Rod Rosenstein Tells Law Graduates to Fall Back on ‘Your Own Moral Principles’ During Ethical Dilemmas

Thank you for that kind introduction, Dean Leonard. I appreciate your many decades of service to the federal courts and the legal academy.

President Creed, Dr. Hammond, Chairman Keith, faculty members, family, friends, and graduates, I want to share with you the most important question a lawyer can ask:

What if we are wrong?

Lawyers are supposed to get the facts and the law right, but sometimes even we make mistakes. So the habit of asking that question before making an important decision is the key to being a good lawyer.

Everyone understands that things do not always go according to plan. But that is just a subset of a broader truth: things almost never go according to plan. The good news is, that is not a cause for distress. In fact, accepting that nothing ever goes as planned is one of the most valuable life lessons.

When you study the history of successful people, there always appears to be an obvious logic to their career paths. It is amazing how each person was in precisely the right place, at just the right time, with exactly the right connections and experience to take advantage of the next remarkable opportunity that conveniently presented itself, as he or she progressed inexorably upon a predestined path to the inevitable result.

That appearance of logic, of course, is always wrong. It is a product of hindsight bias, the tendency to see a pattern in retrospect that never exists in real time.

The reality is that everyone’s life is a product of random events and consequential decisions. The random events are things that happen to you, and are largely beyond your control. The consequential decisions are what you choose to do about it.

There is no point in wasting your time complaining about the random events. The key to living a life of integrity is to take ownership of the consequential decisions.

The philosopher Richard Bach wrote that you should live your life so that you will never be ashamed if anything you do or say is published around the world, even if it is cast in a false light.

Wherever life takes you, conduct your own affairs with integrity, so you will never need to look back with regret.

Consider how modern computers allow programmers to develop interactive scenarios with variable outcomes. A program can present you with decision points and let you choose among multiple options. The program then proceeds along different branches – or alternate realities – depending upon which decisions you make. When something goes wrong, you can go back, start over, and try a different decision.

But real life is not like that. You get just one chance, every time. Each choice permanently alters every subsequent option. That means that the future is completely unpredictable.

Mathematicians who study this phenomenon call it chaos theory, because it demonstrates that even in a complex system, a small change can make a dramatic difference.

Robert Frost wrote about that in a poem called “The Road Not Taken.” It tells of a traveler reflecting on a moment when he needed to choose between two roads that diverged in the woods. His decision to take one instead of the other made all the difference in his life.

Some people read the poem and conclude that the traveler took the less popular path, what Frost calls “the road less traveled.” But if you read the poem closely, it reveals something else. When the traveler chose one of the two roads, he did not know for sure whether it was less traveled. But he realizes that when he reaches old age, he will mistakenly remember it as the obvious choice.

The poem is about hindsight bias.

It is also about consequential decisions.

Members of the Class of 2018, my time with you is limited, and I do not plan to spend much of it offering kudos.

Congratulations are certainly in order – to the graduates, and to the families, friends, teachers, and administrators who brought you to this momentous occasion.

But this is a commencement address. It is not a graduation speech. You are only at the start of your legal career, far from the finish line. There is still a lot of work to be done.

One additional step you need to take before you practice law is to swear an oath. In fact, you need to take an oath each time you join the bar of a new court.

Some lawyers get so accustomed to swearing that they don’t pay much attention to what they are promising to do. But there was a time when taking an oath was a matter of life and death.

In 1535, Sir Thomas More was executed because he refused to swear a false oath. In Robert Bolt’s play based on More’s life, “A Man for All Seasons,” More tells his daughter that when someone “takes an oath … he’s holding his own self in his hands. Like water. And if he opens his fingers then – he needn’t hope to find himself again.”

In those days, an oath was serious business. I encourage you to take your oath seriously, as well.

And as an officer of the court, you do not just need to take an oath. You need to follow the oath.

An oath is an obligation. If you join the North Carolina state bar, you swear to “support and defend the Constitution of the United States,” and to “truly and honestly [conduct] [your]self … [as] an Attorney.”

