Q: Where were you were born and raised?
A: I was born in Bangor, Maine, on High Street, at home. My mother died when I was three and I was raised by a great aunt and uncle in Bangor, although my father was in Portland. I went to St. Mary’s grammar school, John Bapst high school, College of the Holy Cross, and then Harvard Law School.
The level of education in Bangor was somewhat limited. I came from a family in which no one had gone beyond high school on either side of my family. I had no guidance or direction. I was working nights and would pick up the Bangor Daily News at midnight and there was always a billboard with scores on it. Holy Cross seemed to be winning in basketball, football, and baseball and I thought it must be a good school. That’s how I chose Holy Cross.
Q: And then you went to law school at Harvard?
A: I did.
Q: What did you do after law school?
A: I was drafted the day after I graduated. I was twenty-six years old, my wife was pregnant with our first child, and I called them up and said, “I think there’s been a mistake.” And they said, “No. You’ve had a scholastic deferment for eight years. You’re number one on our list.” I ended up in the army. I did eight weeks of infantry basic at Fort Dix, eight weeks of artillery basic at Camp Chaffee in Arkansas, and then the rest of the time I spent at Fort Riley Kansas as a clerk-typist. I was the only lawyer in the Courts and Boards section, where they processed people who were court martialed. The captain who was in charge of the office was not a lawyer.
Q: What war was this?
A: No war. It was peacetime. And when I got out, there was no GI bill. There were no benefits, and eight years of reserve. We were able to live off base in Manhattan, Kansas. I worked nights at a movie theatre and sold encyclopedias on the weekends.
Q: After you separated from the army, what happened?
A: My two years’ was coming up and I received a call from one of the deans at the law school asking me to come to Maine to interview for a clerkship with a new federal judge. And I said, “No, thank you.” I had been starving for two years. I had been waiting to try cases for two years; and I had a job offer from Ropes and Gray in Boston, where I had clerked. I said, “I don’t know where I’m going, but I’m not going back to Maine.”
A week later he called back and asked me the same question. And I said, “No.” And a week later he called back and said, “Look, I’m going to level with you. It’s beyond the recruiting time. This new judge is a graduate of the law school. We don’t have another warm body to send him and we want to send someone who is a graduate of the school.” And I said, “Okay, I’ll do it as a favor to you, but I don’t want the job.”
I came back. I dropped my wife and, by then, two children with her sister in Connecticut and arrived in Portland very, very early in the morning. I didn’t know Portland. I wandered around and ended up in the Cumberland County Courthouse on the third floor. Ann Rich was the librarian and I told her what I was doing. She said, “You might be interested in the scrapbooks I keep.” I spent three-quarters of an hour to an hour reading about Edward T. Gignoux and by the time I finished, I knew more about him than he knew about me. Then I went to the interview and was captivated. I went back to Connecticut that evening and said to my wife, “I don’t know what we are going to do with the rest of our lives, but if I can get this job, I want it. This guy is great.” That’s how I came to Portland.
I clerked for Judge Gignoux from 1957 to 1958, a one-year clerkship. At the end of the year, I pounded the pavement and couldn’t find a job. I told him I would see if Ropes and Gray would still take me. And he said, “I’ll keep you on for another year.”
By the end of the second year I still couldn’t find a job. I had some interesting interviews, but nobody was hiring. And so my wife and I were resigned to having to go to Boston. Then on a Friday afternoon, Vincent McKusick and Charlie Allen came down, closeted themselves with the judge, and came out and said, “We’d like to have you come up on Monday.” I went up on Monday and it turned out they had done a rather daring thing for Maine: they had hired a summer intern and had offered him a job. He accepted, but then decided he was homesick. His last name was Courtney. I never met the man, but I am eternally grateful to him because he went back to Pennsylvania and I got the job. That’s how I’m here at Pierce Atwood.
Q: What types of law did you practice when you came to Pierce Atwood?
A: When I started there were no real specialists. Everybody was a generalist. And so I did everything. I did title work, corporate work, trusts and estates. Not so today because everyone thinks he or she is a specialist. I desperately tried a case whenever I could get my hands on one. Once I was able to focus and didn’t have to do the rest of the work, I did nothing but trial work.
Q: Was that what you preferred?
Q: Why did you like trial work?
A: I like the challenge. In those days we were trying two or three cases a week. We were in court all the time. It was wonderful. Was then. Is now.
Q: You have a very distinguished career. Let’s begin with 1984, when you were counsel for the United States at The Hague International Court of Justice. How did you get chosen for that position?
A: That is an interesting story. There was a man named Davis Robinson, a lawyer from Washington, who had come here prior to that time in connection with a matter called Evergreen Valley, a recreational facility up country. I was adverse to Davis Robinson in that matter. Davis Robinson became the general counsel to the State Department and the lawyer responsible for the case in The Hague. Out of the blue he called me and said that he would like to have me on the team. I never asked him why and I didn’t question it.
