Legal Ethics Forum

Zealous advocacy for accused terrorists

Story here.  Criminal defense lawyers for the accused terrorists who will be tried in NYC are saying that their clients will plead not guilty so that they will have more opportunities for criticizing the United States.  In response, Dean Boyd, a spokesman for the Department of Justice, said that "we have full confidence in the ability of the courts and in particular the federal judge who may preside over the trial to ensure that the proceeding is conducted appropriately and with minimal disruption, as federal courts have done in the past."  

Lawyer involved in murders of witnesses?

WSJ law blog has a surreal story about allegations against a criminal defense lawyer.

Tony Mauro: "Do Defendants Get Enough Warning About a Guilty Plea's Consequences?"

Fascinating article here, about the problem of advising criminal defendants of all the adverse consequences of pleading guilty.  It looks as if the ABA and other groups will be moving toward more uniform standards.  

Extensive recusals within DOJ related to prior legal work for detainees

The issue of recusals within the DOJ is being pushed in some quarters as a hot political issue.  From reading the editorial at the Washington Times, a recent blog entry, and an older account from American Lawyer media, it seems to me as if the recusal rules within DOJ, which are in some ways even stricter than the Model Rules, are working as they should.

Lawyer (and alleged ponzi schemer) targeted people who invested in law suits

Story here.  Key graf:

Fort Lauderdale, Fla., law firm leader Scott Rothstein would piggyback on actual lawsuits, including one tawdry case his firm was handling, to solicit investors in an alleged Ponzi scheme, according to a lawsuit by investors claiming more than $100 million in losses.

Plaintiffs lawyer posts Youtube video about new suit; gets sued for defamation; moves to strike defamation suit under SLAPP law

Story here.  Youtube video here.  

NY news that you'd expect to hear coming out of Baltimore or Chicago

According to Point of Law, "The ethics counsel to the New York state senate told senators to hand-deliver ethics filings, rather than mailing them, to avoid coverage under the federal mail fraud statute."  (Hmm, what's the 1.2(d) analysis on that?)

ABA's "Ethics 20/20 Commission" announces Preliminary Issues Outline, seeks feedback.

Outline here.  Commission website here.  Get your comments in by December 31, 2009.  The three top-level issues in the preliminary list are:

1. Issues that arise because US lawyers are regulated by [US] states but work increasingly across state and international borders.  
2. Issues that arise in light of current and future advances in technology that enhance virtual cross-border access.
3. Particular ethical issues raised by changing technology.

Update on file filching deputy: Judge gives deputy a chance to apologize, avoid jail

The court's order is here.  But, according to this story, no apology may be forthcoming.  

Conflicts of interest within DOJ for lawyers who formerly represented detainees?ainees now in DOJ?

This op-ed asks whether there are conflicts of interest within the DOJ for lawyers who formerly worked for detainees.  Reading between the lines, it appears that recusals within the DOJ have been made on a case-by-case basis.  The GOP senators want more information.

Ron Rotunda: "The Judicial Transparency, Judicial Ethics, and A Judicial Solution: An Inspector General for The Courts"

Interesting idea; article here.  Abstract:

Many federal judges routinely fear criticism, but that fear is unwarranted. The public is rightly concerned that the procedure to investigate and discipline problem-judges is flawed, particularly in a few high-profile cases discussed in this article. Several recent indictments of federal judges add to the problem. As Judge Ralph Winter has acknowledged, the status quo is "not a confidence builder." Judges should welcome an Inspector General for the Federal Courts, who could restore public confidence in the federal judicial discipline system. The Inspector General can investigate potential ethical violations and proceed in those few instances where more is needed. This solution is something that both the public and the judiciary should welcome. Congress can create an Inspector General with appropriate safeguards that will keep our judiciary independent (because no one favors a dependent judiciary) and will keep our judiciary accountable (because no one favors a judiciary that is above the law).

I'll Believe This When I See It

Testifying before Congress today, Attorney General Eric Holder said the report of the Justice Department's Office of Professional Responsibility on the torture memos is "in its last stages" and should be released by the end of the month.  As those of you know who have been following this issue, the internal investigation by the DOJ's ethics watchdog has been complete since the fall of 2008, but has been held up (for reasons that are not clear) by Attorneys General Michael Mukasey and Holder.  Rumors of its content (smoking gun emails!) have been leaked, but the real thing still remains undisclosed.  Its release has been promised before, and I feel a bit like Charlie Brown running up to kick the football when I say this, but I think we may finally see the report, a mere year after its completion.

