The law profession is unique in the scope of the mandate it gives those within it to intervene in other people's affairs. As a result of this unique power of intervention, lawyers encounter a number of unique problems. This paper elucidates upon, and applies, the moral standards and intuitions to be used in approaching these problems. It argues that we should form our consciences in dialogue with our clients and that once they are formed we must follow them and limit our representation accordingly. If lawyer and client cannot agree on an agenda with which both are comfortable, the lawyer should withdraw. In any event, no client has the right to the assistance of a lawyer- or anyone else- in perpetrating an injustice.
RIC practiced law in Kentucky for many years, and was not a Washington insider when he came to OGE as an appointee of President Bush. That was one of the many reasons he was the right man for the job. It was an honor for me to work with RIC, his assistant Beverly Johnson and his colleagues at OGE when I was the White House ethics lawyer. RIC and his colleagues sought to make our government accountable to the people and not to special interests, and their work, under current director Walter Shaub, continues to be critically important today.
“A prosecutor could get a grand jury to indict a ham sandwich” (so said the Chief Judge of New York State’s highest court). Or could indict Abel for killing Cain. Or Reeva Steenkamp for killing Oscar Pistorius. And commonly the prosecutor would do that in a grand jury proceeding lasting only hours. Indeed, the grand jury that does not act as a rubber stamp of the prosecutor is so unusual that it has a special name - a “run-away grand jury.” Can anyone doubt that if Michael Brown had killed police officer Darren Wilson, Brown would immediately have been taken into custody and charged with first degree murder?
So why was the St. Louis County prosecuting attorney, Robert R. McCulloch, conducting a three-month grand jury investigation into Wilson’s killing of Brown?
The reason begins with McCulluch’s most serious ethical violation, which was his conflict of interest in participating in the indictment of a police officer in his own jurisdiction. An unethical conflict of interest occurs when there is a risk that the lawyer’s representation of a client will be materially and adversely affected by the lawyer’s own interest or by the lawyer’s duties to a current client, a former client, or a third person. The forbidden conflict of interest exists even though it’s not probable that any adverse effect will in fact occur. Therefore, there’s an unethical conflict of interest when a prosecutor participates in the indictment of a police officer in his or her own jurisdiction, because the prosecutor has a personal and professional need to maintain good relations with the police, who have been known to publicly threaten not to cooperate with a prosecutor thereafter if a fellow officer is indicted. A prosecutor in that position should therefore obtain the appointment of a special prosecutor who does not herself have a conflict of interest.
As a result of McCulloch’s conflict of interest, however, he was determined to see that officer Wilson was not charged with a felony. McCulloch has therefore conducted this extraordinary three-month grand jury, so that he can put the responsibility on the grand jury for declining to indict Wilson. The potential criminal charges against Wilson were:
■ Second-degree murder, defined as “knowingly causing the death of another person,” and punishable by a prison term of 10 to 30 years;
■ Voluntary manslaughter, which is causing a death “under the influence of sudden passion arising from adequate cause,” with a penalty of five to 15 years;
■ Involuntary manslaughter in the first degree, which can mean “recklessly” causing a death, with a penalty not to exceed seven years;
■ Involuntary manslaughter in the second degree, which is acting “with criminal negligence” to cause a death, with a penalty not to exceed four years.
But all McCulloch had to do in this case was explain to the grand jury the formal requirement for an indictment, which is probable cause. Probable cause in a criminal case means that the police and/or prosecutors must be able to explain why they have a reasonable belief, despite some doubt, that a crime has been committed and that the accused person did it. That requirement can be refuted, however, just by Darren Wilson’s own testimony that Brown went for Wilson’s gun, and that Wilson reasonably believed that Brown was about to kill him when Wilson shot Brown in self-defense.
How then can a prosecutor get a grand jury to indict an accused person after only a brief proceeding? The reason is that grand jury proceedings are confidential and are not overseen by any court or other authority. Also, constitutional law allows prosecutors to use hearsay, other evidence that would be inadmissible at trial, and one-sided evidence; they are not required to present exculpatory evidence. If a prosecutor wanted an indictment of Wilson in Brown’s killing, for example, he would inform the grand jurors of testimony by Brown’s friend Dorian Johnson, who said he was within arm's reach of Brown throughout the incident, and that the teenager never went for Wilson’s gun. He would also use reports by some eye-witnesses that Brown had his hands in the air to surrender, and by other eye-witnesses that Brown was running away when Wilson shot him. He might also emphasize to the grand jurors that probable cause does not mean proof beyond a reasonable doubt.
