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Looks like we could have a blogging sub-conference at the Law & Society conference this week in Las Vegas. Orin Kerr of Volokh Conspiracy, Daniel Solove of PrawfsBlawg, Christine Hurt of Conglomerate, Eric Goldman of Goldman's Observations, and Vic Fleischer of Taxing Blog will be speaking there.
I will be on a Thursday afternoon panel about law school courses that focus on law firms. In my case, it's a legal ethics class that focuses on private practice.
Just to keep things lively, I'll disagree with Gordon Smith over at Conglomerate, about the Andersen decision. The question is whether the jury was properly instructed on the elements of witness tampering under 18 U.S.C. § 1512(b)(2):
Whoever knowingly uses intimidation or physical force, threatens, or corruptly persuades another person . . . with intent to . . . cause or induce any person to . . . withhold a record, document, or other object, from an official proceeding [or] alter, destroy, mutilate, or conceal an object with intent to impoair the object's integrity or availability for use in an official proceeding [will be in trouble].
Professor Smith finds the Court's argument unpersuasive, that "knowingly" modifies "corruptly persuades," so that the defendant's persuasion must be both knowing and corrupt. The Court cites the plain meaning rule from Bailey v. U.S., 516 U.S. 137 (1995) (the case about "using or carrying" a firearm), and Prof. Smith doesn't suggest that the plain meaning rule is inapposite here. So I guess we just have a clash of syntactical intuitions. Given the structure of the statute, it does look like "knowingly" modifies all the words following it -- use force, threaten, or persuade. "Persuade" has another modifier tacked onto it, "corruptly," which clarifies that there is a such thing as knowing, non-corrupt persuasion. Thus, for a persuasion-based conviction (as opposed to using or threatening force), the government needs to show both knowledge and a corrupt purpose.
Statutory parsing aside, the Court's decision makes a great deal of sense in light of Chief Justice Rehnquist's view that it's not necessarily wrongful to oppose the government. (Slip op. at 7.) Significantly, he cites Upjohn Co. v. U.S., 449 U.S. 383 (1981), in which he noted that corporations must consult with lawyers without fear that the government may learn the content of lawyer-client communications. He reiterated this position in Swidler & Berlin v. U.S., 524 U.S. 399 (1998), giving short shrift to the government's asserted interests in obtaining information so that it could prosecute crimes. It is not surprising that a Court, and a Chief Justice, who rejected the argument that "in criminal proceedings, the interest in determining whether a crime has been committed should trump client confidentiality," Swidler, 524 U.S. at 406, would take pains to preserve the ability of lawyers (and others) to non-corruptly persuade others not to cooperate with the government.
The bottom line is that a lawyer cannot be convicted of corruptly persuading another to engage in obstruction of justice if the underlying act (e.g. shredding documents) is not itself a crime. The jury instruction in the Andersen trial was ambiguous because it permitted conviction on the grounds that the defendant intended to "impede" government factfinding. In light of Chief Justice Rehnquist's belief that it can be legitimate in some cases to impede the government's factfinding, this decision isn't surprising.
Christine Hurt comments at Conglomerate, as does her co-blogger Gordon Smith, who finds the opinion unpersuasive. ScotusBlog briefly notes the decision. White Collar Crime Blog links to the rather short decsion in pdf. Over at Delaware Corporate and Commerical Litigation Blog, Francis G.X. Pileggi comments. Walter Olson, at Point of Law, notes the decision.
I wonder what the prosecutors do now. Walk away from the corpse and say, "our work here is done"?
Minutes ago, the Supreme Court reversed the conviction of Arthur Andersen on the grounds that the jury was not properly advised on the standard or culpability required to convict the accounting firm of corruptly persuading its employees to destroy documents. Justice Rehnquist delivered the opinion of the court and he states that it is not improper for Arthur Andersen to advise its employees to comply with a lawful document retention program even if it denies others the right of access to evidence. The opinion should be forthcoming shortly on the web. This decision is not surprising given the questions asked at the oral argument.
UPDATE: Decision is available here. Some interesting points include:
Maurice "Hank" Greenberg, who was ousted as the head of AIG Insurance, now has three separate high-powered lawyers, and shares them with two companies Greenberg worked for. Legal ethics profs Kathleen Clark and Lisa Lerman try to sort out the conflicts involved. . . . . When you fail a professional licensing test, and are given a chance to review your exam, would it be ethical to quickly scribble down the questions & answers and then sell the crib sheet on eBay? This would-be surgeon thought so. . . . . This upstate New York law firm, Harris Beach, which employs a state legislator, must deftly juggle the conflicts that arise between the firm's private client's and the legislator's public duties. . . . . Skadden Arps won "Firm of the Year" honors in London and accepted the prize from human rights lawyer Cherie Booth (who, by the way, is Prime Minister Tony Blair's spouse).