Q: There was more than one counsel?
A: Yes. Each country, the U.S. and Canada, had a large team of lawyers and specialists. The Canadian delegation had English barristers, complete with wigs and robes, and French lawyers. Their principal litigator, a trial lawyer, was a man named Yves Fortier. He was my opposite, as I was heading the litigation team for the United States.
Yves and I became good friends. He subsequently became the Canadian Ambassador to the United Nations and now is probably regarded as the premiere international arbitrator in the world. He is the managing partner in a very large Canadian firm.
Q: What was the case about?
A: The Canadian and U.S. fishermen were disputing their separate country’s rights to the fish in Georges Bank in the Gulf of Maine. It was getting very serious. There were incidents between the American and Canadian fishermen. The two countries tried to negotiate a resolution. And the representatives of each country actually agreed upon a treaty. The treaty was approved by parliamentary process in Canada.
The fishermen’s unions in the U.S. opposed it and defeated it in the United States Senate. And, of course, no treaty is law of the land unless it is approved by the Senate. There was no alternative but to take it to the world court at that point. It was the first case that went before the court that attempted to define the boundary both on the sea floor and in the water column. So it presented novel issues of law.
Q: What was the outcome?
A: The outcome was a mixed bag. The Canadians will tell you that they won and the United States will tell you that it won.
There are still problems with Georges Bank now. The fisheries stock has been depleted substantially and the United States has had to limit fishing in the area. The difficulty with putting the boundary in any place out there is that the fish don’t stay on one side or the other of the line. And so you have them migrating from one end of Georges Bank to another. And, if you get overfishing in either end, then you have problems for both countries.
The bound books that are behind you, the red and the blue books, are called Memorials. We would call them briefs here. Blue by one country and red by the other country. The Justices in The International Court of Justice have no law clerks and they require that every citation to a volume be backed up by two copies of the volume itself. Effectively, we sent a boxcar full of books to The Hague in support of our Memorial and so did Canada.
Q: You were appointed Special Master for the U.S. Supreme Court for two cases. What was the first one?
A: The first one was New Jersey vs. Nevada. Initially, Wade McCree, a distinguished federal court judge, had been appointed Special Master in that case. Wade became ill, was ill for over a year, and died. I was appointed as his successor.
The dispute was over the disposal of radioactive waste that was stored on the docks in New Jersey in large barrels. New Jersey had intended to ship to Nevada and Nevada said, “No. We won’t take it.” There were underlying issues of comity and whether there was an agreement as between the two states. When I got to it, it had been languishing for a number of years. The first thing I did was to retrieve and review Judge McCree’s files and then I scheduled a conference call with the Attorneys General of both states and their legal staffs.
When I called the Attorneys General, I had a schedule on paper and I told them what the schedule was going to be. One of the Attorneys General said, “Well, thank you very much, Special Master, we will confer after this conference and give you our advice as to how we think the schedule should be established.” And I said, “What is there about what I just said that you don’t understand? I just read you the schedule. It is the schedule. It will not change.” And they said, “But Judge McCree always allowed us to confer.” And I said, “I am not Judge McCree.”
About ten days later one of them called me back and said, “We’ve looked at the schedule and we’ve decided that we need another six months.” And I said, “I guess you weren’t listening the first time. That is the schedule. It is not going to change.” A week later they called me back and told me they had settled it.
Q: How were you chosen Special Master?
A: I can only report hearsay and anecdotal evidence. I am told that the decision is made by the entire Supreme Court and not a single Justice. What the criteria are, I do not know. Didn’t ask. Happy to be chosen.
Q: You were chosen again.
Q: What was that case about?
A: That was Virginia vs. Maryland. It was over a boundary between the two states and the rights to the Potomac River. It sounds dry but it was a fascinating case because it involved reviewing correspondence of, among others, George Washington, George Mason, Thomas Jefferson, the English chancellor at the time, the King, and a number of other distinguished people in our early history. It involved a review of surveys that Washington had done as a young man as a surveyor. It involved the history of the relationships between the two states. It was a great history lesson.
Ultimately, I found for Virginia. My report was accepted and confirmed over the exceptions of Maryland by a 7-2 vote of the U.S. Supreme Court. In this case Maryland asked the court to hear oral argument and it agreed to do it. I went down to Washington for the argument and wanted to jump to my feet and correct the record. I thought the argument went very well.
I had confidentially ordered the two Attorneys General to select a mediator and mediate a resolution of the matter. They chose Judge Brinkema, the federal District Judge sitting in Virginia. I talked to Judge Brinkema after the fact and she told me she thought she had resolved the matter, but then Maryland backed out. It was a very hot issue in Maryland. Elections were going on at the time and politics got in the way, unfortunately.
