The folks at Hinshaw are publishing this blog.
This article explores the intersection of international human rights law, corporate law, and the ethical regulation of business lawyers engaged in global business transactions. At first blush, the risks posed by human rights law may seem remote – even fanciful – to American corporate practitioners. But serious implications exist for business lawyers who facilitate commercial activities that subsequently wind up violating human rights.
Consider a corporate finance lawyer who represents a bank in a secured lending transaction where the lender finances a brutal foreign government that uses slave labor to mine “blood” diamonds. Or in-house counsel for an internet service provider faced with a demand from a foreign government – pursuant to foreign law – to identify online “dissidents” so that the government can make arrests and subject them to “enhanced” interrogation. These kinds of scenarios at the intersection of human rights and business can create criminal and civil liability for lawyer and client alike, as well as rendering the lawyer subject to professional discipline.
The rising challenges for corporate lawyers facilitating the massive growth of international business cannot be solved by reference to one narrow discipline alone. Accordingly, this article adopts a multidisciplinary approach and draws on principles of legal ethics, international human rights law, and corporate law to provide a comprehensive analysis and solution for business lawyers engaging with a rapidly-changing global landscape.
International law provides criminal liability for a wide range of conduct by individuals and groups. It also recognizes a broad understanding of the means by which international crimes may be perpetrated. Legal work and business activity can be as equal a means of violating human rights as direct personal violence. Corporate legal work that substantially contributes to serious human rights violations itself may constitute an international crime. It also likely violates federal criminal statutes that incorporate international prohibitions into domestic law.
Many ethical duties are linked to “crimes” that trigger certain Model Rules incorporating these provisions by reference (eg, the ethical prohibition on lawyers helping clients break the law). The analysis becomes complex on the global scale because multiple sources of law apply simultaneously, raising serious questions about which rule predominates. The underlying conduct (eg, an ISP’s lawyer identifying “criminal dissidents”) could be perfectly legal (or even required) under foreign law, illegal under international law (eg, prohibitions on assisting or facilitating torture), and fall within a gray area in American law (eg, where federal law on torture is narrower than international law). In such cases, the lawyer cannot comply with one rule without breaching another.
The Model Rules normally resolve such “double deontology” conundrums by selecting ethical rules from a single jurisdiction to govern the lawyer’s obligations – usually where conduct occurs or has its predominant effect. But the transnational issues here are not easily reconciled with existing paradigms. International human rights law presents no “this-or-that” choice in this context. Rather, the prohibition on serious human rights violations constrains domestic rules and creates universal duties that supersede all inconsistent domestic laws.
The direct applicability of human rights law to the attorney-client relationship has serious implications for ethical corporate legal practice. Whether or not criminal prosecution or civil liability follow, human rights violations in business dealings gives rise to myriad professional complications for corporate lawyers to consider and resolve. Of particular concern are the lawyer’s duty not to assist in client crimes and questions of governance and the legitimate objectives of corporate legal representation.
Modern corporate practitioners must account for human rights in order to practice ethically and competently in the rapidly-expanding world of global business. That said, treating human rights simply as risks to manage creates its own risk – that lawyers and the companies they represent will miss the forest for the trees, to the detriment of higher social aims to which both human rights law and the legal profession aspire. Corporate lawyers thus must walk a tight line that addresses criminal, civil, and ethical risk but also aligns compliance and decision making with the core ethical values underlying the legal profession itself.
I am posting my colleague Ron Minkoff's recent Ethics Alert about the New York opinion rejecting the "unfinished business" rule for law firms (otherwise known as the Jewel v. Boxer rule). Here is an excerpt from Ron's Alert:
The implications for lawyers involved in partnership dissolutions and bankruptcies are significant. No longer will law firms have to squabble over "Jewel waivers," as partnership agreement provisions intended to circumvent the Jewel v. Boxer rule are called; the Court said these are no longer necessary. No longer will partners leaving dissolving firms have to worry that other law firms won't hire them because they would have to disgorge the profits from their work. And, most importantly, no longer will clients have to be concerned that they will lose their lawyer of choice because that lawyer cannot convince her new firm to take on a matter from which the firm will earn no profit.
The Guardian newspaper has added to a series of stories alleging, “Britain’s high-street banks are routinely issuing legal demands from what appear to be independent firms of solicitors designed to make struggling borrowers pay up. Yet the firms are not regulated by the legal profession’s watchdog, and are simply names used by banks’ in-house lawyers.” They allege the following: •
Royal Bank of Scotland and its NatWest arm have been using Green & Co Solicitors in Telford; •
Lloyds Bank uses SCM Solicitors in Hove, East Sussex, •
HSBC used DG Solicitors in Edgbaston, Birmingham (until January 2014).
No such firms existed on the SRA’s register, we are told. Other interesting characteristics of the letters are said to be: •
“the letters are signed by a lawyer who is individually regulated by the SRA.” •
Borrowers are often told their case has, “been escalated to a third party, using legal language such as “We are instructed by our client” and “We are likely to be instructed to commence court proceedings”.”
The letter heading looks like that of an independent firm of solicitors. •
The letter, “typically uses a different address from that of the bank concerned”. •
Small print wording on the letters identifies the ‘firms’ as part of the bank or its litigation department.
The SRA are reported to be about to release guidance to stamp out the practice and the banks appear to be already in retreat, withdrawing or reviewing the practice. We await hearing whether there will be further action. The banks appear to be defending themselves by saying these ‘firms’ were/are a practising name of their in-house solicitors or a trading name (not that any actual trading is going on under the name) and that they have not broken any law. Wonga (a so-called pay day loan company) took their approach the furthest by (in the Guardian’s words) sending, “letters from fake lawyers, whereas the individuals signing the letters from the banks are authorised and regulated by the SRA.” Wonga were recently fined by the finanical regulator (the Financial COnduct Authority).
Wonga also manage to give their fake firm an Irish American feel which evokes, for me at least, a flavour of 1930s Chicago, “Chainey D’Amato & Shannon”. If we’re going to go for pseudonymous fakery we may as well make our lawyers sound like gangsters, I can imagine their risk function not saying. Lloyds is quoted as making clear, “that SCM Solicitors forms part of Lloyds Banking Group’s in-house litigation department.” And that that every letter sent out bore the name of a solicitor within the department who took responsibility for that letter. Green & Co (the Pseudonymous law firm of RBS, perhaps intent on pointing out they’re new to this and not very good virtual legal practice), “had only “a handful” of cases open…[and] acknowledged that “we must make it clearer” to customers that it is an in-house RBS team.”
