Story at Variety. I will try to post the ruling. The opening brief (i.e., the losing side) is below. It was an interesting motion, well worth reading if you keep up on DQ motions.
Story at Variety. I will try to post the ruling. The opening brief (i.e., the losing side) is below. It was an interesting motion, well worth reading if you keep up on DQ motions.
For more than 15 years, Catharine Stimpson and I have taught a "Law and Literature" seminar at NYU Law School.It is a popular class (mainly because of Kate, a literature professor and former dean of the graduate school) with lively discussions. Ephraim London originated the class decades ago but it had not been offered for years after Ephraim died. (Ephraim's landmark anthologies, THE LAW IN LITERATURE and THE LAW AS LITERATURE are a delight.)
Our blog attracts teachers of legal ethics and others with interest in the subject. The works on our reading list (some staples, others new each year) are chosen because they raise questions about justice and morality, often in a legal context broadly defined. This is a way to talk about the issues in a legal ethics class, among other issues, from a very different perspective.
I thought I'd share the reading list for the coming term in case anyone is interested in considering such a class. I invite suggestions for other works. We often include a Dickens or Trollope novel but not this year.
W.H. Auden, LAW LIKE LIVE.
Shakespeare, THE MERCHANT OF VENICE.
Moises Kaufman, GROSS INDECENCY: THE THREE TRIALS OF OSCAR WILDE. We also assign passages from Wilde's DE PROFUNDIS.
Kafka, THE TRIAL (preferably the Breon Micthell translation) and Orwell, A HANGING (this is a short essay available on line).
Zora Neale Hurston, THEIR EYES WERE WATCHING GOD.
Chinua Achebe, THINGS FALL APART.
Assia Djebar, CHILDREN OF THE NEW WORLD.
J.M. Coetzee,WAITING FOR THE BARBARIANS.
Janet Malcolm, IPHIGENIA IN FOREST HILLS (we also assign a court case about the events in this book).
Athol Fugard, THE ISLAND.
With Fugard we discuss ANTIGONA, an adaptation of ANTIGONE, by Jose Watanabe.
New decision from Sixth Circuit in case where judge had an intimate relationship with the complaining witness in a felony matter.
Judge Wade McCree, while serving as the presiding judge in a felony child - support case against Robert King, maintained a romantic and sexual relationship with the complaining witness against King. In part as a result of this conduct, the Michigan Supreme Court both removed Judge McCree from judicial office and prospectively suspended him without pay for six years if voters should reelect Judge McCree in November 2014. King Sued Judge McCree Under 42 U.S.C. § 1983, alleging that Judge McCree’s conduct surrounding his case violated his right to due process of law. The district court determined that Judge McCree is immune from suit under the doctrine of judicial immunity. Because any violation of King’s constitutional rights arose purely from Judge McCree’s judicial actions, we affirm.
From the concurrence:
Absolute judicial immunity remains “strong medicine.” Forrester v. White, 484 U.S. 219, 230 (1988) (internal quotation marks omitted). At times, its application will seem overinclusive — shielding from suits for damages those who clearly have abused their office and tarnished the reputation of the judiciary. This is the price we all must pay for “the benefit of the public, whose interest it is that judges should be at liberty to exercise their functions with independence and without fear of consequences.” Pierson v. Ray, 386 U.S. 547, 554 (1967) (internal quotation marks omitted). I take solace knowing that the Michigan Supreme Court has already stepped in and rendered the best justice possible: removing Judge McCree from office. Accordingly, I join the majority in affirming the district court’s grant of judicial immunity and dismissal of King’s suit.
In re Davis, 2014 Bankr. LEXIS 2985 (Bankr. N.D. Ala.,July 11, 2014)
The issues addressed in this Opinion do not pertain so much to the debtor's assets, debts or financial matters, or the circumstances that led him into bankruptcy. Rather the Court must examine the surreptitious scheme the debtor's chapter 7 attorney concocted to collect his fees from the debtor on a postpetition basis. This was not a one-off occurrence; similar postpetition-fee arrangements were employed by the same attorney in at least 200 additional chapter 7 cases. And what is most disturbing is his payment scheme was structured to avoid detection; indeed, it went undetected for more than two years.