One result of McCulloch’s conflict of interest, therefore, is unequal justice - different “justice” for officer Darren Wilson, as against justice for an ordinary member of the community like Michael Brown.
The final ironical truism illustrated by the case in Ferguson is that Robert R. McCulloch will never be disciplined for his unethical conduct, because prosecutors are virtually never professionally disciplined.
The solicitors' representative body, the Law Society has withdrawn controversial guidance to its members on the drafting of Sharia wills which encouraged the favouring of male children and the exclusion of illegitimate kids, for example. You can read about it here... http://www.legalfutures.co.uk/latest-news/law-society-climbs-sharia-will-practice-note-apologises
Jackson Lewis has announced that it will no longer ask associates to bill by the hour. The firm's chair is quoted as saying, “The billable hour is directly opposed to the best interest of the client and to the provider of service because by its very nature it adds an artificial barrier to the accomplishment of the only real objective, which is a quality legal product for a set and expected price."
As the quote suggests, the billable hour gives rise to many oft-discussed ethics issues. Ron Rotunda recently summarized one of the problems here. We've discussed related issues here and here.
This issue has a profound impact on lawyers’ ethics. From everything written about the abysmal process in deportation and illegal crossing cases, including what Judge John T. Noonan Jr. (USCA 9) has written, it is nearly impossible for defense attorneys, prosecutors and judges to do their jobs and conform to basic standards of due process. Congress nonetheless has done nothing, even though Presidents Bush and Obama over ten years asked for immigration reform.
Immigration to America goes back to the Mayflower crossing in 1620. Tens of millions of Americans have ancestors who did not ask permission to immigrate from the people who were already here. Approximately 11 million people living here today are in a similar situation. The President’s executive order protects about 5 million of them from deportation if they comply with the conditions.
This Thanksgiving the President is doing more than pardoning a turkey. He is not solving the immigration problem, but a solution requires Congress. For that we can keep waiting.
The case is DAVID S. KARTON, A LAW CORPORATION v. WILLIAM RUSSELL DOUGHERTY. The lawyer sued for fees but the client was able to prove that he had paid (actually, overpaid) for the services. The court declared the lawyer the prevailing party, presumably because the lawyer had proved that he was entitled to be paid, but the appellate court has reversed and sent the matter back for calculation of the attorneys fees to be paid to the client. One imagines that the lawyer will take a bath on this litigation and be forced to pay out far higher sums than he sought to receive.
If there is one news story that tells us all we need to know about what is wrong with our campaign finance system it is this one. The White House apparently followed the advice of its ethics lawyers and kept a healthy – and legal – distance from campaign fundraising in 2014. Senate Majority Leader Harry Reid – soon to become Minority Leader – is not happy about that. His chief of staff is now blaming the President for losing the election because he didn’t raise enough cash. The Constitution has no reference to fundraising as part of the President’s job, but that does not matter in Washington these days.
Been there done that. I saw this story play out in the 2006 election cycle, and it is not a pleasant one. Blame the President. Blame the ethics lawyers. Blame anybody and anything but the corruption of our government by campaign finance. The President’s poll numbers are not good, but Congress’s approval ratings are a lot worse. I wonder why.
And the most relevant text from the story is this:
With Democrats under assault from Republican super-PAC ads, Reid and his lieutenants, Sens. Charles E. Schumer (D-N.Y.) and Richard J. Durbin (D-Ill.), went to the Oval Office on March 4 to ask Obama for help. They wanted him to transfer millions of dollars from the Democratic National Committee to the DSCC, a relatively routine transaction.
Beyond that, they had a more provocative request — they wanted Obama to help raise money for the Senate Majority PAC, an outside group run by former Reid advisers.
Despite his deep aversion to super PACs, Obama in early 2012 reluctantly sanctioned Priorities USA, a super PAC set up to back his reelection, and allowed White House and campaign officials to appear at the group’s fundraisers. But Reid and Senate Democrats thought the president was not giving the same level of support for Senate Majority PAC.
Lawyers negotiated for months over legal minutia, with Obama’s counselors insisting that the president appear only as a guest and do no donor solicitation, which would have violated federal law. After Obama appeared at two Senate Majority PAC events — June 17 in New York and July 22 in Seattle — the president’s lawyers demanded that no staffer follow up with the donors for at least seven days.