Q: In 1998 you were appointed Independent Counsel to investigate then Secretary of Labor Alexis Herman. What were your duties as Independent Counsel?
A: The Independent Counsel was appointed with no office and no staff. The first thing I did was to create a law office and find a physical location with the assistance of the Justice Department and Federal Judicial Center. Those were my first tasks. I took two of my partners, Dave Barry and Jared des Rosiers, who had volunteered. I tried to talk them out of it because I was concerned about three of us being out of the firm at the same time.
I recruited a lawyer with a distinguished career, John Kotelly at the Dickstein firm in Washington, as my Deputy and I recruited some Assistant U.S. Attorneys from the D.C. office. I got Louis Freeh to assign me a compliment of FBI agents and then I recruited a woman who had been an administrative assistant in another Independent Counsel office as my administrative assistant. She brought with her some members of the staff with whom she had worked.
We set up the office in D.C. I moved to D.C., as did Jared. We subpoenaed large numbers of documents, arranged to have our own grand jury assigned to us, and took out testimony over time in the Prettyman Courthouse. Eventually, we exercised prosecutorial discretion and decided not to indict Secretary Herman. We indicted a foreign national. He ultimately pled guilty and was sentenced to time served while waiting trial in combination with time spent in Germany, where he had been arrested.
Q: What were the allegations?
A: Secretary Herman had worked in the Clinton White House before she became Secretary of Labor. The allegations were that she had used her office to favor two women who had been in a business partnership with her and that she had used her office to assist the Clinton administration in fundraising.
I took the testimony of President Clinton in the Treaty Room in the White House and the testimony went very well. The Treaty Room is a relatively small room. He had five lawyers with him and I had two. When we were finished he pointed to a small table and said the table had been used by Grant and his cabinet of five members and that every treaty since the Spanish American War has been signed on that table. It was another sense of history.
Q: What was the political climate of D.C. like at the time?
A: It was charged and very tense. I was not the only Independent Counsel. They were Don Smaltz; Dave Barrett; and, of course, Ken Starr. Ken was the lightning rod; so, I was able to keep a low profile and let him take the heat.
Before I arrived in Washington, a press conference was called with most of the prominent African Americans in Washington, D.C. and throughout the country. They claimed that it was a lynch job because Secretary Herman was African American and they suggested I wouldn’t be fair. That was the kind of tension.
We managed to keep a low profile. Our report is the only Independent Counsel report that has not been published. All the other Independent Counsel filed a motion asking that their reports be published. I did not because I didn’t think it would add anything. I had decided not to exercise my prosecutorial discretion to indict her and I didn’t see any sense in making it worse. The press has never picked up on it. Nobody has asked to see it … which is fine by me.
Q: You have participated in the Cleaves Law Library oral history project and you were an interviewer?
A: I was both interviewer and interviewed.
Q: Would you like to talk a bit about that project?
A: That project was principally started by Bill Brownell, the Clerk of the Federal District Court, with the blessing of then Chief Judge Hornby. The theory was that before the old folks die, it would be interesting to have them talk about their careers and the environment in which they practiced. I think it makes a lot of sense.
I have seen so many changes in the nearly fifty years I have been practicing here: some loss of collegiality; less familiarity among members of the bar, particularly the trial bar; more rigidity and formality to the process; less communion and communication between the lawyers and the judges; more formality between the lawyers and the judges; to a certain extent, the lessening of a sense of trust. I think it is good that there be preserved a sense of what the environment and the atmosphere were in the earlier days because, frankly, I think in many respects it was a lot better then.
The oral history project may never see the light of day. They may make these tapes and nobody may be interested in them.
Some years ago I went down to Washington at the request of the Smithsonian Institute, and participated in a program to spotlight lawyer folklore. Some fine lawyers from around the country were brought together and gave presentations on how to present a case and how to tell stories to illustrate a case. Professional photographers and videographers recorded the presentations. Somewhere in the bowels of the Smithsonian is a tape that no one will ever look at. But, if for some strange reason, somebody wants to know what lawyers in the twentieth century did and how they tried cases, it’s there.
Q: Were the tapes at the Cleaves Library transcribed?
A: I don’t think so. A large number of people were interviewed. I suspect it would be a fairly substantial job to transcribe those.
Q: You said there is less collegiality, less trust. Have you identified any ways to overcome those barriers?
A: There was a group Ben Thompson, now deceased, put together many years ago: the senior lawyers group. Roger Putnam is now the one who keeps us together and we meet once a month and have a party once a year. Maine’s Chief Justice Saufley came to that group and asked that very question. I said that in my early years we had terms of court. All the judges rode circuit. When a judge came into Cumberland County to start a term of court, there would be a big dinner party. All the lawyers would come and all the judges would come. Judges and lawyers mingled on a social basis. I said that any time you get the judges out there, they will draw the lawyers. The lawyers will come to where the judges are. And every time you break bread with somebody, you become friendlier with them. It establishes another layer of trust.
