Lawyers Journal

‘Who else is going to do it?’

Advocate Harvey Silverglate on keeping institutions honest


At the age of 69, Harvey Silverglate has realized he can no longer operate nonstop. Silverglate recently confided to his research assistant that he now needs five hours of sleep each night instead ?of four.

Needing little sleep seems to be a secret of some of the very successful. Other members of this exclusive club include President Barack Obama, former President Bill Clinton and former British Prime Minister Margaret Thatcher. But Silverglate, who admits that he works too much, doesn't credit his success to his sleep habits, but to his work ethic, which has taken Silverglate far.

A renowned attorney for more than 50 years, he is also a revered author and a champion for the civil rights of college students, a cause that led him to open a non-profit that focuses on the issue.

A KID FROM BROOKLYN


Silverglate's work ethic can be credited in large part to his upbringing as a first-generation Jewish son in an immigrant family from Poland and Russia. Silverglate's family lived in Brooklyn, New York until he was 11, when they moved to New Jersey.

Even though he moved over state lines, he admits his Brooklyn influence runs deep. "I kind of developed a New Yorker's attitude toward the world, which is skeptical of authority and very skeptical of authority gone mad. I consider myself a Brooklyn boy."

Silverglate, the first in his family to attend college, originally intended to become a doctor, as his parents aspired for him.

He entered Princeton on a full scholarship as a pre-med student. However, his career goals soon changed after spending a summer interning at a bank in France. During those three months abroad, he learned he "was not as concerned with the problems that germs cause as [much as] with the problems that people cause."

THE RELUCTANT PRACTITIONER

It was at that point he decided to go to law school, but not to become a lawyer. Silverglate wanted to be a journalist, "a legally sophisticated reporter," as he calls it.

Silverglate attended Harvard Law School, and there met Alan Dershowitz, who convinced Silverglate to try working for a law firm. Dershowitz set Silverglate up with a job at the now-defunct Boston firm, Crane, Inker & Oteri.

Still intent on having a writing career, Silverglate didn't think he would be at the firm very long. He just wanted some practice experience before becoming a legal reporter. Despite his original intentions, Silverglate ended up loving the law, and stayed with the firm after graduation.

But his yearning to write never went away. "I had this bug still up in my head [that] I really should be writing about legal matters like I intended," Silverglate said. "So, I started writing columns for The Boston Phoenix." His nearly 40-year career at the Phoenix makes him the paper's oldest living contributing writer, he said.

He's also one of the paper's most widely read contributors, according to Peter Kadzis, executive editor for The Boston Phoenix. "The response to his articles is always strong," Kadzis said. "Harvey's written on a broad range of public policy issues, but the common denominator is always justice and constitutionality.

"I think that there's a driving force in Harvey's life, and that is justice," Kadzis added. "I would say I've never met anyone [like him], and his commitment to the United States Constitution is rabbinical in its intensity."

Silverglate's writing career goes beyond local publications. His writing can also be found in The Wall Street Journal, The New York Times and regularly on Forbes.com.

PROJECTS AND CASES PROVED TO BE REFLECTIVE OF PASSIONS

He has also authored two books. The first, The Shadow University: The Betrayal of Liberty on America's Campuses, which he co-authored with Alan Charles Kors, tackles the subject of free speech and equality of rights on the nation's college campuses. His second book, Three Felonies a Day: How the Feds Target the Innocent, tells the stories of American citizens who have been the targets of federal prosecutions even though they believe they did nothing wrong.

Silverglate's two books reflect what many will say is his life's work: corruption in both American higher education institutions and criminal law.

His passion for freedom on American college campuses led to the creation of the nonprofit organization, Foundation for Individual Rights in Education, with co-author Kors.

Will Creely, attorney and director of legal and public advocacy at FIRE, said Silverglate talks a lot about the need to change the culture on college campuses. "What I think Harvey means by that is to implant a sense, or reinvigorate a sense, in both students and faculty … in a modern liberal democracy … that can be wide ranging and expansive."

In the 12 years since its inception, FIRE has won hundreds of public victories, Creely said. These victories include changing codes on campuses and securing just results for students and faculty who have found themselves censored, silenced and kicked off campus.

"It's an incredible feat, frankly, that he's been defending student rights for over 40 years now in addition to all [the] other work he does," Creely said. "I really admire that he's a tireless advocate."

Silverglate's other big passion, criminal law, is what led him to write his most recent book, Three Felonies a Day. He is also a longtime member of the American Civil Liberties Union. His involvement with the ACLU of Massachusetts includes serving as a member of its board of directors for 30 years and two terms as its board president in the mid-1980s.

"Harvey's really one of the heroes of the civil liberties movement," said Carol Rose, executive director of ACLU of Massachusetts. "He brings his brilliant legal mind together with his analytical writing ability."

Being able to combine his experiences as a civil liberties and constitutional law expert, and being able to write about it and translate the principles of civil rights and civil liberties for a lay audience to understand, is a "rare combination," Rose added.

