The NY State court of appeals on 3/31 answered a question certified by the second circuit: Interpreting a NY statute, the state court said a lawyer who does not reside in NY must have a physical office to transact business in the state. Schoenefeld v. State of New York.
This is a statutory interpretation decision only. The federal district court had held the NY law unconstitutional under the Privileges and Immunities Clause. The state appealed. The circuit asked the state court of appeals to interpret the breadth of the office requirement.
To save the statute from a finding of unconstitutionality, the state itself asked the court of appeals to hold that only a method to receive service of process was needed, not a real office. The court declined.
Now the case returns to the circuit, which will have to decide the constitutional question it probably preferred to avoid. And which perhaps the state court would like it to address -- and to affirm the district court.
Meanwhile, poor Ms. Schoenefeld must find a spare file room or kitchen table from which to transact business. Not that much business in fact gets transacted in person anymore. And if it does, there's always Starbucks. :-)
When a sexual abuse scandal rocked Penn State, when Apple engaged in anticompetitive behavior, and when servicers like Bank of America improperly foreclosed upon hundreds of thousands of homeowners, each organization entered into a Modern-Day Monitorship. Modern-Day Monitorships are utilized in an array of contexts to assist in widely varying remediation efforts. They provide outsiders a unique source of information about the efficacy of the tarnished organization’s efforts to remediate misconduct. Yet despite their use in high-profile and serious matters of organizational wrongdoing, they are not an outgrowth of careful study and deliberate planning. Instead, Modern-Day Monitorships have been employed in an ad-hoc and reactionary manner, which has resulted in repeated instances of controversy and calls for reform by scholars and legislators. Accompanying these calls for reform has been an implicit assumption that all monitorships are made equal; that broad-based rules could effectively regulate all monitorships.
Yet, when tested, this assumption is found lacking. This Article traces the rise of the Modern-Day Monitorship and, for the first time, analyzes the use of monitorships in five different contexts. The analysis demonstrates that Modern-Day Monitorships have experienced a rapid evolution with important consequences. First, as demonstrated by the Apple monitorship, the evolution has changed the manner in which courts and lawyers conceive of the appropriate boundaries and norms for court-ordered monitorships. Second, as demonstrated by the Penn State scandal, private organizations are coopting the use of monitorships, which may be transforming the nature of monitorships from one of a quasi-government enforcement mechanism to what looks like a privatized tool of reputation remediation. Third, monitorships fall into different categories based on the type of remediation effort the monitorship is meant to achieve. Because these different categories necessitate different monitorship structures, attempts to adopt universal rules governing monitorships may be misguided. In short, differences matter when evaluating monitorships. This Article’s analysis will assist policymakers and scholars engaged in efforts targeted at analyzing, reforming, or regulating monitorships.
Lack of access to justice has long been a problem in the United States and other developed countries. Recent regulatory reforms - from the adoption of Alternative Business Structures in the United Kingdom to LLLTs in Washington State - have been motivated by the desire to expand access to justice. However, normative questions such as what access to justice entails and why it should be a societal priority have received comparatively little attention. With the generous support of the Earhart Foundation, the Texas A&M University School of Law is pleased to present Reconsidering Access to Justice from April 30-May 2, 2015 in Fort Worth.
To view the full conference schedule and to register for free, please visit the Conference website.
Case discussion at Legal Ethics in Motion.
Article in the LA Times about the possible impact in California of a recent SCOTUS case (about teeth whitening in North Carolina). Excerpt:
Hanging in the balance is the state's ability to regulate not only barbers and pet groomers, but also doctors and surgeons, nurses, chiropractors, optometrists, accountants, architects, lawyers, pest exterminators and security alarm installers. That's a partial list of California professional boards affected by the ruling, which is based on a 1943 precedent set in a case involving a marketing program for California raisins. The Supreme Court ruled then that state regulatory bodies comprising industry members are entitled to antitrust immunity only as long as their authority to set regulations is constrained and their decisions are subject to "active supervision" by state officials.
As I prepared to attend this inaugural meeting, it seemed that it would all be prepatory and introductory. But the RRC just voted to create a sub-committee to (1) propose a standard by which some rules might be considered in an expedited way; and (2) propose whether or not to fast track a new rule on proecutors' ethics. (They may not propose to fast track it and, even if they do, the whole commission may decide not to, or the State Bar may decide not to recommend any such fast tracking.)
As our readers know, ABA Model Rule 3.8 has a pretty full treatment of prosecutors' ethical duties. The currently existing rule in California, 5-110, which has no accompanying comments or discussion, only provides as follows:
A member in government service shall not institute or cause to be instituted criminal charges when the member knows or should know that the charges are not supported by probable cause. If, after the institution of criminal charges, the member in government service having responsibility for prosecuting the charges becomes aware that those charges are not supported by probable cause, the member shall promptly so advise the court in which the criminal matter is pending.
The potential fast tracking appears to have been prompted by a letter from the Supreme Court of California and perhaps as well by a letter by Barry Scheck and Laurie Levenson urging California's State Bar to end its status as the only jurisdiction in the US without a comprehensive rule of ethics for prosecutors. We should learn in May whether or not the RRC will try to fast track this issue or will treat the issue with its big package of rules expected to be delivered in 2017.
[edited since posting, for clarity]
At TaxProf Blog, Paul Caron links to an article from The Economist titled, " Attack of the Bean-counters. Lawyers Beware: The Accountants Are Coming After Your Business."
At Leiter Law Reports, Michael Simkovic posts, "The Absence of Evidence for Structural Change: Recent Entry Level Outcomes."
What I like about both posts, despite their differing outlooks, is that they address the existence vel non of structural changes with concrete metrics. If this were a horse race, I'd bet heavily on "yes, there is a structural change happening," but I'm grateful for empirical discussions with clear definitions of what we're discussing. For me, the bottom line question is whether, and to what extent, the market has found a lawful, sustainable way to avoid paying supra-competitive profits to licensed lawyers. If so, that has profound implications for legal education and the daily lives of lawyers. Both of those posts left me better off in understanding what's happening.
The first meeting, currently being held in San Francisco, is about the basics (e.g., introducing the members, clarifying the open access rules, travel & expenses, etc.). For more detail about their schedule, discussion items, etc., visit this page.
Here is the Commission Charter:
The Commission is charged with conducting a comprehensive review of the existing California Rules of Professional Conduct and preparing a new set of proposed rules and comments for approval by the Board of Trustees and submission to the Supreme Court no later than March 31, 2017. In conducting its review of the existing Rules and developing proposed amendments to the Rules, the Commission should be guided by the following principles:
1. The Commission’s work should promote confidence in the legal profession and the administration of justice, and ensure adequate protection to the public.
2. The Commission should consider the historical purpose of the Rules of Professional Conduct in California, and ensure that the proposed rules set forth a clear and enforceable articulation of disciplinary standards, as opposed to purely aspirational objectives.
