended in 2000, was the last litigation that I handled. My avoiding litigation is largely due to my
hearing having continued to deteriorate, and, of course, litigation really requires that you hear
what’s being said. So such legal practice as I engage is solely counseling.
Sinclair: Professional responsibility, is that it?
Isbell: Almost entirely, yes.
Sinclair: Can you describe, maybe give a couple examples, of some of the matters you’ve
worked on?
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Isbell: There’s a small white-collar litigation boutique that has occasionally sought my
advice about cases that they were handling or had been asked to handle; also, a handful of
instances where I gave advice to lawyers and/or their firms about how to respond to inquiries
from the Office of Bar Counsel, which ordinarily are triggered by a complaint by a third party.
I’ve been consulted from time to time about ethical matters by a cause organization called the
Government Accountability Project, and about issues in the same area by AARP, which is a
paying client of the firm There is also a quite prominent tax firm that I’ve advised on ethical
issues from time to time.
Sinclair: Your mentioned a matter involving Abraham Sofaer; what was that?
Isbell: That was a matter that came to me because of my expertise in professional
responsibility, but wound up as litigation—and as I’ve said was the last piece of litigation I
handled. That came to me while I was still in the taper-down period, and concluded, so far as
my participation was concerned, after I was senior counsel.
Abraham Sofaer had had a very distinguished career. He was a United States District
Court Judge, then he was the Legal Advisor in the State Department, in the Reagan
Administration. While he was in the latter position, he was involved, in the sense of giving legal
advice, in the President’s decision to bomb Libya, in retaliation for Libya’s responsibility for the
bombing of a nightclub in Germany where American servicemen were killed and likely the
targets of the bombing. I can’t remember the exact year of that. In any event, the matter in
which I represented him came up several years after he had left the State Department (in 1990)
and gone back to the Hughes Hubbard & Reed law firm, where he had had his professional
career before he was appointed to be a District Court judge and then Legal Adviser at the State
Department.
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The case in which I represented Judge Sofaer related to the bombing of the Pan Am flight
103 over Lockerbie, Scotland, in December 1988, killing all 259 people who were on the plane,
and eleven persons on the ground where the plane’s wreckage landed. (It should be noted that
that tragic event occurred at a time when Sofaer was still at the State Department.)
There was, of course, a good deal of public outrage about that bombing, and the killing of
all those innocent people (who included my son Pascal’s best friend from college, and a brother
of one of my partners). There were indications that Libya was responsible for the Pan Am 103
bombing, and that it had been done in revenge for the retaliatory bombing of Libya under
President Reagan, so the public anger was largely directed against Libya (although the victims’
families also brought a suit against Pan Am). Moreover, the United States managed to identify
two secret agents of the Libyan government who had been involved in planting the bomb on
flight 103, and the Justice Department, in 1991, indicted both of them for it. Both the United
States and Great Britain demanded that Libya deliver up the two indicted culprits for trial, and
that it pay substantial compensation to the families of the victims (who had also sued Pan Am
and attempted to sue Libya).
Initially, Libya denied any responsibility for the Pan Am 103 bombing, and stuck to that
public position for several years. However, in 1992 or ‘93, Sofaer was approached by
intermediaries acting on behalf of the Libyan government, to ask if he would be willing to
represent Libya in attempting to negotiate a settlement that would include both producing the
two indicted Libyans for trial and payment of compensation to the families of the victims of the
bombing.
Sofaer was admirably well qualified to undertake an engagement of that sort, and he
persuaded the Hughes Hubbard firm to agree to taking on that challenging engagement. An
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engagement letter was prepared, calling for Libya to pay the firm a fee of three million dollars a
year, in quarterly installments, and a large staff of firm lawyers was assigned to work on the
matter. Given the public fury against Libya generated by the Pan Am 103 disaster, the firm’s
management anticipated some adverse publicity when news of the firm’s representation of Libya
about that very event hit the newspapers, even though the object of the representation was to
bring about the very results that the United States, the United Kingdom and the families of the
victims of the crime were all demanding. Sofaer, however, evidently did not foresee the
vehemence with which the firm’s press release announcing the representation of Libya would be
greeted by the public; indeed, he was so shocked by it that he decided to cancel the
representation (and, among other things, return the first of the quarterly fee installments, which
had already been paid).