We can’t go back to some of the things we had in those days. Judges’ chambers were open. You could walk into a judge’s chambers without an appointment and talk about anything you wanted to talk about. And nobody criticized anybody for doing that. You could socialize with judges and nobody ever criticized you for doing that.
There was a reporter for the then Gannett papers who covered the courts. He was allowed to sit in on conferences between the court and counsel in chambers. He knew everything that was going on about a case and he would not publish anything that shouldn’t be published. Lawyers trusted him. Judges trusted him. He trusted them. And you had that kind of communication.
Now you have the tension with the media. You’ve got lawyers grandstanding, standing outside the courthouse. “My client would never do that sort of thing,” which I think is degrading. But people think they have to do it in order to advance their client’s interests. There was none of that in those days.
If we wanted something from another lawyer, we called him up. We didn’t have to file a motion. Nobody was playing games. Whatever you had, you shared. If you had a good case, you had a good case. Now you try to keep everything under the rug, keep it concealed. Make everybody go to court fourteen times. It’s a very different world.
Q: I often think that judges must feel isolated.
A: They do.
Q: In 2002 you were chosen to be on the National Review Board for the U.S. Conference of Catholic Bishops. Have you had to deal with the Catholic Church’s sex abuse crisis?
A: That’s the purpose of that board. When the bishops met in Dallas in 2002, they approved a charter of rights intended to try to correct some of the problems and intended to establish measures that would diagnose the causes in context of the problem and hopefully establish preventative measures so it would not occur again.
The Catholic Church has historically been a hierarchal institution in which the laity do not play a major role. This was groundbreaking. The National Review Board really has no authority and no power except the power to advise and the power of the bully pulpit. The power of the bully pulpit is important because the bishops listen. We meet six to eight times a year.
Q: What other noteworthy projects have you been involved in that I have not mentioned?
A: Noteworthy is a tricky word: it is in the eye of the beholder. I will talk about what I feel good about. When I was president of the Maine State Bar Association, I created the lawyer’s assistance program. I had to fight the board to get funding. The board didn’t think there was a need for the program. That program has helped and is helping lawyers and judges. We have funding. We have an executive director, David Kee, who is wonderful. There are a number of people who are being helped regarding substance abuse, alcohol, depression, emotional problems. It’s a wonderful program. Whether it’s noteworthy or not, I don’t care. It’s something I feel really good about.
I go down to the lawyer for the day program for the Volunteer Lawyers Project. A thousand years ago it was Cumberland County legal aid. We went down one day a week and met with clients who needed help. The lawyer of the day is a continuation of that. It is not as rewarding now because you are calling other lawyers and you don’t get to deal directly with the clients.
Pierce Atwood has a history of working with CASA. For a large number of years, lawyers here have volunteered to be guardians ad litem and now they also act as lawyers to lay guardians ad litem. We have thirty-four lawyers signed up to do that. I’ve done that and feel good about that.
Q: What are your present interests?
A: I’m trying cases.
I’m also very active in the Supreme Court Historical Society, started by Warren Burger. It is an organization that obtains and preserves historical artifacts, such as the table that was used by Marbury in Marbury v. Madison, and photographic records of the justices of the U.S. Supreme Court. It publishes a wonderful journal, containing the history of the justices and the court written by distinguished authors. It has an annual lecture series. John Roberts gave the annual lecture last year in the well of the Supreme Court.
It has a summer program in which it pays selected high school history teachers to come to Washington, D.C. for one week and be immersed in the history of the U.S. Supreme Court, so they can return home and teach the history. It supports an intern program for the Court itself. And it has a local program that teaches children in low income neighborhoods about the Court.
Membership is only $50 per year and anyone can become a member.
Q: What advice would you give to a law student?
A: A legal career is a wonderful thing, whether you actually practice law or not. It isn’t what you learn substantively. You learn a way to think. No matter who you are, you are transformed when you leave law school, if you pay attention. You can apply it in politics. You can apply it in business. You can apply it in law. It is a terrific tool for the rest of your life, doing whatever you are going to do.
I chose to practice law. I think there’s no substitute for hard work, whether you’re in practice or whether you’re in law school. And if you apply yourself, you may not turn out to be a John Roberts, but you will have a wonderful career in the law. I know there are a lot of people who say that it has become a business, that you don’t get the satisfaction you used to. I got into this practice to help people. I still get enormous satisfaction out of helping people.
Q: Lawyers get burned out.
A: I think it’s an individual thing. It depends. If your nature is such that you are easily susceptible to stressful situations, probably the practice of law is not a good place to be. But then you’re not going to be good in competitive business situations either. I don’t think it’s the law itself. I think it’s the way people react to it.