Legal Ethics Forum

Kathleen Clark on the Neal Katyal DQ, "The revolving door: Who really cares?"

Kathleen Clark's op-ed (via NLJ) asks about the purpose of a disqualification rule that would preclude former government lawyers from working on matters in private practice that they didn't work on while in the government. As many of our readers know, Clark has been writing about the ethics of government lawyers in depth for a long time.

Milan Markovic, "The Sophisticates: Conflicted Representation and the Lehman Bankruptcy"

Article. I'm glad to post this article by Milan Markovic, altough I disagree with some its conclusions. When we think about whether or not sophisticated clients (i.e., organizational clients with their own GCs and inhouse legal departments) ought to have the legal right to contract around the default rules regarding conflicts of interest, we might ask them what they want and why they want it. Corporate counsel indicated to the ABA that they want more flexibility to waive conflicts when they choose to, because that is in the best interests of their clients. 

I'm glad to say that we expect the author, Milan Markovic (Temple) to be posting here over the summer, so perhaps he and I can have some debates on this issue.

Abstract:

Scholars have long suggested that attorney conflict of interest rules are too onerous and that sophisticated clients may not need the protection of such rules.

This article utilizes the law firm of Sullivan & Cromwell’s representation of Lehman Brothers during the financial crisis as a case study to contend that attorney conflicts of interest can undermine the representation of even extremely sophisticated corporate clients. This is because the significance of a particular conflict can change during the course of a representation and the fact that a sophisticated client may have previously consented to a conflict does not ensure that the conflict will not jeopardize the representation. Attorneys are also likely to overestimate their capacities to account for conflicts of interest.

Attorney conflict of interest rules should be modified so as to prohibit conflicted representation when the attorney’s ability to satisfy the client’s objectives of the representation is frustrated by a conflict of interest and to expressly require regular consultation between the attorney and client concerning the conflict. Of equal importance is that attorneys do not conceive of their conflicts of interest as mere obstacles to be circumvented.

WSJ on "Unfinished Business" Claims

I posted about it earlier (and linked to a Beazley Brief on the issue). The WSJ has this post about a recent ruling on the "unfinished business" rule as applied to the Coudert Brothers estate. Under that rule, an insolvent firm's bankruptcy estate can claim revenues earned at other firms on matters that moved from the bankrupt firm to the other firm. (This ruling puzzles me from a LGL point of view. If the original firm goes insolvent and is no longer able to fulfill the duties it undertook, thereby forcing the client to find a new firm, why should the insolvent firm have a claim to the revenue?)

Williams & Connolly blasts DOJ's resolution of discipline for prosecutors in Sen. Stevens case

W&C, counsel for the late senator during the proseuction, had the following statement. (h/t: White Collar Crime Prof Blog)

STATEMENT OF WILLIAMS & CONNOLLY LLP
COUNSEL FOR SENATOR TED STEVENS

Today the Department of Justice demonstrated conclusively that it is not capable of disciplining its prosecutors. Apparently, prosecutors can violate the Constitution, deny the defendant exculpatory evidence demonstrating innocence, and introduce perjured testimony without any fear that they will be
punished. Prosecutors orchestrated a miscarriage of justice in Senator Stevens’ case that caused the Attorney General of the United States to order the case dismissed. Trial Judge Emmet Sullivan declared that the misconduct was the worst he had encountered in 25 years on the bench. The misconduct caused a jury to render an illegal verdict, which in turn resulted in the loss of Senator Stevens’ re-election bid. And, the balance of power shifted in the United States Senate. The punishment imposed is laughable. It is pathetic. No reasonable person could conclude that a mere suspension of 40 and 15 days for two of the prosecutors is sufficient punishment for the wrongdoing found in the report.

UPDATE: More from The Hill.

Prosecutors trashing defendants in the media

Monroe recently posted about the issue. In today's news are a posting from White Collar Crime Prof Blog about a federal prosecutor's press release that sends conflicting signals in the headline and the small print, and also the public apology/regrets from the highly regarded US Attorney for Chicago, Patrick Fitzgerald, who is stepping down from that position. In announcing the indictments of Gov. Blagojevich, Fitzgerald crossed the line when he said that Lincoln would be spinning in his grave. I (and others?) criticized Fitzgerald for that and so I'm glad to run news of Fitzgerald being candid about his error.

Counseling an innocent client to plead guilty

NY Daily News carries a gut-wrenching story:

"The kidnap-rape conviction of a once-promising prep football star was dismissed Thursday following a recantation by his accuser.     . . . 

In the summer of 2002, Banks’ future looked bright: He was a 17-year-old high school football star being heavily recruited by a number of colleges. But in a single day that changed with the accusations of kidnapping and rape by a female student. He maintained there was no rape and their sexual contact was consensual, but his lawyer urged him to plead no contest rather than risk a sentence of 41 years to life in prison if convicted. He followed the advice and went to prison for six years, shattering his dreams of gridiron glory."