It should be noted that negotiations of the very kind that Sofaer undertook to pursue on
Libya’s behalf did eventually occur, and resulted in Libya’s producing the two indicted
defendants for trial in Scotland (one of whom was acquitted and released; the other found guilty
and sentenced to life in prison, though he was recently released, terminally ill with cancer, and
allowed to return to Libya); and paying several billions of dollars in compensation for the
families of the victims of the bombing. But Sofaer and Hughes Hubbard were not the ones who
brought that settlement about.
The withdrawal of Sofaer (and Hughes Hubbard) from the representation of Libya was
not the end of the story for Sofaer, however, for not long after that withdrawal had been
announced, he received an inquiry from the D.C. Bar Counsel, who at that time was Leonard
Becker, asking for information regarding that representation and suggesting that Sofaer’s
undertaking it might have violated Rule 1.11 of the District of Columbia Rules of Professional
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Conduct, which prohibits a former government lawyer from accepting “other employment in
connection with a matter which is the same as, or substantially related to, a matter in which the
lawyer participated personally and substantially as a public officer or employee.” It should be
noted that the D.C. version of Rule 1.11 varies significantly from the version that appears in the
ABA Model Rules and in the corresponding Rule of every other American jurisdiction (save
California, which has no rule whatever on the subject), in prohibiting a former government
lawyer not only from participating in the same matter as one the lawyer had participated
personally and substantially while in government, but also from participating in a substantially
related such matter. In no other American jurisdiction would Sofaer have been in ethical
jeopardy for having briefly undertaken his representation of Libya.
It was at that early point in the dialogue between Sofaer and Bar Counsel (in July 1993),
that I was retained as counsel to Sofaer. (Of course, Covington was also retained, but I was in
charge of the representation.) That representation continued until 2000, and throughout that
period it was the principal billable professional matter in which I was engaged.
In Bar Counsel’s initially tentative view, the matter in which Sofaer had participated as a
public officer or employee that was substantially related to his aborted representation of Libya
was his involvement, while Legal Adviser in the State Department, in the decision to bomb
Libya in retaliation for its bombing of the nightclub in Germany in which some American
service members had been killed. Over time, as Bar Counsel and I exchanged information and
argument, Bar Counsel changed his theory and found the necessary substantial relationship
instead in the circumstance that Sofaer had still been the State Department Legal Adviser when
the Justice Department was still investigating the Pan Am 103 bombing, and so had some
knowledge about it that was not publicly known.
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After considerable fact collecting and exchanges of views between Bar Counsel and me,
he offered Sofaer a settlement in which he would find that Sofaer had violated D.C. Rule 1.11,
but would impose as a penalty only an informal admonition—the very lightest of possible
penalties, and one that at that time would not have been made a matter of public record (though
it would have been reported to other jurisdictions in which Sofaer was a member of the Bar).
That mildest of all possible disciplinary penalties was the most ever urged by Bar Counsel or
approved by any reviewing panel or court, but Sofaer steadfastly refused to accept any
condemnation at all, however mild.
So, the matter went to a Hearing Committee, which sustained Bar Counsel’s view, albeit
by a divided vote, and then an appeal to the Board on Professional Responsibility, which again
upheld Bar Counsel’s charge, though again by a divided vote, and then an appeal to the D.C.
Court of Appeals, at which point Sofaer told me that although I had done an admirable job in
representing him, he had retained Sam Dash, then a faculty member at Georgetown University
Law Center, to brief and argue that appeal. He also asked me, however, to continue on the
matter, assisting Dash in preparing his brief and arguing the case, albeit without pay. By that
time I had gotten so engaged in the matter that I was quite willing to continue in that limited
capacity, and I had considerable input on Dash’s draft brief, though he declined to make one
argument that I proposed and that I believed would have been a likely winner. A panel of the
Court of Appeals unanimously approved the decision of the board, and a motion for
reconsideration en banc, in which I had no involvement, lost by a tied vote, and ultimately, with
other new counsel, Sofaer made an unsuccessful effort to secure review by the Supreme Court.
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Sinclair: Switching subjects, I see your notes regarding your activities in this period of
your taper-down and eventual senior status at the firm a reference to “Summer Associate
Brunches.” Tell me about those.
