Legal Ethics Forum

Illinois Adopts Long Awaited Rule Revisions

On July 1, the Illinois Supreme Court issued an order that repeals the existing rules of professional conduct and replaces them with a new set of provisions, effective January 1, 2010.  Links to the new rules are here, and a guide to the changes is here.

Bill Henderson on Paul Lippe's article about the future of legal practice

Bill has cross-posted his thoughts.  The first paragraph from Lippe's article articulates a point that i discuss with students every semester:

If I need some insight into the future of medicine, I might head over to Stanford Medical School. If I wanted to learn about likely directions in finance and hedge funds, I might visit Penn's Wharton. If I were looking to make investments in computing, I might arrange a tour of a lab at MIT. If I decided to learn something about where legal practice, law firms, and legal departments will be in 2014, where would I go? Not to law school.

Judge Kozinski cleared of misconduct (but "admonished")

Story here.  Opinion here, issued by the Third Circuit.

Bad debt=bad character

For this applicant to the bar anyway: here.  The circumstances seem unfortunate, and the purpose served by excluding this applicant unclear.  Does he pose a threat to the public interest, or merely seem the wrong sort of person for lawyers like us?  Absent facts not reported in the article, the latter seems more likely.    

To Send a Message

Not lawyers' ethics, but morality.

I'm interested in whether others share my (and Kant's) concern with sentencing Madoff to the max in order to "send a message," as Judge Chin said.

Without doing any research on it, my recollection is that a prosecutor isn't supposed to say that in closing argument, but that a judge can take general deterrence into account in sentencing.  But it troubles me.

Bill Henderson on the decline and fall of the bi-modal associate salary

Must reading if you're interested in the US legal profession.

Here's one way to boost your law school's post-graduation employment rate

Words fail.

In one e-mail exchange, University of Illinois Chancellor Richard Herman forced the law school to admit an unqualified applicant backed by then-Gov. Rod Blagojevich while seeking a promise from the governor's go-between that five law school graduates would get jobs. The applicant, a relative of deep-pocketed Blagojevich campaign donor Kerry Peck, appears to have been pushed by Trustee Lawrence Eppley, who often carried the governor's admissions requests.

UPDATE:  It gets more bizarre.  The recently revealed emails are here.  

Hmm. Justice Kennedy cites the Model Code for a duty of zeal?

In the new case, Melendez-Diaz v. Massachusetts, Justice Kennedy's dissent cites Canon 7-1 of the Model Code as support for his belief that criminal defense counsel has a duty of zeal.  I'm a big fan of zeal (when it's properly construed). But I'm a little baffled by that cite.  I notice that Justice Kennedy does use some squishy language to suggest that he's referring to his traditional belief in a duty of zeal rather than to a directly controlling authority.  (It's at page 25 of his dissent.) Still, an odd cite, no?

(As a personal aside, I can't help but celebrate that a student comment authored by Carolyn Zabrycki, my former ethics student, and for whom I was a mock trial coach, was cited in the dissent.  Way to go, Carolyn!)

Once enacted by a jurisdiction, who owns the copyright on a set of model rules? Pre-enactment, who does?

It's a long simmering question.  Pre-enactment, does the body that urges widespread adoption of a set of model rules grant a license to others?  Post-enactment, does the authorship in the model rules merge with the law itself such that no copyright exists anymore?  Inquiring minds want to know.

Judges and "Invidious" Discrimination

In response to John's post last week on Sotomayor and the Belizean Grove, I posted a comment suggesting that maybe she was right to claim that resignation was not required.  The 2007 version of the Model Code of Judicial Conduct has a provision on discriminatory organizations which states that "[a] judge shall not hold membership in any organization that practices *invidious* discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation." CJC, Rule 3.6(A).  Comment [2] to Rule 3.6 says that whether an organization practices invidious discrimination depends on, inter alia, "whether the organization is dedicated to the preservation of religious, ethnic, or cultural values of legitimate common interest to its members ..."  In my view, the text of this rule differentiates between invidious and what might be called remedial discrimination.  A golf club that excludes African-Americans or Jews practices invidious discrimination, and a judge may not belong to it.  On the other hand, a civil rights organization -- even one limited to women, Latina woman, etc. -- does not practice invidious discrimination.  Sotomayor would not be required by the CJC to quit the organization, although it might be a political distraction if she didn't.  
 
In response, John and I had the following exchange off-line, and thought it would be useful to hear from knowledgeable readers.  Which of us is right?
 
