Memo to Floyd Abrams re Dan Rather's disqualification

TO:	Floyd Abrams
FROM:	William J. Dyer (a/k/a Beldar)
RE:	Disqualification

I hold you in the highest regard, sir — as a scholar and teacher of media and First Amendment law; as a wise counselor to your clients in their times of greatest trouble; as skillful and zealous advocate on behalf of your clients; and as an ethical and principled member of our common profession.

Tonight I watched a prominent employee of your long-time and my once-upon-a-time client CBS News interview a key witness in the Killian memos controversy, Ms. Marian Carr Knox.  With growing unease, I suddenly remembered Rule 3.7(a) of the American Bar Association's Model Rules of Professional Conduct, with which I know you are already familiar:

A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of legal services rendered in the case; or

(3) disqualification of the lawyer would work substantial hardship on the client.

Mr. Rather, of course, isn't a lawyer.  But it would blink reality to ignore the fact that he's become a key witness himself — and very probably the key witness — at least on the question of whether CBS News is complicit in a fraudulent effort to propagate forged documents. 

And yet there Mr. Rather was tonight, on national television, continuing to act as CBS News' principal advocate in defending itself.

*******

As do we lawyers, journalists have a written code of ethics.  From the Society of Professional Journalist's Code of Ethics (boldface mine; hat-tip to my reader Sue Bob, who emailed me with this link):

Journalists should be honest, fair and courageous in gathering, reporting and interpreting information.  Journalists should:

• Test the accuracy of information from all sources and exercise care to avoid inadvertent error.
• Deliberate distortion is never permissible....
• Identify sources whenever feasible. The public is entitled to as much information as possible on sources' reliability.
• Always question sources’ motives before promising anonymity. Clarify conditions attached to any promise made in exchange for information. Keep promises....
• Never distort the content of news photos or video....

Journalists are accountable to their readers, listeners, viewers and each other.  Journalists should:

• Clarify and explain news coverage and invite dialogue with the public over journalistic conduct.
• Encourage the public to voice grievances against the news media.
• Admit mistakes and correct them promptly.
• Expose unethical practices of journalists and the news media.
• Abide by the same high standards to which they hold others.

Whether Mr. Rather and the CBS News personnel who worked with him on the "60 Minutes II" broadcast about the purported memos from Col. Killian followed these ethical practices is the precise issue now under national debate.  And just as as Rule 3.7(a) of the ABA's Model Rules of Professional Conduct is intended to protect public confidence in the integrity of the judicial system, so too does the SPJ's Code of Ethics counsel that a journalist who himself has become the story, not continue to cover the story:

Journalists should be free of obligation to any interest other than the public's right to know.  Journalists should:

• Avoid conflicts of interest, real or perceived.
• Remain free of associations and activities that may compromise integrity or damage credibility....
• Disclose unavoidable conflicts....

The personal and professional conflicts of interest that Mr. Rather and his team have when they are  investigating and reporting on that controversy could not be more obvious or more palpable.

The disputed factual issues are not uncontested or trivial.  And CBS News itself has an ample supply of other qualified journalists to continue its investigation and reporting — both into the substance (if any) of the allegations about President Bush's service in the Texas Air National Guard, and into the controversy over CBS News' complicity in the promulgation of forged documents.  CBS News would suffer no hardship were it to simply seize Mr. Rather's and his teams files and computers — you'll take no offense, I'm sure, Mr. Abrams, when I remind you that lawyers have an ethical duty to prevent spoliation of evidence — and then either assign them to other duties or, better still, send them on a nice vacation.

*******

If we were in a courtroom, you and I both know that any judge would disqualify Dan Rather from appearing as both an advocate and as a witness in a New York minute.

Your client is now on trial in the court of public opinion, Mr. Abrams.  Perhaps you've already given this advice and, for whatever reason, your client has chosen not to heed it.  But if you have not — can you stand by, and bless by your silence, CBS News' continued use of Mr. Rather as both its principal witness and  public advocate?  I know that I could not.