Legal Ethics Forum

Texas' New Advertising Rules

Texas has some new legal ethics rules governing advertising that are causing a ruckus. (That link may be to a members-only site; they should be on Westlaw.)  I got an e-mail from my old law firm saying they'd become the focus of legal ethics cle's, and I've taken a look at them.

Whoa, Nellie, as I used to say in Texas.  How's this for openers:  if the firm mentions a gross result in an ad (e.g., "we recovered $1,000,000 for a plaintiff in a med mal case") it has to disclose how much the fees were, and expenses, and other information.  Otherwise, the ad is false and misleading because it creates "unjustified expectations."  I've toured some websites, and those sorts of "past results" statements (along with the usual "your case may be different" disclaimer) are pretty common on firms across the country.

It strikes me as odd to say that a statement that "we obtained a verdict for $9m" for a client is false, if there's no intimation that that amount was actually recovered.  What do you all think, though?  I guess it depends on who you perceive to be reading the ad -- a med mal plaintiff, or in-house counsel for a company with some huge breach of contract claim.  But, that suggests that per se saying they are false and misleading goes too far.  Yes, no, or so what, it's still summer?

Professor Rotunda Replies to Profs Gillers, Luban & Lubet (Roberts, Recusal, and Hamdan)

For better or worse, we've entered a golden age of debates about judicial recusals, and the upcoming hearings on the Roberts nomination will bring the debate to a crescendo.  Two posts below, Brad Wendel discussed the issue and linked to the Slate article by legal ethics profs Gillers, Luban, and Lubet.  To provide an opposing view to the Gillers-Luban-Lubet position, I am posting a letter from Professor Ronald Rotunda (George Mason) to Senator Specter.

Vacation Is Over: What's Happening (8/29/05)

Vacation is over, alas.  Here's some legal ethics and legal profession news.  Linklaters has overtaken Clifford Chance to seize the No. 1 position in the City of London.  Fourteen of the top 50 London firms are US-based    . . . .    One of the grand old firms, Coudert Brothers, is being sold off in pieces.  It looks like Orrick will be getting the highly-coveted China practice.  Coudert was one of the pioneer international firms, and it served as a conduit of French capital into the US.    . . . .    Lots of bloggers are commenting, both pro and con, about the NYT article on the fact that elite law school faculties are more Democratic than the public at large.    . . . .     Legal ethics profs, including NYU's Stephen Gillers, are playing a prominent role in the debate over the John Roberts nomination.    . . . .    Here's an interesting profile of Jamaica's top prosecutor.  She says that "As a female professional in a man's world, positive thinking is a must. Second, one must have confidence in yourself and your ability. Third, you have to have 'stick-to-itiveness'. Fourth, you have to maintain high professional standards and be prepared to work very, very hard, even when others try to derail you. Finally, you also need a winning smile. You must be like a horse with blinkers, saying I am doing what is right."    . . . .    A Florida judge's imposition of a harsh jail sentence for juror contempt has led to an ethics probe of the judge.    . . . .    Hypothetically speaking, if a leading plaintiffs class action firm were indicted for criminal breach of its fiduciary duties toward class members, could there be class actions against the class action firm?  This is all still hypothetical, of course.

Should Roberts Have Recused Himself in Hamdan?

An article in today's Washington Post reveals that John Roberts interviewed with administration officials, including Alberto Gonzales, Dick Cheney, and Karl Rove, while sitting as a member of the three-judge panel that was considering Hamdan v. Rumsfeld.  The D.C. Circuit in that case reversed an injunction obtained by a Guantanamo Bay detainee, halting trials before military commissions at Gitmo.  Meetings took place before oral argument in the case, and as late as July 15th, the date the opinion was issued. 

The judicial ethics question is whether Roberts should have recused himself once it became apparent that he was being considered by the administration as the replacement for Justice O'Connor.  Factually, the "theory of the case" for recusal is that Roberts might have favored the administration's position (which eventually won over all three members of the panel) as a quid pro quo in exchange for the nomination.  Or, less dramatically, he might have been moved by a spirit of gratitude to take the administration's arguments more seriously.  After all, the military commission trials are central to the administration's strategy for dealing with suspected terrorists.