For at least the last two years, Cobb followed the same modus operandi for collecting his fees and expenses charged in virtually all chapter 7 cases he and his firm filed on behalf of their clients. When a prospective chapter 7 debtor first contacted Cobb — usually by phone — he was told to bring his checkbook to Cobb's office for the initial attorney-client meeting. At that meeting, the prospective debtor was instructed to write 15 postdated checks for $100.00 each, payable to Cobb. This routine became so commonplace that Cobb had stamps prepared so he could quickly stamp the checks with the monthly payment amount (i.e., $100) and his name, "L A Cobb," as payee. The checks were dated for 15 consecutive months, with the first dated approximately one month after the initial meeting. The checks were then sealed in an envelope addressed to Cobb, with postage affixed. The envelope containing the checks was given to the prospective debtor with instructions to mail it back to Cobb after Cobb's office called and told the debtor his case had been filed. Cobb did not dispute that virtually all debtors followed his instructions and returned the envelope. The following month, and for 14 months thereafter, one of the checks was deposited by Cobb into his operating account, not a trust account maintained for clients' funds. The checks dated for the first three months, and in some cases a small portion of the fourth, were used by Cobb to pay filing fees associated with the case, and the remainder were applied to his fees and expenses.
For the bankruptcy process to function as intended by Congress, disclosures by debtors and their attorneys must be accurate and complete. There can be no secrets, half-truths, coy responses, or limited and inadequate disclosures that require cross-examination to get the full story. "Neither the trustee nor the creditors should be required to engage in a laborious tug-ofwar to drag the simple truth into the glare of daylight." Boroff v. Tully (In re Tully), 818 F.2d 106, 110 (1st Cir. 1987) (citing Matter of Mascolo, 505 F.2d 274, 278 (1st Cir. 1974), and In re Tabibian, 289 F.2d 793, 797 (2d Cir. 1961)). It all starts with the attorneys; they are charged with knowing the Code, Rules, and ethical cannons. When attorneys resort to trickery to skirt disclosure requirements, their clients recognize that something unsavory is afoot. Cobb's clients may not have known the exact purpose of the postdated-checks-and-return-envelope routine, but they were shrewd enough to know Cobb was up to something he wanted kept under the table, and that something lacked the bona fides you would expect from a lawyer who was guided by ethical principles rather than his pocketbook. Indeed, Cobb's conflict of interest was glaring: There was no incentive for him to impress upon his clients the importance of disclosing all their income and assets; after all, anything that was left undisclosed would not go to creditors, but potentially would be available to pay the checks Cobb would soon be depositing after the dust settled. The more that went undisclosed, the better chance those checks would be paid when deposited.
The Court needs to hear more from Cobb and the BA before deciding the consequences for Cobb's misconduct in Davis's chapter 7 case and other cases that involved the same undisclosed fee-collection scheme. Accordingly, by separate order, Cobb will be required to furnish the  Court and BA with detailed information regarding his fees and the expenses charged in all chapter 7 cases filed by Cobb, his firm and any lawyer with his firm, from January 1, 2012 through the date of the order. After receipt of this information, the Court will determine whether disgorgement of fees and expenses, and imposition of sanctions are appropriate, and if the Court finds disgorgement or sanctions, or both, appear justified, it will order Cobb, his firm and other lawyer with the firm, to show cause why the same should not be ordered and imposed. The BA will be expected to advocate his position at any show-cause hearing.
Details at David Cameron Carr's KafkaEsq. Read the whole thing, as there are some interesting legal angles that David explores. Excerpt:
The State Bar is moving forward with random audits of attorney client trust accounts. A presentation to the Regulation Admissions and Discipline Oversight Committee (RAD) Thursday April 17 detailed preliminary steps taken to institute such audits, including determination of the sample population and necessary changes in statutes or rules to authorize such audits and create an enforcement mechanism. A consultant has been engaged to work on the sample issue and the State Bar Office of General Counsel has been tasked with reviewing the existing law and recommending changes. It is hoped that the costs of such audits can be reduced by relying on attorney self-reporting through a detailed questionnaire, rather than relying on teams of full-fledged auditors to examine records
Asbestos litigation continues apace. Sixty companies of the 100 that have been bankrupted to date by asbestos litigation have emerged or are in the process of emerging from bankruptcy by channeling their asbestos liabilities to trusts funded with their assets and insurance coverage. After having paid out over $15 billion in claims, these trusts still have assets exceeding $30 billion.