JS:  On the Belizean Grove, perhaps my utter certainty is misplaced.  But note a few things.  First, it’s self-consciously a group of “movers and shakers” to network with each other.  It’s not the “Friendly Daughters of Puerto Rico” that meets twice a year for a potluck and cultural fair. Second, they expressly claim that they are a parallel to the Bohemian Grove.  To me, that’s a kiss of death both legally and realistically.  I’m sure you’re generally familiar with the Bohemian Grove, but being out here in Northern California and having talked to people who attend, that to me is the epitome of an exclusive, elitist club that judges can no longer belong to.  (If, however, judges are allowed to belong to the Bohemian Grove, then I really have egg on my face.)  The only way to negate their express desire to be a Bohemian Grove is to say, in a horribly patronizing way, “you’re no Bohemian Grove!”  Third, did you read her “defense”?  It was so telling to me.  She said that the club had not acted with discriminatory intent because to her knowledge, no men had applied yet.  Once you hear that kind of conditional defense you just know that she is inching for the exit.  You also know that she had been well counseled on what the standard was.  By the way, she didn’t even try the “we’re just a cultural/educational affinity group” defense.

But if there is a lot of case law out there showing that the Belizean Groves and Bohemian Groves of the world are in the safe category, I’d be open to hearing that.  It’s just that my understanding of the dividing line leaves the Grove way over the line.

BW:  Yes, it certainly sounds like Sotomayor wasn't particularly committed to defending her membership on the merits.  I don't know much about Bohemian Grove -- it's one of those clubs, like Skull and Bones at Yale, that I've heard about, but know only by rumor and reputation.  From what I know about Belizean Grove, though, the fact that it's modeled on Bohemian Grove doesn't mean it's invidiously discriminatory.  I may not have made this very clear in my comment, but I would distinguish between remedial and invidious discrimination on the basis of whatever (race, sex, etc.).  I know this distinction is controversial, that advocates of a color-blind society argue that discrimination is discrimination, and the Supreme Court has rejected that distinction (in Croson, I think), but the ABA is presumably free to recognize that distinction if it chooses to do so.  Thus, even if men had applied to Belizean and had been rejected, I would think Sotomayor has a defense under the Code, even if a male judge wouldn't have a defense if he were a member of Bohemian. 

JS:  I see the distinction you’re driving at, but remedial/invidious is not at all the distinction that I understand governs the rule.  Clubs for successful movers and shakers to do professional networking with each other are over the line for judges if they limit membership by gender or race.  But maybe I need to revisit my understanding.  (I cover this in class when a federal judge, who’s an expert on judicial ethics, comes and discusses this issue and others.  Maybe I’ve misunderstood him, but I don’t think so.)

Btw, you used the example of the NAACP.  White people can belong to that.  I don’t know why that’s a relevant comparison.  
 
BW:  To my mind, the invidiousness question goes to the purpose and activities of the organization, not the criteria for the selection of members, so the fact that whites can join the NAACP isn't dispositive -- what matters is that the organization seeks racial equality.  Belizean Grove does, too, and maybe so does Bohemian, or at least it doesn't practice invidious discrimination in the relevant sense.  My understanding is that the core concern of this rule is something like belonging to a country club that excludes blacks or Jews.  There are two ways to define that club -- as "discriminating" and as "invidiously discriminating" and I'd argue on the canon of construction (whatever it's called) that one should avoid rendering words superfluous that the word "invidious" does all the work.  Anyway, I'm not arguing from a bunch of cases -- I honestly don’t know what the law is here, but am going off the text of the rule only.  
 
JS:   Comment [2] to 3.6 seems to me to reflect the line drawing I am getting at.  If the group excludes men, but is the “Friendly Daughters of Puerto Rico,” and is not geared toward commerce and mercenary career-building, but rather is geared to preservation of a cultural heritage, then a judge can belong even though the group excludes men and non-Puerto Ricans.  If it’s a professional networking group for the elite movers and shakers — the best, brightest, and most ambitious — and if it says “no women” or “no men” or “asians only” then a judge cannot belong under 3.6.  In other words, it’s not invidious to exclude on gender or race if it’s educational and cultural-preservation stuff.  But it is invidious to exclude on race or gender when the purpose is commercial, career-networking, etc.

To me, it’s very clear that the Belizean Grove is a club of the latter type — because they say so themselves, because they directly compare themselves to perhaps the epitome of such a club (Bohemian), and because it “walks and quacks” like such a club.  As for the “invidious” discrimination, notice how she defended her membership as she was quitting: she didn’t invoke the distinction you want to invoke.  She said that her membership was not improper because to her personal knowledge no man had applied and been rejected.  The implicature of her comment, which I agree with, is that if the club does exclude men qua men then they’re on the wrong side of the 3.6 line.  I don’t think anyone, let alone the proudly all-woman Belizean Grove, doubts that men can’t join.  Her comment was face saving, but it does confirm my reading of where the line is drawn.

Btw, here is what their own website says, “Having observed the power of the Bohemian Grove, a 130-year-old, elite old boys' network of former Presidents, businessmen, military, musicians, academics, and non-profit leaders, and realizing that women didn't have a similar organization, Susan Stautberg and 26 other founding members created the Belizean Grove, a constellation of influential women who are key decision makers in the profit, non-profit and social sectors; who build long term mutually beneficial relationships in order to both take charge of their own destinies and help others to do the same.”  That nails it, right?