3. The Commission should begin with the current Rules and focus on revisions that (a) are necessary to address changes in law and (b) eliminate, when and if appropriate, unnecessary differences between California’s rules and the rules used by a preponderance of the states (in some cases in reliance on the American Bar Association’s Model Rules) in order to help promote a national standard with respect to professional responsibility issues whenever possible.
4. The Commission’s work should facilitate compliance with and enforcement of the Rules by eliminating ambiguities and uncertainties.
5. Substantive information about the conduct governed by the rule should be included in the rule itself. Official commentary to the proposed rules should not conflict with the language of the rules, and should be used sparingly to elucidate, and not to expand upon, the rules themselves.
The proposed amendments developed by the Commission should be accompanied by a report setting forth the Commission’s rationale for retaining or changing any rule and related commentary language.
There are quite a few changes, but most of them are designed to align the Massachusetts rules more closely with the Model Rules (including the recent Ethics 20/20 changes). The amendments are effective July 1, 2015.
Today's New York Times describes a Citibank report that is critical of law firms for failing to reveal cybersecurity breaches. According to the Times, the report also warns "bank employees [to] be mindful that digital security at many law firms, despite improvements, generally remains below the standards for other industries."
In my view, the story highlights two distinct, but related, cybersecurity issues. The first is the increasing difficulty of preserving client's confidences in a digital age. Not too long ago, the duty of confidentiality required not much more than tight lips and locked cabinets. The recent addition of Model Rule 1.6(c) (see also Comments -) was intended to remind lawyers that they now need to do a bit more to satisfy their the duty of confidentiality. Rule 1.6(c), however, only requires "reasonableness" when safeguarding client confidences, and sophisticated clients may want cybersecurity protocols that are considerably more robust. For example, there may be a fairly large gap between what is reasonable under Rule 1.6(c) and what a large financial services client might expect and demand.
The second cybersecurity issue concerns a lawyer's duty to report a breach. Although breaches can occur even when using the most sophisticated security procedures, the Times story suggests that many law firms are nevertheless reluctant to report the problems to the government as well as to clients. Regarding the latter, lawyers have a duty to keep their clients informed about the status of a matter, and it seems to me that such a duty could be interpreted to mean that lawyers should notify their clients when their confidential information has been compromised. Moreover, an increasing number of statutes (federal and state) now impose such a duty. That said, a lawyer's ethical duty to report a breach to a client shouldn't turn on a strained reading of Rule 1.4 or whether the lawyer happens to be subject to one of the small number of reporting statutes. As an ethical matter, there may be a need for greater clarity on this issue, either in the rules or elsewhere.
I was interviewed about the ethics of Saul Goodman on Slate's TV Club Podcast. You can access the podcast here if you're interested.
In my previous posts, I discussed the ethical issues in Episodes 1 through 6 of Better Call Saul. For this discussion, familiarity with the plot of Episode 7 is assumed, but here is the official recap just in case. You can read all my posts about the ethics of Saul Goodman here.
It’s late at night and Saul and Mike are back at the police station, returning Detective Abassi’s notebook. As they wait for the detectives, Saul tells Mike to “let me do the talking.” When confronted by the furious Abassi, Saul explains that he was on his way to the police station to clear up this little misunderstanding about the notebook, when - coincidentally - he looked down and saw the notebook on the ground where Abassi must have dropped it. To his credit, Mike keeps his mouth shut as Saul weaves this tale that not even a doting mother would believe. Given that Mike’s fingerprints must be all over the pages of the notebook, I can’t imagine how Saul thinks he can get away with this lie.
If you’ve been following this blog, you can probably recite the rule violation without my help. Rule 8.4(c) prohibits a lawyer from engaging in “conduct involving dishonesty, fraud, deceit or misrepresentation.” So, no … as an officer of the court, Saul is not supposed to lie to police officers - or anyone else for that matter.
Knowing that Mike is a murder suspect, Saul is reluctant to leave him alone with Sanders - the older police detective - but Mike insists. Again, Saul is trying to be a diligent lawyer, but in Mike’s view, Saul has served his purpose and can leave. Sanders hints to Mike that the Philly police will drop the investigation if Mike’s daughter-in-law backs up his story. The conversation suggests that the corrupt old guard still holds enough power in Philly to bury the investigation, even with young Turks like Abassi being brought in to clean up the department.
When Saul intercepts Mike in the parking lot, Mike tells him “it’s in someone else’s hands now” (presumably meaning his daughter-in-law). Saul’s response is, for me, the funniest line in the episode: “Please don’t say Hamlin, Hamlin and McGill.” The idea of losing another client to HH&M (even a terrible client like Mike) is more that Saul can bear, and Odenkirk delivers the line with perfection.
A few days later, Saul arrives at Chuck’s house with a stack of boxes containing client files, pleading a lack of storage space. Chuck is not happy with the arrangement, but as soon as Saul leaves, he can’t resist the temptation to dig through the files. Maybe both of the McGill brothers have a little bit of larceny in them.
Although there has been some debate among commentators as to whether Saul purposefully left the files with Chuck, hoping he would start working on them, I don’t think there’s much ambiguity. I’ve said before that I think Saul is a pretty competent lawyer. Yet, he conspicuously misstates the form number for the “personal property” schedules as “413″ instead of “513,″ prompting Chuck to correct him. This leaves Chuck in doubt as to whether Saul is properly handling the estate matters. Then, as Saul leaves the house, he peeks in the window to confirm that Chuck is, in fact, looking through the boxes. It seems pretty clear to me that this was part of Saul’s plan.
Of course, both Saul and Chuck are violating Rule 1.6, which requires an attorney to preserve his clients’ confidential information. Chuck may be a great lawyer - and Saul’s brother - but they are not law partners. As I noted in my discussion of Kim and Saul’s conversation in Episode 5, you can’t just share client information with another lawyer (even one you trust implicitly), unless an exception to the confidentiality rule applies.
Saul is back at the nursing home calling out Bingo for the elderly residents. In an over-the-shoulder shot, we see that one of the residents is filing out a bingo card which seems remarkably familiar.
News here. The order is here. In comments following my initial posts, I had suggested that there was no ethics violation but that the court should just strike the brief for not being a "plain statement" or something like that, and it looks as if that's the basis for the court's reminder to all attorneys about their responsibilities. The text of the order:
A response having been filed, the Order to Show Cause, dated December 8, 2014, is discharged. All Members of the Bar are reminded, however, that they are responsible—as Officers of the Court—for compliance with the requirement of Supreme Court Rule 14.3 that petitions for certiorari be stated “in plain terms,” and may not delegate that responsibility to the client.
[Updated since first posted]
In my previous posts, I discussed the ethical issues in Episodes 1 through 5 of Better Call Saul. For this discussion, familiarity with the plot of Episode 6 is assumed, but here is the official recap just in case. You can read all of my posts about the ethics of Saul Goodman here.