Asbestos litigation today differs in two major respects from what it was in the 1985-2003 period. First, hundreds of thousands of nonmalignant claims generated by litigation screenings have been replaced by 2500-3000 claims of mesothelioma filed annually and several thousand lung cancer claims that are rapidly increasing in number. Second, there are now dual compensation tracks: suits brought mostly in state courts alleging personal injuries and claims filed with the trusts.
This Article is about the interplay between trust payments to asbestos claimants and suits against solvent defendants in the tort system.
In previous publications, I have laid bare the massively fraudulent enterprise that lawyers, litigation screening companies and doctors perpetrated in nonmalignant asbestos litigation — findings that were largely corroborated in a report by U.S. District Court Judge Janis Jack who found that the litigation doctors hired by asbestos lawyers had “manufactured diagnoses for money.”
In this article, I lay bare the scheme used by lawyers in “big-dollar” mesothelioma cases to maximize tort recoveries by suppressing the fact that the plaintiffs they represent have claimed and will claim “meaningful and credible” exposures to the products of 20-25 reorganized companies when filing trust claims even as they deny, “under penalty of perjury,” all such exposures in the course of discovery and trial of their tort claims. Plaintiffs’ counsel are able to effectuate such a scheme because of (1) their effective control over the production of evidence of exposure to asbestos — containing products; and (2) their control over the creation and administration of asbestos bankruptcy trusts and their use of that control to include provisions in the trusts’ Distribution Procedures designed to limit, if not preclude, defendants’ ability to use discovery to access evidence that tort plaintiffs have filed multiple trust claims contradicting their sworn discovery responses and trial testimony.
My conclusion is supported by the findings of U.S. Bankruptcy Judge George R. Hodges in his estimation order on January 10, 2014 in the Garlock bankruptcy. Judge Hodges’ conclusions, based on very limited discovery that the debtor was permitted to conduct, has allowed us to peer behind the heretofore impermeable asbestos curtain that has shrouded the inner workings of the highly successful scheme to use the judicial system to defraud asbestos defendants in mesothelioma litigation out of billions of dollars.
Though plaintiffs’ counsel strenuously deny the occurrence of any fraudulent conduct in mesothelioma litigation (with the exception of a “one-off” case), after reading Judge Hodges’ order in the Garlock bankruptcy and this article, no one can now legitimately deny that mesothelioma litigation is permeated with fraud.
This story at ABA Journal gave me a chuckle.
A man wearing a T-shirt that appeared to comment on ethics charges against a Pennsylvania judge was asked to leave the courthouse on Thursday.
Sheriff John Loomis says the man was asked to leave because he didn’t stop when a deputy sheriff asked to speak with him, the Erie News Times reports. Loomis did not release the man’s name to the newspaper.
The T-shirt had a picture of Judge Stephanie Domitrovich of Erie County, along with the words, “Do you even ethics bro?”
(The phrase, "Do you even lift, bro?" is an internet meme.)
Interesting story at WSJ. Excerpt:
Army Sgt. Bowe Bergdahl’s lead counsel is a military legal expert and lecturer at Yale Law School who said he felt compelled to defend a client he thinks has been demonized in the media.
Eugene R. Fidell, who is of counsel at Feldesman Tucker Leifer Fidell LLP in Washington, D.C., said he was retained by Sgt. Bergdahl 10 days ago, telling The Wall Street Journal that his client went through a harrowing ordeal as a Taliban captive.
“I think everybody should hold the phone until the facts have unfolded,” Mr. Fidell told WSJ, saying he’s spoken to Brig. Gen. Kenneth Dahl, who is leading the Army investigation of Sgt. Bergdahl’s 2009 disappearance and capture. He said he also met with his client in San Antonio in recent days.