Disciplined prosecutor's appeal may result in disbarment

In the much-followed case of the prosecution of Santa Clara County prosecutor Ben Field, Field's appellate argument didn't go well.  Two of the panel members questioned why Field hadn't been disbarred.

The global law firm: the case of Singapore

I'm interested in exploring how the globalization of the legal profession affects the level of interpersonal trust in the provision of legal services.  Jay Krishnan's new paper, The Joint Law Venture: A Pilot Study, looks like a must-read for anyone with similar interests.  Here's the abstract:

This pilot study evaluates the effectiveness of law firms entering into joint ventures, an increasingly eyed business model particularly by American and British lawyers seeking to expand into promising financial markets. One country at the center of the joint venture experiment has been Singapore. With the strong encouragement of the Singaporean government (which has long embraced foreign investment), various elite law firms from the United States and Britain have been partnering with domestic Singaporean law firms for over the past decade. Because these foreign firms were traditionally barred from practicing Singaporean law on their own, the ‘joint law venture,’ or JLV as it came to be called, was initiated to provide the Americans and British with an opportunity to access the highly-desired, lucrative local market – through the use of their Singaporean joint venture colleagues. In return, the Singaporean firms were to benefit by gaining international legal contacts, learning ‘best practices’ from their foreign counterparts, and enhancing their reputations by being tied to prestigious law firm powerhouses.

Until now, no work has fully investigated whether these JLVs have actually fared as well as their advocates had hoped. Therefore, based on fieldwork conducted in Singapore, including in-depth interviews of the relevant parties, this project fills this gap – uncovering how due to economic misalignment, cultural misunderstandings, and a sheer breakdown of necessary human relationships, in more cases than not the JLV has been a failed business model. For these reasons, I argue that American and British law firms may wish to think seriously before pursuing the JLV route – not just in Singapore but perhaps even in other markets in which they are already present or are contemplating entering.

Lynne Stewart conviction upheld

More analysis later.  Opinion here.  Here's my original post regarding Stewart.  Links to key parts of the trial.  

As you read commentary about whether her lawyering should be considered criminal conduct, please bear in mind that the crux of the case was that the criminal conduct was the non-lawyering.  The specific conduct most damning to Stewart was a prison visit when she brought her Arabic-speaking paralegal who took down a dictated letter, in Arabic, from Stewart's client, the so-called Blind Sheikh.  The letter dealt with whether a terrorist group should withdraw from a cease fire.  While the dictation happened -- in a language Stewart didn't speak -- Stewart sat at the table and worked on other legal matters.  When a guard peered through the glass window, Stewart leaned forward and pretended to be speaking to her client and the paralegal about legal matters.  I don't think that anyone can argue that occasionally pretending to be be lawyering constitutes lawyering.  

UPDATE: Interview with Lynne Stewart about the Second Circuit's affirmance.

Odds and ends (November 17, 2009)

Chevron has filed a malicious prosecution claim against the lawyer who brought an environmental tort claim against Chevron.    . . . .    The former GC of Bank of America discusses his termination.    . . . .     Yet another case of severe sanctions for failure to preserve email and electronic documents.

California ready to approve new rules, including advance waivers, after some tinkering?

Unfortunately the story is behind a reg wall, but that's the gist of Mike McKee's article.  (Disclaimer: I'm not neutral on the issue of advance waivers and I'm quoted in the article.)  Here's a fair use snippet from the article: "State Bar governors over the weekend approved 35 new rules of conduct for lawyers, but sent a controversial one involving advance waivers back for fine tuning."  The article also quote a Star Bar official as saying that opposition to advance waivers was considered, but that Board of Governors was not opposed to them.

"Erin Brokovich" lawyers face 9th Circuit disciplinary hearing

Story here.

Patricia Salkin: "2009 Ethical Considerations in Land Use"

Patricia Salkin summarizes recent conflicts cases arising in law use practice.

Susan Saab Fortney: "Is it Educational Malpractice Not to Teach Comparative Legal Ethics?"

A little while ago, after teaching legal ethics in Slovenia, Susan Saab Fortney wrote this short piece, which was recently uploaded to SSRN, about teaching comparative legal ethics.   It might usefully be read in conjunction with Laurel Terry's piece, "A 'How To' Guide for Incorporating Global and Comparative Perspectives into the Required Professional Responsibility Course."