To be fair it’s not just the banks who are up to this particular trick. The Guardian report that the Student Loans Company magicked up Smith Lawson & Company Recovery Services as “branded correspondence” and that utility companies may also use the tactic. But let me return to the banks that have their solicitors bravely put their names to letters under pseudonymous letterheads and the idea that this is okay because they are regulated by the SRA. The letters are clearly intended to convey an escalation in the debt process. In one sense that is quite a clever way of doing so; a nudge, if you like. But in another sense, it looks like a deliberately misleading statement. They appear to be deliberately creating a fiction: seeking to create a belief in some of their customers/debtors that is at variance with their own. Putting the true position in small print somewhere on the letter does not change that intention. Nor will it always change the effect of the letter. Such behaviour may fall below normal standards of honesty. It may also fall below legal standards of honesty (though that is rather different from saying an offence has been committed).
Let me turn then, briefly, to whether the solicitors involved in pseudonymous law firms have breached their professional obligations. Firstly, there is a substantial risk that the solicitors who signed or were involved in the production of the letters have breached their obligation to act with integrity. This depends, in large part, on whether it is accepted that these letters were deliberately misleading. There is also a significant question as to whether the obligation to, “behave in a way that maintains the trust the public places in you and in the provision of legal services” has also been breached. More specifically, there is a question over whether Outcome 11.1 (rule 11.1 in effect) of the SRA Code of Conduct has been breached that is solicitors must not, take unfair advantage of third parties [the debtors] in their professional capacity. Perhaps unsurprisingly, neither the rules nor the guidance (indicative behaviours) take account of the possibility that lawyers might make up law firm names to threaten litigation under, but if, “using your professional status or qualification to take unfair advantage of another person in order to advance your personal interests” is likely to be contrary to O11, then using a fictitious professional organisation to take advantage of unsuspecting debtors to advance a business’s interests is also likely to be a breach of the rules.
A version of this post first appeared on http://lawyerwatch.wordpress.com
Story at California Attorneys Fees Blog. Excerpt:
This is a doozy of a case involving well known Los Angeles attorney Hillel Chodos, who happened to not have had a written hourly or contingency retainer agreement with an ex-client, a wife involved in an imbroglio of divorce cases (including a Marvin suit). Mr. Chodos charged $1,000 an hour for his time but had to sue ex-client for quantum meruit recovery based on the absence of a retainer and had a jury award him $7.8 million, his lodestar of 1,800 hour for the divorce work plus a multiplier of five—meaning the jury increased his hourly rate to $5,000. Such a result came after a trial where Mr. Chodos and his ex-client put on very conflicting testimony about the value of his services, the time he spent (or should have spent), and the results obtained in the divorce cases (although the results appeared to be quite extraordinary).
Interesting post at Ninth Circuit Blog titled, "Case o' The Week: "Show Me the Money" not Sanctionable, in Ninth - Tillman and CJA Counsel." The appointed lawyer firmly asserted that he would stop work if his bills weren't approved. The trial court was offended. The Ninth Circuit opinion is here and might be good for PR classes.
Celebrating July 4 with Justice Kennedy is lonely. He holds a single sparkler and noisy fireworks go off on both sides of him. Will that sparkler, however, help this philosophically and religiously diverse Country stay united for many more birthdays to come?
I was looking for a reference and Keycited a law review article (one of mine as it happens) because I knew that the case I was searching for cited it. The case did not come up. In fact, I know that perhaps two dozen cases had cited the acticle and only one case came up. Westlaw was wrong. One authority that did come up had nothing to do with article. I did not review all the responses.
I wonder: we rely on programs and programmers accurately to capture all subsequent history of authority we cite and to highlight correctly the negative citations they do capture. I doubt my experience is unique. I knew from experience that the response was wrong. But usually we don't know. We rely on the Keycite or Shepard results. And we rely on accurate responses to a search term search.
Can a lawyer rely on what a proprietary database search shows? And apart from civil liability risks, imagine the embarrassment of citing a case that was limited or overruled or whose premises were persuasively questioned in a different jurisdiction. Or missing an important authority because the search failed to produce it. Is there a duty to doublecheck Westlaw searches on Lexis and vice versa? Of course, the same problems could arise in "olden days," pre-computers and likely did. A search is only as trustworthy as the least trustworthy person who contributes to the product.
This is a book chapter that introduces and discusses the duties owed by the legal advocate to the client in Uganda.
Story at Bloomberg. We've already had several posts about this, and I expect we'll have quite a few moare. Excerpt:
General Motors customers who sued the automaker over fallen car prices might have a stronger case if they could prove company executives defrauded the court about a faulty ignition switch when testifying during its 2009 bankruptcy, a judge said.
If then-Chief Executive Officer Fritz Henderson “knew about the switch problem and intended to keep it from me, that might constitute fraud on the court,” U.S. Bankruptcy Judge Robert Gerber said at a hearing today in Manhattan.
Such deception would be a worse offense than the one customers’ lawyers propose to fight on, which is that GM didn’t give the car owners a say in court during the company’s restructuring, the judge said. Henderson said in an e-mail today that “I did not know anything about it.”
Richard Moorhead has posted at Lawyer Watch. Excerpt:
A Litigation Daily piece by Susan Beck in the New York Law Journal takes a look at the role of lawyers in the events leading to BNP Paribas’s $8.9 billion settlement with the US Justice Department. The DOJ’s statement of facts filed with the plea deals discusses law firm opinions: one set from Law Firm 1 (Beck indicates this is probably Cleary, Gottlieb, Steen & Hamilton) and one opinion from Law Firm 2 (identified by Beck as Skadden, Arps, Slate, Meagher & Flom); neither firm has commented). The case is redolent of Standard Chartered Bank (where it is probably the role of General Counsel not outside counsel which gives rise to most concern.)
The law firm of Lizzie Borden’s lead attorney continues to maintain her client files in a confidential manner. In contrast, the trove of notes kept by another attorney on the defense team were discovered by his grandson, who willed the client materials to the local Massachusetts historical society, making them generally accessible some 100 years after the murder trial.
Which is the right result? Does client confidentiality live forever? What if the client is an entity rather than an individual? Should there be some point in time -- 50 or 100 years -- when this right to confidentiality expires? Who will enforce the privilege once all the participants are dead? These questions have important implications for attorneys, law firms, and corporate entities. But they are also questions of importance to librarians whose libraries might be given papers that were protected by the attorney-client privilege, represented work product, or were the subject of an attorney’s ethical obligation to protect the confidentiality of client matters.
This short essay raises these questions and considers the legal, policy, and practical issues involved. Several approaches are outlined and briefly evaluated.
Excerpt from State Bar Journal story:
The State Bar will send audit letters to 5,500 attorneys on July 7 to ensure compliance with Minimum Continuing Legal Education (MCLE) requirements.
This is the fourth year that the State Bar has conducted audits that could potentially result in disciplinary action. It’s also the largest audit group to date. The sample represents about 8.5 percent of attorneys whose last names begin with the letters N through Z, whose MCLE compliance was due Feb. 1.
Attorneys will be asked to provide certificates of course completion or prove they are statutorily exempt by Aug. 21. The State Bar requires active attorneys to take 25 hours of continuing education courses every three years. Lawyers must keep documentation for at least a year after their compliance is due.