Our very own Brad Wendel, on "The Torture Memos and the Demands of Legality"

Paper here.  Abstract:

This review essay considers five recent books concerning the role of governmetn lawyers in the Bush Administration's war on terror: Harold Bruff, Bad Advice (2009); Jack Goldsmith, The Terror Presidency (2007); Jane Mayer, The Dark Side (2008); Philippe Sands, Torture Team (2008); John Yoo, War by Other Means (2006). One theme running through all of these books is whether there is a difference between legal and policy (or moral) advice, and whether lawyers in the Office of Legal Counsel can be criticized in terms of norms of legal ethics for the advice they provided. What divides critics and defenders of the OLC lawyers, I claim, is difference on whether the rule of law has normative significance apart from the substantive content of policies furthered by the law. For example, John Yoo's defenses appeal directly to moral and policy considerations, while Jack Goldsmith's critiques appeal to values associated with the rule of law. In my view, the role of lawyers should be understood in connection with the value of legality -- i.e. the distinction between government genuinely constrained by the law and government that aims at doing the right thing all-things-considered, and which regards the law as only a pragmatic constraint.

Survey of PR Courses

Here is a document that summarizes the results of the recent survey of PR professors, which was circulated on this blog and through two legal ethics listservs.  Many thanks to the more than 100 people who responded and to Professors Laurel Terry and Margaret Raymond for their help in putting the survey together.  We hope that you find the results to be useful.

Also, I highly recommend that you check out the revamped and highly useful AALS PR section web site.  Laurel Terry has done a great job of posting a lot of useful information for PR teachers.  You can access the site here.

Oathiness

The Law Society of Upper Canada, which regulates Ontario lawyers, has just approved a new oath to be sworn by newly admitted lawyers.  The new oath extends to some 8 clauses, including a requirement that the lawyer shall "in all things" conduct herself "honestly and with integrity and civility."  I have my substantive concerns with the inclusion of civility as something a lawyer swears to do (and on civility as a professional objective in general: here). But the debate around this oath also provoked some thought on the whole issue of oath taking as significant (or not) in thinking about lawyer ethics.  What does an oath to "strictly observe and uphold the ethical standards that govern my profession" add to how a lawyer makes decisions?  It might create a culture in which ethical behaviour is viewed as more normatively significant.  It might, by adding the dimension of "promise keeping", add some heft to ethical obligations.  But I would have thought that the substantive moral obligations ultimately need to be sufficient in and of themselves.  If they are not, how does the oath help?  And if they are, the sworn oath becomes little more than an exclamation point on the existing obligations that bind lawyers.  And what about a conflict between the oath and the lawyer's subsequent assessment of what the ethical rules require of her?  Does/should an oath - e.g., of civility - temper the lawyer's assessment of what the rules would otherwise require?

An ironic (to me) footnote in all of this is that the report on the oath in Lawyer's Weekly (June 12, 2009, not available on line, unfortunately) mainly concerned itself with objections in the profession to lawyers and paralegals swearing the same oath.  Apparently sole practitioners and small firm lawyers in Southwestern Ontario "were vehemently opposed to having the same oaths for lawyers and paralegals, arguing that only lawyers are professionals who are called to the Bar".  What does that say about the role of oath taking?  Exclamation mark on professionalism or substantive alteration of ethical obligations?

Edward Sherman on attorneys fees in aggregate litigation

Paper here.  From the abstract of the new article from Edward Sherman of Tulane:

The American legal system has much stronger procedural devices for aggregating like cases -- such as consolidation and class actions -- than do other countries. Other countries have eyed the American approach to "aggregate litigation" with both interest and suspicion. There is recognition that the traditional single-party model of adjudication is not well-suited to situations today when the claims of many individuals arise from the same basic conduct of a defendant, whether it involve defective products, environmental hazards, or wrongful business conduct. But other countries have been troubled by what they consider to be the excesses of American class actions and "entrepreneurial litigation." Nevertheless experimentation with aggregate procedures has quickened in other countries, and the U.S. is no longer alone in allowing class, representative, or group litigation, or in consolidating similar litigation.

Aggregate litigation invariably impacts the individual attorney-client relationship. What was understood as to the attorney's responsibilities may be altered as aggregate committees of attorney consortia assume principal roles in the litigation. Nevertheless, in consolidated cases the individual attorney-client relationship remains, with attorneys continuing to perform services on behalf of their individual clients. Conflicts as to fees between attorneys who have fulfilled different functions have arisen, and courts are having to determine how much supervisory authority they can and should exercise. The experience of the Vioxx consolidated multi-district litigation case, with its unique global settlement extending across jurisdictional lines and its order capping contingent fees at 32%, provides a crucible for testing the parameters of judicial supervision in aggregate litigation. The growing experience of American courts in dealing with these issues should be of interest to other countries as they move towards greater aggregate litigation.

