“Never attribute to malice that which can be adequately explained by stupidity.”
The philosophy majors among you may remember that a “razor” in this context is a heuristic principle that allows you to shave off unlikely explanations for a phenomenon. The best known of these is Occam’s Razor, which holds that when faced with competing hypotheses, you should select the one that makes the fewest assumptions. The acronym KISS (“keep it simple, stupid”) may be considered to be a contemporary expression of Occam’s Razor.
The above-quoted Hanlon’s Razor does not have quite the hoary tradition behind it as the pronouncement from the Fourteenth Century Franciscan friar William of Ockham. Robert J. Hanlon, a computer programmer, submitted it to a joke compilation of variations on Murphy’s Law (“whatever can go wrong, will go wrong”) in 1980. But it’s not a recent sentiment: Goethe in his 1774 novel The Sorrows of Young Werther includes the line “misunderstandings and neglect occasion more mischief in the world than even malice and wickedness. At all events, the two latter are of less frequent occurrence.”
We lawyers often tend to have a jaundiced view of human nature and judge people more harshly than is warranted. Conversely, we often are slow to recognize our own incompetence or stupidity, a condition known as the Dunning-Kruger effect, named after two Cornell professors who have conducted the experimental social science research. It’s where one fails to assess one’s level of incompetence and believes that one is much more competent at a task than is actually the case. Put more succinctly, it’s being too stupid to recognize how stupid you really are.
A case in point: recently a group of twelve law school professional responsibility professors, from Yale, Georgetown and Duke, among others, filed a complaint against one Kellyanne Conway with the District of Columbia Office of Disciplinary Counsel, alleging violations of DC Rule 8.4(c). That rule, virtually identical to the corresponding Model Rule and the North Carolina State Bar Rule, states that “It is professional misconduct for a lawyer to [e]ngage in conduct involving dishonesty, fraud, deceit or misrepresentation.”
Now, you might be wondering, as did I, is Kellyanne Conway really a lawyer? Well, sort of. She is a Georgetown Law graduate and was admitted to the DC Bar in 1995. She has never practiced law, however, and her license is currently suspended for non-payment of dues. Her job title is “Counselor to the President,” not “Counsel” to the President.
The complaint alleges three violations of this ethical rule, all of which are familiar to anyone who follows the news. The first is her repeated references to the non-existent “Bowling Green Massacre.” The second is her resort to “alternative facts” to support the demonstrably false estimate of the size of the crowd at the recent presidential inauguration. The third is her violation of government ethics rules in hawking Ivanka Trump products.
I really don’t want to couch this as a political argument, but let’s just assume for now that there is a near total asymmetry between Ms. Conway’s public statements and objective reality. While she may be a very talented pollster and campaign manager, the woman clearly suffers from a severe case of Dunning-Kruger effect when it comes to acting as a presidential surrogate. She is incapable of recognizing how incompetent at that particular task she really is. Honestly (or dishonestly), you must really be a poor spinmeister to be banned from a political carny show like Morning Joe for being too untrustworthy. That’s like a group of buzzards chasing off one of their number from a deer carcass because he smells so awful.
But does this justify a conclusion that she is actually lying, and therefore violating the rule against dishonesty? I think not. Why not? Because what she says is so stupid that no rational and informed person could be fooled thereby. It’s as if I started talking to you about the Great Chicago Hurricane of 1871. First of all, you would remind me that Chicago is far too inland to ever be subjected to a tropical hurricane, and second of all you would note that everybody knows it was a fire, you dummy. Mrs. O’Leary’s cow, and all that.
As to her shilling for Ivanka Trump, that was such a clear and public violation of the applicable ethics rule that one can only conclude that Ms. Conway was completely unaware of it. We can be grateful that she has now been “counseled” by someone at the White House as to her ethical obligations in this regard. Perhaps she got a stern talking-to or had to go to time out, but no details have been forthcoming.
So as to Kellyanne Conway, I invoke Hanlon’s Razor to conclude that her actions are better understood as expressions of stupidity than of malice. Does that justify the bar complaint against her? Should she be subject to professional discipline as an attorney? I say not only “no,” but “hell no.”