Margaret Tarkington on free speech to impugn judicial integrity

Margaret Tarkington on, "A Free Speech Right to Impugn Judicial Integrity in Court Proceedings."  Abstract: 

Throughout the United States, state and federal courts discipline and sanction attorneys who make disparaging remarks about the judiciary and thereby impugn judicial integrity. In so doing, courts have almost universally rejected the constitutional standard established in New York Times v. Sullivan for punishing speech regarding government officials. While courts have imposed severe sanctions regardless of the forum where the speech has occurred, many of the cases involve speech made by attorneys in court proceedings. The existing scholarly literature generally supports the denial of First Amendment protection in such cases, indicating that attorney speech when made in court proceedings is entitled to little, if any, constitutional protection.

In A Free Speech Right to Impugn Judicial Integrity in Court Proceedings, Professor Tarkington examines why a free speech right to impugn judicial integrity must be recognized for attorneys - even, and perhaps especially, when acting as officers of the court and making statements in court proceedings. Such a right is necessary to protect the constitutional and other rights of litigants to an unbiased and competent judiciary. Further, the recognition of such a right in the attorney preserves litigants’ access to courts and due process rights. These rights belonging to litigants are all but lost where attorneys are punished for or chilled from asserting them in court proceedings. Previous scholarly arguments - which are based on analogies to other areas of limited First Amendment protection - fail to account for the protection of the underlying rights of litigants, the role of attorneys in our adversary system, and the constitutionally-required role of the judicial branch. Importantly, the judiciary does not need to punish attorney speech impugning judicial integrity in order to protect its legitimate interests in the just adjudication of cases. In fact, by curbing speech in the presentation of claims, the judiciary undermines its own role and responsibility in remedying constitutional violations and providing fair proceedings.

The future of Big Law School?

The topic has been exploding in the blawgosphere.  Larry Ribstein's paper inspired Erik Gerding's post, which prompted a reply by Ribstein and a post by the WSJ blog, and a reply by Gerding, along with a post by Rick Garnett at Prawfsblawg, and in addition lots of people have been talking about Herwig Schlunk's paper Mamas Don't Let Your Babies Grow Up To Be Lawyers and the piece by George Triantis and the recent post by Bill Henderson at Legal Profession Blog, titled, Outcome Measures and Regulatory Failure in Legal Education.  Jeff Lipshaw takes up the issue as well.  

Justice Alito downplays impact of ABA standards for capital defense function

Interesting incident, which raises the issue of the degree to which ABA standards are binding, are meant to spur improvements, and/or are just aspirational goals.

from other sites (Nov 13, 2009)

At the Ethical Quandary, news of a case upholding attorney client privilege for emails across a company account.  I think that some cases might reach the opposite result, so it's a hot issue generally.  . . . .    Our very own Brad Wendel, Miguel Estrada (John Yoo's lawyer) and Judge Diane Sykes held a panel on the  "The Professional Responsibility of Government Lawyers in the War on Terror."  Brad focused on a defense of the possibility of a non-political, non-ideological approach to discipline and regulation.  Miguel Estrada focused on the use of ethics rules to further political goals.  (Regarding Estrada's framing, I'm fond of saying that "sometimes, 'ethics' is just a brick they throw at you when your back is turned."  Emphasis on "sometimes," because sometimes it's not.)   [This description has been edited, in light of Brad's comment below.] . . . .    "    Erik D. Ramanathan ’96 was named executive director of the Harvard Law School Program on the Legal Profession and its Center on Lawyers and the Professional Services Industry."     . . . .    Mike Frisch, at Legal Profession Blog, has new of what happened on remand in the Caperton case.    . . . .     From the WSJ law blog  "Khalid Sheikh Mohammed, alleged mastermind of the Sept. 11, 2001, terrorist attacks, and four others accused in the attacks will be put on criminal trial in New York, Attorney General Eric Holder is expected to announce later Friday."     . . . .    Bill Henderson on the winners and losers in the biglaw contraction

California ponders advance waivers; looks at bunch of proposed new rules

A poorly researched article is here.  On the contentious topic of advance waivers, the article is a caricature.  In a complicated world, both corporate clients and law firms need to be able to discuss advance waivers and reach agreement -- or not -- on whether to enter into them.  I quite frequently ask corporate counsel if they favor a rule banning them from entering into advance waivers and in my experience the universal reply is "I don't want a ban, but I do want the waiver to be conspicuous, and clear, and I want to be able to decline to sign a fee agreement if I don't like the waiver."  (I'm not advocating that advance waivers be enforceable against Joe and Jane Consumer.)