You will exercise considerable power, whether or not you hold a prominent government position. People pay attention to what lawyers say and do. So be mindful of French philosopher Voltaire’s advice: “With great power comes great responsibility.”

If that quote sounds familiar, it was also said by another legendary person – Spider-Man’s Uncle Ben.

As a lawyer, you are never not just a representative of a client. You have broader responsibilities. You share a duty to maintain the integrity of our courts, and to foster public confidence in our judicial system. That is not just my job, it is not just the judge’s job. It is your job, too.

You are responsible for defending the rule of law. If you fail, do not expect me or anyone else to do it for you.

Lawyers do not make scientific discoveries, create revolutionary technologies, or build skyscrapers. But we make those things possible.

The rule of law is indispensable to a thriving and vibrant society. It shields citizens from government overreaching and arbitrary action. It allows businesses to enter contracts and invest with confidence. It gives innovators protection for their discoveries. It keeps people safe from dangerous criminals. And it allows us to resolve differences peacefully through reason and logic.

In the Robert Bolt play that I mentioned, Thomas More tells his son-in-law, William Roper, that the rule of law is so important that he would never deviate from it, even to kill the Devil.

Roper insists that he would cut down every law, if necessary, to destroy the Devil.

More replies, “Oh? And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat?… [I]f you cut them down — and you’re just the man to do it — d’you really think you could stand upright in the winds that would blow then?”

More concludes, “Yes, I’d give the Devil the benefit of law, for my own safety’s sake.”

German theologian Martin Niemoller made a similar observation. Niemoller failed to defend the rule of law when other people were victimized in the 1930s, and he later regretted it. When they came for him, there was no one left to speak up.

Lawyers are obligated to speak up for the truth. John Adams famously observed that “[f]acts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.” Pursuing truth means always yielding to the facts, even if they run counter to our hopes.

In a courtroom, truth is about credible evidence, not strong opinions. A 19th century writer observed that “sincerity of belief is not the test of truth.” Many people sincerely believe things that are just not true. They fall prey to confirmation bias, choosing their conclusion in advance and ignoring contradictory evidence.

Most of your clients will believe that the facts and the law are on their side, but many of them will be mistaken.

Because the law, at its best, is dispassionate and objective. It bears no prejudice. Judge Learned Hand said that “[t]he spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own, without bias.”

Lawyers who seek the truth frequently confront diverging roads. Controversy, stress, and difficult decisions define our daily existence. This is definitely not a career for the faint of heart.

But no matter what kind of lawyer you become, there are few professions more important to preserving liberty.

Your Campbell University Law School motto is “leading with purpose.” Supreme Court Justice Robert Jackson would concur. Jackson said that “[o]ur profession is duty-bound to supply bold and imaginative leadership to bring and keep justice within the reach of persons in every condition of life, to devise processes better to secure men against false accusation and society against crime and violence, and to preserve not merely the forms of constitutional government but the spirit of liberty under law as embodied in our Constitution.”

Law is a noble profession. And lawyers, by and large, are noble people.

In William Shakespeare’s play about Henry VI, a character named Dick the Butcher proclaims: “The first thing we do, let’s kill all the lawyers.”

Some people mistakenly assume that Shakespeare was poking fun at lawyers. The cynics miss the point. Dick is a villain scheming to take over the government.

Shakespeare’s point is that without lawyers, nobody would need to follow the law. That might be good for criminals like Dick, but only because it would be bad for everyone else.

Criticism of lawyers stems largely from two factors. First, the practice of law is often adversarial — there are winners and losers. Your client usually wants to win without regard to what justice demands.

There is a story about a client anxiously waiting to hear from his lawyer about the judge’s ruling on his case. The lawyer sends a three-word message: “Justice was done.” The client replies, “Appeal immediately!”

When you represent a prevailing party, it is understandable that the loser may dislike you. The loser may also dislike his own lawyer because from his perspective, the loss surely resulted from the lawyer’s performance and not the client’s own actions. Even the prevailing party may wind up disliking his own lawyer, if the fees are too high or the road to victory too long.

It is relatively rare for all parties to walk away from litigation with a warm and fuzzy feeling about the lawyers.