These contingencies were so strict, [Sen. Reid’s Chief of Staff] Krone argued, that it would be fruitless to involve the president at all. “They were setting the rules as they saw fit,” he said. “For some reason, they hid behind a lot of legal issues.”
The White House maintains that it was prudent in protecting the presidency and avoid any appearances of a quid pro quo. The senior White House official voiced displeasure with Senate Majority PAC’s methods: “They were calling Obama donors who we had long relationships with and making asks that annoyed the donors.”
Who should regulate the legal profession? The legislature or the judiciary? The standard answer is that to some degree both must participate and that in California we have far more legislative regulation than most states do.
I'm leery of legislative regulation, given that, imho, so much of what comes out of our state legislature is symbolic legislation designed primarily to serve the re-election needs of incumbent legislators. I realize that regulation solely by the judiciary isn't perfect either. It could be too friendly to lawyers and subject to regulatory capture by the lawyers who participate in the state bar. Still, I'd strongly prefer that we as a profession, acting through authority granted by the Supreme Court of California, took the lead in regulating the profession in the best interests of the public and the clients.
Yet, if the judiciary can't or won't get the job done, I suppose the legislature needs to fill the vacuum. Let me give some concrete examples. In California, we tell our lawyers that advanced costs must go in a trust fund but we don't quite say that advance fees must go there; we tell lawyers that it's preferable if the advanced fees go there. If we can't get clarity on that point, why shouldn't the legislature shoulder aside our high court and get the job done?
Another example: our conflicts rule does not say that taking on a matter adverse to a current client is constitutes a conflict of interest. Many times I've heard and read that the rule was supposed to say that but the critical subparagraph was inadvertently deleted. True, before and after our current rule 3-310 was enacted we had cases holding that it was a conflict, and 3-310 does say that if you're adverse to a party it would create a conflict to begin representing that party on another matter. (That's the current client rule in the reverse order of how it usually comes up.) Conceding all that, we've never had our high court issue a three sentence order adding the basic current client rule to 3-310. Why not? If they won't, shouldn't the legislature step in and do the job?
I've sometimes heard that because we have legislative regulation of lawyers the high court is hesitant to trench on the prerogatives of the legislature. But the codification of our law of lawyering, in Business & Professions Code §6068, wasn't meant to be comprehensive. It wasn't even a broad framework. It was a poetic lawyers' oath that found its way into a statute. (For more details see the draft article by David McGowan.) I'm hopeful that in the wake of the recent turmoil here, the high court will take a more active role in promulgating a broad framework of the law of lawyering, for the benefit of the public, the clients, and the profession.
I've long admired the way that Megan McCardle takes strong positions but always takes care to leave her readers better equippred to understand both sides of the issue being addressed. In this column she discusses what I would call the ethics of being an insider with specialzied knowledge.
STATE BAR Board issues statement On executive Director
Contact: Laura Ernde
SAN FRANCISCO, Nov. 15, 2014 – The State Bar is responsible for maintaining professional and ethical standards for the legal profession in California, and the law requires the State Bar and its Board of Trustees to make protection of the public its highest priority. (Business & Professions Code Section 6001. 1.) Given this mission, maintaining a trusted executive staff is vital to the State Bar’s effective functioning.
On July 31, 2014, the Board received a complaint from a high-level employee raising serious, wide-ranging allegations about Executive Director Joe Dunn and certain State Bar employees. Another complaint followed in mid-August from another high-level employee. Given the Board’s fiduciary duty to protect the public, the Board took the complaints seriously, and hired a well-respected law firm to conduct an independent investigation into the complaints. The law firm of Munger Tolles & Olson (MTO) was selected by the Board’s incoming officers (President-elect, Vice President-elect, and Treasurer-elect) through a Request for Proposal (RFP) process. The officers concluded that MTO’s proposal would best enable this important work to be done in the most cost-effective, comprehensive, and timely manner and that the firm was also highly qualified to conduct the independent investigation. The full board approved the scope of work and budget for the MTO retention. MTO began the investigation in August. The Board held four meetings on these closed personnel matters in September, October and November. The first meeting was September 14, then October 17 and then October 30, with MTO present at a portion of each of these meetings.