"We Made Political Mistakes. So Let's Fire the White House Counsel."

Why exactly is Gregory Craig, White House Counsel, being forced out? This is very strange. He ordered the closing of Guantanamo, we're told. And he wrote an order banning torture. And he supported revelation of memoranda that describe aggressive interrogation (or torture). Oh, and he didn't build political support for these decisions in Congress. 

Excuse me! But why are these the lawyer's mistakes (if they are mistakes at all)? The President and his political advisors should be making the "business" decisions (so to speak). Counsel's job is to say if the decisions are legal and prepare the appropriate documents. 

If a company's CEO decides to enter a new market or make a deal, and the decisions backfire, do we fire the lawyer who advised on the legality of the decisions and handled the legal implementation? I tell my students business (or in this case, political) decisions are for the company's officers (or in this case White House officials). The lawyer may, if asked and knowledgeable, offer advice, but business (politics) is not his or her responsibility. 

Besides, closing Guantanamo and banning torture were part of the Obama platform. 

The current list of justifications offered for Craig's departure is transparently ridiculous. It would be different if the White House said, for example, that the President had lost confidence in Craig. He not need to say why. Or, more mildly, if the White House said that the President preferred someone with a different legal orientation, whose  approach to legal issues was more compatible with his own. I could understand those reasons. But no one has said that.

Maybe there's something we don't know, but the reasons that have been reported so far make the White House look inept and foolish, at best. 

Two Negotiation Ethics Questions

In recent conversation with a group of lawyers, these two questions arose:

a. Lawyers A and B are negotiating a big deal. B's client wants clause X, which is peripheral to the substance of the deal but something B's client wants. After some back and forth A agrees to clause X in exchange for clause Y. B does the first draft. She omits clause X  (but includes clause Y) through an obvious oversight. There can be no other explanation. What may or must A do? What may A not do?

b. Same problem except it is A who is going to do the first draft. May A either omit clause X in the expectation that, given the complexity of the deal and the fact that X is a peripheral point, B might not realize it; or in the alternative, draft clause X in a way that is, to A's knowledge, less favorable to B's client than the terms to which  which A and B had orally agreed?

Bill Henderson on outcome measures at law schools

Bill would like to see more information gathered and published about legal education outcomes.  So would I, and, I'm guessing, so would law school applicants, law students, and recent graduates.

from other sites . . . .

Brian Leiter links to several posts about the late Fred Zacharias, whose untimely passing is a significant loss to our field.     . . . .     The Ethical Quandary discusses a new Oregon ethics opinion dealing with " the often frustrating situation where a client files a bar complaint against his or her lawyer, but does not discharge the lawyer (perhaps, as the opinion is written, because the complaint was filed with the Bar on the eve of trial)."     . . . .     Over at the Legal Profession Blog, Jeff Lipshaw suggests that "the paradigm of causation in law is blame-seeking, not explanation."  Although Jeff is discussing financial failures, I sometimes see that dynamic at play when accusations of unethical conduct are made.    . . . .      At Prawfsblawg, Marc DiGirolami discusses the ethics of a judge's participation with the Boy Scouts of America.

Prof. John Yoo's appeal to the Ninth Circuit (Jose Padilla v. John Yoo)

(Nod to Howard Bashman)  Having a lost a motion to dismiss the civil claims by plaintiff Jose Padilla, John Yoo has now appealed to the Ninth Circuit.  News article here.  The brief attacks what it sees as the creation of a novel and unwarranted Bivens action, and denies that Yoo should be held responsible for decisions made by the president.  Running throughout the brief is an argument that legitimate lawyering in a difficult field under difficult circumstances should not be considered tortious. Upon first reading the complaint, I wondered if Padilla could prove causation, but the trial judge held that the pleadings sufficiently alleged that Yoo "set in motion" a deprivation of constitutional rights.

The lawyer who will represent Major Hasan: John Galligan

Profile here.  If there is anyone in the US right now who is "friendless," as the old ethics phrase put it, it is Major Hasan.