This was a Saul-lite episode, with most of the focus aimed at revealing Mike’s back story. Nevertheless, Saul plays a pivotal role in the narrative. When the Philadelphia detectives take Mike to the police station, he refuses to answer questions, merely repeating the word “lawyer” like a broken record. When asked which lawyer he wants, Mike slides Saul’s “Need a Will? Call McGill!” business card across the table.
When Saul shows up, Mike explains that he’s there for one purpose: at the end of the interview, Saul is to spill his coffee on the younger detective, near his coat pocket where he keeps his notebook. Mike intends to lift the notebook so he can find out what information the detectives have. Saul adamantly refuses, insisting he is going to play this interview by the book. And that is certainly how things start out.
I give Saul high marks for his representation of Mike in this interview. Although the detectives immediately launch into their questions for Mike, Saul takes control right away. He stops the questioning and asks the detectives to fill him in on what’s going on. By doing this, Saul essentially admits he has no clue what the interview is about or why he is there. I love this for several reasons.
First, many attorneys do not want to admit they have no idea what is going on. This is particularly true of younger attorneys who feel they need to overcompensate for their lack of experience and knowledge. They want to impress people and appear smart, and they think it makes them look weak or incompetent to admit they don’t know something. What’s great about Saul is that he is willing to look clueless when it’s in his client’s best interest. Saul knows that - to represent Mike effectively - he needs information. Since Mike won’t fill him in, he asks the detectives to do so. Acting as if you know something you don’t is a rookie mistake, like laughing at an incomprehensible “joke” in elementary school to fit in. You usually end up looking more foolish.
Second, by forcing the detectives to talk first, Saul shifts the power dynamic. Now, the detectives are answering the questions, instead of asking them. This gives Saul time to sit back and take stock of the situation, before his client has to start talking.
Third, Saul gives the detectives a reason to underestimate him. If they think he is so ineffectual his client won’t even talk to him, they might lower their guard and reveal more information than they originally intended. This is a strategy that younger lawyers (and - to be frank - women) can use to gain an advantage over their adversaries. Some older male lawyers can be extremely condescending to younger lawyers, especially young women. If you find yourself in that position, don’t be offended; be disarming.
Fourth, Saul’s strategy allows him to figure out the detectives’ motivation, before Mike says a word. As the interview progresses, Saul realizes that the detectives suspect Mike of murdering Hoffman and Fenske, the two Philly cops who were with Mike’s son when he was killed in an ambush. I’m not a criminal defense lawyer, but I imagine that knowing your client is a murder suspect will impact how you represent him. Once Saul knows the game, he doesn’t let the detectives get very far in their questioning, before he brings the interview to a close.
You don’t need a legal ethics lawyer like me to tell you that spilling coffee on the detective so Mike can steal his notebook is an ethics violation.
But I will anyway.
Following up on Tigran Eldred's earlier post, here is news about possible discipline for a Texas prosecutor relating to conduct in a death penalty case where the condemned was executed. The Original Disciplinary Petition is here. It alleges that the prosecutor falsely told the court that the prosecution "had no evidence favorable" to the accused. Excerpt from news release:
In a major turn in one of the country's most-noted death penalty cases, the State Bar of Texas has filed a formal accusation of misconduct against the county prosecutor who convicted Cameron Todd Willingham, a Texas man executed in 2004 for the arson murder of his three young daughters.
I haven't yet decided what I think, but did want to link to this libertarian critique of the proposal, by John McGinnis, at Liberty Law. Excerpt:
The requirement of 50 hours of pro bono time effectively levies an additional tax on becoming a lawyer, precisely at the time when law schools are having trouble attracting students. Its protectionist nature is clear, because it would apply only to those not already members of the bar. It is not being imposed on practicing lawyers, even though they would clearly be better at providing pro bono services than neophytes.
Overlawyered has an update about that lawyer whose expert witness mentioned the plaintiff's history of smoking -- a fact the judge had excluded in limine. The judge had issued $1 million in sanctions against the lawyer, but the appellate court may be re-thinking the issue (The lawyer has witnesses saying she did instruct her expert not to mention the forbidden topic.) n
In court, Laurence Tribe is arguing on behalf of Peabody Energy that Obama's use of the Clean Air Act as the basis for his climate change regulations exceeds his power as President. I assume that Tribe is not simply acting as a lawyer making an argument for a client, but rather that as a scholar he believes his argument is correct. But what if he does not?
Now, lawyers can make arguments for clients regardless of what they believe is correct. They may even know that, if they were the judge, they would reject their own arguments. That's neither here nor there. The public may have trouble with that, but the profession certainly does not. Indeed, although a lawyer's personal belief is neither evidence nor authority, lawyers try their best to imply in word and tone that their legal position is also their belief.
Should academic lawyers behave differently when acting as advocates (expert testimony is different, of course, in addition to being under oath)? Academic lawyers bring a certain credibility to their arguments that practicing lawyers do not, at least not in the same way. The greater their prominence, the greater the credibility.
Let us hypothetically assume that Tribe would, as a judge, reject his argument for Peabody. But, again hypothetically, assume that Peabody has offered him a king's ransom to publicly support its position including in court. Surely, that would not be unethical. But would it be wrong? Or put otherwise: Should there may a category we might call "academically unethical" even if not legally so?
This advocacy piece is over at Slate, written by Dahlia Lithwick.
As Zimmerman points out, the president’s role as “settler-in-chief” poses certain practical problems that plague all processes for resolving mass injuries. The first is the lack of representation at the bargaining table for victims or others affected by the dispute; while the president stands in for the victims in the negotiations, the White House’s own political and international agendas make the president a less than faithful agent of the victims. Second and relatedly, presidents may ignore conflicts of interest among claimants. For example, presidential settlements of labor disputes often sacrifice the interests of those entitled to compensation for past harms in favor of those who preferred a better prospective remedy. Similarly, the varying strength of Holocaust survivors’ legal entitlements to the recovery of funds was largely ignored. A third difficulty is assessing the entitlements of individual claimants with accuracy. In the Lockerbie settlement, for instance, each plaintiff received the identical lump-sum award, despite variations in individual injury and damage. Simply put, without effective judicial review of these settlements, the quality of the President’s decision-making and the fairness of the settlement itself remain open to criticism.
Abstract of article:
Large groups repeatedly turn to the White House to collectively resolve complex disputes, much like a class action. Such presidential settlements go back at least as far as the early republic, as well as the Progressive Era, when Teddy Roosevelt famously brokered settlements among private groups following a rash of accidental injuries and deaths in mining, rail, and even, football. More modern variants include mass compensation schemes like the Holocaust Victim Settlement, Pan Am Flight 103 Settlement, and the BP Oil Spill Settlement brokered by Presidents Clinton, Bush and Obama. In each case, the President helped resolve a sprawling class action-like dispute among warring parties, while also advancing a broader executive agenda. Just as the President has extended power over the administrative state, presidential settlements demonstrate the growth of executive authority in mass dispute resolution to provide restitution for widespread harm.