The audit will include lawyers who had to make up missing hours as a result of being audited in 2011. In addition, it will include a higher proportion of those with other risk factors for doing poorly on the audit, such as a history of administrative actions or late filing of MCLE compliance. The remaining 3,200 or so will be chosen at random from attorneys whose last names begin with the letters N through Z.
There are good arguments for not electing Hillary Clinton or any other Democrat to become the next President, particularly worries about our foreign policy (if we have one) and the big spending and regulation that the Democrats have brought with their control of the White House over the past six years. But should questions about Clinton’s ethics as a lawyer be taken seriously in the 2016 political campaign? Her role in the Whitewater savings and loan debacle over twenty years ago has already been explored in depth by many investigators, including the very capable and zealous independent prosecutor Kenneth Starr. The findings do not reveal substantial evidence that Mrs. Clinton committed serious violations of ethics rules or other law, or much else that is relevant to who should become President in 2016.
Now there are questions arising from Clinton’s even earlier representation of a child rape defendant in the 1970s. Some critics claim that Clinton was too zealous in her representation of her client (e.g. she was too good a lawyer for someone who did not deserve a good lawyer). Others claim that she betrayed client confidences when she talked about the case after it was over.
At most it appears that Clinton expressed a personal opinion as to her client’s guilt after the case was over. It does not appear that she disclosed anything that the client had said to her that was not in the case record, or any other information (such as about a polygraph test that he apparently passed) that was not also in the record. It is difficult to see a violation of Rule 1.6 (client confidences) in this, although it is generally not viewed as proper for a defense lawyer to suggest publicly a personal opinion that a former client was guilty, even if no harm comes to the client. It is very difficult to see an ethics violation sufficiently serious to raise a substantial question as to Clinton’s fitness to be President.
The next presidential campaign should be fought on the issues – excessive government spending and taxation, excessive regulation at the federal level, and a malfunctioning foreign policy (Clinton’s role as Secretary of State is very much relevant to this campaign, although her entire record and her foreign policy views are more relevant than any single incident that occurred during her tenure).
Cheap attacks on Clinton grounded in unsubstantiated and decades old ethics allegations will only convince the public that Clinton’s opponents are unwilling or unable to address any of the real issues. Such tactics could easily backfire (the only worse strategy would be to talk about Monica and the impeachment proceedings against Mr. Clinton). Legal ethics has been used as a political weapon in the past, but the public sees through lawyers attacking other lawyers as “unethical” for political gain, and will not want any part of it.
That's what they're reporting at Above the Law, along with faculty and staff layoffs. Can a law school survive that?
[edited since first posting to reflect that dropping the 1L class is apparently limited to one campus.]
The Justice Department fired back this week at Jack Abramoff attorney Peter R. Zeidenberg for what it saw as his flip reply to a motion to disqualify him from the representation.
“The United States has serious concerns about one of its attorneys switching sides and believes that this matter deserves more serious and sober review. Defense Counsel’s almost flippant response in itself calls for the show cause order,” the government wrote in its reply memorandum.
The reply filed Monday continued a testy exchange between the government and Zeidenberg, who as Public Integrity Section lawyer in 2005 and 2006 helped prosecute Abramoff associate David Safavian for lying and obstruction of justice.
The SRA - regulator of solicitors practising firms in England and Wales - has issued its now annual report on risk in the solicitors’ profession, SRA Risk Outlook 2014/15: The key risks to the regulatory objectives. The report contains a league table of risks:
Alongside bogus firms in breach of confidentiality, lack of independence are “new entries” into the professions risk outlook. It is the latter which caught my eye. It suggests a renewed interest in regulating the professional obligations to uphold the rule of law and the proper administration of justice and to behave independently.
The SRA reports that, “we have seen cases where pressure from influential clients has compromised firms’ prioritisation of the public interest.” The report goes into greater detail:
Lack of independence
Promotion of a client’s interests, or a desire to maximise commercial return, should not override wider obligations to the public interest and the proper administration of justice We acknowledge that the professional principles can, and do, come into conflict with each other However, when professional principles come into conflict, the one that best serves the public interest, in the particular circumstances, prevails There is an increasing trend towards corporate buyers of legal services, such as financial institutions and large multinational businesses, having sophisticated in-house legal departments This can change the balance of power between the client and their legal advisor Those we regulate must ensure they prioritise their obligations to act in the public interest, in accordance with their duties to court, and must resist client pressure which may adversely compromise their professional independence
Failure to act with integrity or ethics: improper or abusive litigation
Improper or abusive litigation is the misuse of legal proceedings (or the threat to bring proceedings) for unethical gains, either for the law firm, its clients or both. This is done by exploiting a client or third party’s lack of knowledge of the law or the lack of resources available to them. We have seen several cases where the justice system has been manipulated so that a firm can increase its financial return. This type of litigation is contrary to a solicitor’s duty to act in the public interest and has a significant negative effect on the public’s perception of the profession
The report argues that:
This risk is widespread, but is most relevant to firms engaged in corporate or city-based legal work. It may also be significant when a firm is reliant on a single or limited number of clients. Maintaining independence is also relevant to in-house solicitors, who may come under pressure from their employers.
It warns that, “sophisticated in-house legal departments,” exert greater scrutiny of, and pressure on, external law firms. “This can lead to law firms being presented with ‘take it or leave it’ contracts or prescriptive or onerous terms of engagement.”
Pressures law firms must manage include:
- pressure to breach ethical or professional obligations – for example, to use a firm client account to provide a personal banking facility, or to mislead the court, or to breach duties of confidentiality to other clients
- control over which clients the firm can and cannot act for – this could erode access to justice, particularly if the firm is one of few specialists in the area
- being clear about who constitutes ‘the client’ – for example, when acting for a corporate client this may mean distinguishing between the interests of the client’s shareholders, its management and the individual who commissioned the legal advice These interests are not always aligned
The proposal appears to be to mainly pursue this through supervision relationships (the report is silent on enforcement in relation to the cases it has seen):
Through our supervision of firms we will explore how these risk are managed by law firms and aim to understand better the challenges firms face. We will share best practice on how firms manage these issues and balance their ethical responsibilities with commercial success
On abusive litigation the report emphasises:
- firms being criticised by judges for aggressive correspondence in corporate litigation or accused of unethical conduct towards witnesses or their statements
- judges highlighting serious concerns that ‘frivolous’ litigation was being brought forward by lawyers
- he High Court warning that immigration solicitors face referral to the SRA if they make ‘abusive’ judicial review applications which fail to follow proper procedure
- a number of cases where judges have dramatically reduced excessive costs claimed in litigation by over 90%
The SRA does not name names but it is not difficult to think of examples of the kinds of thing they might mean. I have expressed concerns or raised questions about cases involving Standard Chartered Bank, the Times, Clifford Chance, News International/NOTW, Harbottle and Lewis, Farrers, Allen & Overy, Stewart Law andJeffrey Green Russell. Some of these cases have been investigated. Some may yet. Evidence given in the recent trial of News of the World employees suggests further concerns may yet be revealed.