The proposed re-structuring of the UK legal profession, based on the Clementi Report, has prompted the Law Society to think of ways to maintain its traditional role as the leading institution of the bar. . . . . South Africa's Constitutional Court Judge Dikgang Moseneke is calling upon the government to send more legal work to young black lawyers, as a means of developing a corps of experienced black lawyers. . . . . Scottish lawyer Gordon Manson, who defrauded several clients out of millions, may have his sentence reduced in recognition of his efforts to pay back the defrauded parties. . . . . What is the political fall-out in New Delhi, India when Arun Jaitley, a politician with a private law practice, undertakes to defend a stock broker accused of facilitating a bank failure? . . . . The UK Army's prosecution unit will be dissolved, as the UK seeks a better system for investigating and prosecuting alleged abuse of military detainees.
Appellate Law & Practice posted here about the First Circuit's reversal of a lawyer's suspension. . . . . The Volokh Conspiracy's Orin Kerr wonders if lawyers are bailing out of biglaw firms, as this law.com article suggests. Carolyn Elefant, at MyShingle, comments on the same article. (My take: the article demonstrates that large firms are getting larger, not smaller.) . . . . David Velleman, at Left2Right, comments on a NYT article about lawyers supporting the efforts of the Center for Constitutional Rights in its efforts to apply the rule of law to the events at Guantanamo, and to make inquiry into abuse and torture of prisoners. . . . . Larry Solum, at Legal Theory Blog, links to a new article by Richard Matasar of New York Law School, arguing that the present system of legal education in the US is not sustainable. (My suggestion: we need to consider bringing back the LLB and letting undergrads earn it in their state schools, for a much lower cost than the post-graduate JD.) . . . . Want to re-live studying for the bar? OK, that was a ridiculous question. But you can monitor one student's preparations for the California bar exam, at A Girl Walks Into A Bar (Exam). . . . . Marquette Professor Christine Hurt, from the Conglomerate blog, published this article about teaching torts to students who may be the victims of torts themselves.
The ABA Center recently announced the publication of two new ethics books:
Lawyer Law: Comparing the ABA Model Rules of Professional Conduct with the ALI Restatement (Third) of the Law Governing Lawyers, authored by Tom Morgan, organizes the material into six topical chapters and within each chapter compares the ALI's Restatement to the Model Rules. More information is available here.
Compendium of Client Protection Rules (2005 Edition) includes all of the ABA's Model Rules relating to client protection. More information is available here.
A Los Angeles jury awarded $6.5 million in a malpractice verdict against an LA public defender who allegedly failed to spot and expose the Rampart police abuse scandal that was behind the conviction of the PD's client. This verdict surprises me and anyone who can explain it would be doing me a favor. . . . . An unusual arrangement where a lawyer was simultaneously general counsel of a corporation and a law firm partner has come to an end, possibly due to alleged conflicts. . . . . Italian prosecutors are targeting a leading Italian lawyer in an accounting scandal investigation into missing billions. . . . . Medical malpractice reforms are being pushed in the UK, but plaintiffs lawyers (or "claimants' lawyers) are pushing back on behalf of patients. . . . . A suspended Ohio judge and his alleged mistress be tried in separate trials this Fall, and the presiding court will need to decide if it should be disqualified because of alleged ties to the accused judge. . . . . The increasing importance of antitrust and trade law across the Atlantic created an opportunity for formerly high ranking DOJ attorney Hewitt Pate to move to Hunton & Williams. . . . . OK, so we really are heading toward an era of law firm awards galas, like this one where Magic Circle firm Linklaters won European Tax Litigation Firm of the Year. What's next? Law school of the year awards? Blawgs of the year awards?
I don't mean to pick on class action lawyers, but sometimes they do get slammed by the court. . . . . Buchanan Ingersoll "buys" the IP boutique Burns Doane? The acquiree doesn't even get the dignity of a "merged" or "acquired"? . . . . Commercial considerations have led a law firm to non-renew its contract as legal representative of the city of Laramie, Wyoming. . . . . We don't always learn why criminal defense counsel move to withdraw, because they often refer to unspecified ethical issues, as in the Portland, Oregon defense of Sung Koo Kim.