But this use of executive power creates problems for victims purportedly served by presidential settlements. When the President settles massive private disputes, he resolves them like other forms of complex litigation, but without the judicial review, transparency, and participation thought necessary to resolve potential conflicts of interests among the victims. The Presidents’ other duties as the Chief Executive also aggravate conflicts with groups who may rely entirely on such settlements for relief.
This Article recommends that the President adopt complex litigation principles to reduce conflicts of interests, to increase transparency, and to improve public participation in White House driven settlements. Envisioning the President as the “Settler-In-Chief,” this Article also raises new questions about how the coordinate branches of government, as well as actors inside the White House, may regulate executive settlement practice consistent with the Separation of Powers.
Story here, here, and here. The lawyer represented the doctor who was associated with the death of Osama Bin Laden. I've often said that 1.2(b) isn't really a rule because it neither requires nor prohibits any conduct, but every year we do see lawyers being attacked rhetorically, or worse, because of who they represent.
Warning: Spoiler Alert!
In my previous posts, I discussed ethical issues that arose in Episodes 1 through 4 of Better Call Saul. There were so many ethical issues in Episode 5, I decided to split it into two parts. In Part One, I covered Saul’s meetings with three prospective clients, who contacted him after his stunt in Episode 4 (Hero).
Now, I will discuss the ethics issues that arise when Saul takes a detour into “elder law.” Familiarity with the plot of Episode 5 is assumed, but here is the official recap just in case.
Saul’s brother Chuck (played by Michael McKean) is a former attorney at a large white-shoe law firm, who has developed a debilitating, psychosomatic sensitivity to electricity. In Episode 5, Chuck lands in the hospital after an unfortunate run-in with a police taser. Upon returning home, Chuck and Saul get into a heated discussion about Saul’s billboard publicity stunt (the precipitating event that indirectly led to the tasering incident). Saul tries to minimize the stunt: “It was promotion. It was advertising! That’s all!” Chuck retorts: “which wasn’t even allowed until five Supreme Court justices went completely bonkers in Bates v. State Bar of Arizona.”
What I love about this scene is how it captures the unstated motives that frequently animate conversations about lawyer advertising. Chuck represents the traditional, big firm view: Lawyer advertising is unseemly, unprofessional - even unethical. Lawyers should be above such things. Chuck derisively references Bates v. Arizona, a landmark First Amendment decision, which held that bar regulators could not prohibit lawyers from advertising their services. Saul, on the other hand, represents the solo or small firm lawyer - the scrapper who actually benefits from the ability (however limited) to market his services to the public.
I was struck by how many television commentators uncritically accept the view of Chuck as a “straight shooter” - the moral and ethical counterpart to Saul. What those reviewers overlook is that Chuck’s convictions about ethics and professionalism are grounded in his privileged position as an elite attorney. He doesn’t know how it feels to be Saul, the guy at the bottom of the rung, scrambling to make ends meet. What makes it all the more insulting is that Saul is trying to support Chuck financially, while still maintaining the fantasy that Chuck is self-sufficient and on the road to recovery.
Continue reading here.
Righthaven was a Nevada company created in 2010 for a limited purpose: to purchase copyrights in newspaper articles, sue bloggers and website operators that quoted or linked to those articles, and intimidate them into settling the lawsuits. Between March 2010 and June 2011 Righthaven filed 275 lawsuits in federal courts in Nevada, Colorado and South Carolina.
A recent article, which provides an interesting retrospective of the Righthaven debacle, offered an example of the type of lawsuit the company pursued:
It sued a woman in Boston who had a nonprofit blog about cats, presented from a feline point of view. She had posted a Review-Journal story about a fire killing some birds, and said she credited the Review-Journal and linked to the paper’s website. A Los Angeles Times writer commented that even the Review-Journal’s attorney “seemed to have a sense that his paper effectively had blasted a small tabby with a howitzer.”' The woman settled before Righthaven was hit with some fair-use defeats – her case likely would have been a fair-use candidate had she been represented by an attorney.
Righthaven dissolved in 2013, after a series of devastating defeats, including various dismissals, sanctions, and at least one bench slap by a federal judge who described Righthaven's claims as "flagrantly false -- to the point that the claim is disingenuous, if not outright deceitful."
Disciplinary complaints were filed against three of the attorneys associated with Righthaven, including the company's founder, Las Vegas attorney Steven Gibson. Since the grievances are not public, we don't know precisely what charges were filed against these lawyers. But, given the judge's comments, we can imagine they included filing frivolous claims and various forms of deception. According to the article, no disciplinary action has been taken against any of the Righthaven lawyers. As one blogger noted: "not even a single public reprimand. Wow. Exactly what does it take to violate Nevada’s ethics rules?"
The Nevada State Bar recently issued a statement confirming that all of the Righthaven complaints were dismissed in November 2014 and offering this explanation:
Regarding the discrepancy between judge and panel decisions, apparently the two entities evaluated the information differently, and disciplinary matters have a higher standard of proof than almost all civil matters in a judicial setting.
The comment about the differing standards of proof is interesting. I doubt most members of the public realize that the standard for proving deception in an attorney disciplinary proceeding is higher than in a federal court. I understand that many jurisdictions apply the "clear and convincing evidence" standard to attorney discipline cases (by contrast, in New York, we apply "fair preponderance of the evidence.") Does the higher standard adequately protect the public against attorney misconduct? I am interested in hearing other views on this issue.
A few weeks ago I posted about H&R Block's new immigration form service. That service no longer exists and every trace of it appears to have been removed from its website. Article in the elawyering blog here
This announcement is from Professor Nancy Moore:
A Scholarship Roundtable will be held on Friday, May 29, 2015, from 7:30-8:45 a.m. (breakfast provided) as part of the ABA Center for Professional Responsibility Conference in Denver. Professional Responsibility law faculty will briefly present their work-in-progress. The amount of time for each presentation will vary depending on the number of presenters. If you are interested in making a presentation, please contact Nancy Moore at email@example.com and use "Scholarship Roundtable" in the subject line. Information about the conference is available at this link: http://www.americanbar.org/groups/professional_responsibility/events_cle/41nationalconference/generalinformation.html. Adjunct faculty and VAPs are welcome to present their work.
David Cameron Carr, at KafkaEsq, looks back at Freedman and Vapnek. Excerpt:
In a sad coincidence, two leading lights in the relatively small world of legal ethics went dark on the same day, the second of March.
Both Freedman and Vapnek were 86 years old. Their careers bracketed the Golden Age of Lawyering, the roughly 50 year period that saw both explosive growth in the number of lawyers and unprecedented profitability by lawyers and law firms but also a decline in the status and prestige of the profession. Not coincidentally, this period might also be called the Golden Age of Legal Ethics.