The applicable recusal standard is found in 28 U.S.C. § 455(a):  A judge must recuse himself or herself in any case in which the judge's "impartiality might reasonably be questioned."  See also ABA Model Code of Judicial Conduct, Canon 3(E)1.  The key word here is "reasonably."  Allegations of impropriety and vague insinuations are not enough.  That much is clear from Justice Scalia's memo denying recusal in the duck-hunting case -- see Cheney v. U.S. District Court, 541 U.S. 913 (2004). 

The best argument against recusal here is that it would unrealistically burden federal judges, particularly in the D.C. Circuit, in which the administration is often a party.  (Monroe Freedman makes this argument in the WaPo article.)  If Roberts were required to recuse himself under these circumstances, wouldn't the principle apply by analogy to a case in which a judge who was hoping to be a nominee was on a panel considering a case important to the administration?  Speculation continues that Chief Justice Rehnquist may step down.  What happens to all of the judges on the proverbial "short list" -- do Michael Luttig, Pricilla Owen, and Edith Brown Clement have to recuse themselves to avoid the appearance that they attempted to curry favor with the administration? 

The other argument against recusal is that the evidence does not support an inference of impropriety.  After all, two other judges sided with Roberts, who did not write the panel opinion.  I am not by any means an expert on separation of powers, military law, or international humanitarian law, but from what I do know, the Hamdan opinion does not seem like raving lunacy -- i.e. something that could be explained only as an attempt to suck up to the administration, not a good-faith application of law. 

UPDATE:  A formidable trio of legal ethics experts -- Steven Gillers, David Luban, and Steven Lubet -- have published an article in Slate arguing that Roberts should have recused himself.  Their principal contention is that Roberts's participation created an appearance of impropriety, even though there may have been no actual impropriety.  My quarrel is not with their application of the standard, but with the appearance of impropriety standard itself. 

The appearance standard is not part of the recusal statute, 28 U.S.C. § 455(a), but courts applying the statute have often extended it to cases in which the judge's conduct might create the appearance of bias.  See Richard E. Flamm, Judicial Disqualification: Recusal and Disqualification of Judges § 24.2.2.  The idea is that satisfying the more stringent appearance of impropriety standard will satisfy the public that the judicial process is free from bias.  I think focusing on appearances, rather than the actual circumstances that might create bias, is an unhelpful distraction in judicial ethics.  It's true that the Supreme Court often talks in terms of appearances -- not only in the Liljeberg case cited in the Slate article, but also in the leading case of Liteky v. U.S., 510 U.S. 540 (1994).  Maybe this is a radical argument, but I think the discussions of appearance of bias, as distinguished from facts suggesting actual bias, are dicta, and we can analyze these cases without a freestanding concept of appearance of impropriety.  Moreover, we should, because the standard stinks. 

The first problem is how we ascertain the appearance of impropriety, apart from any actual impropriety.  In the duck-hunting case, Justice Scalia noted ascerbically that many of the editorials calling for his recusal did not even have the facts right.  What evidentiary showing would someone have to make to prove appearance of impropriety in the Roberts case?  It would be hard to separate public outrage at this case from general outrage at the Bush administration's handling of the Gitmo detainees, or the war on terror (or global struggle against violent extremism, or whatever the heck they're calling it now).  Also, as the Scalia memo in the duck-hunting case points out, we'd have to ascertain that op-ed writers, those surveyed in public opinion polls, elite opinion-makers, etc. have their facts straight.  In addition, the test seems to invite subjectivity -- as a Democrat, I might be harsher on Roberts because I generally impute malicious motives to the administration.  Surely my suspicion of Roberts must be reasonable, in order to count toward the appearance of impropriety.  But if reasonable suspicion is the test, then what does the appearance standard add to the general reasonable evidence of bias standard of the statute?  Once it's clear that not any ol' allegation of bias will do, the appearance standard collapses into the objective standard of Section 455(a). 