The focus should be on Brian Banks, but I can't help but wonder: what is it like for a lawyer to advise an innocent client to plead guilty?  (h/t: Althouse)

Lawyer-client interview with Manson-related killer may be released to the prosecutors

NBC Southern California carries an odd story: as part of an effort to help pay legal fees, one of the killers associated with Charles Manson consented to the sale of audio tapes of his interviews with his lawyer. The tapes are now held by a bankruptcy trustee and some prosecutors want to listen to them in hopes of clearing up some old homicides. I'm familiar with cases where a bankrupt corporation's trustee waives privilege in order to pursue malpractice claims agasint the corporation's lawyers, but this story is a new wrinkle to me. I'd like to hear those interviews myself.

Lawyers who dictate using Siri: where do your words go?

I was forwarded this news story from Wired, which suggests that everything that is dictated on Siri gets sent to a computer in North Carolina. Assuming that's true, does that fact by itself raise a confidentiaility issue? Or do we need to know what happens to the data and how it's used before we conclude that there's a problem? I believe that similar issues were raised regarding Google Docs and my sense was that one needed to understand the details before drawing conclusions.

DOJ publishes summary of OPR findings regarding discipline and Sen. Stevens prosecution

WSJ Law Blog has a short item on the letter from DOJ to Senator Leahy. Below is the seven page summary of the OPR findings.

Download DOJ-Letter-to-Chairmen-Leahy-and-Smith-2

Troy McKenzie, "Toward a Bankruptcy Model for Non-Class Aggregate Litigation"

Article. Abstract:

In recent years, aggregate litigation has moved in the direction of multidistrict litigation followed by mass settlement without certification of a class action — a form commonly referred to as the “quasi-class action.” Driven by increased restrictions on class certification, the rise of the quasi-class action has been controversial. In particular, critics object that it overempowers lawyers and devalues the consent of individual claimants in the name of achieving “closure” in litigation. This Article presents two claims.

First, the debate about the proper scope and form of the quasi-class action too frequently relies on the class action as the touchstone for legitimacy in aggregate litigation. References to the class action, however, are more often misleading than helpful. The basic assumptions behind the class action are different in degree and in kind from the reality of the quasi-class action. Overreliance on the class action as the conceptual framework for aggregation carries the significant risk of unintentionally shackling courts in their attempts to coordinate litigation. The very reason the quasi-class action emerged as a procedural device — the ossification of the class action model of litigation — suggests that courts and commentators should look for another reference model when assessing what is proper or improper in quasi-class actions.

Second, bankruptcy serves as a better model for judging when to use, and how to order, non-class aggregation of mass tort litigation. The entirety of bankruptcy practice need not be imported to realize that bankruptcy may provide a useful lens for viewing aggregation more generally. That lens helps to clarify some of the most troubling concerns about the quasi-class action, such as the proper role of lawyers and the place of claimant consent. Bankruptcy serves as a superior reference model because it starts with an assumption that collective resolution is necessary but tempers the collective with individual and subgroup consent as well as with institutional structures to counterbalance excessive power by lawyers or particular claimants.

"[Canadian] Court rejects favouritism for murdered lawyer’s daughter"

Two legal ethics experts from Canada are quoted in this Law Times News article about an appellate decision reversing a venue ruling that had cited the need to protect the role of lawyers. The reversed ruling below had asked, "Do our Courts owe any duty to the child of a murdered barrister to exercise discretion in a manner which takes into account the specific circumstances of the barrister’s murder? Particularly where it is alleged to have been committed as a consequence of the performance of her professional responsibilities?" The appellate decision is set forth below the break.

"Arizona redistricting judge represented GOP before"

Mohave Daily News: A federal judge assigned to a politically charged Arizona redistricting case represented Republicans in a similar case a decade ago." But the quoted ethics experts, our own Steve Gillers and Charles Geyh, don't see the judge's prior representation of the GOP as a disqualifying event.

Lawyer sues Gloria Allred, alleging theft of client

CNN: I sometimes hear about suits of this type, alleging that a lawyer stole a client. My intuition (unburdened by thorough research ) was that given the nearly absolute right of the client to fire a lawyer and hire a new one, it should be hard or impossible to maintain suits of that type.

Ben Cooper, "Mandatory Pro Bono Redux"

Article by Ben Cooper (which will appear in the journal, Legal Ethics). (h/t: Legal Theory Blog) Abstract:

This short article, which will appear as the Correspondent's Report from the United States in the journal Legal Ethics, argues that New York's new requirement that bar applicants perform 50 hours of pro bono service in order to gain admission is flawed but nevertheless worth supporting because of the dire need for such services. Other solutions, such as increased funding for legal services, are clearly better, but this is a step that the New York Court of Appeals could take on its own. Although the detailed implementing regulations have not been issued, this plan appears to impose far less of a burden on applicants, law schools, and the legal profession than critics suggest. Further, the new requirement fosters practical training of law students. Finally, the overwhelmingly negative reaction to this new requirement demonstrates once again that the legal community is remarkably resistant to change.

Inconsistent Prosecution and Defense Standards

I recently wrote to the Reporter for the project to revise the ABA Prosecution and Defense Standards, Professor Rory Little, about inconsistent provisions that trouble me.