Isbell: In 1994, I was asked if Florence and I would be willing to host a brunch on
Memorial Day for the summer associates. That was something of an innovation as part of the
summer associate programs. There had previously been a practice of having some events (like
visits to an art gallery) every summer to which all the summer associates and all the firm’s
Washington lawyers were invited, but none of those was repeated every year, as was proposed
with these brunches. Earlier—indeed, in my first ten years or so as a lawyer with the
firm—there had been a very large event to which all lawyers, summer associates and spouses
were invited, at Eddie Burling, Jr.’s magnificent estate, Dinwiddie, in Middleburg. The
proposed summer associate brunches would not similarly involve invitations to all the firm’s
lawyers and their spouses, since our house and garden, though probably larger than the average,
were not big enough to accommodate that large a group, so only lawyers who were summer
siblings to summer associates would be invited to these brunches.
Anyhow, we agreed to host a brunch, for the summer associates, which became a garden
party and brunch. We did that for ten years, starting in 1994 and ending in 2003. It was quite a
popular event and gave us a chance to meet a lot of summer associates. There came a time in
2003 when the powers-that-be decided that the party should be given by someone younger than
this oldster and his wife. So it has been given since by a younger partner, Mark Lynch, and his
wife, who have a nice garden, too, so it is also a garden party. The Lynches are always kind
enough to invite us to their party for the summer associates, even though I no longer have the
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pleasure of having a summer associate to be an adviser to (a position I refer to as a summer
sibling).
Sinclair: Did you enjoy hosting those garden parties?
Isbell: Yes, I did. They were fun parties, and they gave me an opportunity to meet the
summer associates.
Sinclair: Did Florence enjoy it?
Isbell: Yes, I’m sure she did and does; we give an annual garden party for our friends
every Fourth of July.
Sinclair: Okay, would you like to talk about who here at the firm has been particularly
important to you? I see your notes mention three lawyers.
Isbell: Let me try to be brief on that. In my notes I identified three colleagues who had
been of particular importance to me, one of them being Charlie Horsky.
Sinclair: Why did you identify Charlie Horsky?
Isbell: I guess I’d heard something of Horsky before I came to the firm, but it wasn’t
until I actually arrived that I came to fully realize what an extraordinary career of good works
and distinction as a lawyer he had. As I mentioned in one of our earlier interviews, he had
argued the original Korematsu case, and of course lost that, but through no fault of his. As I’ve
also mentioned, when I came to the firm, he was chairing a committee that got to be called the
Horsky Committee—one of many such committees that he chaired, and that were so
named—this one being concerned with the police practice of arrests for investigation.
So I decided very early that I was going to try to model my career on Charlie Horsky’s.
He was also engaged in a paying practice, making plenty of money for the firm, but managing to
do all sorts of pro bono activities at the same time. I soon discovered, though, that I simply
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didn’t have the capacity to do anywhere near as many things at the same time as Charlie had. As
I’ve previously mentioned, when he went to the Kennedy White House in 1962 to be Kennedy’s
advisor on national capital area affairs, he not only turned over to me the seminar on civil rights
law that he’d been teaching at the University of Virginia, but he also dropped all of his other
public interest activities, which included the chairmanships of the Bankruptcy Conference and of
the American Civil Liberties Union affiliate of the National Capital Area, of which he was the
founding chair; the (D.C.) Commissioners’ Planning Council (of which he was President), and
the United Negro College Campaign for D.C. (Chair). (He was also a member of the Board of
Directors and later Chair of the Washington Horse Show, and at one time was Chair of the
Democrats for Agnew (at the time that Agnew was running against a racist Democrat in the
Maryland gubernatorial race.)) When Charlie was on a board or a committee, he’d inevitably be
elected as Chairman, and he’d be an active chairman and not just a figurehead.
There came a time in the early 1990’s when Charlie became quite incapacitated
physically, though certainly not mentally, and had ceased coming to the office every workday in
his 15- or 20-year old convertible. He was living alone at home, his wife having died several
years before, and he was cared for by several women who had been hired by the firm for that
purpose. He had to undergo dialysis every week, at home, and he came to be unable to use his
lower limbs, and so had to move around in a wheelchair. I had become quite devoted to him,
and so far as I could tell, I was the only firm lawyer who took the trouble to spend any time with
him. I would take him out from time to time on weekends, simply to ride around in the car and
see familiar places, and on one occasion I brought him home to join our large family
Thanksgiving dinner. I also brought him to our house on several occasions for a more intimate
dinner with colleagues from the firm.