MTO completed its investigation and presented its investigative findings to the board on October 17 and 30, 2014. The Board decided to schedule another meeting for November 7, at which time it could obtain advice from a public sector employment law firm. The November 7 meeting agenda was publicly posted October 28. Between these multiple meetings, as the investigation progressed, additional complaints were received against the Executive Director, and additional information was obtained.
After further discussion with counsel and consideration by the Board, at its November 7, 2014 meeting, the Board decided to notify the Executive Director that it was exercising its right under his employment agreement to terminate the Executive Director’s employment. At no time prior to November 13 was Joe Dunn ever identified as a whistleblower, and he never brought any such claims to the Board. Indeed, it’s bewildering to hear Mr. Dunn claim he is a whistleblower since as the executive who is head of the entire organization he is responsible for managing operations and the over 500 employees, and he only belatedly raised claims after he was given notice of termination of his employment agreement, and after a settlement discussion with his counsel at the Girardi & Keese firm reached an impasse on November 12. During our entire negotiations with Howard Miller, which concluded the evening of November 12, Miller never once claimed that Dunn was a whistleblower.
The lawsuit filed by Mr. Dunn is baseless and falsely suggests that the termination decision was motivated by the receipt of letters from attorney Mark Geragos stating that unnamed whistleblowers had complaints regarding State Bar officials and operations. The November 3 and 5 letters from Mr. Geragos to the State Bar did not, however, identify the Executive Director as one of the unnamed whistleblowers. (In fact, one of the allegations in the November 5 letter from Mr. Geragos alleged that the Executive Director’s staff was shredding documents.) Moreover, the letters were sent after the Board had authorized the investigation by MTO in August, after it received the MTO independent investigation report in October, and after the posting of the November 7th closed session agenda referencing the Board’s intent to discuss complaints against State Bar personnel. Finally, while the lawsuit alleges that MTO was hired based on the “recommendation” of a member of the Board who had a purported “close personal and professional relationship” with one of the lead partners at the firm, the Board member at issue had no involvement at all in the selection or hiring of MTO (that decision was made by the three Board officers) and her sole “relationship” with the attorney at issue stemmed from having been work-colleagues together in a 150-plus person government office fifteen years ago. Further, while the Complaint alleges that President Holden directed the ouster of Mr. Dunn, as Chair of the Board of Trustees, he presides over the proceedings, does not bring motions, did not make the motion to terminate Mr. Dunn’s employment agreement and did not vote on the matter. Rather, trustees brought the motions and a super-majority of the board voted to terminate Mr. Dunn.
Because this matter involves pending litigation and some confidential personnel issues, comment from the State Bar and its Board of Trustees is necessarily limited at this time. The Board of Trustees is committed to meeting its duties and responsibilities under the law and State Bar rules, and will release further information if doing so is consistent with those duties and the public interest.
The Board is continuing its analysis and consideration of the appropriate management/executive team structure in order to ensure that the important functions of the State Bar are carried out effectively, efficiently, and in a manner consistent with its obligations to the people of California. During this period of transition, Deputy Executive Director Robert Hawley will serve as Acting Executive Director. Craig Holden, who is serving as the 90th President of the State Bar and is a full-time practicing litigator, is a volunteer serving a one-year term as President that commenced September 13, and the Board has directed him to work closely with Mr. Hawley as Mr. Hawley performs the executive function for the Bar during this period of transition. Mr. Holden has expressed no interest in the Executive Director position and the Board is actively looking for an interim executive director.
The case involves the fact pattern where the lawyer concludes that some person (usually the client) had legal authority to access certain emails -- but ultimately the courts disagree with that conclusion. I believe the ABA has a recent opinion that tries to guide lawyers through those thickets.
Sanctions / Appellate Jurisdiction
The panel dismissed for lack of jurisdiction an attorney’s appeal from an order finding that he committed ethical violations, and disqualifying him from representing the plaintiff in a wrongful termination action.
The panel held that it lacked jurisdiction because the ethical violations were intertwined with the disqualification order, and disqualification is not subject to interlocutory appeal.
* * *
Upon learning of the existence of the emails and the facts regarding their acquisition, Thurbon conducted “certain legal research regarding [Lynn’s] possession and potential use of the emails in his Federal District Court action.” Thurbon concluded that Lynn acquired the emails “during the course and scope of his employment with Gateway.” Thurbon believed that “Lynn had authorized access to the emails as part of his job duties,” including “full administrative control and discretionary decision making in undertaking steps to back up and preserve [Gateway] records. . . .” Based on his research, Thurbon determined that “Lynn had lawfully and properly accessed the emails . . . and properly backed up the system and was entitled to possess the back up copy . . .”