On the cybercrime front of the following alarming case study is offered:
Large law firm loses data to hackers
A solicitor at a large law firm received an email which looked like a message from the firm’s answering machine service He opened it, and this activated software to install a program called CryptoLocker
Once CryptoLocker had downloaded, it encrypted all the client and office files held by the firm, and a message came through that if the firm wanted the files decrypted, they would have to pay a £1000 ransom within 40 hours If they did not pay the ransom by the stated deadline, the encryption would become permanent and the firm would never be able to retrieve their files.
The firm’s IT department tried unsuccessfully for 2 days to break the encryption At this point, the firm tried to pay the ransom. However, the deadline had expired and so the files could not be recovered. The firm had to explain what had happened to all their clients A number of clients’ cases were severely affected, with court deadlines being missed
This could have been prevented relatively easily CryptoLocker does not spread across networks, and the only files it can encrypt are those that the user who opens the email can access Therefore, the only reason it affected all of the firm’s files was because the member of staff who opened the email had access to them all. In addition, the firm did not have remote backup of any of their files. If they had done, they would have been able to access the files from the backup and the attack would have failed
The report is silent on the identity of the firm. I do not know if it is emerged elsewhere. One can understand the SRA’s reticence, but also note in passing the broader regulatory emphasis on disclosing quality and ethics relevant material to clients (such as consumer complaints). Whether the SRA should disclose the name of the firm or not, I imagine this sort of information is being sought by sophisticated clients as part of their due diligence and taking firms on. I certainly hope so. What will happen where such breaches occur in firms serving less sophisticated clients? Will the SRA act? Would that be fair if they have allowed City firms anonymity?
There is perhaps less an emphasis in the report on changes in the market which are now seen as drivers of risks in and of themselves. Some hints of the extent of market change are indicated by the following statistical nuggets from the report:
- the market share of the top ten conveyancing firms increased from five percent in 2010 to ten percent in 2012 17
- in 2006 sole practitioners made up 41 percent of the profession; in 2013 this had reduced to 29 percent
- there were 60 percent more law firm mergers in 2012 than in 2008
A version of this post was also posted today on lawyerwatch.
When the Honorable Jonathan Lippman, Chief Judge of the New York Court of Appeals, made New York the first state to establish a pro bono service requirement for bar admission, he may have sparked a national movement. Others states have quickly moved to adopt similar requirements, and eventually every state in the nation will have to decide whether or not to follow suit. Lippman’s law has three aims: to address the access to justice gap, to strengthen practical instruction so that new lawyers will be more “practice ready,” and to instill in new lawyers a more public service oriented sense of professional identity.
However, it seems clear that the rule as implemented in New York will not achieve its aims. The access to justice gap is not a superficial problem, it’s a structural one. It can be effectively addressed only by engaging the economic justice, racial justice, and voting rights inequities that remain at the root of it. Nor is it effective to implement an overbroad definition of pro bono with few built in measures for monitoring and feedback. This fails to provide a reliable basis for either measuring the progress of the project or ensuring that the new lawyers learn what they are supposed to from the experience.
This Article suggests that, while based on a good idea and a strong grasp of the lawyer’s traditional duty to serve the public interest, Lippman’s law as currently drafted in New York comes up short.
Hopefully yes, because there are a lot of proposals out there that would give people and businesses the right to do just about anything they want in the name of religion. I comment on one of those proposals here:
RFRA by contrast does a reasonably good job of balancing religious liberty with government’s legitimate interest in regulating some conduct that is not exclusively religious in nature. The Hobby Lobby decision recognizes that individuals can express their religious principles not only at worship but also in their daily life and work, whether they carry their work out as sole proprietors of a business, as partners in a business or through a closely held corporation. The real question is not the type of entity used for acting upon a personal religious belief, but whether the state has a compelling interest that should override a person’s right to act upon that belief.
In the Hobby Lobby case, the Obama Administration did not demonstrate a sufficiently compelling interest in its own particular plan for assuring widespread access to birth control, that would allow its regulations to override the religious liberty of individuals, and closely held corporations owned by individuals, who had a religious objection to paying for birth control. There are, after all, other ways the government can assure access to birth control besides making employers pay for it. The Court’s opinion was narrowly crafted to address these particular facts, and the Court directed a clear warning to those who would interpret the opinion to attack the validity of nondiscrimination laws and other regulations where the government much more easily can demonstrate that it is protecting a compelling interest.
The outcome of a RFRA case thus turns on a number of factors including first the extent of the government’s interest in the subject matter of regulation and second whether there are realistic alternatives to a particular type regulation that infringes upon religious liberty. The government could provide that if someone’s employer will not pay for birth control the government will pay for it or arrange for another insurer or a collective fund put together by insurers to pay for it. The Obama Administration had alternatives but chose not to pursue them. It would be a lot more problematic to say that a corporation, such a closely held investment bank can discriminate on the basis of religion (for example “we profess our Christian faith by not hiring Jews”), and that the government cannot prohibit this because the government can always find a job for the person discriminated against (for example at the SEC) (this indeed is what happened with some regularity before the 1960’s when government realized that it had a compelling interest in prohibiting employment discrimination in the private sector). The Hobby Lobby Court’s explicit effort to distinguish discrimination laws is a clear signal that the outcome would have been different in this very different factual context.
So we are left with the Court’s reasoned interpretation of RFRA, which is a difficult statute to interpret because it involves balancing tests rather than bright line rules (RFRA itself came into being because a conservative majority on the Court had previously refused to recognize any religious liberty exemption from generally applicable laws such as those that would prohibit use of controlled substances in Native American religious ceremonies). The fact that the Hobby Lobby Court has now refused to draw a bright line rule by making RFRA irrelevant to closely held corporations should be no surprise.
This decision will hopefully put to rest efforts, mostly at the state level, to enact religious freedom statutes that lack any balance whatsoever. Some of these proposed laws such as the Arizona bill I discuss above, are motivated by religious objections to same sex marriage, but have language so broad that they would give private businesses the right to engage in a wide range of discriminatory and destructive conduct in the name of religion. We have sufficient religious liberty with RFRA and a Court that broadly construes that statute. We do not need federal or state legislatures coming up with new laws that would allow religion to become grounds for individual or corporate abdication of all social responsibility.
The Supreme Court ruled in Hobby Lobby yesterday that three for-profit corporations cannot be required to adopt health plans that cover certain forms of contraception that are contrary to their religious beliefs. The nascent consensus seems to be that the holding is quite narrow and its effect on American women will be minimal. See, for example, here and here. A number of commentators have been highly critical of Justice Ginsburg's pointed dissent, claiming that much of it was hyperbolic and counterproductive.