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Charlie was an avid reader, but I found that he was unacquainted with the series of books
by Patrick O’Brien about the British Navy in the Napoleonic era, featuring an officer named Jack
Aubrey, and his close friend, Steven Maturin, who was on his ship as a medical officer but also
was involved in intelligence activities. There was a series, I think, of eleven books all about the
same cast of characters. There was a movie made recently which was called Master and
Commander: the Far Side of the World, with Russell Crowe as Jack Aubrey, based on two of
those books that bore those titles. Anyhow, I’d enjoyed those books so much that I acquired and
read each one as soon as it came out; I found that Charlie had never heard of them, so I brought
them to him, a new one each time I came to visit him; and he enjoyed them, too.
Charlie died in 1997, at the age of 87, not long after having been the first recipient of the
Charles Horsky Award, newly created by the Brennan Foundation at New York University—the
last event to which I managed to take him.
The second partner I have listed as of particular importance to me is John Douglas, who
had become a partner shortly before I arrived at the firm. He was a graduate of Princeton (where
he’d played football) and of Yale Law School; he’d clerked for Justice Burton on the Supreme
Court, and he’d been a Rhodes Scholar. While at Princeton, he’d been a roommate of Nicholas
Katzenbach, who’d also been a Rhodes Scholar and was a professor at Yale Law School when I
was there. When the Kennedy Administration came in, Katzenbach was appointed Assistant
Attorney General for the Office of Legal Counsel (and subsequently Deputy Attorney General,
and still later, Attorney General), and I think at Katzenbach’s suggestion, John was appointed as
Assistant Attorney General for what was then called the Civil Division. John invited me to join
him at Justice as his personal assistant, which was a mightily tempting offer, but I had just come
back to the firm from my stint at the Civil Rights Commission and had made the decision to
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establish a base in practice from which I could later go to government service and to which I
could then return, so I decided to stick with that decision.
After serving at Justice during the Kennedy Administration, John came back to the firm
and he became something of a mentor to me. He also got me involved in Bar activities. As I’ve
previously mentioned, John was the third President of the D.C. Bar, which was newly
established in the early ‘70s. In that capacity he appointed me as Chair of a committee to
Consider Possible Bar Support for Public Interest Activities in 1975. That committee submitted
its Report (which I’m sure I drafted) to the Bar Board of Governors in 1976, recommending that
the Bar provide support for various kinds of public service activities. That committee launched
my career in the D.C. Bar, and, in due course, one in the American Bar Association as well, as I
have recounted more fully in an earlier interview.
To get back to John Douglas, he and I remained in close contact during the times when I
was pursuing the foregoing Bar activities, and occasionally I’d ask him for advice about
something. He and his wife Mary became quite close friends of Florence and me. He was also
active on the board of the Washington Lawyers’ Committee, and Florence was an employee of
the Washington Lawyers’ Committee on Civil Rights Under Law for a while, so they got to
know each other there. He had been, indeed, among the founders of both the National and the
Washington Lawyers’ Committees on Civil Rights Under Law. John was also for some period
Chair of the board of the Carnegie Foundation, and he also served a term as Chair of the Yale
Law School Association.
At the time that John, along with several other firm lawyers, was acquiring senior status,
there was a gathering of the firm’s partners at which one of us spoke about each of those senior;
I spoke about John, and part of what I said then was the following:
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The word that came first to mind when I thought about proposing a
toast to John Douglas was “exemplary.” Two senses of the word seem apt
for him. One is that of setting an example to be emulated and admired;
and John, in his personal, his professional and his public life alike, surely
does that—he is a man to look up to.
The other sense of the word has to do with exemplifying—with
embodying characteristics of some institution or collectivity. And John
does this with respect to the institution that is our law firm, in two
particular respects over and beyond the simple technical brilliance that of
course we all share.
One is unpompousness. I mean by this not simply
unpretentiousness but a certain affirmative rejection of pretension. John
. . . may, to be sure, sometimes carry this rejection too far. For example,
in the domain of sartorial pretension, John has been known
occasionally—particularly on the tennis court, to embrace what might be
termed the Neo-Good Will Industries style of dress.