Really, what’s the point? She doesn’t practice law and probably never will. [Digression—her husband George Conway actually has been a practicing lawyer and partner at the Wachtell Lipton firm. He has recently been appointed to head the Civil Division of the Justice Department after having been a finalist for consideration to be nominated for the post of Solicitor General.] If the mission of attorney disciplinary enforcement is to protect the public, how would say, a DC Bar reprimand against her, further that goal? And if saying stupid stuff in a context unrelated to actual law practice is to be labelled as an ethical violation, then both you and I, gentle reader, must surely be scoundrels unworthy of possessing a law license.
Consider the implications if Ms. Conway is disciplined for what is in essence just political trash-talking, albeit with much more emphasis on the “trash” than on the “talk.” If you’re a lawyer/politician subject to Rule 8.4 who must be mindful that you can potentially lose your hard-earned law license for a little dishonesty, fraud, deceit or misrepresentation, then you are handicapped in any political debate against a layman politician who can hide behind the virtually impenetrable shield of the First Amendment.
I know it’s a cynical observation, but only a naïve fool would fail to acknowledge that the practice of deceit and misrepresentation is hard-wired into the political process, and always has been. Candidates for office from the early days of the Republic have employed surrogates to defame each other.
For example, in the presidential election of 1800, Thomas Jefferson's political hacks accused President John Adams of having a "hideous hermaphroditical character, which has neither the force and firmness of a man, nor the gentleness and sensibility of a woman." In turn, Adams had his henchmen call Vice President Jefferson "a mean-spirited, low-lived fellow, the son of a half-breed Indian squaw, sired by a Virginia mulatto father.” The slurs just kept on coming. So much for the high-mindedness of our Founding Fathers, but I must give them credit for crafting more creative calumny than the rather pedestrian insults employed by contemporary politicians. Although both Adams and Jefferson were lawyers, luckily enough for them there was no organized bar association to admonish them for alleged ethical transgressions.
Then there’s those dozen egghead law professors who signed on to the bar complaint. I don’t let them off so easy. Here’s where I might note an exception to Hanlon’s Razor and allege actual malice—or at least rank hypocrisy. In so doing, I acknowledge the stereotype that law professors are often very bright people with little common sense or self-awareness. What these professors must have failed to recognize is that this grievance, laden with sanctimonious jargonese, transparently arises out of a partisan political motivation rather than a genuine concern for attorney ethics enforcement. Duh.
I’m not a betting man, but I’d be willing to double down on the proposition that not even one of them voted for Donald Trump. Here’s a simple question that should convince you: Did any of them file a grievance with the Illinois Attorney Registration and Disciplinary Commission against Barack Obama complaining about what PolitiFact dubbed its 2013 Lie of the Year—the assertion by him in pushing for passage of the Affordable Care Act that “If you like your health care plan, you can keep it”? Of course that didn’t happen. So they’re just a bunch of dissembling hypocrites. QED.
Well, maybe I shouldn’t be so sure. Perhaps those profs are just fooling themselves. They could be suffering from their own Dunning-Kruger effect, believing that their exalted status as legal ethics “experts” deserves deference from those of us who merely engage in real world law practice and have to make actual ethical choices. As I’ve noted in a prior column, it’s pretty darn easy to lapse into self-deception when justifying one’s questionable actions. It’s like Forrest Gump says, “stupid is as stupid does.”
Alrighty then—let’s give everybody the benefit of the doubt and apply Hanlon’s Razor here also. Both the professors and Ms. Conway are just being stupid. I’m glad that’s settled, but somehow it doesn’t give me much comfort either as to the state of the law or of politics.
For next month’s final column as your president, I’m planning an expose on how low former Mecklenburg County Bar President Bob Dortch went to tapp [sic] my phone during the very sacred Bar election process. This is Nixon/Watergate. Bad (or sick) guy!
Of course, that’s a lie. But it makes for a good story, so it’s justifiable. Please don’t report me to the State Bar. It’s just me being stupid.