Second, and I believe a much more substantial problem, is the tension between the appearance of impropriety standard and the balancing of policies apparent elsewhere in the law of judicial disqualification.  For example, a panel at the ABA Professional Responsiblity section annual meeting discussed a hypothetical in which a judge was active in the Boy Scouts, which discriminates on the basis of sexual orientation.  (Professors Gillers and Lubet were on the panel.)  Should the judge be disqualified from a matter in which the custodial rights of same-sex parents were at issue?  The July 2004 draft revisions to the ABA Model Code of Judicial Conduct provide that a judge may not "hold membership in any organization that practices invidious discrimination on the basis of . . . sexual orientation."  But, "invidious discrimination" is further defined in comment [1] to exclude an "intimate, purely private organization whose membership limitations could not be constitutionally prohibited."  Obviously the drafters of the rule are trying to accomplish a complex, delicate balancing of policies here -- protecting the right of citizens to be free from invidious discrimination, but also protecting the associational liberties of judges.  Whether one agrees or not with the balance struck by the rule, the important thing is that the "appearance of impropriety" standard blows up the compromise, by requiring the judge to guess at whether recusal would be required in situations not covered by the rule governing actual bias.  The rule would not reach the Boy Scouts, because of the Supreme Court's Dale decision, but one might argue that active participation in activities of the Boy Scouts nevertheless constitutes an appearance of impropriety.  Thus, the careful balancing of the rule is out the window and the disqualification issue is unnecessarily muddled. 

One final point is that the arguments in favor of disqualifying Roberts in Hamdan and Scalia in the duck-hunting case seem to get the causation backwards:  Dick Cheney didn't invite Scalia to go duck hunting with him because Scalia was a liberal or a moderate, whose vote might be purchased by a little boondoggle to Louisiana.  Rather, Cheney and Scalia went on the trip together because they were friends, and they were friends in part because they are ideologically compatible.  Scalia's predisposition to side with the administration (if he has one, and if he is not able to overcome it in particular cases with a stronger disposition to serve as an impartial judge) preceded the trip, and was arguably part of the cause of the trip.  Similarly, any disposition Roberts might have to side with the administration in Hamdan was not caused by gratitude for being considered for the Supremes -- rather, Roberts's candidacy was "caused" in some sense by this preexisting disposition.

I tend to think that underlying many appearance of impropriety arguments is unease with judges making decisions, in part, based on contestable political values.  However, the ideal of impartial judging does not require judges to be blank slates.  Roberts is going to be on the administration's side more often than not, but that's not the kind of "bias" that should be disqualifying. 

The NARAL Ad and the Ethics of Lawyering

The controversy over an ad run by NARAL against the Roberts nomination is well summarized by Linda Greenhouse in today's NY Times.  The ad seeks to associate Roberts with violent abortion clinic bombers, by virtue of his role in the Bush 41 administration's Solicitor General's office.  The administration opposed the application of a Reconstruction-era statute to clinic bombers, on the ground that their protests were not motivated by discriminatory animus toward women as a class, but were aimed instead at stopping abortion.  Whatever the merits of that position (and it seems to ignore the disproportionate impact on women of blocking access to clinics), it carried the day 6-3 in the Supreme Court, in Bray v. Alexandria Women's Health Clinic. 

The debate over whether the ad is misleading centers around whether it is fair to say that Roberts (or the Bush administration) was "on the side" of abortion clinic bombers.  What does it mean to be on the "same side"?  In one sense, the administration was on the same side, because the government chose to participate as amicus curiae, in favor of the legal position taken by the defendants.  But that's a dumb argument.  One can "side with" a party, in the sense of believing that it has the better legal argument, without endorsing other aspects of the party's system of desires and motivations.  This is a well known phenomenon -- consider the ACLU's defense of the American Nazi Party, which sought to obtain a parade permit through an Illinois town populated by Holocaust survivors.  The ACLU "sided with" the Nazis in that case, and reasonable people can disagree over whether that decision was the right one, but surely everyone recognizes that the ACLU did not "side with" the Nazis in the sense that it endorsed the racist program of the demonstrators.  Rather obviously, the ACLU believed the Nazis were relying on a generally applicable First Amendment right, which was intrinsically valuable, regardless of the identity of the party asserting it.  A similar case, this one involving the Klan, was handled by an African-American volunteer lawyer for the ACLU in Texas, for the same reason -- the Klan was asserting a right that the NAACP had relied upon during the civil rights era, and the lawyer believed the right itself was worth defending.  (For a careful discussion, see David B. Wilkins, Race, Ethics, and the First Amendment:  Should a Black Lawyer Represent the Ku Klux Klan?, 63 Geo. Wash. L. Rev. 1030 (1995).) 