Eyeless in Gaza:
Israel turned over control of Gaza to the Palestinians there, removing Israeli settlements by force. To rule Gaza, the Palestinians elected Hamas, which is expressly dedicated to the total destruction of Israel. Instead of taking steps to create a state, Hamas smuggled rockets and other weapons into Gaza, built an intricate web of tunnels, and has stockpiled the weapons in hospitals, religious sites, and crowded residential areas, from which it fires multiple rockets into Israel. When Israel bombs the rocket sites, injuring civilians and destroying the hospitals and religious sites, the Western press publicizes, with painful photos, injured and grieving civilians. And when Israel gives advance notice to civilians and urges them to leave before its retaliatory rocket attacks, Hamas tells them to stay where they are.
The pro-Hamas, anti-Israel reporting from Gaza is inevitable. Any reporter who reported the full truth would be expelled from Gaza, if not killed. The story is told of one reporter who said to another, “A Swiss mugged me and stole my Palestinian watch.” The other said, “I think you mean that a Palestinian mugged you and stole your Swiss watch.” To which the reply was, “Remember, you said that, not me.”
I have no idea about the merits of the dispute, but I do find it interesting to see a lawyer's opinion letter be the focus of important social/political debate. Details at Leiter.
UPDATE: Leiter now has a response from the lawyer who wrote the opinon and from a critic. Again, my point is to identify an instance where a lawyer's opinion letter has become a larger social issue. I have no basis to praise or criticize the letter.
This WSJ article discusses how Chief Justice Roberts has used the word "friend" rather than "opposing counsel" during oral arguments.
Story of the allegations at ABA Journal.
I found this article to be interesting because I've often wondered if the PR course could be taught in a way that covered lots of US legal history. Abstract:
Three issues – volume of recorded communications, ease of dissemination, and lack of knowledge – are today’s primary technology-related threats to the attorney-client privilege. Generally speaking, attorney-client communications must be kept confidential to retain their privileged status. In the information age, the volume of recorded attorney-client communications and ease of their dissemination makes it more difficult than ever to protect against disclosure. Whether that disclosure is intentional or inadvertent, it can result in privilege waiver.
While some perceive that a gap in attorney knowledge about technology is a major threat to the privilege, that does not appear to be the case at this time. The perception is that attorneys who use technology without understanding it are putting the privilege at risk by unintentionally revealing confidential information to third parties such as cloud service providers or those who intercept unencrypted email. In short, some fear that an attorney’s unwitting compromise of confidentiality through use of technology is resulting in an increased incidence of privilege waiver. But this concern is not playing out in the privilege waiver case law. Inadvertentent disclosures that result in privilege waiver are generally made directly to opposing counsel and can typically be traced to the volume of information and ease of dissemination rather than lawyer misunderstanding of technology and data privacy.
That being said, a lack of knowledge is the third technology-related privilege threat identified in this article. But it is a legal knowledge deficit that most often jeopardizes privilege in the information age. Attorneys are not educating their clients regarding the need to avoid intentional disclosures of otherwise privileged information to preserve the privilege. With the growing use of email, blogs, and social media, lawyers must explain to clients the risks of disclosing privileged information in these fora. Further many lawyers do not understand the legal protections they can institute to prevent waiver following the inadvertent disclosures of privileged information that are seemingly unavoidable today. These “legal knowledge” threats to the privilege are reflected in the case law and should be the primary concern for attorneys worried about privilege waiver.
This article explores this triple technology threat to the attorney-client privilege and considers how lawyers can better protect the privilege in the future.
This article from The New Yorker recounts how otherwise decent school teachers and administrators cheated on standardized tests.
Alison Frankel, at Reuters. The burgeoning world of lawyer-monitors is fascinating to me. Veronica Root has written on it. Frankel looks at the selection process. Apple has litigated the issue. Lots to think through. (Btw, the origin of the word "Satan" is sometimes traced back to a person who would be sent by the king to monitor someone and report back.) Excerpt from Frankel:
Thomas Perrelli just won quite a plum assignment. The former U.S. associate attorney general, who resumed his partnership at the law firm Jenner & Block in 2012, was appointed Monday to serve as Citigroup’s independent monitor as part of the bank’s $7 billion settlement with the Justice Department and five state attorneys.