A recent news story on the stock holdings of a Commissioner of the Commodities Futures Trading Commission (CFTC) illustrates the issues that arise when a government official who was previously a corporate executive subject to federal prohibitions on insider trading, sells securities to comply with federal conflict of interest rules for government employees As I discuss in Chapter 7 of my book Getting the Government America Deserves (Oxford 2009) insider trading law and government ethics law intersect. Lawyers advising government officials on their sales of stock need to be familiar with ethics laws and insider trading laws.
On January 22 Bloomberg News published a story on CFTC Commissioner J. Christopher Giancarlo’s stock holdings in his former employer, GFI Group Inc. (“GFI”), a company in the derivatives business, during his first 90 days in office.
I was quoted as being surprised Giancarlo had not sold all of his GFI stock immediately upon joining the CFTC because financial conflict of interest statutes would prevent him from fully participating in regulation of derivatives markets until he sold all of the stock.
Because some investments are hard to sell quickly, Executive Branch ethics agreements customarily give office holders up to 90 days to sell off investments, but allow the office holder, if possible, to exercise the better option of selling more quickly.
Giancarlo, however, also had to comply with securities laws regulating sales of stock by company insiders. He entered into a separate agreement with GFI called a 10b5-1 plan committing him to sell the stock in specified installments. According to language from his ethics agreement, entered into based on guidance from and with the approval of the White House, CFTC ethics staff and the Office of Government Ethics, he had 90 days to divest of his holdings once he was sworn into office.
The Senate was aware of this plan to divest over 90 days when it voted to confirm him.
Once a corporate officer enters into a 10b5-1 plan, he usually cannot change the timing of stock sales unless it is certain that he is not in possession of any material nonpublic information about the stock. Otherwise, he could be prosecuted for insider trading.
In other words, Giancarlo may not have had the option to sell all of the stock upon confirmation because he had, with the approval of three separate parts of the Executive branch, and of the Senate, agreed to a plan providing for a sell-off period of 90 days. As a result, Giancarlo, who has been the only Republican CFTC member since last August, did not participate in some matters involving derivatives until the stock was all sold. The Administration’s advice to him about the timing of his stock sales resulted in him having more instances of recusal than should have been necessary.
I was unaware of Commissioner Giancarlo’s 10b5-1 plan or the Administration’s 90-day guidance to him when I gave my previous comment to Bloomberg. I still think that immediate sale of all the stock upon confirmation by the Senate would have been the better option, but that is something the Administration’s lawyers in the White House, OGE and CFTC should have requested when they drafted and approved Giancarlo’s ethics agreement. Once the ethics agreement and 10b5-1 plan were in place, he risked insider trading allegations if he tried to change the timing of his divestiture. In any event, no ethics laws were violated, so the Administration should learn from this experience and move on.
Ethics lawyers who advise government officials on sale of their investments need to keep in mind the securities laws as well as government ethics law. They may think that a 90 day divestiture period promotes flexibility, but if the government official was formerly a corporate executive and there is a 10b5-1 plan, nothing about that plan is flexible. Decisions about the timing of divestiture need to be made at the time the 10b5-1 plan is entered into.
That's one view, from the WSJ, about the recusal issues in Wisconsin as a prosecutor seeks to restart his "John Doe" investigations of the governor. I'm sure there's another way to view the issue. Suggestions?
Over the years I've run this blog, I've received lots of emails and suggested links about judicial recusal issues and I've been disappointed at how many of them were so blatantly political.
Warning: Spoiler Alert!
In my previous posts, I discussed ethical issues that arise in Episodes 1 through 4 of Better Call Saul, the spin-off and prequel to Breaking Bad, starring Bob Odenkirk as Saul Goodman. Familiarity with the plot of Episode 5 is assumed, but here is the official recap just in case.
Given the wide range of the ethical issues in Episode 5, I have divided my analysis into two parts. Part One covers Saul's meetings with three prospective clients, who contact him after the billboard stunt in Episode 4 (Hero). Part Two covers Saul's brief foray into elder law at the end of Episode 5.
As usual, I base my discussion primarily on the New York Rules of Professional Conduct, but reserve the right to randomly throw in references to New Mexico's Rules (which would govern Saul's conduct).
Warning: Spoiler Alert!
In previous posts, I discussed ethical issues that arise in Episodes 1 and 2 and Episode 3 of Better Call Saul, the spin-off and prequel to Breaking Bad, starring Bob Odenkirk as Saul Goodman. Familiarity with the plot of Episode 4 is assumed, but here is the official recap just in case. As usual, I base my discussion primarily on the New York Rules of Professional Conduct, but reserve the right to randomly throw in references to New Mexico's Rules (which would govern Saul's conduct). Let's get to it.
Bribe or Legal Fee?
When we pick up the story in Episode 4, Saul is confronting the Kettlemans about going home and returning the money Craig stole from the county treasury. After articulating several increasingly absurd rationalizations for keeping the money (""You want to talk about legal? Slavery - that used to be legal. Human Slavery"), Betsy Kettleman finally just thrusts a stack of money in Saul's face as a bribe. After demurring several times, Saul says "I can't take a bribe. . . . But, you know . . . I can take a retainer." That's when Betsy Kettleman hits Saul with a harsh zinger that leaves him visibly crushed: "You're the kind of lawyer guilty people hire."
Later, Saul is back in his sad little office at the nail salon - with a big stack of cash on his desk. In a display of rationalization that rivals Betsy Kettleman's, Saul tries to allocate the funds into legitimate bookkeeping categories: travel, meals, "miscellaneous expenses," etc. My favorite category is legal fees at the "elite tier pricing" of $950 per hour (because there were, you know, "special circumstances"). We know that Saul gets paid $700 per case as a public defender, so $950 per hour is quite a jump. Even when Saul thinks he has snagged a rich client in Episode 5, he cites an hourly rate of $450. Saul's billing practices are haphazard to say the least.
There are several problems with Saul's handling of the Kettlemans' payment. First, if it is a bribe, he obviously can't take it. Rule 8.4(b) prohibits an attorney from engaging in "illegal conduct that adversely reflects on the lawyer's honesty, trustworthiness or fitness as a lawyer." Rule 8.4(d) prohibits "conduct that is prejudicial to the administration of justice." Accepting the bribe would likely violate one or both of those provisions.
Second, if it isn't a bribe, what is it? The Kettlemans were pretty clear that they did not want to retain Saul as their lawyer. Despite that, he treats the money as payment for legal services. Given that an attorney-client relationship is a voluntary contractual arrangement, the client must agree to it - either implicitly or explicitly - or it doesn't exist.
Warning: Spoiler Alert!
