State Bar of California California Bar Journal
Home Page Official Publication of the State Bar of California July2004
Top Headlines
MCLE Self-Study
You Need to Know
Trials Digest
Contact CBJ

Big Brother, Little Brother — all are watching

By Diane Karpman

Diane Karpman
Diane Karpman

Last April in this column, I speculated how difficult it would be to blow the whistle on a remote desert outside of Baghdad. If you had to withdraw, or go up the chain of command, you couldn’t exactly call the Ethics Hotline or 911.

I was writing tongue in cheek, forgetting that lawyers wrestle with ethical obligations on a daily basis. In a recent study by the American Bar Foundation on conflicts of interest (Tangled Loyalties (2002) Susan Shapiro), an astonishing 92 percent of the lawyers contacted filled out the questionnaire. That response demonstrates a keen interest in ethics among attorneys, which is absent in physicians, accountants and other professions who have received similar questionnaires. Obviously, you cannot bill for filling out the questionnaire, so it was a true sacrifice.

Then-Gen. Colin Powell praised the contribution of lawyers in Gulf War I. Lawyers were involved in all aspects of the decision-making process. One surefire way to avoid receiving information that disagrees with a particular position is to exclude lawyers from the process. Criminals, corporations and governmental agencies have been known to terminate lawyers who fail to bless a particular transaction. The best way for a client to avoid all that unpleasantness is to keep their lawyers in the dark — like mushrooms.

Recent media reports indicate that JAG lawyers were excluded from vetting interrogation techniques designed for Guantanamo Bay. “Top military lawyers for each of the services raised concerns on numerous occasions while the Guantanamo Bay guidelines were crafted at the Pentagon.” (USA Today, June 9, 2004). An anonymous group went to the New York Bar Association’s International Law Committee, which issued a lengthy report. So don’t allow anyone to ask where the lawyers were. They were either excluded or trying to get the word out.

Elementary protocols, which have proven effective in the past, were missing in Abu Ghraib Prison. The two-way mirrors on “Law & Order” mean that those in the interrogation room never know if they are being observed. In Desert Storm, the detention rooms had the mirrors, and JAG would intercede if the line were crossed (N.Y. Times, May 19, 2004). In today’s post-9/11 world, everything is transparent, like two-way mirrors.

Many are concerned about the intrusions on our rights to privacy engendered by the Patriot Act, which could be considered as emblematic of “Big Brother.” Indeed that may be true, but what nobody seemed to think about was the creation of “Little Brother.” During the last year, many of you purchased digital cameras for the holidays, birthdays and graduations. Therefore, it should not come as a surprise that those handy little cameras are traveling the world, creating a photographic record. A picture is worth a thousand words, even in Baghdad. Digital photos can be uploaded and beamed all over the world in an instant. Big Brother is not the only one watching. They should remember that cameras create institutional transparency and that we are watching, too.

• Ethics expert Diane Karpman can be reached at or 310/887-3900.

Contact Us Site Map Notices Privacy Policy
© 2023 The State Bar of California