I am not an expert on the operations of the Supreme Court so I will refrain from passing judgment on the the dissent's style. But I tend to agree with Justice Ginsburg that the logic of Alito's opinion in Hobby Lobby can be extended to corporations that do not resemble the family-run and operated entities that were before the Court. The holding is confined to closely held corporations, but closely held corporations come in many different forms and sizes. Some consist of a few employees whereas others are international conglomerates. Delaware law allows closely held corporations to have anywhere from one to thirty stockholders. Closely held corporations also happen to vastly outnumber and employ more people than public corporations do.
All this aside, even if the opinion's legal and practical significance is minimal, its expressive function cannot be ignored, and Justice Ginsburg's dissent should be seen in this light. The plaintiffs' (scientifically dubious) belief that birth control pills and IUDs are abortifacients trumped regulations that required employers to adopt health plans that covered these products, which millions of women use for a variety of reasons and are prescribed to them by doctors. Yes, perhaps the Obama administration will figure out a way to ensure that no one's contraception is jeopardized. But it strikes me as entirely appropriate for Justice Ginsburg to demonstrate outrage that women's health is given short shrift because of the Supreme Court's desire to accommodate an attenuated affront to the plaintiffs' exercise of religion. Indeed, four of the justices seemed unprepared to recognize that there is even a compelling public health case for expanded access to birth control.
It is, of course, worthwhile to remind the laity that the sky is not falling whenever the Supreme Court issues a controversial decision. But judges need not go along with their colleagues in making controversial decisions more palatable to the public, especially when those decisions are premised on such things as the allegedly fraught religious implications of making contraception more available to women in 2014.
Matthew 6:12, Revised U.S. Congressional Version
The Supreme Court has upheld the longstanding tradition of prayer before legislative sessions. A good Congressional prayer, however, should seek God’s blessing of whatever Congress is doing – or not doing – at the time. The above translation of the Lord’s Prayer serves that purpose.
Many Members of Congress say they believe there will be a Judgment Day, a point that is emphasized in the weeks leading up to Election Day. We can say this prayer often and hope not to hear in reply those dreaded two words: “NO AMNESTY.”
Or we can go back to more traditional prayers, as well as back to our traditional religious and civic values, and then do something to fix the mess that purports to be U.S. immigration law.
We could at the same time cast aside hypocrisy with respect to another principle that politicians talk about almost as often as they talk about religion: free market economics. It is perhaps time for the government to stop using immigration law to prevent willing workers from working for the people who want to hire them. The vast majority of economists (at least those not running for Congress) view restrictive immigration laws with no more favor than do the vast majority of theologians and religious leaders.
And for those who think this comment is not relevant to lawyers and their ethics: Who is it that implements – or rather tries to implement -- these laws that Congress won’t fix? Over a dozen pages of my legal ethics casebook with Judge Noonan are devoted to this problem, and there will be dozens more if something is not done about it.
Recent years have seen an explosion of interest in commercial litigation funding which is regarded as a new phenomenon in the United States. Whereas the judicial, legislative and scholarly treatment of litigation finance has regarded litigation finance first and foremost as a form of champerty and sought to regulate it through rules of legal professional responsibility (hereinafter, the ‘legal ethics paradigm’) this Article suggests that the problems created by litigation finance are all facets of the classic problems created by ‘the separation of ownership and control’ that have been a focus of business law since the advent of the corporate form. Therefore, an ‘incorporation paradigm,’ offered here, is more appropriate. ‘Incorporating legal claims’ means conceiving of the claim as an asset with an existence wholly separate from the plaintiff. This can be done by issuing securities tied to litigation proceed rights. Such securities can be issued with or without the use of various business entities.
Indeed, in certain real life deals, previously overlooked by scholars, creative lawyers used securities tied to litigation proceed rights. The Article analyzes and then expands upon such instances of financial–legal innovation suggesting how various business entities can be used to deal with the core challenges presented by the separation of ownership of and control over legal claims. Specifically, the litigation funding problems being addressed by the incorporation of legal claims are (1) extreme agency problems; (2) extreme information asymmetries; (3) extreme uncertainty; and (4) commodification. In addition, the Article discusses how incorporation of legal claims can reduce various costs that litigation imposes in other transactions, such as mergers & acquisitions.
Each year I get lots of exam papers that I enjoy reading and so this year I've given students the option of having me post their paper. This one is from Misa Eiritz. Excerpt (w/o references, which are available in the paper itself):I. Introduction: Why It Matters
Spurred by the exponential growth of athlete salaries in the mid to late nineteen-eighties, the responsibilities of sports agents and their legal counterparts began to expand and collide. Individuals looking to financially capitalize on this gain, or those simply attracted to the “glamour” associated with the sports industry, jumped into the fray and quickly tried to make their mark. While this expansion resulted in intense competition to enter the business, abuse and a myriad of unethical behaviors were rampant among practicing professionals. Agents became known for their overly aggressive tactics to recruit clients, unreasonable fees, and financial mismanagement. Many were even prosecuted under various criminal laws, ranging from tampering and extortion to racketeering. This widespread abuse led many client-athletes to turn to the legal profession for services formerly provided by agents.
In today’s world a lawyer-agent is removed from the “confines of rendering legal advice” and is perhaps more qualified than a non-lawyer agent to conduct business in the sports industry; however, the legal profession’s ethical code is hampering the flow of information and the growth of business. In an industry so driven by personal contact, and consisting of an extremely large number of attorneys, it is unfair to keep attorneys from engaging in client solicitation. Although the sports industry contains problems the solicitation rule is directly aimed at eradicating, namely client stealing and over-zealous sales pitches, there are rules in place for each professional league that ban approaching represented clients, and the initial sales pitch is part of being a professional athlete. Therefore, the original goals of the ban on solicitation in the legal profession are not at issue in the sports world. An equal playing field keeps lawyer-agents from turning to unethical alternatives to bring in new clients and benefits all parties.
Interesting post at Feminist Law Professors, by Emily Gillingham, responding to criticism of Hillary Clinton for her defense of a rapist and her comments to a journalist afterwards.
Story at Bloomberg/BNA.
Khattala is the man spirited out of Libya and charged with the deaths of Americans including the U.S. ambassador in the attack on the U.S. consulate in Behngazi. Now he has a lawyer from federal defenders in Washington, D.C. He will likely have others as well or instead.
A big question is: Can his lawyers talk to him without their conversations being recorded or overheard? How can they know? The lawyers can ask but can they trust the answer?
The lawyers can ask the judge to ask and we can assume an answer to the judge is accurate. But what if the government declines to answer or, more likely, takes the position (wihtout admitting that it is doing so) that prosecutors not involved in the case, and national security personnel, may legally eavesdrop in order to identify culpable others or to get information that will impede future mideast violence?
So long as the trial team is not tainted, the U.S. will argue, it may, if it wishes, overhear communications between Khattala and his counsel. Would a district judge forbid that? I somehow doubt it although he judge may insist on proof that the conversation was not shared with the trial team.