Ultimately, the state court determined that Lynn was not authorized to possess or disseminate the emails, and enjoined Thurbon and Thulin from using the emails in state court proceedings. Thurbon later used the knowledge gained from the emails to request production of emails which were otherwise covered by the injunction. Upon learning that the extent of copied emails was much greater than Gateway had realized, Gateway filed another action in state court to recover all emails possessed by Lynn.
The state court issued an emergency restraining order, which would become a preliminary injunction, again prohibiting use of the questionably-obtained emails. After discovering that Thurbon continued to use the knowledge gained from the emails to prepare a public records request, Gateway obtained two orders to show cause why Thurbon was not in contempt of the injunctions. Hearings on the orders were consolidated, and the state court judge found five willful violations by Thurbon. Thurbon was sanctioned in the amount of $2,500.
The new issue of the ABA Professional Lawyer is available for free (albeit for a limited time) here.
I wrote a short article for the issue entitled, "The 21st Century Lawyer's Evolving Ethical Duty of Competence." The article offers an overview of what I believe are the key new competencies lawyers need today that they didn't need just twenty years ago. I welcome feedback on whether my list is over or underinclusive.
Faculty members at other universities have similar concerns; some speak out and others do not.
A related question is whether facially neutral procedural rules and burdens of proof can, if slanted enough against an accused person, have a disproportionate impact on accused students who are racial minorities and foreigners. We will not know the answer to this question for sure until colleges and universities report data on case resolution under different burdens of proof and procedural rules (this assumes institutions don’t cover up a problem by manipulating the data, for example by inaccurately reporting the race or national origin of an accused).
There are, however, reasons to be concerned, including:
Witnesses from a majority ethnic group – white Americans on most campuses -- may provide testimony affected by conscious or unconscious bias, for example resentment of sexual overtures toward another member of their group by minorities or foreigners.
Witnesses, and the accuser, may be more likely to misinterpret communications and actions of minorities and foreign students than communications and actions of other students. Language differences can make this problem worse.
In any mixed gathering of students, statistically there are likely to be more witnesses from the majority group than from an accused students’ minority group.
Also, in the current atmosphere – created in part by the federal government – faculty members may not advocate for an accused student in the process. Traditionally, accused students have gone to faculty members they know for support in student disciplinary cases ranging from plagiarism to under-age drinking and vandalism. In sexual assault cases however, faculty members may fear being accused themselves of engaging in a “cover up” and refuse to weigh in with fact finders on such matters as the character and veracity of the accused. If so, the accused student is left with a single faculty member, if there is one, who is willing to be designated as an official advisor for the student in the disciplinary process, assuming the procedural rules allow it. Other faculty members might avoid discussing the case – particularly in email but even verbally – for fear of ending up in the crosshairs of the University, the Department of Education or even the Department of Justice. This in turn could make accused students more dependent upon outside lawyers, disadvantaging those who cannot afford a lawyer. In the case of accused minority and foreign students, an intimidating atmosphere could discourage faculty members from doing a critical part of their job, which is to protect these students from any type of discrimination.
Sexual assault is a serious problem on many campuses and needs to be taken seriously. We should be aware, however, that as in the rape trial of the Scottsboro Boys in the 1930’s, facially neutral sexual assault laws can be applied in a discriminatory manner. Lowering burdens of proof and reducing the procedural rights of an accused person may be an invitation to such abuse.
It would be tragic for American colleges and universities to exacerbate one type of discrimination in order to fight another. We should be able to do both at the same time. Being more diligent in reporting sexual assault cases to law enforcement and allowing those cases to be handled by a justice system run by professional prosecutors and judges, is probably the best answer (arguably the most serious cases, such as those likely to result in expulsion of a student, should only be handled by law enforcement in the first instance). By contrast, procedurally sloppy administrative prosecution of students by untrained academic personnel, including other students, could have disastrous consequences.
One of the most consistent topics we've explored on this blog is "juking the stats," whether that's being done to game the law blog rankings, or law school admissions, or law school rankings.