When I actively practiced criminal defense in Washington, D.C., in the 1960s and early ‘70s, it was routinely necessary for the defense to file motions for bills of particulars, because the indictments provided as little information as possible.  That changed, however, when the prosecutors realized that they were free to publicize, in press conferences and otherwise, “information contained in a public record.”  That brought about the “speaking indictment” – an indictment that the prosecutors lard with extraneous prejudicial material which they are then permitted to publicize in order to heighten condemnation of the accused without due process, and to taint the jury pool.  (One defendant told me that he had never known that he was a/k/a The Snake until he read it in the indictment and heard the prosecutor call him that on television.)

Since nothing will ever be done to curb this kind of prosecutorial abuse, I have suggested to defense lawyers for some time that they can effectively defend their clients publicly by creating their own public records, in bail applications, motions to dismiss the indictment, motions in limine, and motions to suppress evidence.  See, e.g., Freedman & Smith, Understanding Lawyers’ Ethics 105 (4th ed., 2010).

The proposed revisions to the ABA Standards maintain the public records exception to pretrial publicity by prosecutors in 3-1.7(c), by maintaining “any exceptions in an applicable ... rule of professional conduct,” thereby apparently adopting by reference Model Rule 3.6(b)(2).  (Whether 3.6(b)(2) overcomes 3.8(f) is debatable, but that is an issue for another time.)

Expressly maintaining the public records exception for prosecutors is a matter of concern in itself, but what makes it particularly troubling is the non-parallel provision in Std. 4-1.7(c), which says: “Defense counsel should not place statements or other evidence into the court record to circumvent this [anti-publicity] Standard.”

I hope that I have misunderstood the provisions, but I have not heard back from Professor Little about whether there is any justification for this double standard for the prosecution and defense.

LawTechCampLondon registration deadline May 25

The deadline to register for LawTechCampLondon 2012 to be held Friday, June 29, is fast approaching. There is no charge to attend, but registration is required.  Click here to register and click here to propose a presentation.  Hope to see you there!

Neal Katyal, former acting SG, disqualified in civil case

WSJ Law Blog carries the news. Unforunately, no written opinion is expected. (Steve Gillers had analyzed the dispute and I had mentioned it.)

Inadvertent production through failure to redact

SBM Blog carries the story of a big snafu.

California appoints first Muslim-American to its bench

Halim Dhanidina was appointed to the LA County Superior Court bench. According to Gov. Brown's website:

Halim Dhanidina, 39, of Los Angeles, has served as a deputy district attorney in the Los Angeles County District Attorney’s Office since 1998. He earned a Juris Doctorate degree from the University of California, Los Angeles School of Law and a Bachelor of Arts degree from Pomona College. He fills the vacancy created by the conversion of a court commissioner position. Dhanidina is a Democrat. According to the Muslim Public Affairs Council, Dhanidina will be the first American-Muslim judge ever appointed in California.

Using the prosecution of George Zimmerman for a PR course?

There are so many interesting issues arising out of the prosecution of George Zimmerman for the homicide of Trayvon Martin. But do the controversies and the senstive issues about race make it a bad candidate for a discussion in a PR course? Some of the issues that might be covered:

1. In submitting the probable cause affidavit, is the prosecutor permitted to to omit facts inconvenient to, or even contradictory to, the theory the prosecutor is offering? Or is this an ex parte communication that requires the prosecutor to reveal facts reasonably necessary for the tribunal to made a fair decision? (I have discussed this issue before and Alan Dershowitz has been hammering it in the press, but I still don't know what the governing law says.)
2. (Hypothetical) In preparing the probabe cause affidavit, may a prosecutor suggest to the person signing the affidavit that certain words be used or not used? How far may the prosecutor go in shaping that sworn testimony? In particular, there has been criticism of the claims that the 911 operator instructed Zimmerman not to follow Martin and that Zimmerman profiled Martin. How far can a prosecutor go in urging a witness to use those words?
3. If the affidavit asserts facts for which the prosecutor has no reasonable evidentiary basis, may the prosecutor submit that affidavit? (Note that I'm focusing not on issues that the prosecutor believes are false, but rather unsupported facts.)
4. What do the ethics rules say about the prosecutor's charging decision? Was the decision to charge the defendant with muder in the second degree ethical in this case?
5. What do the ethics rules say about the identity of the prosecutor's client? Didn't the prosecutor's public statement get that wrong?
6. Should the prosecutor have prayed with the lawyer for the deceased's parents?
7. What are the ethical implications of defense counsel setting up a web page to support the defense? Could there be a loss of privilege or breach of confidentiality? Could the prosecutor argue that statements at the site can be admissions by the defendant?
8. Did the first set of defense lawyers breach their duty of confidentiality when they publicly announced why they were withdrawing?
9. (Hypothetical) Assume hypotheticaly that in private the defendant confesses racial bias to his defense lawyer. What are the ethical constraints, if any, about putting the defendant on the stand?

Harry Bryans' primer on in pari delicto defenses to trustee suits

We recently blogged about the Le Nature case (which reversed the dismissal of a suit against a law firm by the bankrupt's Trustee). For those of you who want to get a better handle on the issue, you might read this useful piece by Harry Bryans (formerly a Drinker Biddle partner and now at AON -- although the article expresses the view only of Bryans).