We've seen (and can expect more) law review articles exploring ways in which the regulation of the bar and of the legal services industry (not the same things) should, will, or must change. I've written a few.
These article are mostly authored by law teachers. At the risk of academic pride (to which I plead guilty) and paraphrasing Pound (Ezra, not Roscoe), I suggest that legal scholars have been and will continue to be the antennae of the profession.
The momentum for change, which is different, will come from elsewhere -- from economic forces (rules change when it is in the economic interest of lawyers to change them, witness the adoption of lateral screening after 20 years of rejection), and to beat back external threats (witness the 2003 amendments to Rules 1.6 and 1.13, after repeated rejections, in order to dissuade the SEC from invoking its full Sarbanes-Oxley powers; it worked).
But academics will primarily inspire the ideas that define the shape the changes will take. This is our history.
The bar seriously lagged in updating its rules through 1970. The 1908 Canons, even as amended, were useless to the bar of the 1960s and earlier decades. The 1970 Code was inadequate on day one, which is why seven years after adoption it was necessary to appoint a new commission (the Kutak commission) to start all over.
The Kutak Model Rules had a longer shelf life but by the time of Ethics 2000, it also needed significant amendment. Ethics 2000 narrowed the lag between the bar's offical position and law as practiced.
If Ethics 2000 was our finest hour, the MJP commission runs a close second. MJP was writing on a smaller canvas -- how sensibly to deal with lawyers' cross-border practices -- but it wrote well and has been influential (full disclosure: I was on it).
The 20/20 commission (same disclosure) did some good things, but around the edges. It missed opportunities to be visionary (to see things 20/20, as it was charged), but it can be partly excused for two reasons. First, the hostility of a large minority in the HOD even to permit talking about rules allowing some lay investment in for-profit law firms -- just talking -- cast a broader pall and led 20/20 to stay within safe borders.
Second, the current bar leadership will not be bold. In this, it is like the leaders of the 50s through the early 80s. It will be the next generations that approach the issues with appetite for change.
A datum of proof (not unique) was an exchange at a 20/20 hearing with a prominent and thoughtful participant in these matters and who spoke against any rule change that would allow non-lawyers to have any equity interest in law firms, however small.
Would your position be the same, he was asked, if you assumed that a modest change would both improve the quality of advice to clients and result in no misconduct by the non-lawyers or the lawyers they work with whatsoever?
Yes, he said.
So there you have it. We're not dealing with empiricism and evidence-based rules -- the bar does not emprically test its own empirical predictions of the effects of rules it supports or opposes -- but with ideology or maybe a better word is faith.
The complexity of commerce in today’s globalized era and the rise of technology have sparked new developments in the debate surrounding unauthorized practice of law (UPL) statutes. Proponents of UPL statutes argue that these rules protect consumers from the incompetency of nonlawyers. Opponents, however, argue that UPL statutes are designed to protect lawyers’ monopoly on legal and law-related services, contending that these statutes are written so broadly that the distinction between what is legal advice versus nonlegal business or strategic advice is indeterminate. Further, these statutes seem to suggest that, as a profession, we have been unable to define the practice of law in a concrete way. Thus, many argue for the abolishment of UPL statutes. In doing so, opponents of UPL statutes believe that, amongst other benefits, access to justice will increase because nonlawyers will be able to do what was traditionally lawyer-only work, and lawyers will lose the power of a monopoly-rooted competitive advantage. Proponents do not appear to disagree and, in fact, have been accused of protecting UPL statutes for this very reason.
Are the opponents to UPL statutes right? This is the primary issue I seek to examine: will abolishing UPL laws enable nonlawyers to encroach on lawyers’ monopoly of services?
Arguably, UPL statutes are most contentious on the margins — those areas where the line between business and law is the hardest to draw. More and more lawyers are moving into these quasi-legal jobs, where a legal license is not required but having a law degree provides an advantage. As such, both lawyers and nonlawyers perform key roles and often work together. Although there is debate over who should take the lead, and many scholars have thoroughly studied the unauthorized practice of law by nonlawyers, it does not appear that scholars or regulators have focused on lawyers or nonlawyers working in these quasi-legal roles in relation to UPL or the influence they might have on the reputation and status of the legal profession.
Thus, to fill this gap and analyze whether elimination of UPL restrictions will decrease lawyers’ monopoly of legal and law-related services, I explore two growing areas straddling the border between business and law in which lawyers and nonlawyers compete for jobs: compliance and claim funding (also commonly known as alternative litigation funding). To aid in this exploration, I use: (1) information from interviews I conducted with seventy general counsels and compliance officers of S&P 500 corporations across a variety of industries, including banking, pharmaceutical, and petroleum (the Compliance Study); and (2) my own personal work experience as a consultant to a start-up commercial claim funding company. This set of data and my experience bring to life how some compliance officers, lawyers, and commercial claim funders view and describe their jobs, and, ultimately, aid my analysis of the effect that eliminating UPL statutes may have on lawyers’ monopoly of law-related services.
My analysis leads me to three conclusions. First, the work conducted by compliance officers and claim funders could be considered the practice of law, and therefore, UPL statutes could prohibit such work if conducted by nonlawyers. Second, often the people with legal training and practice experience play the role of compliance officers and claim funders. Third, because of their degrees, training, and experience, attorneys may be considered more qualified or better situated to fill these mixed business-law consultant roles than their nonlawyer counterparts.
If these conclusions are correct, they lead me to two preliminary hypotheses. First, contrary to the arguments made in support of abolishing UPL statutes, such a move may not end lawyers’ monopoly of legal and law-related services. Instead, lawyers (those trained in the law) may be able to monopolize (or at least maintain a stronghold in) the marketplace for these closely law-related services, even if UPL statutes are eliminated. The role of the corporate attorney has expanded as clients’ needs have grown more complex. Clients may prefer that their lawyers fill these law-related roles for two reasons: first, because they have played them historically, and second, because they have the expertise and training to play them well.Moreover, although law is arguably a business, lawyers are still part of a profession, a delineation that only serves to protect the monopoly.
Second, these lawyer-nonlawyers may add to what Tanina Rostain identified a few years ago as a growing industry of law consultants, who are not necessarily part of the legal profession, and, therefore, not held to the rules governing professional conduct. Because ambiguity surrounds lawyers’ work in these quasi-legal areas and the issue of what is the practice of law is also nebulous, lawyers in consultant positions may be able to evade ethical obligations and help clients find legal loopholes because of their training and expertise as lawyers. This raises special concerns for the public and for the legal profession in terms of its reputation and position in the marketplace.Granted, I examine only two areas that lay on the margins of law and business. More research needs to be done on other areas to determine if these hypotheses have merit elsewhere.