In a previous post, I discussed ethical issues that arise in Episodes 1 and 2 of Better Call Saul, the spin-off and prequel to Breaking Bad, starring Bob Odenkirk as Saul Goodman. As always, I base my discussion primarily on the New York Rules of Professional Conduct, but reserve the right to randomly throw in references to New Mexico's Rules (which would govern Saul's conduct). Let's get to it.
Calling the Kettlemans to Warn Them They Are in Danger:
In Episode 3, Saul remains troubled by Nacho's threats to steal the $1.6 million, which the Kettlemans allegedly embezzled from the county treasury. Saul initially calls Kim, hinting that the Kettlemans might be in danger, but then backs down and claims to be drunk. After tossing and turning on his office sofa, Saul drives to a payphone and makes an anonymous call to the Kettlemans warning them of the danger. In my previous post, I discussed whether Saul was either required or permitted to report Nacho's plan. The answer turned, to some extent, on whether Nacho is a client. If not, there is no ethical prohibition against Saul disclosing information learned from Nacho during their meeting in Episode 2. If Nacho is a client, Saul owes him a duty to preserve any confidential information. Under Rule 1.6, however, an attorney is permitted to disclose confidential information either "to prevent reasonably certain death or substantial bodily harm" or "to prevent the client from committing a crime." In light of these exceptions, I would argue that Saul is ethically permitted - but not required - to disclose the information under New York's rules.
At this juncture, it is worth noting the differences in New Mexico's confidentiality rule (which my learned colleague, Andrew Perlman, drew to my attention in his comment to my previous post). While New Mexico permits disclosure of confidential information to prevent financial or property-related harm, it mandates disclosure "to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm." Given that Saul is losing sleep over his fear for the Kettlemans' safety, it's fair to say that he genuinely believes they are in danger of substantial bodily harm or worse. Having said that, I take issue with the manner of Saul's disclosure.
Warning: Spoilers Ahead!
After six episodes, I’m already a big fan of Better Call Saul, the spin-off and prequel to Breaking Bad, which follows the trials and tribulations of Saul Goodman, an ethically challenged lawyer played by Bob Odenkirk. I was skeptical about whether Breaking Bad’s creators could pull off entire series devoted to Saul Goodman, and I appreciate some of the criticism I’ve read about slow pacing and lack of dramatic tension. But, I’m enjoying the series so far, especially Odenkirk’s performance, and am cautiously optimistic about the future (of the series that is; we know that Saul’s future is pretty bleak, unless you dream of managing a Cinnabon in Omaha).
I've noticed, however, that reviews and commentary about the show lack any informed discussion about the ethical implications of Saul’s conduct. While Saul has not yet reached the depths of moral bankruptcy he achieves in Breaking Bad, every episode of Better Call Saul exposes us to a host of ethical issues. Of course, what I'm referring to is "legal ethics," which is, in many respects, entirely distinct from "real world" ethics.
I’m a New York ethics lawyer, so I will base my discussion on the New York Rules of Professional Conduct. The New York Rules may differ significantly from the rules that governed New Mexico lawyers in 2003, when the events of Season 1 take place. But, let’s not waste time being persnickety about such things. Let’s get to the action.
The first two episodes of the series (entitled Uno and Mijo) are really one 2-hour long Series premiere, so I will treat them together. Familiarity with the plot is assumed, but you can read official recaps here and here (or use Google to find many unofficial recaps).
The Skateboard Scam:
Craig Kettleman is a defendant in a high profile criminal case, arising from his embezzlement of $1.6 million from the County treasury. Saul has an initial meeting with the Kettlemans and, although Craig seems happy to hire him, his wife Betsy is less enthusiastic. While driving away from this initial meeting, Saul places an order on his cell phone for a floral arrangement to be sent to the Kettlemans. Suddenly, Saul collides with a skateboarder who, along with his twin brother, tries to scam Saul into paying them $500 to avoid police intervention. Not one to miss an opportunity, Saul recruits the skateboarders to execute a scam against the Kettlemans. Saul's plan is to use the twins to stage an accident with Mrs. Kettleman’s station wagon, at which point Saul will fortuitously show up to intervene and save the day. Saul hopes that his heroics at the accident scene will make Mrs. Kettleman to reconsider her decision to reject Saul as an attorney.
At a minimum, Saul’s conduct violates Rule 8.4(c), which prohibits “conduct involving dishonesty, fraud, deceit or misrepresentation.” By the way, you can expect this rule to make repeated appearances in future posts. It is impossible to say whether Saul’s strategy would have succeeded (and/or led to further ethical violations), since the skateboarding twins mistakenly target a similar car belonging to an elderly lady, who turns out to be the grandmother of notorious gang member Tuco from Breaking Bad.
Pretending to be Special Agent Jeffrey Steele:
After tracking down the skateboarding twins to Tuco's house, Saul is bound, gagged and taken to the desert where Tuco threatens to kill him and the twins. When Tuco rejects Saul's truthful explanation of mistaken identify, Saul desperately tries to talk his way out of the perilous situation by pretending to be a federal agent investigating Tuco's drug ring.
Although technically a violation of Rule 8.4(c), I’m going to give Saul a pass on this lie. When you’re tied up in the desert staring down the barrel of a madman's gun, I think you’re allowed to say anything you think might save your life. But, it’s important to note that the rule itself makes no exception for understandable or excusable lies. Although most lawyers won’t find themselves pleading for their lives in the New Mexico desert, they might be tempted to engage in other types of deception. A classic example of this is the undercover investigation, which inherently involves either direct or indirect deceit, aimed at digging up incriminating information about an adversary. While some court decisions and ethics opinions have permitted attorney deception in certain types of undercover investigations, Rule 8.4(c) is written absolute terms and lawyers violate it at their peril.
Convincing Tuco to Break the Skateboarders’ Legs:
This actually isn’t as bad as it sounds. Tuco is about to kill the skateboarders in the desert, when Saul – using extraordinary powers of persuasion – convinces Tuco to break one leg of each skateboarder instead, arguing: “They can’t skate for six months, and they’re scared of you forever.” Saul appeals to Tuco's ego, likening him to a wise judge who metes out punishment that's proportionate to the crime. After Tuco breaks each of the skateboarder's legs, Saul rushes them to the ER and pays their medical bills. When one of the twins accuses him of being “the worst lawyer ever,” Saul counters: “I talked you down from a death sentence to six months’ probation. I’m the best lawyer ever.” I might have to reluctantly agree. So, Saul may get high marks on Rule 1.1 (providing competent representation to a client), but he may have violated other rules. For example, assuming the twins are his clients (which is an interesting question), their energetic protestations during Saul’s negotiation with Tuco suggest they are not on board with the agreement to break their legs. Rule 1.2(a) states that “a lawyer shall abide by a client’s decisions concerning the objectives of representation” and “shall abide by a client’s decision whether to settle a matter.” Building on the scene’s analogy to a plea negotiation in a criminal case, the rule further states that “the lawyer shall abide by a client’s decision, after consultation with the lawyer, as to a plea to be entered.” Although a broken leg is objectively better than death, it was still the skateboarders’ decision whether to accept the "plea."