New filing in Illinois case where prosecutors served subpoena regarding Northwestern Law students who worked for Innocence Project

Via Instapundit, there is a new filing by the prosecutors, suggesting that in one instance, an investigator gave a cabbie $60, knowing that some of it would be handed back the the passenger, who was a witness in the matter.  Story here.  I recommend not jumping to conclusions.  

The allegations do highlight the danger of mixing cash and witnesses.  In some jurisdictions, a lawyer may pay a witness a reasonable amount of money for the witness's time, but never for the contents of testimony or for helping to obtain a particular result at trial.  Even when payments are lawful, they are always subject to criticism by the opposing party and are fair game on cross-examination or other impeachment for bias.

Readers may remember this matter as the one where prosecutors served a very broad subpoena on the law school clinic, seeking even the students' grades for their clinical work.

Fred Zacharias

[I am posting this memorial notice on behalf of Fred's friend Bruce Green -- BW]

It is with sadness that I report the death of Professor Fred Zacharias on November 8, at the much too young age of 56, after a valiant, months’-long battle with a rare form of cancer.  Fred was a good friend of mine and of many others in the legal ethics community as well as a leader in, and outstanding contributor to, the field. 

Fred was a prolific scholar.  It was my privilege to co-author nine articles with him over the past decade, and that was just a small proportion of his prodigious output.  Fred was happy to tackle, and bring his insights to, virtually any issue in the field, and rarely turned down a chance to contribute to a conference or symposium.  A former defense lawyer, Fred often brought his experiences from practice into his scholarship, while at the same time keeping current on academic writings in order to advance scholarly conversation in the field.  Fred was among the handful of most frequently cited scholars of his generation.

As past chair of the AALS Professional Responsibility Section and regular contributor to the section’s newsletter, Fred sought to advance teaching no less than scholarship.  Having attended many of Fred’s talks at the ABA National Conference and at academic conferences, I can attest that Fred took his role in the classroom as seriously as he took his writing.  He also served the profession with dedication, including as a consultant on the Restatement of the Law Governing Lawyers and on other ALI projects and as a member of his city bar’s ethics committee.  In recognition of his outstanding contributions, Fred received numerous distinctions at the University of San Diego School of Law, where he taught for almost two decades, including most recently as the Herzog Endowed Research Professor and, this summer, as the inaugural holder of the Donald Weckstein Summer Research Professorship.

On a personal note, among the things I most valued in our friendship were Fred’s generosity of spirit and his commitment to friends and family.  Fred is survived by his wife, Sharon, and by his sons, Eric and
Blake, and by his mother, brother and sister-in-law.  Letters of condolence may be sent care of the law school.  I mourn his passing.

-Bruce Green

"So, an estate plan [is patentable]?" asked Justice Ruth Bader Ginsburg. "A tax avoidance method? How to resist a corporate takeover? All of these are patentable?"

The media are reporting that the US Supreme Court was extremely skeptical today about business method patents, in the long-awaited and highly anticipated Bilski oral argument.  Over the last several years, I've often been asked if legal techniques will be patentable -- the classic example being tax avoidance ideas -- and I've said that I sure hope the courts will kill that idea.  Looks like the court will provide us with some more restrictive rules about what is patentable.  Legal methods probably won't be.  

NLJ top 250 firms drop 4% in lawyer headcount

This article says that "the number of attorneys in 2009 [in the top 250 firms] sank to 126,669 lawyers, compared with 131,928 attorneys last year."  In 2008, the number of attorneys increased by 4.3 percent" and the number of associates dropped by 8.7%  

If the worst year in decades was a 4% drop, is some of the rhetoric about the death of biglaw overblown?  I agree, though, that the way biglaw goes about its business has changed.

(Just as a point of comparison, if all 250 firms were combined, the number of lawyers would be half the number of employees at Nestle, the world's 36th largest company.)

Anne Poulin: "Conflicts of Interest in Criminal Cases: Should the Prosecution Have a Duty to Disclose?"

Article here, by Anne Poulin.  Abstract:

This article addresses two types of conflicts of interests that arise in criminal cases: 1) when defense counsel has an employment relation to the prosecutor’s office, and 2) when defense counsel faces criminal investigation or charges. Both these situations threaten both the defendant’s representation and the actual as well as apparent fairness of the proceeding. Yet, only in extreme cases are these conflicts likely to result in a reversal of the defendant’s conviction. As a result, protection of the defendant and the fairness of the process often depends on early intervention, which allows the court to advise the defendant of the risks inherent in counsel’s situation and possibly accept a waiver from the defendant or disqualify counsel if appropriate. 