Clarifying Amendment for Rule 1.10

The ABA/BNA Lawyers' Manual on Professional Conduct (registration required) is reporting that the ABA's House of Delegates will consider a proposal in August that will clarify that the recent screening amendment was intended to apply only to lateral attorneys.  (The problem with the current rule is discussed in more detail here and here.)

Sacrificing the Client to Save the Innocent Man

A few of us are debating the merits of the Alaska and Massachusetts versions of Rule 1.6 over at another blog called Public Square.  Have a look.

Teaching legal ethics: actions speak louder than words, and the ouster of DePaul's dean, Glen Weissenberger

I don't know the facts behind the ouster of the dean of DePaul's law school, Glen Weissenberger, but the public commentary suggests that he may have been terminated because he provided accurate information to the ABA's committee on accreditation.  

For some time now, I've been arguing on this blog that the most powerful form of ethics teaching that occurs in law schools is the open and widespread gaming of numbers and statistics for rankings purposes.  Students are taught that gaming the numbers and then concealing it, fibbing about it, or rationalizing it, is what grown-ups do for a living in the real world.  If it is true that Weissenberger's ouster was caused in part by his act of honesty to the ABA (which, I repeat, seems to be alleged but not conclusively proven), then it teaches an even sadder lesson.  Given the tone and content of the public discussion, DePaul should do an extensive and impartial post-mortem on this event and make the results public.

Is moral deference a problem?

The Northwestern Law Review Colloquy has published an essay by Michael Hatfield titled "Professionalizing Moral Deference."  Hatfield uses the torture memos as evidence of a broader problem: our tendency to professionalize lawyers to view moral deference as a moral good. Here's an excerpt:

From the beginning of law school, a lawyer is idealized as a zealous advocate for her client’s objective.  This biased zealousness is justified by an appeal to the adversarial American legal system.  Each side has a lawyer, and each lawyer is devoted to one side.  The professional role is to further the client’s objective, even if, personally, the lawyer opposes it.  The young lawyer learns to defer to the client’s moral conclusions about the objective.  But the young lawyer also learns to defer to the legal system’s conclusions that this is what lawyers should do.  We are told to suspend our personal moral instincts and to have faith that the legal system accomplishes a greater moral good by our accepting a truncated personal moral role than it could accomplish if we accepted full personal moral responsibility for what we help our clients do.  We are professionalized into believing that we are at no personal moral risk so long as we do a professional job (for which we will be well paid).  We are told to accept the moral good of moral deference—both to our clients and to the system.  We are professionalized to believe that moral deference is simply what lawyers do, as if it were a self-evident, natural principle that pardoned our moral misgivings. 

I've written a response essay titled "Professionalizing Moral Engagement."  Here's the opening:

In Professionalizing Moral Deference, Michael Hatfield argues that the way we form lawyers “begins with moral desensitization,” a technique that teaches future lawyers “to override [their] moral intuition.”  In making his case, Hatfield offers the infamous torture memos as Exhibit A, but they may not be the best vehicle for proving his thesis. As the work of John Yoo shows, some of the most scandalously deficient legal advice may stem (at least in part) from the lawyer’s inability or unwillingness to override his moral intuition.  There is no reason to believe, however, that Yoo’s moral intuition would have led him to reject the conclusions set forth in the memos, and there is some evidence that his moral intuition helped shape his analysis.  Seen in this light, the memos could be construed—in direct opposition to Hatfield’s characterization—as evidence that law schools need to redouble their efforts to train lawyers to override their moral intuition.  But this reaction would miss the partial truth underlying Hatfield’s analysis.  The torture memos do underscore a desensitizing that afflicts many lawyers, though its implications are broader—and perhaps less insurmountable—than Hatfield describes.  Although he is undoubtedly correct that lawyers should “stop telling [one another] that overcoming personal moral squeamishness is the great call of the law,” the law’s call is a bit more nuanced: although lawyers should not ignore their own moral squeamishness, neither should they wallow in it.  The lawyer’s cognizance of her own moral intuition should mark the beginning, not the end, of her inquiry into the moral dimension of the representation.

I'd welcome feedback.  I believe that Brad Wendel's response to Hatfield will be published shortly.

No surprise: Sotomayor quits Belizean Grove

As noted previously, this was inevitable: Sonia Sotomayor has quit the Belizean Grove.   She'll apparently continue to claim that quitting wasn't required by the judicial canons -- but it was.