Not Reporting Nacho’s Plan to Steal $1.6 Million From the Kettlemans:
Episode 2 ends with a surprise visit from Nacho (Tuco’s more reasonable associate in the desert). Nacho proposes to steal the $1.6 million that Mr. Kettleman embezzled and offers to pay Saul a “finder’s fee” if he helps. Saul declines, but assures Nacho that the conversation is confidential. This raises an interesting question. Does Saul have an obligation to report this anticipated crime; or, alternatively, does he have a duty to keep the information secret? Let’s assume that Nacho is a client (again, an interesting question). Under Rule 1.6, Saul has a duty not to reveal confidential information, except in certain circumstances. One of those exceptions is “to prevent the client from committing a crime.” But note that this is a “permissive” exception. It means that Saul may reveal the information, but is not obligated to do so. If Nacho is not a client, but is – arguably – a prospective client, Rule 1.18 provides that “a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation,” except in certain circumstances. Again, the rules permit, but do not require the lawyer to reveal information about a future crime learned from a prospective client. Of course, Nacho is probably not a prospective client either, since he does not approach Saul to discuss “the possibility of forming a client-lawyer relationship,” but to propose a criminal enterprise. The question then becomes, do lawyers have an independent legal duty to report information about a future crime, where the information is not learned in the course of representing a client (i.e. is not “confidential information” under Rule 1.6). The answer, to my knowledge, is no. I’m interested in hearing whether others believe there is such a duty.
That’s it for now. I will try to cover Episodes 3 through 6 in the next few weeks, until I have caught up with the series.
This one, from Morrison Foerster, makes a number of practical points and also emphasizes traditional professional norms.
I've posted a (relatively) new paper on SSRN, Martin Luther King Jr.'s Lessons for Lawyers in a Time of Market Disruption. The abstract:
This essay, delivered as the 2014 Tabor Lecture at Valparaiso University Law School, argues that our conception of the lawyer’s work lacks a rich and full understanding of the human person. This absence may not only hurt the lawyer’s ability to derive meaning from her work and advance the common good, but also may contribute to a perception that lawyers are becoming expendable in a market of fungible business service providers. The failure is starkly apparent when one considers the anthropological commitments that permeated the work and worldview of Martin Luther King Jr. Though he was not a lawyer, he was an advocate for the interests of others, and he was a Christian who was able to live out his beliefs in ways that were accessible and influential to those who did not share the underlying religious premises. While King’s moral duties were not constrained by the more particular fiduciary duty that lawyers owe to their clients, I believe that lawyers overstate the degree to which their moral agency is so constrained, and in doing so, abdicate moral responsibility for their work. Lawyers who endeavor to practice with the person at the center, as King did, will act as: (1) subjects; (2) healers; (3) prophets; and (4) realists.
The brief, written by Steve Bundy and Joshua Benson on behalf of the Bar Association of San Francisco and the Los Angeles County Bar Association, is below. It argues against the unfinished business doctrine and in favor of Judge Breyer's decision at the USDC. (Disclaimer: I was an expert witness against the unfinished business doctrine in a related case involving the Heller firm.) Excerpt:
When an insolvent law firm dissolves, client needs are urgent. The client
must quickly hire new counsel, discharge old counsel, and transition pending
matters to the new firm. At the same time, with its discharge imminent and
inevitable, the dissolving firm has no meaningful expectation of further business
from its clients. Yet the bankruptcy trustee for Heller Ehrman LLP (“Heller”)
argues that, at precisely this moment of client vulnerability and law firm collapse,
pending hourly fee matters transform into a property interest of the dissolving firm.
The firm’s creditors may then wield this interest against the new law firms that
complete the work that the dissolved firm cannot. This notion effectively nullifies
the client’s fundamental right to hire, fire, and control counsel, and defies both
ethical canons and common sense.
The better interpretation of California law—indeed, the one compelled by
client-protecting concerns—is that articulated by Judge Breyer below: A firm
forced to dissolve by impending bankruptcy has no property interest in the hourly
matters its former clients take to new law firms.
The press release states:
On Thursday evening, Project Right Side and former RNC Chairman Ken Mehlman formally filed an amicus brief with the United States Supreme Court involving four landmark cases slated to be heard on April 28 concerning government recognition of the freedom to marry. A total of 303 Republican, libertarian, conservative and center-right high-profile activists and government officials – including past presidential candidates, seven current and former governors, twenty-three current and former members of the House of Representatives and U.S. Senate, and amici from thirty-three states – signed onto the brief. The brief was authored by pro bono legal teams at WilmerHale led by Reg Brown, Seth Waxman, and Alan Schoenfeld and at Polsinelli led by Sean Gallagher.
The 303 signatories want to convey to the Court that they support traditional conservative values, including the belief in the importance of stable families, as well as the commitment to limited government and the protection of individual freedom. Furthermore they believe that those conservative values are consistent with affording civil marriage rights to same-sex couples. The Supreme Court has repeatedly held marriage to be a fundamental right.
In 2013, Ken Mehlman submitted a brief to the Supreme Court in Hollingsworth v. Perry, with 131 Republican amici signers; this year they more than doubled that support.
In a previous post, I announced the launch of the New York Legal Ethics Reporter (NYLER). NYLER is a monthly publication focusing on developments in New York legal ethics and professional responsibility.
The March issue is now out. It contains the following articles:
When the Music Stops: Risk Management & Lateral Lawyer Musical Chairs, by Marian C. Rice;
Ethical Implications & Best Practices for Use of Email, by Robert A. Barrer; and
Rules Permitting Out-of-State Lawyers to Practice Temporarily in New York: Temporarily Out of Order, which is Part 3 of Professor Roy Simon's update on developments in New York’s regulation of lawyers since the death of NYPRR publisher Lazar Emanuel in November 2011.
NYLER is also accredited to provide 0.5 CLE credits in Ethics and Professionalism to experienced attorneys who score 80% or higher on a monthly self-assessment examination based on the articles appearing that month. It’s the same kind of CLE test NYPRR used to give – only web-based and automated. (A $25 fee applies. Financial aid is available for attorneys who are unable to purchase a test due to cost considerations.)
To receive NYLER articles FREE each month by email, enter your email address at the link on the NYLER homepage.
Bruce Green brought a recent student note to my attention on the problem of prosecutors reading email from inmate to their lawyers. Because all email is routinely read, the attorney-client privilege does not apply, and courts have generally held that this routine screening is not a Sixth Amendment violation. This note asks whether this might not be a place for the professional disciplinary rules to do some work. As a matter of self-regulation, should prosecutors abstain from reading inmate email communications? Check out the note.