I do not mean to suggest that Covington & Burling, or John, can’t
be formal, dignified or even elegant with the best of them, when occasion
demands; nor, indeed, is there anything wrong with our doing so. I do
suggest that we also have a tradition . . . of valuing the inner substance
much more than the outward glitter. John carries on that
tradition—exemplifies it—with characteristically modest gusto.
The other characteristic of the firm of which John is an exemplar is
commitment to public service. He has been, and remains, l’Homme
Engagé, as André Malraux put it (or should have, if he didn’t). [Here I
cited his various posts and accomplishments].
The third lawyer that I consider to have had particular significance for me was Chuck
Ruff, who became best known for having been White House counsel and represented President
Clinton successfully in his impeachment trial. He’d had a career first in academia, teaching at
four different law schools at different times. One of the law schools at which he taught was in
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Liberia, in Africa. While there, he contracted the disease that left him confined to a wheelchair,
which appeared for all the world to be polio, though he was told that it wasn’t polio, but rather a
disease that medical science could not identify. In any event, its effect was very much the same
as if it had been polio.
However, that disability and confinement to a wheelchair didn’t stop him from going
anywhere or doing anything he wished to do professionally. He had a car that was equipped
with hand levers that governed the brakes and the accelerator, and he would slide himself into
the driver’s seat from his wheelchair on a smooth board designed for that function, and then he
would fold up the wheelchair and stick it behind him, between the back of his seat and the back
seat of the car. He drove himself everywhere, and when he had to roll his wheelchair on a street,
getting to or from his car and the building where he was going or had come from, he would
wheel himself along fearless of the automotive traffic.
When he had to mount stairs to get somewhere (including the front steps to our house),
he’d get a couple of men to help him roll the wheelchair backward up the stairs. On a trip I
made with him to New York, the insurance company lawyer we’d gone to see there had his
office in a building that had no accommodation at all for the handicapped. To get to the main
floor, one had to get up a stairway over 15 feet in height. I found a doorman, and he and I, with
Chuck also helping to roll the wheels, got him fairly quickly to the top, where we could get the
elevator to our ultimate destination.
Chuck had been one of the successors of Archibald Cox as special counsel conducting
the investigation of Watergate and the Nixon presidency’s part therein. After that, he was
appointed by President Carter to be the United States Attorney for the District of Columbia.
When Carter was succeeded as President by Reagan, Chuck knew he would soon be replaced as
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U.S. Attorney and not likely to be given another position in the Department of Justice, so he
started considering going into private practice. The firm he was most interested in joining for
that purpose, if he could, was Covington, but as it happened he didn’t know personally any of the
firm’s partners through whom he could inquire about whether the firm would be interested in
having him. He did, however, know a lawyer who knew me—one named Henry Greene, who
had worked under him at the U.S. Attorney’s office and was then appointed a judge of the D.C.
Superior Court, but who knew me from having previously been a member of the D.C. Bar Board
of Governors when I was either a board member or President of the Bar. So he asked Greene to
contact me, which he did; I checked with Dan Gribbon, who was then Chair of the Management
Committee, and who had a favorable impression of Chuck from some contact they had, and Dan
decided that the firm should consider him. The upshot was that he came to the firm, I think as a
counsel to be considered for partnership within some specified time, and he was indeed soon
elevated to partner. Chuck turned out to be a most welcome addition to the partnership, and was
soon elected to the Management Committee.
One of the first things he worked on here was the representation of the Baltimore firm
then known as Venable, Baetjer and Howard (since simplified as Venable), which was being
investigated by the Maryland Attorney General’s Office on a matter involving the savings and
loan crisis. It was part of that nationwide phenomenon of the savings and loan failures. I
worked with Chuck on that. I also worked with him for a brief time on a fascinating case that
came in to me early in Chuck’s time at the office, involving a representation of Goodyear Tire
and Rubber Co. That case related to an employee of Goodyear who’d been in some South
American country where he’d been kidnapped by some rebel group and held for ransom—a
widespread practice in some parts of Latin America at that time. Goodyear had not been as
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prompt in responding to the ransom demand as the captors expected, so the employee was killed,
and the family sued Goodyear for its failure to save the employee by either ransom or rescue.