Without taking sides on the debates about the Affordable Care Act, one fact struck me about how the bill was drafted and passed. An MIT professor was able to model and simulate the CBO's scoring program and apparently the draft ACA was tweaked and tweaked until it would force the CBO to draw a politically favorable conclusion about the bill, regardless of the substantive realities. Details at the Washington Post.
Should we be disappointed or should we resign ourselves to the way that sausage and omelettes are made? (For our younger readers, if we have any, is this a case of "don't hate the player; hate the game"?)
The Daily Journal article is posted below. I don't know what to say definitively, except "let's wait to see what the evidence shows."
Taking a step back, however, I've often rued what I've viewed as California's unsophisticated approach to legal ethics. I hope I'm wrong about that, and I hope that I'm judging my home state more harshly simply because I'm closer to it and care more about it. But, given the positions I've held, I've had exposure to how the ABA and various states and federal agencies handle the law governing lawyers (LGL) and I've often thought that a state with about 10% of the country's population and about 12% of the active lawyers ought to have one of the most sophisticated LGL regimes of in the entire country. We don't. For reasons that elude me, we appear to have a provincial approach, backwards rules, a non-transparent state bar, and a lack of forward thinking. Perhaps this lawsuit isn't proof of my tentative conclusions. But perhaps it is. Stay tuned. [I want to emphasize that the termination of Joe Dunn may not be related to any backwardness of our LGL in California.]
I had been hearing that this was coming, but it now appears to be open news and confirmed. Unfortunately, this news continues what is to me a disconcerting trend: the State Bar's lack of transparency on matters of public importance. I certainly wish the Bar the best, given the importance of its role.
According to this paywall protected story from American Lawyer Media and this New York Times story, those initial allegations by opponents of same sex marriage may be not as off the wall as I first surmised. Unfortunately, the recent admissions by the Ninth Circuit about the process that it used are not entirely transparent to me. I still don't believe that whatever process was used was the factor that led to the result. But a truly random selection of judges is important to public faith in the process.
I've been worried about this for a few years. We've seen lower LSAT scores for entering students and now we're seeing lower MBE scores. I have wondered if states will lower the passing scores or not. If not, there will be a great deal of pain and the problem could get much worse over the next 3-4 years.
The Mayflower passengers began America’s modern immigration history, and millions more people have come here over four centuries. Some received permission to leave their countries of origin while others did not (The Mayflower passengers snuck out of England to Holland and sailed from there to Cape Cod). Some immigrants got prior permission to come to America from the people who were already here, while others like the Mayflower passengers did not. Regardless of the circumstances of their arrival, these immigrants built the Country we have today, an accomplishment of which their descendants are rightly proud.
Today there is a society – the Society of Mayflower Descendants – in honor of the 1620 voyage, and we celebrate a national holiday later in November in the Pilgrims’ honor as well. The Sons of Italy celebrate the immigration story from that Country, particularly on Columbus Day, and there are celebrations of immigration from many other places.
For practical reasons we have more immigration controls than we did in former times, but those controls do not define the values of our Country. The President should celebrate Thanksgiving not just by pardoning a single turkey but by showing his willingness to forgive human beings who did not follow our current immigration rules when they came to America. Congress should enact a law that embodies practical policies to protect our Country – particularly our security -- while honoring American values. Lawyers in particular have an obligation to promote laws that conform to those values, and that don’t become an end in themselves. From 1620 onward, it was the tradition of a warm welcome not a hostile “no amnesty” agenda that defined America.
Note: For those willing to ignore political correctness and the myth that all immigration must conform to the same legal norms, the Society of Mayflower Descendants web page is here:
In his recent U.C. Davis article, which has won the Fred Zacharias prize and is cited below, Russell Gold contends that although the Supreme Court has cut back on the exclusionary remedy for 4th amendment violations, that doesn't mean there was not a 4th amendment violation. It only means there is no remedy in court. Prosecutors, he argues, have a duty not to offer illegaly seized evidence even if, because of the Court's decisions, the evidence won't be suppressed. He calls this "administrative" -- as opposed to judicial -- suppression. Among other arguments, he writes:
"[P]rosecutors’ existing ethical responsibilities provide good reason to administratively suppress evidence. Unlike with ordinary rules of evidence, introducing search and seizure evidence generates blowback from prosecutors’ actions in the courtroom to police actions on the street. Because much of the evidence that police obtain in violation of the Fourth Amendment is admissible due to exceptions to the exclusionary rule, prosecutors who use admissibility as their benchmark signal to police that constitutional violations are typically costless. That signal contravenes prosecutors’ responsibility to encourage police to comply with the law and undermines the constitutional rights of prosecutors’ constituents. Administrative suppression, in contrast, would send the opposite signal: Fourth Amendment violations have consequences."