Download In Pari final

Should an illegal immigrant - undocumented worker be admitted to the California bar?

At How Appealing, Howard Bashman rounds up articles about a pending application to the State Bar of California.

Legal ethics odds and ends (May 17, 2012)

• JD Journal: A federal court looks at allegations of litigation misconduct by a biglaw firm in its defense of a ponzi scheme.

• At Legal Whiteboard, Bill Henderson offers thoughts on the new book by Brian Tamanaha (not yet sold to the public, alas) on what law schools should be doing differently.

• ABA Journal: More than half of bias plaintiffs believe their lawyers are incompetent. (That finding cuts two ways, of course.)

Richard Zitrin's Moral Compass Column

In a comment to John Steele's post below, Richard Zitrin mentioned that he has re-started his "Moral Compass" column.  John linked to one recent article (PDF version here), and you can read another, entitled The Moral Compass: Don’t Just Talk About Trust – Earn It! here.  This is the abstract for it:

A client's trust in a lawyer's judgment may be the most valuable currency the lawyer has — more than legal skills, experience, intelligence or knowledge. And yet a few months ago, when I wanted to share with my ethics students some thoughts about developing trust between client and lawyer, I couldn't find a good, commonsense article that summed it up for them. So I decided to write something myself, and found that there’s quite a lot of work to do in earning a client’s trust.

K&L Gates gets sued by Trustee

As I've said before, biglaw may consider BK trustees to be the scariest persons on the planet. ABA Journal carries news of a suit by the trustee of Le-Nature, Inc., against K&L Gates. There is a link to the complaint.

More on the DOJ Effort to Disqualify Neal Katyal

I tried to  untangle this dispute. It poses a riddle about how exapansively to interpret the words "a particular matter" in 18 USC 207 and the implementing regulations. Both sides have good arguments. I think Katyal has an edge. The issue is "small bore" in one sense. It turns on the interpretation of two words. But it should be of interest to people in our line of work.  

Essentially, the question is whether Katyal's appearance as Acting SG on a brief responding to a challenge to a subpoena in a matter disqualifies him from now representing an individual who is appealing his conviction in an underlying prosecution. The criminal prosecution is a matter. And the subpoena issue was a matter. The question is whether the criminal appeal is the same (or substantially related perhaps) "particular matter" as the subpoena. 

The subpoena had been served on a company - AU - which resisted it but lost below and went to SCOTUS. Katyal's name automatically appeared on the opposition brief in SCOTUS because he was Acting SG. He didn't work on it. AU then when to trial and lost. Also, one of its former executives went to trial with it and lost. The executive was not before SCOTUS because the subpoena was not served on him. It's the executive's appeal from the conviction that Katyal wants to handle.

Katyal is prohibited from representing anyone in "a particular matter" if he was responsible for that matter within the year before leaving government. The prohibition continues for two years after leaving government. It doesn't matter that he never worked on the matter. It's enough this it fell under his supervision. 

So the question is whether the SCOTUS appeal, where Katyal was nominally responsible, and the prosecution of the executive, are sufficiently close for the two to be the  "particular" matter within the meaning of the statute. 

The government's argument as I understand it:  Although the SCOTUS appeal involved different parties and a discrete issue that will not be part of the executive's or AU's appeal (the enforceability of the subpoena), the SCOTUS appeal is incidental to the  the criminal prosecution of both and therefore the appeals of the conviction. It was just an offshoot of the investigation that led to the prosecution. The rules are meant to encourage public confidence in the operation of government.  AU is also appealing its conviction and will almost surely make arguments that overlap with those of the executive Katyal want to represent, so whatever Katyal does for him will work to benefit the government's former direct opponent in SCOTUS, and against Katyal's former client (the government), even if the issues differ on the appeal. And the subpoena DOJ enforced produced documents used in the prosecution of AU and the executive and evidentiary issues about them may arise on appeal.

Katyal's argument as I understand it: The particular Ethics in Government Act section the US is citing was meant to prevent the perception or fact of disloyalty only (no confidences are at risk here) by forbidding government lawyers from having even nominal responsibility for a matter and then opposing the government on the "particular" matter after leaving. (The lawyer ethics rules are similar but the Ethics Act covers everyone, not just lawyers, and so far as I can tell the government has not cited Rule 1.11.) The public's confidence, Katyal can claim, will not be undermined where the party he will represent on appeal was not a party he opposed in government (he opposed the company); and where the issues in the SCOTUS matter are necessarily different from the legal arguments Katyal will make on his appeal for the executive and are resolved. Katyal also cites the 6th amendment right to counsel of choice as a reason narrowly to interpret "particular matter" where the post-government work is representation of an accused person. In short, there is no plausible perception of disloyalty.

