California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - APRIL 1999
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - April 1999
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News
Legal specialist exam set Aug. 19
Sullivan to take reins at Stanford Law School
Only two appointed members remaining on State Bar board
Legal services board has five vacancies
Davis taps Michael Kahn
State Bar honors Justice Mosk with Witkin Medal
Board tentatively approves budget based on dues of $384
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Opinion
If it distracts, so be it
Let's cut back on jury service
Limit bar to admissions and discipline
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From the President - Door to justice must be open
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Letters to the Editor
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Law Practice - Preparing for a successful mediation
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Appointments - Apply to serve on a bar committee
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Legal Tech - DSL speeds up Internet - at a reasonable price
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New Products & Services
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MCLE Self-Study
Taxes and long-term care
Self-Assessment Test
MCLE Calendar of Events
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Trials Digest
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Discipline
Ethics Byte - Fiduciary duties basis for all rules
Attorney nabbed at State Bar offices for soliciting murders
Attorney Discipline
Ethics for the 21st Century - A canon for the future
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Public Comment

OPINION

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If it distracts, so be it
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By BRIAN L. BUCKLEY
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President Clinton's acquittal by the United States Senate brought closure of sorts to the Lewinsky matter, but legal commentators continue to revisit the wisdom of the Supreme Court's decision in the Paula Jones case whereby Jones' civil action was permitted to proceed in the face of the president's objections. Some critics perpetuate the mistaken claim that allowance for a civil action against a sitting president threatens his or her governance.

Brian L. BuckleyNew York Times columnist Anthony Lewis, for example, wrote that "only judges with no experience of modern litigation" could fail to know this. Kathleen Sullivan, newly appointed dean of Stanford Law School, has written that the decision was "calamitous."

These views are inconsistent with genuine litigation experience, however, and the apprehension such critics have is unwarranted. Defendants in active litigation matters are rarely, if ever, required to participate on a daily or even weekly basis in their defense, unless they are representing themselves, and even then such frequent or continuous involvement is unrealistic. Were the opposite true, the combined attorneys' fees paid yearly in this country would be even more absurd than they undoubtedly are.

Perhaps these critics are also thinking of the emotional toll paid by defendants in civil litigation, and certainly there would be widespread agreement that the anxiety over liability and exposure can be draining for the client. When the action is stayed for some period, however, the anxiety over liability and exposure continues unabated, unless the defendant has an admirable ability for compartmentalization; and if he has such a trait, then it can as well serve him without a stay. And if they instead or in addition mean to say that the publicity attendant to a plaintiff's allegations creates the distraction, then the relief they support - a stay of the action during the president's tenure - draws them onto First Amendment thin ice.

Thus, the stay of an action against a sitting president would not likely ameliorate the adversity that the court's critics imply would distract him from his governance.

Implicit in the Supreme Court's decision was its assumption that the president would neither lie during the course of discovery nor get caught lying nor commit any crimes or other offenses. Whatever we may think about the scope and method of the OIC investigation that followed the president's deposition testimony in the Jones case, it can hardly be gainsaid that his completely truthful testimony would not have embroiled him in the gargantuan legal proceedings that then distracted the entire nation. Granted, such truthful testimony would indeed likely have nonetheless caused grief and even some madness in the land. Should that possible outcome have been part of the Supreme Court's calculus?

If the idea is to eliminate all distractions for a sitting president because of the importance of his work, then many things follow. Including that he would not be permitted to bring a civil action while he is president. Including that his wife could not initiate divorce or child custody proceedings. Including that no member of his family and no close friends may become seriously ill during his tenure or, if they do, then no one must tell him about it. And so on.

The flaw here is in thinking that our president must be insulated from reality. Everyone has distractions. Those who cannot function because of them should resign from positions of responsibility.

Brian L. Buckley is a Los Angeles attorney who lectures on cyberlaw and intellectual property and is currently representing an internet website in a copyright infringement action brought by the Washington Post and the Los Angeles Times.