A Rush From Judgment? The OLC Memoranda and Modern Legal Conservatism

Orwell once referred to defenses of Soviet tactics as presenting a theory of "catastrophic gradualism." In response to criticism of Stalinist brutality, a defender would say "you can't make an omelet without breaking some eggs."  In response to the criticism that no omelet had appeared, the defender would say "you can't expect everything to happen at once."  

Orwell's contrarianism is well known; he was much harder on his political friends than his enemies, and was long celebrated by conservatives whose political philosophy he rejected.  Consensus seemed to worry him, and he styled much of his writing as a needle aimed at the balloons of a parade marching in his general direction.

Or perhaps that is just rationalizing projection on my part.  

In any event I thought of catastrophic gradualism while thinking about the OLC memoranda and some correspondence I have had about them. The phrase that came to my mind as characterizing an important strand of the critique was "outrageous mundanity." By that I mean the idea that the memoranda were outrageously indefensible as--a duty of care violation.  (There are of course some charges of subjective bad faith floating around, but as yet I have not seen good evidence to support that inference.)

Taken seriously, this critique raises a simple factual point (not the subject of empirical investigation yet, so far as I know) about what the average lawyer in such a case does.  Insofar as the duty of care is concerned, if it could be shown that most lawyers in fact do the sorts of things reflected in the memoranda then there would be nothing wrong with them.  (Actually, it is worse than that--technically the burden goes the other way, so a failure to show that the average lawyer would do something else justifies the memoranda, on this account.) 

I disagree with this implication and, therefore, with the outrageous mundanity thesis.  Even if it could be shown that 4 of 5 lawyers would have written the memoranda the same way they were written, there is still an important reason to criticize them and to draw from them some useful lessons about legal interpretation.  It is not a lesson that implies discipline or, much less, prosecution, but I think it is a useful lesson nonetheless. 

In general, the memoranda are apples dropped from the tree of high textualism.  Calling the apples bad misses the point.  What is needed is an axe.

I want to call the tree "modern legal conservatism."  (Thesis below the fold.)   

Update on Judge Keller's Case

Several of us joined in a Declaration in support of the proceeding to remove Judge Keller from the bench.  One response was an effort by the Judge's lawyer to bring legal action against Bob Cummins, his five law students, and me, beginning with an effort to depose Bob.  The legal action has been dismissed by the Texas court.

West Virginia on Metadata

Last week, the West Virginia Bar added its two cents to the increasingly populated world of legal ethics metadata opinions.  The opinion addresses the obligations of both the sender and the recipient of electronic documents.
 
With regard to the sending lawyer, the opinion concludes that a lawyer must take reasonable precautions when handling and transmitting electronic documents to avoid the inadvertent disclosure of protected metadata.  The opinion offers some suggestions in this regard, including the use of metadata scrubbers.

The opinion then goes on to describe the recipient's obligations, explaining that "if a lawyer has received electronic documents and has actual knowledge that metadata was inadvertently sent, the lawyer should not review the metadata before consulting with the sending lawyer to determine whether the metadata includes work-product or confidences." (citing the New York State Bar opinion on the issue).  If, however, the recipient is not sure whether the disclosure was inadvertent, the lawyer is encouraged (though apparently not required) to seek clarification from the sender before reviewing the metadata.

So here's the updated score card.  Alabama, Arizona, Florida, Maine, New Hampshire, the New York State Bar, the New York County Bar, and West Virginia have concluded that lawyers typically shouldn't be allowed to look at metadata (absent consent or other authorization).  In contrast, Maryland, the D.C. Bar, Colorado, Pennsylvania, and the ABA have concluded that it is usually permissible for a lawyer to review metadata.

Last week, the West Virginia Bar added its two cents to the increasingly populated world of legal ethics metadata opinions.  The opinion addresses the obligations of both the sender and the recipient of electronic documents.
 
With regard to the sending lawyer, the opinion concludes that a lawyer must take reasonable precautions when handling and transmitting electronic documents to avoid the inadvertent disclosure of protected metadata.  The opinion offers some suggestions in this regard, including the use of metadata scrubbers.

The opinion then goes on to describe the recipient's obligations, explaining that "if a lawyer has received electronic documents and has actual knowledge that metadata was inadvertently sent, the lawyer should not review the metadata before consulting with the sending lawyer to determine whether the metadata includes work-product or confidences." (citing the New York State Bar opinion on the issue).  If, however, the recipient is not sure whether the disclosure was inadvertent, the lawyer is encouraged (though apparently not required) to seek clarification from the sender before reviewing the metadata.

So here's the updated score card.  Alabama, Arizona, Florida, Maine, New Hampshire, the New York State Bar, the New York County Bar, and West Virginia have concluded that lawyers typically shouldn't be allowed to look at metadata (absent consent or other authorization).  In contrast, Maryland, the D.C. Bar, Colorado, Pennsylvania, and the ABA have concluded that it is usually permissible for a lawyer to review metadata.