If defense counsel has an employment relationship with the prosecutor’s office or if counsel faces criminal investigation or charges, the prosecution generally has ready access to the pertinent information, and neither the court nor the defendant is likely to be aware of the problem. Therefore, when a situation exists that may generate one of these two types of conflict, the prosecution must have an obligation to disclose relevant information to the court and the defendant. Imposing the obligation of disclosure on the prosecution will increase the likelihood that courts will be able to address these types of conflict early and appropriately.

More details on the biglaw associate arrested for insider trading

Details here.  The prosecutors apparently have tape recorded phone calls implicating the accused.

When is moving a tortfeasor's assets a participation in fraud?

An Iowa farmer shot and killer his neighbor, and, in anticipation of law suits, the farmer quickly began to shift assets, hide assets, and engage in a massive shell game -- all with the help of lawyers.  At what point, if any, are the lawyers participating in a fraud?

What Ever Happened to the Search for Truth?

There was argument yesterday (Thursday) in the Supreme Court in Pottawattamie County v. McGhee, in which two men who have served 25 years of life sentences are suing two prosecutors in federal court for violating their constitutional rights by coaching  and coercing witnesses to commit perjury at their trial for murder.  The Iowa Supreme Court freed the (now) plaintiffs after finding that the main witness against them was “a liar  and a perjurer.”

Police officers have qualified (not absolute) immunity for fabricating evidence that is later used at trial.  Also, the lawyer for the prosecutors-defendants said that prosecutors who fabricate evidence, but who don’t present it at trial, can be sued.  But he argued that prosecutors who participate in the trial should have complete immunity for both suborning and presenting perjury.

Neal Katyal, a U.S. deputy SG, argued for the U.S. (!) that there is no constitutional right to sue either the police or the prosecutors if they have acted in concert to create and present the perjury.

Justice Kennedy commented that it’s a strange proposition that the more aggravated the tort, the greater the immunity.

Justice Alito expressed concern that liability in a case like this might chill prosecutors in assisting police in investigating cases.

Justice Sotomayor observed that prosecutors are rarely disciplined for misconduct, suggesting that potential civil liability might help to curb such misconduct.

It looks like 5-4, one way or the other.

Birther lawsuits

Last week George Conk posted an entry on his blog (here) with respect to the New Jersey attorney who has filed a lawsuit claiming that Barack Obama is a "usurper" because he was not born in the United States.  Conk argues that the filing of this lawsuit violates the ethical obligations of the lawyers because it is so obviously without merit.  My starting point was to agree with that, particularly given my general agreement with those who have argued that the conduct of Yoo et al was unethical.  While in this case safeguards of judicial process exist which did not for Yoo, the same basic principle, that lawyers have some obligation to respect legality, comes into play. 

On reflection, though, I have some qualms about the virtues of this position in the birther case.  This is for two main reasons.  First, the problem with the lawsuit in New Jersey is not that it is manipulating the law in some way (at least as I understand it).  The problem is that it is asserting facts that are almost certainly untrue.  I.e., it is clear in law that the President must be born in America; the only question is whether the application of that rule to Obama causes any problems.  There are of course many constraints on the ability of lawyers to bring forward facts that are not true, and the frivolity restrictions on filing lawsuits would probably apply to factually frivolous lawsuits as well as to legally bogus ones.  But I think there might be a need to make some analytical distinctions between those two things - i.e., the nature of what constitutes unethical conduct in the filing of a factually frivolous lawsuit might be different from a legally frivolous one.  I would tend to think one should be more lenient with factual frivolity, if only because often a purpose of litigation is to discover what happened, and to provide access to a far better and more complete factual records than can be obtained otherwise.

Second, and to me more significantly, as a matter of public policy it seems better to have litigation such as this go through the Court.  It seems to me better to have a Court say to a birther, "I've looked at this and you're completely wrong and there is no issue whatsoever with Obama's place of birth" then to have a lawyer say that to a birther in private.  Preventing the court from pronouncing on the matter seems to me more likely to allow the birther movement to simply continue to spread its rumours and stories about the web, without the strong counter argument that the judgment would present.  This may not always be a strong argument for bringing frivolous litigation - private cases don't have the same public significance as Obama's place of birth - but it seems to me to have some weight here. 