The president of NARAL defends the ads as tough and hard-hitting.  They may be that, but they ignore a central commitment of lawyers, which is to the rule of law and not to the motivations and viewpoints of particular clients.  We can criticize the Bush administration in political terms for seeking to throw the weight of the United States behind the violent campaign of intimidation directed against women, but that criticism should not extend to lawyers who make reasonable arguments on behalf of the U.S. 

UPDATE (8/12):  NARAL has said it will pull the ads, calling them a distraction from the debate we should be having over Roberts.  The president of NARAL says she hopes to continue educating the public about the threat the Roberts nomination poses to reproductive freedom.  Not to belabor this point, but the threat to the Supreme Court's protection of reproductive freedom was posed by the candidacy of George W. Bush.  We (liberals, that is) lost that battle when Bush defeated Kerry.  Agreeing with the president's political views is not a legitimate reason to oppose a nominee.

Ideology and Judicial Selection

I have been writing about the Roberts nomination, with regard both to the controversy over the application of the attorney-client privilege to memos prepared while at the Solicitor General's office and to the broader issue of the relevance of Roberts's political views.  Readers interested in the second question should check out a short, highly accessible new article by Dawn Johnsen, a law professor at Indiana U. -- Bloomington, and a former Acting Assistant Attorney General in the Office of Legal Counsel.  The article is "Should Ideology Matter in Selecting Federal Judges?  Ground Rules for the Debate," and is available from SSRN. 

Johnsen makes two points that should be part of the public debate over this nomination:  (1) Presidents since the founding era have selected federal judges, in part, on the basis of the candidate's political views, and (2) confirmation debates are unnecessarily obscured (or deliberately obfuscated) through the use of terms like judicial activism, ideologue, "interpret, not make law," litmus test, and extremist.  She points out the maddening tendency of commentators to decry litmus tests and ideological selection, but then to observe that of course the candidate's "judicial philosophy" is a relevant criterion to consider in the nomination or confirmation decision.  But her argument is not the simplistic position that the candidate's political views do not matter, because judges can interpret the law without reference to contestable political values.  Prospective judges' political viewpoints do matter, we should have candid discussions of them, but (this is my argument, not Johnsen's) a nominee should be confirmed if a reasonable interpretation of the available evidence supports the belief that the candidate's political views and commitment to the rule of law will produce decisions within the range of reasonable outcomes, even if Senators might disagree with those decision. 

Anonymouslawyer.com

This blog (

http://www.anonymouslawyer.blogspot.com/) in case I can't do it write, purports to be written by a partner at a major firm.  I post it because it includes things like this:

Our incoming class of first-year associates takes the Bar Exam tomorrow. There's usually one or two who fail. Pathetic. Most people here pretend it's okay, but it's all for show. You can't really expect to fail the bar exam and then be respected around the office. They're mercilessly mocked, to their faces and behind their backs. They have two months with nothing else to do but study. If they can't pass an exam on the first try, how are they going to do the cutting-edge work our clients demand? You don't get a second chance to file a motion.

Well, you can amend the motion. So you sort of do get a second chance.

Usually, failing the bar is a sign of things to come. No work ethic, lazy intellect, unprepared for life at a big firm. More suited to another line of work. Maybe another service industry. Maybe a paperboy.

But occasionally it's just a fluke. Occasionally someone can be smart and talented and just screw it up, for whatever reason. The questions just happen to hit the areas you're least comfortable with. You lose track of time. The planets align in such a way that on the most important test of your life, you go blank and it all unravels. Or maybe there's a part of you purposely trying to sabotage it, that knows you're not meant for this life, and that wishes you'd reconsider. This is the warning shot. The excuse to escape. You can heed its call, or you can ignore it, take the test again, and go on blindly assuming this is the life for you.

I ignored the call. Very few people here remember this, but I failed the Bar Exam the first time I took it. The day the results were released was without question the most shameful moment of my life. My name wasn't on the list.

It has other interesting views of the morals and ethics of modern large firm practice.  Anyone know anything about its author?

Are These Disclaimers Necessary (or Even Helpful)?