Goodyear, which was not otherwise a client of Covington, had specifically asked that the
firm put me in charge of that case. They had regular counsel in Pittsburgh, but the case was here
and so they asked the managing partner of the Pittsburgh firm that was their regular counsel who
he would recommend at Covington, and it happened that I’d had some dealings with him so he
recommended me. When I cleared that case with Dan Gribbon, then the Chair of the firm’s
Management Committee, Gribbon asked me whether I’d had any experience with a jury trial,
and I said no, and he suggested that I get Ruff to help me, since he had had plenty of jury
experience.
The lead opposing counsel in that case was Irving Younger, a well-known lawyer,
especially well known among young lawyers because of his riveting performance in an
instructional video about cross-examination. He was a former judge, a very successful lawyer
and a dramatic performer, and I looked forward to trying a case against him. He was also a very
pleasant person to deal with.
The case went far enough so that we had a long interview of an expert in the field of
rescuing captives from rebels in South American countries, which was an utterly fascinating new
area for me. I also had a very interesting interview with a potential expert witness who had been
both a judge and a professor in the Latin American country involved, who told us just about
everything we needed to know about that county’s law. I asked my partner Oscar Garibaldi, who
is of Argentine birth but a graduate of Harvard Law School, to sit in on that interview, and was
impressed by the fact that Oscar clearly had a better grasp of the pertinent law than this expert
witness.
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Much to my disappointment, that case got settled very quickly and so never went to
trial—something that happened much too often to cases that I had a hand in, from my point of
view, since it meant that I’d miss the thrill of the trial (though I eventually came to recognize
that a settlement is almost always the best result from every point of view, including those of the
parties and those of the system of justice).
Although Chuck was doing very well at the firm, and enjoying himself, he was asked one
day by the then-mayor of the District of Columbia, Marion Barry, to be Corporation Counsel (a
position whose title has since been changed to Attorney General), and he agreed to do so, out of
a spirit of civic duty. I was the first person in the firm that Chuck told about his accepting the
offer. As is well known, Chuck later was asked to become White House Counsel under
President Clinton, and went there directly from the Corporations Counsel’s office.
Chuck came back to the firm after his time as White House counsel, but he was not with
us very long before he died of a heart attack. He had told me at some point not long before he
left the White House that he was going to return to the firm, and that I was one of the reasons he
was coming back to Covington. I was so struck by that statement that I didn’t think to ask him
what he meant, so I don’t know how seriously I should have taken it, but of course I felt pleased
and honored in any event. And I certainly always felt that there was some special contact
between us.
So, those were the three men I was referring to.
Sinclair: I think there’s only one more issue that we have not covered, and that is the
Cornell Project.
Isbell: Cornell? Oh yes. Well, Cornell Law School sponsors a site on the Web where all
sorts of legal information is available. It’s called the Cornell Legal Information Institute. They
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have the U.S. Code and a variety of other resources for legal research on the web. There came a
time around 1995 when they decided that they would add to what they already had on the Web
an American Legal Ethics Library, which would consist, first of all, of the ethics rules of every
American jurisdiction, and in due course a summary of the decisional and interpretive authority
of each jurisdiction on the ethics rules and related topics such as malpractice, disciplinary
process and privilege. Cornell didn’t have the staff to do those write-ups, but the idea was that
they would recruit a law firm in each jurisdiction to undertake to do a write-up of all the
authority with regard to that jurisdiction’s rules.
The project contemplated starting with six major jurisdictions—of which the District of
Columbia, with its enormous Bar membership, was one (the others being California, New York
and, I think, Illinois and Texas), and someone suggested that the Cornell people talk to me about
getting Covington to do the District of Columbia summary. This was in 1995, when I was in my
taper-down period and on the way to senior status, so I felt I could find the necessary time to
shepherd the project, and I certainly felt I had the necessary expertise in the field to turn out a
decent product, so after proper clearance, I committed myself and the firm to doing it. It turned
out to be a very substantial enterprise—even more so than I expected. I gave the ultimate
product the title Summary of the Law of Lawyering in the District of Columbia (and will refer to
it from here on as the Summary). As it stands now when printed out, the Summary is 750 singlespaced pages in length. In electronic form, it is available on the Web as part of the LII’s
American Legal Ethics Library; on the D.C. Bar’s Web page, and on the firm’s.