So here's the updated score card.  Alabama, Arizona, Florida, Maine, New Hampshire, the New York State Bar, the New York County Bar, and West Virginia have concluded that lawyers typically shouldn't be allowed to look at metadata (absent consent or other authorization).  In contrast, Maryland, the D.C. Bar, Colorado, Pennsylvania, and the ABA have concluded that it is usually permissible for a lawyer to review metadata.

Sonia Sotomayor's membership in the Belizean Grove

Alice commented on this before, and now the WSJ Law Blog and NYT are hot on the trail. Somewhat to my surprise, it appears that Judge Sotomayor may not resign from the Belizean Grove -- at least not yet (see my speculation below).

No doubt, this issue will have to reach some type of definitive resolution.  The NYT article might hint at how to break the impasse.  Judge Sotomayor is quoted as saying that to the best of her knowledge no man has ever sought membership.  What are the odds that a man will step up to seek membership, which will give Sotomayor the opportunity to watch what the Grove does, and if the man is excluded, she can then step down?  (IIRC, a judge can remain a member of a discriminatory club for long enough to test the club's intentions or seek an end to discriminatory conduct.)

Kim Economides, former head of the Legal Ethics journal, to head New Zealand center on legal system

Formerly a professor in legal ethics at the University of Exeter and formerly the editor of Legal Ethics, Economides has moved to the University of Otago to head a center that studies the legal system.  It appears that the center has a broader mandate than just legal ethics.

Defendant sends bloody letter to court-appointed defense counsel.

At some point, a criminal defendant's abuse of the legal system may deprive him of the right to counsel.  But, according to the high court in Massachusetts, sending a bloody letter to your court appointed defense counsel and threatening to assault him and his family may not be enough to deprive you of counsel.  Story here.

Massachusetts ethics committee OKs screens for deferred biglaw associates working as judicial clerks

News blurb here.  Unilateral screens (i.e., screens that work despite protestations by affected parties and former clients) continue to creep here and there into the profession.  To my knowledge, this is unprecedented.  Deferred biglaw associates, who are still on the law firm payroll, can work in judges chambers -- at least in Massachusetts. 

Fred Zacharias on "The Myth of [the Legal Profession's] Self-Regulation"

His new article is here, in the Minnesota Law Review.  Abstract:

The American legal profession is highly regulated. Lawyers are governed by state-enforced professional codes, supervised by courts, and constrained by civil liability rules, civil and criminal statutes, and administrative standards. Nevertheless, commentators and various actors in the legal system continue to conceptualize law as a “self-regulated profession.” The Preamble to the recently revised ABA Model Rules of Professional Conduct characterizes the Rules as self-regulation despite the fact that they are intended to be administered by state supreme courts.

This Article argues that the persistent emphasis on lawyer self-regulation misleads courts, code drafters, lawyers, and laypersons alike, with serious ramifications for the development of the law governing lawyers and for everyday legal practice. The Article traces the history of lawyer regulation, explaining why the notion of law as a self-regulated industry developed, when it became archaic, and why it continues to be used. The Article then highlights adverse consequences that arise when various actors—including the co-regulators of the bar, lawyers themselves, and the public—cling to the image that lawyers self-regulate through legal ethics codes. The Article ultimately proposes an amendment to the Model Rules that would eliminate all reference to self-regulation and replace it with a more accurate statement reflecting the modern reality of co-regulation.

Civility traffic school: A Loony Idea From A Pointy-Headed Academic

Like the weather, everyone talks about civility but no one does anything about it.  Every year since 1984, when I began following the legal press, I have read a few hand-wringing pieces about the decline of civility in the profession.  As I have researched the 19th Century origins of California's duty of confidentiality, I have noticed that the decline of civility has been a favorite topic since at least the 1850s.  Maybe that should tell us something.

Civility is a topic that needs to be handled with care.   It traces to conceptions of "gentlemanly" conduct, and thus has been made to do duty as a code phrase for ugly biases against outsider groups.  It is my impression, at least, that in the past "he's not a gentleman" often could be translated "Jew." 

Given its checkered history and subjective nature, I sometimes wonder whether it is better to continue the time-honored tradition of worrying aloud about incivility but doing nothing about it.  But however one defines the elusive term "civility," it is my subjective view that screamers and table pounders, and people who won't give you an extension for papers due on December 26 (a real story for me), are tiresome.  And it is my impression that loutish conduct is used tactically to try to intimidate young lawyers, particularly young women.  As it is my job to try to get them launched with comparatively little trauma, I offer a suggestion for actually doing something: Civility traffic school.

Former Jenkins & Gilchrist partners indicted for tax evasion counseling

Story at White Collar Crime Prof Blog.