It will depend on how broadly the judge wants to read "a particular matter" in the statute and the regulations. The regulations under the Ethics Act can be cited by both the government and Katyal, though Katyal probably has a slight textual edge. But the judge will likely decide based whether she  perceives a need to implement the underlying policy. The reguation says: 

"(1) Basic concept. The prohibition applies only to communications or appearances made in connection with a “particular matter involving a specific party or parties.” Although the statute defines “particular matter” broadly to include “any investigation, application, request for a ruling or determination, rulemaking, contract, controversy, claim, charge, accusation, arrest, or judicial or other proceeding,” 18 U.S.C. 207(i)(3), only those particular matters that involve a specific party or parties fall within the prohibition of section 207(a)(1). Such a matter typically involves a specific proceeding affecting the legal rights of the parties or an isolatable transaction or related set of transactions between identified parties, such as a specific contract, grant, license, product approval application, enforcement action, administrative adjudication, or court case." 

Exam Malapropisms

From my collection over the years:

1) The lawyer should be sanctioned for his impunity.

2) Lawyers are required to conduct themselves with turpitude at all times.

3) Judges should avoid even the appearance of impartiality.

4) A judge has an absolute duty to maintain an appearance of impropriety.

5) The lawyer’s movement was substantial and in no way frivolous.

6) The competing concerns that undermine any good legal rule are (1) fairness (justice), (2) clarity, and (3) economic efficiency.

7) Defendant’s actions were a flamboyant violation of the duty of loyalty.

Beazley brief, "More Than Your Firm Bargained For: The 'Unfinished Business' Doctrine of Jewel v. Boxer"

Given the demise of Dewey and similar events, I'm pleased to upload this article by Kevin Rosen of Gibson Dunn, published by Beazley, about California's leading case (Jewel v. Boxer) on what happens to the revenues when lawyers move to other firms.

Download Beazley Brief 26 Jewel v Boxer

More on NY's Pro Bono Proposal

http://www.nytimes.com/2012/05/14/opinion/a-better-pro-bono-plan.html?_r=1&hp

Richard Zitrin, "When a Lawyer Needs a Lawyer"

ALM/Recorder: Richard Zitrin looks at the existence vel non of the intra-firm privilege when the firm is analyzing whether it committed malpractice as to a current client. Zitrin favors the rule that law firms cannot maintain privilege over intra-firm communications vis-a-vis current clients.

Legal ethics odds and ends (May 14, 2012)

• Independent Mail (SC): "Authorities investigate 2 Ex-Prosecutors in GA."  "The Justice Department is investigating two former federal prosecutors in Atlanta because of alleged misconduct in a death penalty case, the chief federal prosecutor here said."

• Business Journal (MN): Lawyer accused of bullying opposing lawyer.

• Duane Morris blog: "The Sixth Circuit recently cast significant doubt on the ability of an attorney to represent two of more defendants in a criminal case."

DOJ seeks to DQ Neal Katyal

WSJ: There's an interesting DQ motion brought by the DOJ against former acting Solicitor General Neal Katyal, who's now at Hogan Lovells and working on an antitrust case. I don't have access to the briefs, but according to the article (1) the DQ motion may be based on the notion that Katyal falls under a broad two-year ban and (2) Katyal's name may have appeared on a DOJ brief in an allegedly related matter as a matter of course even though he didn't personally work on the matter. Quoted in the article are Deborah Rhode and our own Richard Painter. The judge hearing the motion, Susan Illston, is highly regarded (and, by the way, presided over the Barry Bonds trial).  (h/t: How Appealing)

Amicus briefs in Rubashkin case

Uploaded below are the amicus briefs filed in the Rubashkin case. Thanks to Lara Bazelon, who worked on the brief by legal ethics scholars and who sent me the briefs.

Download Bazelon Amicus Brief[1]

Download APRL Amicus Brief[2]

Download Ifrah Amicus Brief

Download NACDL Amicus Brief

Download Seth Waxman Amicus Brief

Download WLF Amicus Brief

 

David Luban, "Misplaced Fidelity"

Article by David Luban, which addresses the book, Lawyers and Fidelity to Law, by our own Brad Wendel. (h/t: Patrick O'Donnell) Abstract:

This paper is a review essay of W. Bradley Wendel's Lawyers and Fidelity to Law, part of a symposium on Wendel's book. Parts I and II aim to situate Wendel's book within the literature on philosophical or theoretical legal ethics. I focus on two points: Wendel's argument that legal ethics should be examined through the lens of political theory rather than moral philosophy, and his emphasis on the role law plays in setting terms of social coexistence in the midst of moral pluralism. Both of these themes lead him to reject viewing legal ethics as an instance of "the problem of role morality." In part III I note the similarity between Wendel's view and that of legal process theorists, and I argue that the view involves too much complacency about the American legal system. Part IV examines the central metaphor of Wendel's book, fidelity to law. I distinguish between two forms of fidelity, personal and interpretive. The former is a relation between persons, while the latter means mimetic accuracy in interpretation, translation, performance of music, portraiture, or other forms of representation. I agree with Wendel's views on the requirement that lawyers exhibit interpretive fidelity toward law, but not personal fidelity. I argue that law is not the kind of thing toward which one can have personal fidelity; rather, the fidelity must be toward other members of the community rather than toward norms as such; and in cases where the law systematically discriminates, or is otherwise systematically unjust, the bonds of reciprocity grounding such a relation are absent, and the kind of unconditional obedience to law that Wendel supports is unjustified. Part V asks where, on Wendel’s view, the morality went. I argue that Wendel's view, which derives from but modifies Joseph Raz's analysis of legal authority as exclusionary reasons, does not succeed — either it begs the question of whether law actually provides exclusionary reasons or, if (as Wendel suggests) the reasons are not wholly exclusionary, Raz’s two levels of reasoning collapse into one, and acting on moral grounds is not in fact excluded by legal authority. I then turn to Wendel's ideas about "moral remainders" — the moral costs that acting on his view of legal ethics may inflict on others. Wendel suggests that some form of atonement can cancel the moral remainder, but I am skeptical that his proposal — atoning through law reform activities — can do the job.