The article is Russell Gold, Beyond the Judicial Fourth Amendment: The Prosecutor’s Role, 47 U.C. Davis L. Rev. 1591 (2014)
The paper is here. A cover note by the Commission's chair, Judy Perry Martinez, describes the paper's purpose this way:
The American Bar Association’s Presidential Commission on the Future of Legal Services is seeking comments on the attached Issues Paper. The Commission is conducting a comprehensive examination of issues related to the delivery of – and the public’s access to – legal services in the United States.
The goal of the Commission is to propose new approaches that are not constrained by traditional models for delivering legal services and that are rooted in the essential values of protecting the public. Your input is critical to our efforts, so I hope you will take the time to review the Issues Paper and provide your feedback to Katy Englehart in the ABA Office of the President at IPcomments@americanbar.org.
Comments are requested by Wednesday, December 10, 2014.
If you dig into the paper, you'll find that the Commission has divided itself into six different working groups:
Data on Legal Services Delivery. This working group will assess the availability of current, reliable data on the delivery of legal services, such as data on the public’s legal needs, the extent to which those needs are being addressed, and the ways in which legal and law-related services are being delivered; identify areas where additional data would be useful; and make existing data more readily accessible to practitioners, regulators, and the public.
Dispute Resolution. This working group will assess developments, and recommend innovations, in: (a) court processes, such as streamlined procedures for more efficient dispute resolution, the creation of family, drug and other specialized courts, the availability of online filing and video appearances, and the effective and efficient use of interpreters; (b) delivery mechanisms, including kiosks and court information centers; (c) criminal justice, such as veterans’ courts and cross-innovations in dispute resolution between civil and criminal courts; (d) alternative dispute resolution, including online dispute resolution services; and (e) administrative and related tribunals.
Preventive Law, Transactions, and Other Law-Related Counseling. This working group will assess developments, and recommend innovations, in delivering legal and law-related services that do not involve courts or other forms of dispute resolution, such as contract drafting, wills, trademarks, and incorporation of businesses.
Access Solutions for the Underserved. This working group will assess developments, and recommend innovations, in facilitating access to legal services for underserved communities.
Blue Sky. This working group will propose innovations that do not necessarily fit within the other working groups, but could improve how legal services are delivered and accessed, such as innovations developed in other professions to improve effectiveness and efficiency, collaborations with other professions, and leveraging technology to improve the public’s access to law-related information.
[Note: I am the Commission's vice chair. Co-blogger Renee Knake is the Commission's reporter.]
With at least 52 Senators, Republicans won’t need the New Hampshire seat for control of the Senate. However, they will wish they had this seat in 2016 when they face a more difficult Senate electoral map. And this seat could have been theirs.
Republicans had a very strong candidate, former Massachusetts Senator Scott Brown. New Hampshire voters value experience and moderation, and he had both. What he did not have was an answer to the biggest problem in American politics today: campaign finance. The money drenched campaign finance system marginalizes 99% of the electorate. It is the antithesis of the New England town meeting that is still a manifestation of democracy for many Americans. The problem for Brown was that politicians, including Senator Mitch McConnell (R KY), relish the current system and oppose any type of reform. Brown was not willing to confront them and demand change.
Mayday, a multi-million dollar crowd-funded Super PAC devoted exclusively to campaign finance reform, campaigned against Brown, not in the general election last night, but by spending about $600,000 backing Brown’s opponent Jim Rubens in the Republican primary back in September. In New Hampshire in particular primaries are about ideas as much as parties, and campaign finance reform is an idea whose time has come. Brown won the primary. But the Mayday ads reached many people in New Hampshire, including a lot of independents, who did not vote in the Republican primary, but who did vote last night. Brown lost.
Despite all the good news for Republicans, last night, this was a tragic loss. It was an opportunity to demonstrate that the national Republican Party has appeal – and can elect Senators as well as governors – in the Northeast. It was an opportunity to have a senator who could help Presidential candidates understand how to win a New Hampshire primary and how to win New Hampshire in November 2016.