"I think there's an obligation of people who work in our institutions to keep them honest," Silverglate said about his advocacy roles. "Who else is going to do it? The only other group in society that's dedicated to trying to keep institutions honest is the press. And the press often can't get into these institutions, but lawyers can."

While Silverglate's role as a lawyer has seen him covering a variety of cases, from selective service to students' rights to white collar crimes, he admits that there are certain kinds he favors.

"I'll take any criminal case," Silverglate said, "but my favorite cases are the federal cases where I sit there and say to my client, 'What did you do that got you into this?' And the client says, 'I don't know. I have no idea what I did wrong.'"

These are the sorts of cases he now handles at the Boston law firm Zalkind, Rodriguez, Lunt & Duncan, where Silverglate works of counsel. David Duncan, a partner at the firm, said he often uses Silverglate as a sounding board when he works on student discipline cases, an area where Silverglate's been a "groundbreaker."

"I think he's generally perceived as a brilliant strategist," Duncan said, "and as someone who will invariably stand up for free speech and against authority. He looks at problems and thinks about them in a way that most lawyers don't or can't."

Silverglate often gets calls from lawyers around the country seeking advice. "The reason people call me is because I have taken a very different view of federal criminal prosecutions. I suggest there are ways to defend these cases that are non-traditional."

A DISTASTE FOR CONVENTIONAL APPROACHES, THEORY

Non-traditional is just one of the terms Norman Zalkind, partner at Zalkind, Rodriguez, Lunt & Duncan, would use to describe Silverglate. Zalkind first met Silverglate during the late 1960s in the basement of the Suffolk Superior Court building in police lock-up. Silverglate mistook Zalkind as a defendant arrested during an anti-war demonstration at the Statehouse.

Despite the mix-up, Silverglate and Zalkind soon became partners, opening up their own firm. The two handled cases such as the Harvard University takeover and the Pentagon Papers.

"He's different from most lawyers," Zalkind said. "He's just creative. He thinks out of the box. Sometimes the ideas go nowhere and sometimes they go right to the heart of things."

It was at Zalkind & Silverglate's law firm where Silverglate first met Nancy Gertner, a retired U.S. District Court judge and now a professor at Harvard Law School. Gertner and Silverglate eventually began their own law firm, where they practiced together for 17 years.

Silverglate's is "a voice that is absolutely invaluable," Gertner said.       "He's someone who is enormously creative and works really, really hard, and really will think about the unorthodox and try to do the unorthodox."

One of Gertner's fondest memories of Silverglate occurred when he encouraged her to take the Susan Saxe case, in which a Vietnam anti-war demonstrator was accused of killing a police officer.

"When people talk about mentors, I don't think that there's a way for describing how extraordinary that push was for me," Gertner said. "It made an enormous difference in my career. I'm not sure that any other male lawyer at the time, then or now, would have easily made that decision."
Silverglate is known for not shying away from controversy, and his current views on the legal system are no different.

Working to preserve the U.S. Constitution during a "War on Terror … is the greatest challenge of our age," he said. "To preserve a republic in the face of the warriors who tell us [that] we cannot afford to have free institutions in an era where other people are looking to terrorize us … I think that's the main challenge."

PERCEPTIONS OF SILVERGLATE'S INFLUENCE, LEGACY


Silverglate, who often lectures students about campus rights, civil liberties and criminal law, "encourages young law students to fight to preserve what's best and what's marvelous about the civilization that we've constructed around the rule of law and the Constitution," he said.

Silverglate's research assistant, Daniel Schwartz, said, "To say Harvey has been an influence on what I'm doing would be one of the great understatements."

"Harvey brings a perspective to everything," said Silverglate's intern, Stephen Henrick. "I feel like he's really committed to his ideals, and I respect that in a lawyer."

"I'm delighted that so many of the law students I've helped train have gone onto useful careers," said Silverglate, who keeps in touch with many of them.

What's up next for Silverglate? The probability of a third book is pretty high, he said, even though he "vowed" to never write another book because of the toll it takes on his law practice.

The tentative title is Acts of God, which will focus on cases in which prosecutors have suppressed exculpatory evidence and "it was by the most bizarre fluke that years later the exculpatory evidence came out and freed" the convicted, he said. "There are a disturbing number of these cases and I decided to collect them and write about them in order to point out how crazy our current system is … how easy it is for prosecutors to suppress evidence and get away with it for life."

With a lifetime full of life-changing work to look back on, Silverglate doesn't seem to particularly care about the legal legacy he'll leave behind one day. "I don't put my stock in that," he said. "I think if you live your life worrying about legacy, you tend to be too focused on pleasing people and having people approve of what you do."

He added: "I want my friends to remember me as a good friend and my son to remember me as a good father, which I think I was. And if I predecease my wife, as a good husband and friend."

©2014 Massachusetts Bar Association