Sacha Baron Cohen (Borat, Ali G, Bruno) as undisclosed principal

Via Althouse, here's a Telegraph article about the dummy corporations that were created to help hide the truth behind Cohen's latest mockumentary film.  Altman asks "wouldn't you love to do that legal work?"  Of course, I immediately thought of comment [2] to Model Rule 4.1 (emphasis added):

This Rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud. Lawyers should be mindful of their obligations under applicable law to avoid criminal and tortious misrepresentation.

John Yoo's motion to dismiss Jose Padilla's claims is mostly denied.

Via Volokh and Con Law Profs blog, here's the opinion mostly denying John Yoo's motion to dismiss claims by Jose Padilla.  I haven't had a chance to study the opinion in depth, but I'm particularly interested in the court's analysis of causation, which begins at page 31 of the opinion.  When I first read Padilla's complaint, it struck me that establishing causation might be difficult.  

UPDATE: The court ruled that at the pleading stage it will accept Padilla's allegations that Yoo "set in motion" a series of events resulting in deprivation of constitutional rights.  The defense argued that the decisions of Ashcroft and Bush effected the alleged deprivations, but the court's analysis turned on whether Yoo's alleged conduct played a substantial contributing factor.  Suppose that Yoo wants to adduce evidence on that point, that neither Bush nor Ashcroft can be forced to discuss their decision making process, and that Yoo claims his defense has been compromised.  Or suppose that Yoo wants to introduce documents in his defense and that the Obama administration decides not to declassify those particular documents.  (This could be so-called "graymail" but doesn't have to be.)  In those scenarios can Yoo argue that the claim must be dismissed?  Also, what proof would be necessary to survive a Rule 56 motion on the causation issue?

Law Firm Evolution: Brave New World or Business as Usual (March 2010 Conference at Georgetown Center for the Study of the Legal Profession)

Georgetown's Center for the Study of the Legal Profession has issued a call for papers for what should be another terrific conference.  Details available in the download.  Download Call for Papers

One federal agency sues another.

Here's an oddity: one federal agency sues another.  (via Volokh)  Presumably the government lawyers weren't in some kind of structural conflict but rather were able to limit their representation to their own agency.  This kind of lawyering vis-a-vis other agencies and other branches is one reason why it doesn't make sense to say that government lawyers have the public as their client.

Sotomayor and ABA obligations?

The Washington Times has an editorial today (here) which is also noted by Andrew Sullivan (here) suggesting that Sotomayor's membership in the "Belizean Grove" a women only networking organization should preclude her nomination.  They also suggest that it violates ABA provisions preventing a judge from being a member in any group that unfairly discriminates on the basis of gender.   

Preventing a Wrongful Execution or Incarceration

What do Massachusetts and Alaska have in common (beyond the need for antifreeze)?  It turns out that they share an unusual exception to the duty of confidentiality.

Massachusetts has an oft-discussed exception to Rule 1.6, which permits lawyers to disclose confidential information "to prevent the wrongful execution or incarceration of another.'"  We've discussed it in a variety of posts (see, e.g., here and here), and it came up at the recent National Conference on Professional Responsibility in connection with the Alton Logan case.

Until today, I had been under the impression that Massachusetts was the only state to have such an exception.  I just discovered, however, that Alaska adopted an identical exception as of April 15, 2009. 

The adoption of the exception in two states does not make a trend, but for reasons set out in the earlier posts, I believe it is a worthy addition to the rules.  For those of you who are involved in your state's rule making process, the exception is worth some consideration.

Charging by the hour for sleeping with the client?

Not surprisingly, the lawyer (barrister) vehemently denies that he charged his client for time spent being intimate. Under the ABA scheme, intimate relationships between lawyer and client are forbidden unless they preceded the attorney client relationship.  Under the California rule, they're forbidden when they result in impaired legal performance.

Roberts's 40 Questions

I liked the Caperton result, and am hopeful that Steve Lubet, Andy Perlman, Alex Long, and others are correct that it will not spawn counter-productive collateral litigation.

I wanted to comment on Roberts's 40 questions, which have provoked much commentary.  If I understand Steve and Andy correctly, they dismiss Roberts's concerns by arguing that the recent Heller decision, like most landmark SCOTUS decisions, leaves numerous unanswered questions.  But my understanding of Roberts's point is that his unsettled questions go to the legitimacy of adjudication itself, and that they potentially apply to the majority of cases in states where judges run for office.  On that basis, reasonable people could draw a distinction between Caperton and Heller, even if they liked Caperton's result.  If so, the proper response to Roberts isn't that all major decisions produce unanswered questions and unsettling results but rather that he's made a bad prediction about Caperton's effects.  Which brings me back to the predictions of Steve, Andy, and Alex.

William Henderson and Leonard Bierman on the statistical trends for biglaw

Indispensable for people interested in biglaw.  