Part I begins by providing a brief overview of the debate over UPL statutes and the theory behind lawyers’ monopoly of legal services. Part II describes and explores the type of work that compliance officers and litigation funders conduct. It analyzes whether these law-related jobs could be considered law practice and what skills and expertise are needed to fill these roles. Part III attempts to answer the question posed above: Will eliminating UPL statues potentially enable nonlawyers to fill the role that lawyers currently play in these areas on the border between business and law? In other words, if UPL laws were abolished, would a nonlawyer or lawyer get the job? My analysis leads to the hypothesis that in the areas of compliance and litigation funding, the lawyer will still get the job. Further, collaboration may not increase between lawyers and nonlawyers, and negative unintended consequences may result from abolishing UPL statutes.
From Justice Scalia's dissent in American Broadcasting Cos. v. Aereo, Inc.:
I share the Court’s evident feeling that what Aereo is doing (or enabling to be done) to the Networks’ copyrighted programming ought not to be allowed. But perhaps we need not distort the Copyright Act to forbid it. As discussed at the outset, Aereo’s secondary liability for performance infringement is yet to be determined, as is its primary and secondary liability for reproduction infringement. If that does not suffice, then (assuming one shares the majority’s estimation of right and wrong) what we have before us must be considered a “loophole” in the law. It is not the role of this Court to identify and plug loopholes. It is the role of good lawyers to identify and exploit them, and the role of Congress to eliminate them if it wishes. Congress can do that, I may add, in a much more targeted, better informed, and less disruptive fashion than the crude “looks-like-cable-TV” solution the Court invents today.
The legal profession has undergone greater transformations during the past few decades than in the last few centuries. Deregulation and liberalization, increasing consumer expectations, new information technology, and a growing global marketplace have resulted in an increasingly competitive marketplace. Services that were once considered highly specialized are treated today more and more like commodities. Most lawyers no longer have the luxury of waiting for business to come to them. “Technical” competence alone does not guarantee success in winning new business or keeping existing clients.
There is general recognition in business and business school academia that marketing answers such challenges and that marketing is not only highly recommended, but necessary to ensure an organization’s long-term survival. Marketing is important since organizations need to be aware of their competition and aim to satisfy their customers in order to be successful. This is particularly true for service industries since service providers interact directly with their customers. While the rationale for marketing might be unquestionable, numerous studies and articles stress that law firms often resist the diffusion of the marketing concept.
This paper examines the underlying reasons for the advent of marketing among law firms. Both barriers and drivers are explored to understand why an industry like the legal profession starts to embrace marketing. While barriers to a market orientation are somewhat poorly understood, the development of marketing is explained with macro-environmental factors — political, economic, technological, societal — and the underlying implications of micro-environmental factors — the legal profession, law firms, and individual fee earners.
Story at Main Justice. Excerpt:
The Justice Department has sparked a heated exchange of court filings after its decision to seek the disqualification of former Public Integrity Section lawyer Peter R. Zeidenberg from a Jack Abramoff tax case.
The government said Zeidenberg has no business representing Abramoff in his effort to recover nearly a half-million dollars in seized tax refunds because the Arent Fox LLP attorney prosecuted Abramoff associate David Safavian in 2009 as a trial attorney for the Justice Department’s public corruption unit.
Story at McCall. Excerpts:
The U.S. Supreme Court wants an attorney who filed an appeal on mass murderer Michael Eric Ballard's behalf to explain why he apparently did so without his client's knowledge.
In a two-sentence order Monday, the justices dismissed a petition that sought to challenge the death sentence Ballard received for massacring four people in a Northampton home in 2010. But in a rare move, the court also ordered Philadelphia lawyer Marc Bookman to address Ballard's allegation that the appeal was made against his wishes, with Bookman given 40 days to do so.
In the letter and another that he sent to The Morning Call, Ballard said he does not intend to continue to fight his execution, a decision that — if he sticks to it — could set the stage for him to be the first Pennsylvania inmate put to death since three men abandoned their appeals in the 1990s.
"I never authorized anyone to file anything on my behalf," Ballard wrote the court. "I am not appealing this sentence any further than it has been."
The filing, Ballard said, was done by attorneys who are "acting against my own wishes to waive my appeals."
We've been covering this story lately and I wanted to offer links to a USA Today editorial in favor of the litigation as well as an op-ed opposing it. (USA Today typically offers opposing op-eds to its own editorials.) Thanks to Richard Zitrin for sending it along. Richard's letter to the editor is below the fold.
My two cents on the issue is that it should be worked out as a matter of legislation rather than trying to control the issue via the legal ethics rules.
The Council of Bars and Law Societies of Europe (CCBE - an umbrella organisation for European bar associations) recently published an interesting report on the threats posed to legal professional privilege by state surveillance and Cloud storage looking across Europe at the different levels of formal protection. The thrust of the report is probably captured in this short excerpt.
It is particularly concerning that the report has identified this general trend. Where data is stored in cyberspace and/or transmitted by a telecommunications network, in many jurisdictions that is subject to surveillance by the security services without any specific or effective provisions to protect legal professional privilege or professional secrecy. In many countries there are important regulatory gaps both generally and in regard to legal secrecy or privilege. Furthermore, even where there is a statutory basis for access to information by national security services (including secret searches of premises, computers, storage facilities etc.), these powers are very broad and sweeping and there tend to be no express legal safeguards for such privileged or secret material.
If there is a requirement for a warrant, it is seldom judicial and is usually administrative, and such judicial protections as exist are often of possibly limited effect, such as the use in the United Kingdom of a Tribunal which receives only a limited number of complaints as, due to lack of any notification, a surveillance subject (for example, for the purposes of his report, a lawyer) will be unaware that he has been the subject of surveillance and legally privileged/secret information may have been compromised. He will not know he might have a complaint, so cannot complain. If a complaint is made, the Tribunal's deliberations are held in secret and its specific decisions are not made public. By contrast, in Ireland, although there is no single mechanism equivalent to the UK Regulation of Investigatory Powers Act to govern virtual surveillance by the security services, there is a variety of individual measures, some requiring a warrant from a judge, but others, more concerningly, where the warrant is issued by a senior police officer. As in the United Kingdom, there is no specific protection for privileged information.
A further area of regulatory uncertainty arises due to the circumstance that, in some countries the way the relevant lawyers' information protection is worded, it is not clear whether the relevant provisions apply to information stored at outside service providers, like hosting or cloud computing service providers. Such uncertainty is a problem in Slovakia and in Hungary, and the Italian criminal code also defines the protection of a defence counsel with the law office in mind. Such uncertainties could encourage law enforcement agencies to turn directly to the cloud service provider for information stored in his server or servers (without a court warrant in some countries), instead of going to the lawyer’s premises with a proper warrant issued by judicial authority.