Legal ethics odds and ends (May 10, 2012)

• Guardian: Iranian criminal defense counsel sentenced to nine years in prison.  (h/t: ABA Journal)

• ABA Journal: amicus briefs fault federal trial judge for bias and failure to recuse.

 

 

California's Statewide Ethics Symposium - May 19th

Lots of good stuff being presented at the State Bar of California's 16th Annual Statewide Ethics Symposium,  May 19th at UC-Hastings. Detailed schedule here. I'll be speaking on the "no-contact rule," and I expect I'll see a lot of familiar faces on the panels and in the audience. Come join us if you can.

North Carolina Distorts Religion and Religious Liberty: Marriage is Defined by God not by Government

North Carolina voters decided last night that the State is constitutionally required to nullify a significant number of marriages performed by churches, synagogues and other religious organizations as well as those performed by no religious organization at all.   The reason:  a significant number of other churches in North Carolina do not recognize such marriages.

North Carolina’s “marriage” amendment is yet one more instance in which government is used by one group of religious organizations to deny freedom of faith and conscience to others.  North Carolina lawyers, clergy and other leading citizens should have put a stop to the measure before it ever reached the voting booth, but failed to do so.   

In our Christian churches we pray, deliberate and decide – or sometimes don’t decide -- a wide range of issues.   Our fellow citizens of the Jewish, Hindu, Muslim, Buddist and other faiths do the same.  There are some issues about which we agree, and others about which we disagree.   Religious freedom is our right to disagree.  We are accountable to our conscience, to our fellow congregants, and ultimately to our Maker.   For these decisions – even if they are wrong decisions – we are not accountable to our government.

There was a time when virtually all Christian churches believed that only half the human race was qualified to serve as priests and bishops.  Some churches still adhere to this view, whereas others do not (the head bishop of the Episcopal Church USA is a woman and most Protestant churches also allow women clergy of all ranks).   This is a topic that is none of government’s business.  Protestants as well as Catholics should object strenuously, for example, if there is ever an attempt to use employment discrimination laws to tell the Catholic Church that it must employ women priests.

There was a time when most Christian churches had a dim view of birth control.   Most Protestant denominations have changed their mind (religious freedom is in part the freedom to change one’s mind).  Leading Catholic theologians and laypersons continue to debate the issue.  This again is an issue that is none of the government’s business.   Lawyers and judges made it clear in the 1960’s that the State of Connecticut could not take sides and prohibit the sale of birth control.  Protestant and well as Catholic lawyers should also tell the federal government that it cannot require the Catholic Church and its affiliates to buy birth control.   

There was a time when many Christian denominations insisted that marriages only be between persons who were members, or agreed to become members, of the same church.  Interfaith marriage was frowned upon.   Some churches to varying degrees still adhere to this viewpoint.  Government, however, has no business refusing to recognize interfaith marriages simply because a particular religious sect disapproves.  Government also has no business trying to require a church to recognize – or allow its facilities to be used to celebrate -- an interfaith marriage of which the church does not approve.

Lawyers, with the support of clergy and other leading citizens, have worked hard to protect these and other liberties in America. 

Now we get to the topic of same sex marriage.  This again was once an issue about which almost all Christian churches agreed.  Jewish rabbis also refused to celebrate same sex marriages.  Now, however, some mainline Protestant denominations have changed their mind, and some rabbis also celebrate same sex marriages.  Other churches disagree and continue to refuse to recognize same sex marriages.

Once again, lawyers and clergy working together should assure that government does not take sides but instead respects our right to work these issues out ourselves.   No one side in this debate has the right to use government to force its view on the other.   Laws are still on the books that reflect a once near universal view condemning same sex marriages, but that view no longer is universal.  Lawyers and clergy should steadfastly oppose efforts to create constitutional impediments to the repeal of such laws.  Legislators should consider whatever steps are necessary to assure that all duly consecrated marriages, as well as those not consecrated by any religious authority, are recognized by the state.   Lawyers and clergy should also oppose any government effort to require a church or other religious organization to celebrate or recognize a same sex marriage, or any other marriage, that it does not want to.

It is ironic that the mainline Protestant churches to which many of our founding father’s belonged will bear the brunt of this denial of religious liberty.  It is these churches – along with many Jewish congregations and some other religious groups – that now may wish to change their mind about same sex marriage.   And they should be free to do so, in part because the founding fathers protected the religious liberties of all denominations when they founded a Country with no established church and no right of government to interfere with the free exercise of religion. 