The second objection people level against lawyers is that we tend to nitpick. People generally do not like nitpickers. But the law demands precision and requires close reading. We are the dotters of I’s and the crossers of T’s.

Small details like commas and semicolons matter to us. In discussing the attributes of a lawyer, the great Supreme Court Justice Antonin Scalia explained that “[o]ne of the distinctive skills of our profession is to discern ambiguities, inaccuracies, and insufficiencies that would not occur to the ordinary” person.

To non-lawyers, it sometimes appears as if our job is to find loopholes, argue about technicalities, and elevate form over substance. But we know that the liberty of a citizen or the future of a business may turn on a seemingly minor detail, such as whether the word “and” in a statute functions in the conjunctive or disjunctive sense. Obsessing over such details is part of our job.

As a result, we will probably never enjoy the highest ranking in public opinion polls. We may be a frequent punchline for comedians. But lawyers are essential to civilization. In their heart of hearts, even our harshest critics respect the central role that lawyers play.

Abraham Lincoln eloquently defended his fellow attorneys. Lincoln was a self-taught lawyer who delivered his first major address at age 28. He gave his speech a prophetic title, “The Perpetuation of Our Political Institutions,” and he spoke passionately about the adverse consequences of rejecting the rule of law.

Because all lawyers share an interest in promoting law, ours is a collaborative profession. It is a mistake for lawyers to treat opposing counsel as the enemy. Litigation is not warfare. Your goal is not to destroy the opponent. That is not what zealous advocacy requires.

Opposing counsel is a fellow member of the bar fulfilling a solemn duty, just like you. If you keep that in mind, your career will be much more rewarding. You will develop lifelong friendships with some of the lawyers who litigate against you. In The Taming of the Shrew, Shakespeare counsels people to conduct themselves “as adversaries do in law, strive mightily, but eat and drink as friends.”

President Lincoln brought that spirit of lawyerly collegiality with him to our nation’s capital. When he delivered his first inaugural address in 1861, Americans were literally at war with each other. But Lincoln refused to treat his opponents as enemies. He insisted that “[w]e are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection.”

So to be a successful lawyer, develop the habit of treating everyone with respect, regardless of their station in life. My teenage daughters introduced me to a country song written by Lori McKenna that captures everything I tried to teach them about character:

Hold the door, say please, say thank you

Don’t steal, don’t cheat, and don’t lie

I know you’ve got mountains to climb

But always stay humble and kind.

The song concludes with an admonition to take the time to pay it forward to the next generation:

When you get where you’re going

Don’t forget to turn back around

And help the next one in line

Always stay humble and kind.

Members of the Class of 2018, you are talented and well-trained young lawyers with much to offer our profession. You spent the past three years of your life immersed in the law. But you are beginners. Most of the law you need to know remains to be learned. Most of the wisdom you need to exercise is yet to be developed.

Maintain the intellectual discipline that brought you to this moment. Set aside time each day to study and grow as a lawyer, and as a human being. Your clients expect their lawyer to master the law, so stay current. But also take the time to read and learn about things not directly related to law: history, science, literature, and current events. You never know when it might matter.

And never compromise your personal integrity. As Thomas Jefferson famously said, “On matters of style, swim with the current. On matters of principle, stand like a rock.”

Finally, I want to leave you with some advice about what to do when you are not certain what to do. Your world is filled with ethical rules. So many rules that sometimes you cannot keep track of them all. When the rules are unclear, it is best to fall back on your own moral principles.

First principles matter most. Robert Fulghum gives this advice: Remember in elementary school, when they told you to plant a little seed in a cup to learn about the miracle of germination? The lesson is that with proper care, the roots grow down and the plant grows up.

We are all like that seed.

It took a lifetime of random events and consequential decisions to bring me to this moment with you. I hope it was time well spent.

I wish you well in your legal career. I hope that you pursue justice, support the rule of law, stand firm on matters of principle, treat everyone with respect, pause to consider the possibility that you may be mistaken, lead with purpose, and always stay humble and kind.

Congratulations!