The debate on Legal Professional Privilegemore generally is likely to warm up somewhat here in the UK. The accountants have sought legal professional privilege for tax work (the Supreme Court deined them it) and but may now gain it via Alternative Business Structures. The News of the World hacking scandal led some in-house lawyers to wonder privately whether the wrong doing exposed there might lead to pressure to deny in-housers LPP (theres already a denial in relation to EU competition investigations). There may be more to come on the role of lawyers in that scandal: in-housers and prviate practtitioners have been embroiled in a range of difficulties (for some - but not all -of them see these blogposts). And there are some signs that regulators are increasingly interested in the role of lawyers in regulatory problems (a leading member of the European Parliament recently tried to introduce law designed to imnhibit professionals engaging in what she called regulatory arbitrage and what Doreen McBarnet would call creative compliance, for example.) The legal professional privilege wind is not blowing all one way, though the professions will resist any change with vigour (and will be aided by the courts who elevated privlege to a fundamental right with a bit of historical revisionism some time ago and show no signs of letting go of that).
Legal education reform advocates agree that law schools should integrate “professionalism” throughout the curriculum. Ultimately, it falls to individual professors to decide how to incorporate professionalism into each course. This can be an especially difficult task for doctrinal professors. The law — and not the practice of law — is the focus of most doctrinal casebooks. Law students typically do not act in role as lawyers in these classes, so they are not compelled to resolve professional dilemmas in class, as students would be in a clinic or simulation-based course. As a result, it takes some additional preparation and thought to introduce professionalism issues into these courses. Some professors may resist making this change — not knowing which aspect or aspects of professionalism should be the focus, fearing that time spent on professionalism will detract from the real subject matter of the class, or believing professionalism is adequately covered elsewhere in the curriculum.
This Article considers how and why doctrinal professors should address the challenge of integrating professionalism into the classroom. Part I briefly discusses the multitude of meanings ascribed to attorney professionalism and argues that the lack of a clear, concise, and shared definition is a substantial barrier to effectively incorporating professionalism into the law school curriculum. Next, Part II provides a more coherent, streamlined definition of attorney professionalism. This Part also identifies and describes three primary aspects of lawyer professionalism: fulfilling duties to clients, satisfying duties to the bar, and possessing core personal values essential to being a good lawyer. This simplified conception of professionalism should begin to address the concerns of professors who do not know where to begin to incorporate professionalism into their classes. It is also intended to persuade skeptics that professionalism is something they can and should teach as part of their doctrinal classes.
Thereafter, Part III provides guidance for developing course outcomes that connect course subject matter and professionalism. Questions prompt doctrinal professors to look for the natural connections between their course subject matter and issues of professionalism. Then, Part IV considers various methods doctrinal professors can use to introduce professionalism topics into their courses. Integrating professionalism into the classroom does not require professors to abandon their casebooks; using case law can be an effective method. This Part also considers other teaching methods and materials for combining doctrine, skills, and professionalism. Finally, Part V concludes with thoughts on how students benefit when professors make the effort to incorporate professionalism into every law school classroom.
Charles Blow published today a list representing a Crisis of Confidence in American institutions. It includes the following items, of particular interest to lawyers, that indicate a “great deal of confidence” or “quite a lot of confidence”:
The military [for comparison] 74%
The police 53%
The Supreme Court 30%
The Criminal Justice System 23%
I'm delighted to introduce our newest blogger, Richard Moorhead.
Richard is Professor of Law and Professional Ethics and Director of the Centre for Ethics and Law at University College London. He conducts mainly empirical work on lawyers, legal services and access to justice and blogs at http:\\lawyerwatch.wordpress.com. You can get a flavor of his work there or here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2407370
This AP article suggests that Justice Sotomayor publicly said that alternatives to affirmative action have been shown not to work. I've been critical of Justice Scalia for his occasionally loose language in interviews and if the AP article is accurate -- admittedly a huge assumption -- then I would have advised Justice Sotomayor to be more circumspect about matters that are subject to proof in cases that will wend their way to the Supreme Court. Excerpt:
Supreme Court Justice Sonia Sotomayor rejected on Sunday the notion that alternatives to affirmative action such as income or residency could achieve similar results in diversifying the nation's colleges and universities.
When asked whether other "less fractious" measures could achieve similar results for schools, she said that statistics show the alternatives simply don't work.
It is clear from the testimony and written reports we have seen thus far that GM's General Counsel had a duty to ask about -- and find out about -- both serious safety problems with GM cars and litigation against GM over car safety. There is no way he could have represented the company in its disclosure to shareholders, or in connection with car safety issues, without affirmatively seeking out this information. He apparently did not do so.
The CEO of a company that stresses safety as a top priority has a similar obligation to ask thorough questions about such matters, not simply wait until others do or do not report problems to her.
On top of this, we have now learned about millions of dollars of “secret settlements” that were so secret that the CEO and General Counsel of GM did not even know about them. That was probably because they did not want to know, or did not care whether they knew about such settlements – they approved of policies that did not require them to be told. That alone is unacceptable.
Resignation or removal of these two officers would send the message that GM's directors insist on at least some down-the-ladder due diligence as well as up-the-ladder reporting.
Over at Concurring Opinions there is a great post about the back story for NAACP v. Button. Excerpt:
In much the same realist mindset, Professor Mark Tushnet flagged the practical and constitutional significance of the public interest-litigant aspect of Button. “In the barratry case,” he wrote, “the Court endorsed the form of public-interest law practice that [Charles] Houston, [Thurgood] Marshall, and their colleagues had created. . . . [Button] offered the Court and the profession two models of ‘reform’: a transformation of traditional standards that would have restricted the development of public-interest practice, and a transformation that promoted it.” (This general topic is explored at greater length is this article by Professor Susan Carle.)
The Texas State Bar Ethics Committee recently issued an opinion saying that a law firm can't hire a nonlawyer to serve as Chief Technology Officer, Chief Operating Officer, or an "officer" or "principal" of any other kind.
According to this story in Law Technology News, five organizations will soon submit a letter to the Texas Ethics Committee criticizing the opinion and urging that it be reconsidered. To its credit, the Committee appears to be open to revisiting the opinion at its next meeting. For the reasons I mentioned in this earlier post, I agree that the opinion is seriously flawed and should be withdrawn or substantially revised.
I wholeheartedly agree with the recent posts on GM's lawyers by Richard Painter, Richard Zitrin, and Michele Neitz below.
The public outrage over the conduct of GM's lawyers leads me to wonder, however, why there has been minimal criticism of the many in-house attorneys at investment banks and mortgage lenders who knew or should have known that they were securitizing junky mortgage loans. For more on the conduct of attorneys in connection with the issuance of mortgage-backed securities ("MBS"), see my new article.
Is it because no one died as a direct result of the MBS lawyers' (in)actions? It is because the concept of a MBS is more complicated than a faulty ignition switch? Is it because those harmed initially were predominately sophisticated institutional investors such as pension funds? Perhaps the conduct was simply too pervasive to provide us with a ready-made cast of villains or the public wants to move on from the excesses of the subprime era.
Readers' thoughts are much appreciated.