When a “marriage amendment” comes up for a vote here in Minnesota in November, many lawyers and clergy will work strenuously to see that it is defeated.  Many of our Protestant churches and Jewish groups oppose it; many Catholic laypersons also oppose it.   Most of our law faculties oppose it, at some law schools unanimously.   Unlike North Carolina, Minnesota was not one of the original thirteen colonies to fight for liberty in the 1770s, but hopefully this fall we will demonstrate a better understanding of what the continuing fight for liberty is all about.    

ABA Commission on Ethics 20/20 Files Final Resolutions and Reports

Yesterday, the ABA Commission on Ethics 20/20 filed final versions of its resolutions and reports with the ABA House of Delegates.  The House will vote on the resolutions at the ABA's Annual Meeting this August.

You can find the Commission's overarching summary and report here.  If you're only interested in a description of what the Commission is proposing and why, this document should do the trick.

If you want more details, the Commission's resolutions and accompanying reports can be found at the following links:

Technology and Confidentiality (proposals affecting Model Rules 1.0, 1.1, 1.4, 1.6, and 4.4)

Technology and Client Development (proposals affecting Model Rules 1.18, 7.1, 7.2, 7.3, and 5.5)

Admission by Motion (proposals affecting the Model Rule on Admission by Motion)

Outsourcing (proposals affecting Model Rules 1.1, 5.3, and 5.5)

Practice Pending Admission (proposal to create a new Model Rule and a proposal affecting Model Rule 5.5)

Conflicts Detection (proposal affecting Model Rules 1.6 and 1.17)

Lawyer-Client Privilege (?!) in the Clemens Trial

According to the NY Times, the prosecution in the Clemens trial offered a TV clip from 60 Minutes in 2008 where Clemens said that his lawyers had advised him not to talk to George Mitchell, who was conducting an investigation into doping.  One of the charges against Clemens is that he lied to Congress in 2008 when he testified that he had “no idea” that Mitchell had wanted to speak with him.  The Times says that Walton ruled that the TV clip cannot be shown, because to do so would violate lawyer client privilege.

Can the Times report be accurate?

WSJ's weak editorial on the terrorism tribunal

The editorial, here, misses the mark in criticizing the defense lawyers. The editorial says:

The terrorists deserve a zealous defense under our adversarial trial system, but the lawyers' efforts to defend their clients not by any evidence of their innocence but through political attacks on the procedural detail of military tribunals does a disservice to the victims and to their military peers.

Up to a point, attacking the process itself is standard fare in criminal defense -- especially when discussing the details of the client's behavior doesn't help the defense. It's also appropriate if there are grounds to question the legitimacy of the tribunal. We're on our 3rd or 4th set of groundrules for the this innovative tribunal process, so the process itself is fair game.

A lot of attention has been paid to the woman defense lawyer, Cheryl Bormann, who (1) has chosen to wear a hijab and abaya to court and in the presence of her client and (2) argued to the court that all women present at the tribunal should be ordered to do the same. The former is quite unusual but isn't grounds for criticism. The latter is more problematic, but the lawyer is defending someone who potentially faces the death penalty, so I think she should be given some lattitude to suppress other values for the pursuit of the client's objectives. Lawyers often make motions "for the record" that they know will be rejected.

There could come a point where the process goes from unruly to circus and where the lawyers are no longer playing a legitimate defense function. It doesn 't strike me that we're there yet. We should let the lawyers do their lawyering without being hectored.

"Tim Hwang Isn’t A Lawyer, But He Plays One Online"

Fast Company has the story about a Berkeley student   (h/t: Legal Informatics Blog)  A key graf:

FAST COMPANY: You’re behind a website for a law firm called Robot Robot & Hwang, which turns out to be a joke. But there seems to be a serious idea there, too. What are you up to?

TIM HWANG: The name of the firm has been a great filter. The people who get it are the ones I want to be talking with. Robot Robot & Hwang LLP promotes disruptive technology for the law. This is one part bringing together people who are working on startups in this area and part developing new technology applications. I’m working on a toolkit that allows people to use computer code to program the behavior of corporations in the same way that you can program robots. To toolkit can cause a legal entity to generate subsidiaries, transfer assets, close down, and so on.

Eli Wald, "In-House Myths"

Here's the latest article from Eli Wald, who's written a series of articles about the interplay between work settings and the demographics of the bar. Abstract:

Prevailing myths hold that in-house legal departments offer an attractive work-life balance and equality in their promotion policies, if only in contrast to the hypercompetitive and glass ceiling practice realities at large law firms. This article challenges both myths. While in-house departments do offer greater flexibility, they increasingly impose on the personal lives of their lawyers, sometimes in less than obvious ways. And while in-house departments have a better gender record than large law firms in terms of promotion to senior positions of power and influence, they nonetheless feature similar patterns of implicit gender discrimination. In-house myths obscure implicit discrimination by suggesting that one can opt out of the problem and that it may not afflict all segments of the profession. Disproving these myths, the article attempts to refocus attention on the complex problem and subtle manifestations of implicit discrimination in (and outside) the house.