Scholarly discussion of the Fourth Amendment focuses narrowly on judicial enforcement and the exclusionary rule. This Article takes a different approach: recognizing that prosecutors have a co-equal responsibility to enforce the Fourth Amendment. More specifically, prosecutors have a constitutional and ethical duty not to use evidence that they conclude was unconstitutionally obtained even if that evidence is admissible — the duty of administrative suppression. Instead of analyzing whether evidence would likely be deemed admissible by a court, prosecutors should instead analyze whether the evidence in their cases was gathered unconstitutionally and act accordingly.
Scholars have ignored that as the Supreme Court has constricted the scope of the exclusionary rule over the past 40 years it has narrowed only the scope of the judicial remedy and not the Fourth Amendment right. Drawing on the theory of constitutional underenforcement most prominently developed by Larry Sager, this Article argues that when the Court constricted the judicial remedy it left prosecutors and the rest of the executive branch solely responsible for enforcing the full breadth of the constitutional norm. The full breadth of the Fourth Amendment norm continues to prohibit the executive branch from using unconstitutionally-obtained evidence even though judicial suppression is not always appropriate. The prosecutor’s duty of administrative suppression also prevents Fourth Amendment rights from being marginalized in an administrative system of criminal justice in which most cases end in guilty pleas before suppression motions are filed.
Prosecutors’ ethical responsibilities provide an additional basis for prosecutors’ duty of administrative suppression. Refusing to countenance constitutional violations by the police will protect citizens’ constitutional rights and promote crime control. That administrative suppression would promote crime control relies on the procedural justice notion that citizens’ perception of their government officials’ legitimacy plays the most significant role in their willingness to comply with the law and cooperate with law enforcement. For prosecutors to refuse to use the fruits of a constitutional violation and instead condemn the violation through administrative suppression will promote government legitimacy. Ultimately, prosecutors — not just courts and police — are constitutional actors with Fourth Amendment obligations.
Here is the announcement:
The University of Oklahoma College of Law is recruiting outstanding faculty to our flagship state law school. Over the past decade, the College of Law has built world class facilities, attracted exceptional students and faculty, and dramatically increased endowed faculty positions and resources. We are committed to building on this momentum and seek to hire up to two faculty candidates this year for tenure‐track positions or tenured positions at the ranks of Assistant, Associate or full Professor. We have particular curricular needs in Administrative Law, Professional Responsibility and Civil Procedure, but invite highly qualified applicants regardless of field.
The University Of Oklahoma is located in Norman, a college town near Oklahoma City which has been recognized nationally as one of the best places to live. As an equal opportunity employer, the University encourages applications from women, members of minority groups, and others who would further diversify our faculty. Protected veterans and individuals with disabilities are encouraged to apply. Applicants should possess a J.D. or equivalent academic degree, strong academic credentials, and demonstrate a commitment to excellence in teaching and scholarship. Application review will begin immediately, but the positions will remain open until filled. Please contact Mary Sue Backus, Chair of Faculty Appointments Committee, University of Oklahoma College of Law, 300 Timberdell Rd., Norman, OK 73019 or firstname.lastname@example.org.
We are conitinuing to see decreases in the number of LSAT takers, law school applicants, and enrollees. We're also seeing the LSATs of enrollees drop. (There are some recent numbers at The Faculty Lounge, along with some informed commentary about the state of the LSATs scores. Once again, we are seeing that the total number of possible 1L seats is close to the number of applicants. Not too long ago, there were two applicants for each seat.)
It's my understanding that LSAT scores correlate well with MBE scores. So as the classes with lower LSATs start taking the bar exam, what will give way: traditional passing scores or traditional passage rates? Does anyone have informed commentary on what will happen? Have any of the state bars spoken about that?
I'm getting nearly one per day now. Are lots of lawyers getting them too? (The good news: these days I'm getting far fewer emails asking me to take on a simple collection matter for a bogus company.) The new emails have a zip file and say things like:
Notice to Appear,
The copy of the court notice is attached to this letter.
Please, read it thoroughly.
Clerk to the Court,
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.