At the start of the project, I arranged to have each new associate coming to the firm
assigned to work on the project for two weeks, in which he or she would write up the authority
with respect to one of the District of Columbia’s Rules of Professional Conduct, and I—or Bill
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Allen, who had chaired the D.C. Bar’s Legal Ethics Committee and is a splendid writer and
editor, and volunteered to help—would edit the resulting product, giving all of the pieces of the
project a consistent style. I also recruited a couple of other partners, Arvid Roach and Randy
Wilson, to write up parts that did not focus on a particular Rule, and I wrote some of those also
myself.
Someone had suggested using summer associates instead of or as well as new regular
associates, but initially I rejected that suggestion, thinking the regular associates would do a
better job because all of them would have had a compulsory course on legal ethics (a.k.a.
professional responsibility) in law school. However, in the second summer after I’d taken on the
project, I decided to try summer associates anyhow, because I wasn’t altogether happy with the
product I’d gotten from the new associates. I found, interestingly, that the summer associates on
the whole did a somewhat better job with their summaries than the new associates had done,
even though most of them had not yet had their required course in professional responsibility. I
concluded the reason for that was that the summer associates knew they were going to be judged
on what they produced, and they would be judged just as stringently on pro bono matters as they
would be on payable matters, whereas the new associates knew there was a distinction there and
tended to try less hard on this matter than they doubtless did on matters that they knew were for
the benefit of firm clients or, if the particular project was a pro bono matter, it would ordinarily
be one that they had volunteered to work on. (Mind you, the associates had all been newly
arrived, and so perhaps not yet fully convinced that the firm gives public service work
essentially the same weight as revenue-producing work.)
Anyhow, after three years, we completed the first edition, which I must say seemed to me
of very good quality—a judgment in which my contacts at Cornell agreed. An aspect of the
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project that I’m not sure I was fully aware of when I launched it was that if it was to continue to
be useful it would have to be kept up-to-date, reflecting new authority and in addition changes to
not only the District of Columbia Rules of Professional Conduct but also of the Model Rules
(since one of the points covered with respect to each D.C. Rule was a comparison with the
corresponding Model Rule), as to both of which there were, over time, quite numerous changes.
So I undertook, in 1998, to update the whole thing. I think I did all of that myself; in any event,
it was completed in December of 1999. I then undertook, at the request of my Cornell contacts,
a summary of the federal and District of Columbia statutes and regulations addressing conflicts
of interest involving prospective, current, and former government employees and problems
arising from the differing interests of the public and the private worlds. That was completed,
and added to the Summary of the Law of Lawyering in the District of Columbia, in October 2001.
I completed a third update of the rest of the Summary in May 2004, and then a fourth, and for
me final, revision in 2007. I had by then gotten a younger lawyer with an interest in ethics,
Michael Rosenthal, who had been sharing my Professional Responsibility course at Georgetown,
to agree to take over responsibility for maintaining and updating the Summary, and he did half of
that 2007 update.
All in all, I think the Summary is a very useful document—a useful way of getting into
authority or as a first step in your research. I have often used it myself, in connection with
advising both clients and lawyer in the firm on D.C. Ethics matters, and I know that both the
people concerned with legal ethics on the staff of the D.C. Bar and staff members of the Office
of Bar Counsel have found it useful. I also have long thought that there are probably a good
many of the sixty-eight thousand active members of the D.C. Bar who would find the Summary
useful but are not aware of its existence, so I have tried to get the D.C. Bar to make the Summary
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known to its membership. But I had to press the D.C. Bar for a couple of years before they
finally agreed to make the Summary available on the bar’s website, and although eventually it
was put there, this was done without any particular effort to let members of the D.C. Bar know
about its availability. (I think that reluctance stemmed from an understandable concern that
promoting the Summary would be seen as promoting the firm that had produced it.).
Sinclair: Well, that wraps up our interviews. It’s been an interesting journey.
Isbell: I’ve enjoyed working with you and recovering all those memories, and I’ve
appreciated your patience and perseverance, in what’s turned out to be a more strenuous effort
than I’d envisioned when we started out.