Morris Ratner, "Achieving Procedural Goals Through Indirection: The Use of Ethics Doctrine to Justify Contingency Fee Caps in MDL Aggregate Settlements"

Article by Morris Ratner, formerly a plaintiffs lawyer who's now joined the Hastings faculty and will teach PR. Abstract:

Recent non-class aggregate settlements of personal injury mass torts reached in multidistrict litigation (MDL) proceedings – including Vioxx, Guidant and Zyprexa - show that practice has outpaced the development of doctrine. Forced to improvise, trial courts have sought a firm foundation for exercising authority over these private, contractual settlements, specifically to justify and guide court control over attorneys’ fees. By imposing across-the-board limits on contingency fees recoverable by individually-retained counsel, the MDL trial courts have effectively re-written fee contracts between lawyers and clients in thousands of cases. The trial courts grounded the fee cap orders in their “inherent authority” to regulate members of the bar to enforce ethics rules. But these fee-capping decisions stray dramatically from the ethics doctrine that purportedly informs them, in the service of procedural goals (i.e., making room for enhanced attorneys’ fee payments to court-appointed common benefit counsel who achieved global settlements). Unresolved tension within the MDL governance regime partly explains this boundary-pushing reliance on ethics, one that potentially delays the development of clear answers to difficult procedural questions about the nature of MDL aggregation, and, relatedly, about the proper use of the attorneys’ fee lever as an MDL case management tool.

[posted by John Steele]

Lawfare's coverage of the proceedings regarding Khalid Sheikh Mohammed

There are some interesting proceedings in the tribunal convened to adjudicate Khalid Sheikh Mohammed, all covered by Lawfare, including this post. From a legal ethics point of view, it's fascinating to see the strategies and tactics of the defense -- and the judge --  in a case that is so different than the normal criminal trial.

"Citing misconduct by prosecutor, judge tosses US drug case"

Arizona Daily Star (w/ h/t to Main Justice) follows up on the case we covered earlier, where the AUSA severely distorted prior testimony in his cross-exmination of the defendant.

(The Ninth Circuit named the AUSA in the opinion and the US Attorneys office asked for the opinion to be modified to drop the prosecutor's name. The Ninth Circuit used that request as an opportunity to make an example of the AUSA.)

"Web put off-limits to Social Security claims judges"

Washington Times: "The Social Security Administration last month told its disability-claims judges they are no longer to seek out information from websites when deciding cases — taking away a tool some of those judges say would help in uncovering fraud."

Legal ethics odds and ends (May 3, 2012)

• How Appealing. Ninth Circuit tosses suit against John Yoo for his conduct as OLC lawyer. The Ninth Circuit's opinion: Download Padilla Yoo 9th Cir  Here's the "Legal Ethics Scholars" amicus brief, which has an interesting section about authorities upholding the criminal prosecution of lawyers:  Download 012210yooamicus1

• WSJ: SEC targets defense lawyers for conflicts of interest and the representation of witnesses. Some of what the SEC is complaining about -- e.g., the representation of multiple witnesses who, in the SEC's view, have conflicting interests -- could be valid but could also be the government's hostility to active, aggressive, and appropriate defense tactics. 

UPDATE: At Prawfsblawg, one of the drafters of the Legal Ethics Scholars brief has furthr thoughts about the Padilla v. Yoo case. More thoughts, by Steve Vladeck, at Lawfare.

"NY’s New Pro Bono Requirement Discriminates Against Solos And is Unfair to New Lawyers"

At My Shingle, Carolyn Elefant makes that argument.

NY Court of Appeals Announces Pro Bono Requirement for Admission to Bar

According to today's New York Law Journal:

Starting in 2013, prospective lawyers must show that they have performed at least 50 hours of law-related pro bono service as a requirement for admission to the New York state bar, Chief Judge Jonathan Lippman said today.

The chief judge said in his annual Law Day address at the Court of Appeals that the requirement would serve a two-fold purpose: First, it would address the large unmet need for lawyers to represent the poor. It also would inculcate in aspiring lawyers a career-long duty to serve the public, he added. . . . 

When applying to the four departments of the Appellate Division for admission to the state bar, prospective lawyers would be required to submit an affidavit describing the nature and the dates of their pro bono activities and the organization and individual lawyer who supervised them.

The chief judge said it will be up to the four Committees on Character and Fitness to ensure that applicants have properly completed their pro bono requirement.

I imagine this is causing headaches for Associate Deans, not only in New York but across the country at schools whose graduates might want to practice in New York. I wonder if there was any consultation with law schools as to how to implement this requirement?

 

Playbook Information and Conflicts of Interest

Abbe and I discuss playbook information in connection with COI in ULE at p. 259.  The idea originated in a discussion by Richard Zitrin at a Hofstra Ethics Conference.  Richard is both an experienced litigator and avid poker player, and talked about the importance of the tell – information about how a player reacts in critical situations.  He then related this to information gained in a former representation about how the former client reacts in negotiations and litigation, e.g., a disposition to settle (and for how much) rather than litigate.  The idea was endorsed, also at a Hofstra conference, by Chuck Wolfram, who referred to it as playbook information.

Today's NY Times (5/1/12) has an obituary of Amarillo Slim, "poker's first superstar," who won five World Series of Poker.  "Poker players," he said, "should concentrate on their opponents more than their cards" -- agreeing, in effect, with the importance of playbook information.