Clicks, Clients, and Controversy: The Ethics of Paying for Client Leads

Several states are asking whether a lawyer can pay a non-lawyer for each Internet-based client lead that the non-lawyer generates.  Some state bar authorities, most notably Connecticut's, contend that such a payment is an unethical referral fee, whereas other states (e.g., Hawaii) have concluded that it is simply a fee for advertising, which the rules permit.

In my view, lead generation is no different from what you see on the left and right sides of this blog.  You are likely to see ads for lawyers and law firms.  If you click on one of those ads, Google (a non-lawyer) gets a small fee for generating a “lead,” and this blog gets a small fee.  Because Google (and this blog) do not get paid any additional money if the prospective client retains the lawyer, the fee is for advertising, which is ethical, and not for the referral, which would be unethical.   (Carolyn Elefant makes a similar point here.)

The conduct getting all of the attention is the business model of totalattorneys.com, which is slightly different from the Google ads, but not different in any meaningful sense.  An attorney (say a bankruptcy attorney) subscribes to Total Attorneys’ service, totalbankruptcy.com.  If someone comes to the website looking for a bankruptcy lawyer, Total Attorneys identifies the prospective client’s zip code and connects her to an attorney near where the prospective client lives.  That lawyer then pays a fee to Total Attorneys for the lead.  Critically, the lawyer pays the same fee regardless of whether the prospective client decides to hire the attorney. 

I don’t see how Total Attorney's lead generation revenue model is conceptually different from Google's pay-per-click model.  In both cases, a lawyer is paying a fee to a non-lawyer for each lead that the non-lawyer generates.  If Total Attorneys is doing something problematic, isn't Google doing the same thing? 

The Connecticut authorities try to distinguish Google (see pages 10 and 11) primarily on the grounds that the fee paid to Google is small, but I don't see anything in the rules that distinguishes between small referral fees and larger ones.  If there is no such distinction, Connecticut should necessarily prohibit attorneys from advertising through Google.  And if they start to do that, please don't tell them about our blog ads. “Ethics Blog Helps Lawyers Engage in Unethical Conduct” is a headline that we could do without.

Blogging as grounds to oppose pro hac vice application?

The theory is that the blogging lawyers who seek pro hac admission are in violation of the trial publicity rule.  (Hat tip to Ben Sheffner, at Copyrights & Campaigns)  

Biglaw associate arrested in insider trading scandal

Story here.  It's only allegations and charges at this point, but we will try to follow it closely.

(For those of you who remember the Ilan Reich affair, in which Reich, a biglaw associate, pled guilty to criminal insider trading in the Drexel scandal, here's an article about how Reich struggled to turn his life around.)

Judge Posner on the modern economy for young lawyers

Jump to the 20th minute.  If you're familiar with the recent work of Bill Henderson and others, none of this will surprise you, but I enjoyed hearing Judge Posner's distinctive spin.  

New Media in the Courtroom: Northern California Federal Courts conference

Official site here.  I'm there, and we've been encouraged to blog or tweet from the conference, in the federal building.  (The security guards were a little surprised that we were allowed to bring electronic equipment upstairs.)  If you have any questions you'd like to ask the judges, please post them.  The point of the conference is to see if the federal judiciary and the media (new and old) can come to terms with each other.  The comments below are my quick paraphrasings of what is being said.

The judges are stressing that they want to learn about new media.  They know it's coming to their nook of the legal system.

Deputy swipes document from defense counsel

Amazing video.  Stories here and here (with a nod to Reason blog).  (If this doesn't get Monroe's blood boiling, I don't know what will.)  At the subsequent hearing the deputy could not explain his conduct except to suggest that he seized the document because it was proof of a crime.  But the judge would not hold the deputy in contempt unless the deputy could defend himself by discussing what he saw on the document -- and because the document was privileged, the deputy was forbidden to discuss the contents unless the defendant waived the privilege.  The defendant wouldn't waive, and so the judge didn't hold the deputy in contempt.  (If I were the judge I would have!)

Court Hears Arguments Today on Attorney Inexperience and Prosecutorial Immunity

Two more lawyering cases will be argued at the Supreme Court today.  Wood v. Allen raises an issue certain to resonate with new lawyers and those who supervise them:  whether an attorney's inexperience may constitute ineffective assistance of counsel.  Pottawattamie County v. McGhee tests the doctrine of prosecutorial immunity where two prosecutors secured false testimony and introduced it at trial.  The ABA Journal offers an interesting summary here. 