Republicans can be angry at Mayday and belittle its efforts by emphasizing its losses in the general election (Many incumbents opposed to campaign finance reform were reelected, and Mayday only spent money opposing a handful of them). Or Republicans can realize that Mayday is not their problem. The campaign finance issue is their problem, and everybody’s problem. In at least some states voters will not be impressed with candidates who are unwilling to solve it.
It has been a long time since I've posted here - I've missed hanging out on the blog - but this story has me shaking my head. In a nutshell, the Chief Judge of the Federal Circuit wrote an email to a lawyer effusively praising his performance and concluding: "In sum, I was really proud to be your friend today! You bring great credit on yourself and all associated with you! And actually I not only do not mind, but encourage you to let others see this message. Your friend for life, [the Chief Judge]." The lawyer took the judge's suggestion to heart and shared the communication with prospective clients. The lawyer claimed he was only sharing the positive review of his advocacy, but the Federal Circuit unsurprisingly saw this as a suggestion by the lawyer that he was buddies with the judge and that cases might be expected to go his way for that reason.
The court publicly reprimanded the lawyer, pursuant to Fed. R. App. P. 46 The court rightly fleshed out the standard of "conduct unbecoming of a member of the court's bar" with reference to ABA Model Rule 8.4(e), which prohibits lawyers from "stat[ing] or imply[ing] an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law." Although the lawyer argued that the email merely contained complimentary comments about his oral advocacy skill, the court rightly noted that a reasonable reader could interpret it as highlighting the special, close relationship between the lawyer and judge ("friends for life"). The court also correctly dismissed the lawyer's First Amendment arguments (although the reliance on Ohralik is weird, as that is a case about in-person solicitation, not advertising).
The court's reasoning is sound, and a public reprimand seems like the right sanction. This isn't the worst misconduct ever engaged in by a lawyer or judge, but it still raises the question, what on earth were they thinking? These are smart people - surely both the judge and the lawyer might have stopped to reflect on how the email could be construed, and whether it would be a good idea to disseminate it more widely.
In the words of the late, great Tom Magliozzi, who will be missed terribly, these guys both deserve a dope slap, which is what the Federal Circuit administered.
Ron Rotunda has written this nice overview of the increasingly important role and describes some current hot button issues. It's worth sharing with students who have a particularly strong interest in professional responsibility and may want to pursue a career in the area.
According to the article, an energy drink company under investigation in several states for misleading advertising contributed to the Democratic Attorneys General Association and then sent a lawyer to a weekend retreat in Santa Monica, California sponsored by the Association for its donors. There, the lawyer found the Missouri Attorney General and asked him why he was investigating her client. The Attorney General said that he did not know, called his office, and told his staff to drop out of the investigation.
This sequence of events is unseemly and is probably conduct prejudicial to the administration of justice (see ABA Model Rule 8.4).
To be more specific, ABA Model Rule 3.8 (Special Responsibilities of a Prosecutor) should be amended to prohibit prosecutors, including state attorney generals, from discussing particular cases and investigations at political fundraisers or other events for political contributors. It would be even better if these law enforcement officials were not at the fundraisers to begin with.
These big donors include $39,150 from employees of Rubie's Costumes, $35,400 from employees of Amneal Pharmaceuticals, $25,600 from employees of Deloitte, and $23,800 from employees of the John P. Picone Company, a construction firm.
There are some races around the country where the Republican has outraised and outspent a Democrat who depends upon small donors. New York’s Third Congressional District is not one of those races. This leaves Democrats in that District in a bad predicament if they really believe in government that is responsive to ordinary people.
For the rest of us, the broader issue is who is hurt by the campaign finance system. This district, whcih given its demographics could elect a Republican, presents clear evidence that the money does not favor one party or the other, but favors incumbents because incumbents can deliver the favors people want.
The meeting was a classified briefing on ISIS and other national security threats with the Director of National Intelligence and other senior officials. Apparently for Senator Hagan, talking with donors was more important than hearing what these officials had to say about an organization that has terrorized Syria and Iraq, ruthlessly beheaded American and British hostages, and dragged the United States once more into engagement in Iraq.
We can blame this on Senator Hagan (her adversaries certainly will) or we can blame it on a campaign finance system that makes this kind of thing happen.
None of us can rightly criticize any incumbent for this conflict of commitment without also criticizing them for refusing to enact meaningful campaign finance reform. And that most of them are unwilling to do.