The unfortunate news today that Hillary Clinton used a personal email address throughout her tenure as Secretary of State, and had no government email address at all, will of course play into the long running narrative about the Clintons. They act as though the rules do not apply to them.
In all likelihood, the story will not have much impact outside the Beltway unless HRC's lack of care is shown to have harmed national security or imperiled safety in fact. No doubt journalists and Republicans will be pursuing that question.
But then there's Rule 1.1's comment , amended in August 2012 to add the quoted words. As part of the duty of competence, lawyers must stay abreast of "the benefits and risks associated with relevant technology."
Maybe this rule does not apply to Secretaries of State, even those who are lawyers. But the incident offers a nice teaching moment for class.
And there's a second question: where were State's lawyers and security people during HRC's four year tenure? Did none of them see the danger and warn her? If so, how did HRC respond? If not, why not? Another subject for journalists and Republicans.
Abbe Smith delivered this moving tribute at Monroe's memorial yesterday:
Monroe was my friend, co-author, intellectual life partner, mentor, and member of the family. There is no one like him; he is irreplaceable.
I’m not the only one who feels this way. I’ve received the most amazing email since his death—from legal academics, the criminal defense bar, the capital defense bar. People describe him as “a giant,” “a legend,” “a towering figure,” “a hero,” “a mensch,” “a sword and shield for all criminal defense lawyers,” “a true original,” “a champion for liberty,” and “a fearless example to us all.”
One member of the American Board of Criminal Lawyers—an organization to which he was proud to belong—wrote: “The phrase ‘a gentleman and a scholar’ was coined for him.”
As Monroe’s Hofstra colleague Eric Freedman wrote: “If any capital defense lawyer anywhere in the country ever faced an ethics issue Monroe had only one question: ‘How can I help?’.... [He] always thought there was more he could do to bring justice to the world.”
Although I knew this day would come, I was never going to be ready for it. Around 10 years ago, Monroe called and asked me for a favor. He wanted me to be the executor of his living will. I told him I was honored to be asked—but what does this entail? He said he had a low tolerance for pain. I said, like dental pain?
Then he said he didn’t want to be a burden to his family. I said that it might not be a “burden,” but an opportunity for those who love him to show him how they feel.
He said it sounds like you’re not the right person for the job.
I said I couldn’t be more wrong for it. The mere thought of ever losing him was hard enough.
Monroe knew a lot about loss. He had more than his share, with the death of Caleb, Audrey, and so recently, Sarah. I often wondered how he was still standing, and still going strong.
In the last few months, he had an op-ed in the National Law Journal, and he just finished an article for the Hofstra Law Review.
He and Alice Woolley and I just finished co-editing a book called Lawyers’ Ethics for Ashgate Press in the UK.
Part of his resilience was his amazing capacity for friendship. He was making new, dear friends—Paul Butler, Susan Fortey, Jennifer Gundlach—and deepening old ones until the very end. Ellen Yaroshefsky has a word for Monroe’s friends and admirers. She calls us Monroevians.
Look, he wasn’t perfect.
He had a temper. He called me up one day in the early 1990s and said we were going on “The Phil Donahue Show.” I said, No I wasn’t. He said your ticket has been booked and a limo will be waiting at LaGuardia to take you to NBC Studios. We were to appear on a show with Judge Harold Rothwax and the President of the National District Attorney’s Association about Rothwax’s right-wing anti-criminal defense screed Guilty: The Collapse of Criminal Justice.
I swear I thought that he and Harold Rothwax were going to have a heart attack on the show. They were at each others’ throats. In fact, Harold Rothwax died of a heart attack later that year.
Monroe could be very fierce about his views and principles—and occasionally brusque. Some people were afraid of him. But he was also fiercely loyal to friends, family, and colleagues.
He could also be gracious in the face of an attack. When Stephen Gillers wrote a paper called, “Monroe Freedman’s Solution to the Criminal Defense Lawyer’s Trilemma Is Wrong As a Matter of Policy and Constitutional Law,” he assigned it as recommended reading to his students.
He was a harsh grader. He and I nearly came to blows when we taught legal ethics together at Georgetown. He maintained that he didn’t want to send lawyers out into the world to hurt clients. I told him I needed more data to be convinced that a three-hour blue book exam had any relationship to actual lawyering.
But he also treated students with an abiding respect and generosity. Whenever a student caught a mistake he made or offered a new way of looking at things he hadn’t considered, he would give them an engraved pen that read “Excellent job. Monroe H. Freedman.” Because I taught with him I had to have my own pens made that read “Excellent job. Abbe Smith.” I now have other engraved pens for my clinic students as well. They read: “Not Guilty! My two favorite words. Abbe Smith”
He was funny and quirky and incredibly generous. He was a founding member of the Flat Earth Society. He always wore a three piece suit with a watch chain. He would tell students that the watch chain had great sentimental value because his grandfather sold it to him on his death bed.
When my son Joe was Bar Mitzvah’d he wrote Monroe a thank you note: “Dear Monroe: Thank you for coming to my Bar Mitzvah and for the generous check. I will use it wisely and in moderation.” Monroe is the only person I know who ever replied to a thank you note. “Dear Joe,” he wrote. “I don’t want you to use it wisely and in moderation. I want you to waste it on beer and women.”
Alice Woolley has a son with autism who loves drumming, and particularly loves drumming with surgical gloves. Alice happened to share this with Monroe. A couple of months later a special package came for her son John with some surgical gloves Monroe had found (with help from one of his granddaughters) and a note for John “from your friend Monroe.”
He hated clichés, but was very sentimental (especially about his family). He loved the most obscure New Yorker cartoons—this was the one thing we disagreed on, we never laughed at the same New Yorker cartoons. He was a consumer of both high-brow and low-brow culture: from Shakespeare to airport detective novels. He had an amazing ability to be occasionally bawdy without being crude.
Monroe was an extraordinarily progressive thinker on a wide range of issues—especially for a man of his generation. He annoyed my partner Sally when he first met her by declaring that he was a feminist before she was born. He was one of the least homophobic people I’ve ever met and represented the Mattachine Society, one of the oldest gay organization in the country. He had a deep and genuine appreciation for the struggles of the poor. He was a passionate, tireless fighter for racial and social justice.
I want to end with one of my favorite speeches that Monroe used to make to students:
As you contemplate the practice of law you should understand that you may be called upon to represent people who, out of sheer greed, will hurt and even kill other innocent people. And if you can’t handle that then you should not go into the practice of corporate law.
I could not be prouder of my association with Monroe Freedman. I will miss his courage, his conscience, and his love.
I just received news of the passing of Paul Vapnek -- a terrific patent lawyer who made foundational contributions to legal ethics in California and legal ethics for patent lawyers. Here is an obituary. Paul was a great man and kind mentor. Here are some earlier posts about an important award he won for his contributions to legal ethics.