Professor Alex Long on the Caperton Decision

Following up on his previous posts about the Caperton case (here and here), University of Tennessee Professor Alex Long passes along this assessment of the opinion:

            As you may have heard, the Supreme Court’s decision in Caperton v. A.T. Massey Coal Co. is out.  In a 5-4 decision, the Court held in a case involving the issue of when a judge’s failure to recuse himself violates the Due Process Clause, the question is whether, “under a realistic appraisal of psychological tendencies and human weakness,” the judge’s interest “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.”  Applying that standard to the facts of the case, the Court concluded that the failure of Justice Benjamin of the West Virginia Supreme Court of Appeals to disqualify himself in a high-profile case involving the company of an individual who had donated three million dollars in an attempt to defeat Benjamin’s opponent in a judicial election ran afoul of due process.  Justice Kennedy wrote the majority opinion.  Chief Justice Roberts dissented, as did Justices Scalia, Thomas, and Alito.

The Supreme Court's Opinion on Judicial Recusal Standards

The Supreme Court issued its opinion in the Caperton case this morning in a 5-4 decision.  The Court held (correctly, in my view) that a West Virginia Supreme Court judge's refusal to recuse himself constituted a due process violation.  The Court split along the typical liberal/conservative lines, with Justice Kennedy serving as the deciding vote.

For some of our previous commentary on the case, see here, here, and here.  (Update: Other arguably relevant posts are here, here, and here.)

"[California] State Bar Dumps Top Prosecutor" (This is big in California discipline circles.)

Story here.  Scott Drexel, the state bar's top prosecutor, will not be re-appointed.  Rumors are swirling and it's hard to get a handle on what drove the decision.  Everyone agrees that Drexel implemented more aggressive policies, that his office prosecuted a high-profile discipline case against a prosecutor (a relatively rare event), and that the discipline defense bar has complained about a loss of common sense and proportion among state bar prosecutors.  To me, the most illuminating paragraph in the story was this seemingly low-key quote from Jerry Fishkin, himself a former state bar prosecutor: 

Jerome Fishkin, a partner with Walnut Creek's Fishkin & Slatter who represents attorneys facing discipline charges and has clashed with State Bar prosecutors in the past, said he hopes that "the next chief trial counsel follows more sensible policies than Scott did."

AG Holder reverses Mukasey's position on ineffective assistance claims in immigration matters

Nod to the Blog of the Legal Times: AG Eric Holder has reversed the decision of the prior AG, Michael Mukasey, in the Compean matter.  Mukasey had decided that immigration court affords no constitutional guarantee against ineffective assistance of counsel.  Reading between the lines of Holder's new decision, it appears that the Obama administration may recognize some sort of ineffective assistance of counsel claim, but will base it on new administrative rules.

Jasmine v. Marvell (the "forgot to hang up and left incriminating voicemail with the opposing lawyer" case) dismissed

Jasmine v. Marvell, one of the most discussed ethics cases in years, has been dismissed.  It's the case where the general counsel for the defendant telephoned the general counsel at the plaintiff, left a voicemail message, inadvertently didn't hang up, and then engaged in a group discussion that was left in the opposing lawyer's voicemail.  Depending on how you interpret the message it was either strategizing about the worst case scenario or an outright admission that the defendant had stolen trade secrets.  The trial court excluded the call from evidence, holding that the inadvertent act was not a deliberate waiver of the client's privilege.  But the intermediate appellate court ruled that the crime-fraud exception applied. The California Supreme Court took up the case, but it languished for years and then was sent back down without a ruling.  It now looks as if we won't get to hear what the two sides had to say about that (in)famous voicemail.

Lying on application leads to loss of insurance coverage

Imagine that you were honest on your insurance application but your partner was not -- and that the policy was voided for dishonesty.   Details at The Ethical Quandary,

Confidentiality or accountability?

David Weiden of Indiana University is conducting a research study of current and former law clerks of the Supreme Court of Canada.  Unlike (as I understand it) USSC clerks, SCC clerks are not the subject of much public discussion, and their role is not well understood.  Professor Weiden's survey asks a variety of questions about the role that the clerks played and also about their impression of the decision-making processes of the judges for whom they worked.  In my view it has the potential to help open up the clerk's role for discussion.  Unfortunately, in an e-mail sent out today the SCC has told former clerks that responding to Professor Weiden's survey would violate their legal obligations:

"The current Justices of the Supreme Court of Canada have declined to participate in interviews for Professor Weiden’s project. Current law clerks have been advised not to participate in the survey, as doing so would violate their confidentiality obligations. The Court takes the view that participation in the survey by former clerks would also violate confidentiality obligations. The Court takes the view that confidentiality obligations of current and former law clerks are not limited to information about cases, but also extend to internal processes of each Justice’s chambers."

I have asked the Court to explain the basis and nature of these asserted obligations, and also to advise which questions, if any, of Professor Weiden's survey can be answered.  In the meantime, I would be interested in the view taken on the confidentiality obligations of law clerks in the US.