Avoiding the Slippery Slope

A Harvard Law School interview with Hank Shea, a former federal prosecutor and expert on ethical leadership.

Harvard Law School, Langdell Hall (Source: Wikimedia Commons)

This interview was originally published in The Practice, a digital magazine focused on the changing dynamics of the global legal profession, published by the Harvard Law School Center on the Legal Profession. You can subscribe for free here.

David B. Wilkins spoke with Hank Shea, a former federal prosecutor, on what he learned from decades of making joint presentations with white-collar offenders on how wrongdoing occurred. This interview has been reprinted with the permission of Hank Shea and the Harvard Law School Center on the Legal Profession.

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David B. Wilkins: Drawing on your experiences as a prosecutor and a teacher, how do you think about professional misconduct and discipline?

Hank Shea: When I joined the U.S. Attorney’s Office in the 1980s, my initial approach was to hold wrongdoers fully accountable. I believed no one was above the law. For many years, I followed Department of Justice guidelines and prosecuted to the fullest extent of the law the most serious crimes that were readily provable. But at some point, I realized, simply prosecuting wrongdoers was not an adequate solution for the victims, for the defendants, and certainly at times for the entire community.

I started to ask, How could I still do my job but achieve justice outside the box? During plea negotiations, I started encouraging defendants to pay restitution immediately, not when the court orders it. In cases of public corruption and environmental crimes where the whole community is being harmed, I said, “If you really want to do the right thing, do something to restore and heal the entire community.”

During confessions, I also started recognizing that some of these offenders were genuinely repentant—beyond just acknowledging their guilt, they wanted to do something to make amends for it. I asked several of them if they’d be willing to speak to law students about where they had gone wrong and the consequences they were going to face. One former lawyer agreed to do it while he was still serving his prison sentence for defrauding his clients. After the first time I brought him to a law school to speak in prison clothing, a law student came up to me and said, “I’m going to tell you the truth: I may forget most of what I learned here after I have passed the bar exam, but I will never forget his story.”

That sparked something in me. At that point, I’d been a prosecutor for about 18 years focused on white-collar crimes, and I loved my job at the U.S. Attorney’s Office, but I had found a calling and a new purpose in life. I went to the University of St. Thomas, a brand-new law school in Minneapolis, where they had just created the Holloran Center for Ethical Leadership in the Professions. It’s been 20 years since I did that. I have appeared around the country hundreds of times with more than three dozen former offenders, and we have spoken to tens of thousands of students about what they could learn from the failures of others in making difficult decisions of right versus wrong.

Wilkins: I had the privilege of having you come a few times to see my students, and when these offenders tell their stories, they focus on some of the small things that happened early on. What are the warning signs for someone who is about to stray down the path of misconduct?

Shea: I prosecuted 15 lawyers during my career. Most of them, if asked, would say the day that they woke up and they actually committed a federal criminal offense, it wasn’t on their mind in any way. Bank robbers and drug dealers: they know when they wake up, they’re going to break the law. The misconduct by lawyers and most other white-collar offenders is much more gradual. It usually starts with an unethical decision, not necessarily a crime, where there’s a minor transgression—a small effort to either distort the truth or do something that is not right and they get away with it. Whether it’s cheating in the stock market or on your taxes, whether it’s “borrowing” from the client trust account, you almost always get away with it the first time, but that’s the most dangerous because once you’ve gotten away with it, the same pressures or temptations often arise, and you find yourself confronted with another similar decision.

Many offenders have told me the second time you do it is easier than the first. The third time you do it is even easier. And by the fourth or fifth time you do something that you know is wrong, you’ve likely committed a crime, but your conscience has stopped talking to you.

If you want to know red flags, from an individual standpoint, look for people deliberately ignoring mistakes, concealing bad news, cutting corners, stretching the truth, rationalizing minor transgressions. It all leads to the conscience shutting down. For those who are trying to identify and stop it from an organizational standpoint, there’s things to look out for there as well: people acting out of character, ignoring or circumventing policies, bending the rules, hiding their actions, isolating themselves. What I’ve learned from the lawyers and other professionals I’ve prosecuted is that the slippery slope really does exist—the pressures and temptations that lead to somebody stepping over the line the first time will almost always reappear.

Wilkins: There are a number of pressures that kind of build on people that lead them to this kind of conduct. Now that you’ve been studying this for some time, do you think those pressures are increasing? And if so, how can we deal with that?

Shea: Structurally, the legal profession is under tremendous stress right now: If you’re an associate, facing the pressure to bill hours. If you’re a law firm leader, dealing with ubiquitous law firm mergers and the whole effort to deregulate the profession. The growing and unknown impact of AI is everywhere. All of these external pressures can cause great strain and lead people to make bad decisions.

My reading of the status of the profession and society is that pressures such as these have become exacerbated. Still, much can and has been done. In the last 10 years, the acknowledgment of the need to promote lawyer well-being has really taken some important strides. A lot more attention and resources need to be put into that effort because I believe that there is a clear correlation between the mental health and substance abuse challenges still facing our profession and resultant attorney misconduct.