For those of you tracking the Court's heightened interest in the law of lawyering this term, my latest count is ten cases.

Qualcomm: Outside lawyers blame the company

This is big.  In the much discussed Qualcomm matter, where the federal court referred six lawyers (including two second-year associates) to the state bar for possible discipline, it now appears that the outside lawyers will blame the client for misleading the lawyers.  Some observers (myself included) have expected that defense to be raised -- and I eagerly await the court's ruling on it.  

I will post more analysis as it become known but for now want to mention one angle: the "disaggregation" of larger legal representations.  Increasingly, we are seeing corporate clients break up the legal representation into functional pieces and then farm out the functions to various providers, including lawyers.  To some degree this is old news.  And is certainly makes economic sense, given the costs of high-end legal services.  But in this era of electronic discovery and outsourcing, the dangers for the client and outside counsel have increased.  I had predicted that Qualcomm might usher in an era of increased danger for in-house counsel who manage large litigations. Perhaps at the Qualcomm hearing, set for January 2010, we will get some answers.

Kevin Michels on "Internal Corporate Investigations and the Truth"

[Kevin Michels sends along this piece on internal corporate investigations.] 

Thanks for the invitation to guest blog at the Legal Ethics Forum.  I am a regular reader and fan of the Forum.  I am honored that the Forum featured my article “Internal Corporate Investigations and the Truth,” which is slated for publication in the Seton Hall Law Review in January 2010.  Today, I thought I would offer a few comments on the investigation article, and why it might be of interest to those of us who think about legal ethics.  In the next couple of weeks, I will offer some thoughts on my article in the first issue of the current volume of the Georgetown Journal of Legal Ethics, which uses the legal-ethics rules as part of two-prong test to determine when to recognize or reject third-party claims against counsel. 

If history is any guide, nearly half of all American public companies will commission an internal corporate investigation this year.  Internal investigations are triggered by allegations that the company or its employees engaged in material wrongdoing.  The corporation hires investigative counsel, who conducts the investigation and reports her factual and legal findings to the corporation and potentially to the public, the government, shareholders, courts and other third parties.  Much of the scholarly commentary to date has addressed issues related to privilege and work-product protections, when and whether to conduct an internal investigation and how to deal with employee and other witnesses.   My efforts are directed at a more fundamental question: does investigative counsel have an obligation to “get it right” in her investigation and report, and how does this relate to her client obligations?  The investigator is asked to develop an investigative report assessing the validity of material charges against her client – a scenario rife with potential conflict.  The article seeks to develop a principled account of when investigative counsel are subject to special truth obligations, what those obligations are, how they can be understood in a client setting, and what these obligations entail for the structure and conduct of an internal corporate investigation and for disclosure of the results.

I contend that the attorney-ethics rules as well as corporation law and other statutory provisions effectively impose a duty on investigative counsel to develop an accurate account of the law and facts in an investigative report delivered to the client or to a third party.  It is tempting, however, to dismiss imposition of a truth or accuracy obligation on investigative counsel as more illusory than real.  Judges often disagree in their assessment of legal matters, and thus some might see the role of investigative counsel as simply to provide her “take” on the facts and law.  In his article, “Professionalism as Interpretation,” W. Bradley Wendel persuasively argues (in the counseling context) that while there may be room for disagreement, counsel’s interpretation of legal matters is bounded by (to oversimplify) the principles, standards and norms of the professional community.   Others (the so-called “conventionalists,” for example) have offered a similar account of the constraints on judging.   By analogy, I argue that it is fair to demand accuracy of investigative counsel, provided that we understand accuracy as a bounded range rather than a single, correct outcome.  

Dina Mishra: "When the Interests of Municipalities and Their Officials Diverge: Municipal Dual Representation and Conflicts of Interest in § 1983 Litigation"

Interesting note topic.  Abstract:

In many cases, municipal attorneys defend both a  municipality and a municipal official against § 1983 claims. Some defenses available to the two types of defendants are incompatible and may give rise to conflicts of interest. This Note analyzes the problems associated with these conflicts of interest. The Note categorizes and describes the strengths and shortcomings of existing approaches to addressing these conflicts. Finally, it proposes a hybrid approach that may better address conflicts of interest in municipal dual representation.