But what else can we do? The last 20 years have seen a huge step forward in recognition of the importance of mentoring. In the 25 years since the University of St. Thomas School of Law was founded, every single student has had a practicing lawyer or judge assigned to them as a mentor for each of their three years of law school. Further, the most forward-thinking law firms and legal organizations have created and fostered mentoring programs. There is a growing recognition that being successful in the law is about building relationships based on trust, and mentors can model and guide those relationships in many ways.

Finally, one of the reasons I came to St. Thomas is that they were teaching courses in ethical leadership and infusing ethics into every course. If you teach ethical decision-making to students in the classroom and clinics, they can then carry on those skills in whatever careers they choose.

Wilkins: There’s always been sort of a tension in the professional disciplinary world between punishment and rehabilitation. How do you think about that?

Shea: There’s always been this tension in how you protect public safety versus how you do something positive for the wrongdoer. Many of the lawyer cases I prosecuted involved embezzlement, and I knew that was going to lead to disbarment. In other cases, the future of a lawyer’s license wasn’t for me to decide. I would say to the lawyers and offenders, “You need to take that up with the court.” As I started working with more offenders, I realized that the same issues that I faced in criminal law were exactly what the bar and the courts face in the attorney disciplinary process.

We need foremost to protect the public and the integrity of the legal profession when lawyers get involved in misconduct. But that doesn’t mean that one must exclude rehabilitation and remediation. Justice and mercy are often seen in contradiction to each other, but you really can’t have one without the other. I started looking at attorney misconduct in both the disciplinary and criminal process as an opportunity for redemption, restoration, and recovery.

Let me tell you about Rich Juliano. In the late ’90s, Rich was a third-year law student at the University of Chicago involved in the gubernatorial campaign for then-Illinois Secretary of State George Ryan. The campaign manager wanted to save money, so he did not use campaign resources to pay him. Unfortunately, Rich then accepted state funds for months of government work he did not do. Ryan won the race and became governor.

Rich graduated, went to Washington, DC, and obtained a dream federal appointment. But the FBI came calling several months later because they were investigating the governor’s campaign and alleged misuse of state funds. Rich told the truth, accepted responsibility, and agreed to cooperate. He resigned his position and pled guilty to a federal felony. He surrendered his bar license in DC and Illinois. He testified in two trials as a key witness for the government. And at the end of it, the judge gave him probation while the former governor and his chief of staff both received long prison sentences.

I learned about him right after his sentencing when a colleague at the U.S. Attorney’s Office in Chicago called me up, and she said, “Hank, we know about this program you have. We have somebody who has provided the most amazing cooperation we’ve ever seen.” I met him, and I realized law students needed to hear his story.

We have told Rich’s story on more than 30 occasions. In 2013 the Illinois Supreme Court readmitted him to the bar. I’m proud to have testified in support of his reinstatement. In 2015 Rich was readmitted to the DC bar. He is now the general counsel for a major national trade association. His is a story of recovery and redemption.

Wilkins: For students, it’s easy to distance yourself from those types of misconduct and say, “Well, that was a bad person or they did something stupid,” but it’s much more complicated than that. I’d love you to say what kind of advice you have for students about avoiding misconduct and leading an ethical career?

Shea: When I went to Minnesota to practice in 1985, the first CLE I attended was entitled, in part, “Lying, Cheating, and Stealing.” The person who taught the course was a very senior partner at the state’s largest law firm. His name was James O’Hagan. Six years later, my colleagues and I at the U.S. Attorney’s Office successfully prosecuted him in a case that ultimately went to the U.S. Supreme Court—it became the seminal case establishing the misappropriation theory of insider trading. That was 40 years ago, but if you ask me today, What’s the most serious challenges faced in the profession and society? It still is lying, cheating, and stealing. So, the question is, what to do about it?

First, we must abide by and stand up for the rule of law throughout our country. Second, do not let the momentum to adopt AI everywhere negatively impact efforts to teach ethics and ethical leadership in our schools and professions. Finally, it doesn’t matter whether you’re involved in the law or not. Step forward and speak up to preserve our Constitution and to protect our democracy. Whenever they are threatened, it is time for all of us to respond.

What I’ve been doing recently, and this might be a reflection of my state in life, is, I say to students, if you have a really tough ethical decision, ask yourself, If this is the last decision I make on this earth and this will define my legacy, how do I want to be remembered? You don’t have to use that for every decision every day, but when it really gets to be crunch time, I think that’s a pretty good test and aid to do the right thing.

Wilkins: Hank, it’s maybe the end of this interview, but the beginning of what is, I think, the critical set of questions for our time, and frankly for all time.

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Hank Shea is a senior distinguished fellow at the University of St. Thomas School of Law in Minneapolis and a fellow at the school’s Holloran Center for Ethical Leadership in the Professions and at its Initiative on Restorative Justice and Healing. Shea also has served as Professor of Practice at the James E. Rogers College of Law at the University of Arizona in Tucson. He served as an assistant U.S. attorney (AUSA) for the District of Minnesota for almost 20 years and was one of the country’s most effective white-collar crime prosecutors. You can read Shea’s top 10 ethical lessons learned from white-collar offenders here.

David B. Wilkins is the Lester Kissel Professor of Law and faculty director of the Harvard Law School Center on the Legal Profession.