Anyone who receives e-mails from lawyers at big firms has likely seen one of these newfangled disclaimers, meant to shield the sender from liability for providing tax advice that turns out to be incorrect.  The disclaimers are motivated by the newest version of IRS Circular 230, which is aimed at the problem of lawyers' involvement in abusive tax shelter schemes.  One provision of Circular 230 prohibits tax advisers (attorneys and enrolled agents) from signing a return if the adviser determines that the return includes a position that does not have a "realistic possibility" of being sustained on the merits, unless the position is non-frivolous and adequately disclosed to the IRS.  § 10.34.  "Realistic possibility" is further defined as a greater than 1 in 3 chance.  Circular 230 also sets out standards for providing "covered opinions" -- i.e. opinions on transactions that are substantively similar to listed tax shelter transactions -- as well as reliance opinions and marketed opinions, but this is getting too complicated already. 

The strategy for law firms is to ensure that any advice they give clients cannot possibly be interpreted by clients as advice with respect to positions they ought to take in tax filings before the IRS, except for advice that the firm intends as "legal advice with respect to tax positions" or however we want to define the relevant category.  The worry is that a client may interpret a stray remark in an e-mail as genuine, full-on legal advice with respect to tax positions, and thereby expose the firm to liability for negligence when the IRS comes back and disallows the tax treatment sought by the client.

Here is an example of the disclaimers that tax advisers are beginning to use, taken from a newsletter published by the N.Y. State Society of CPAs:

Under 6662 of the Internal Revenue Code, an accuracy-related penalty may be imposed on an underpayment of tax unless it can be shown that there was a reasonable cause for the underpayment and the taxpayer acted in good faith with respect to the underpayment. Pursuant to Treasury Circular 230 regulations, Government Practice Before the IRS, we wish to advise you that this written tax advice has not been prepared to be used, and cannot be used, by you for the purpose of avoiding such penalties that may be imposed.

Is all that really necessary on every outgoing e-mail?  Wouldn't it be simpler to remind lawyers that they ought to be careful with stray advice?  According to an article in the ABA/BNA Lawyers' Manual on Professional Conduct (unfortunately not available without charge on line), many firms are "instituting educational components to their compliance programs . . . to ensure that practitioners subject to the regulations understand their responsibilities."  So far so good.  Firms are also creating internal procedures for the careful vetting of opinion letters.  Also a good idea, particularly given the massive liability that firms can face for negligent advising in tax matters (see, e.g., Jenkins & Gilchrist).  Firms add the silly disclaimers to their Circular 230 compliance programs because, as the article reports, "[m]any clients expect quick, short answers to their questions" but lawyers are worried that their advice will trigger Circular 230 disclosure and reporting requirements if the advice pertains to tax positions taken by clients.  Moreover, Circular 230 itself contemplates these disclaimers, because it permits attorney to provide "limited scope opinions" which do not trigger the substantive requirements of Circular 230, provided this exclusion is prominently disclosed to the client.  § 10.35(e).

I suppose a highly risk-adverse law firm might decide to include disclaimers on all outgoing e-mail from all attorneys, or from all tax attorneys, rather than trusting lawyers to use discretion to apply the disclaimers only to e-mails containing quick tax advice (or advice that the client could reasonably construe as quick tax advice).  But not only is it silly to include these disclaimers in purely social e-mails (of which I've received several), it can't help the firms' client-relations efforts to essentially admit to clients that the firm doesn't trust its attorneys to use sound judgment in deciding when to notify the client not to rely on the advice contained in the message. 

The other question we can ask about these disclaimers is whether they will be effective if stuck onto an opinion that a reasonable client would otherwise interpret as containing substantive tax advice that it should rely upon.  The opinion would have the paradoxical status of appearing to be something but disclaiming that it is that something (kind of like Magritte's painting of a pipe that says "this is not a pipe").  In a case like that, I could imagine a jury (in a malpractice case, for providing negligent advice) concluding that a reasonable client could have understood that the lawyer intended the client to rely on the advice, notwithstanding the disclaimer.  Indeed, the barrage of disclaimers on routine e-mails might make the situation worse for the lawyer, because clients might become accustomed to tuning them out.  It's like the problem of "warnings clutter" in product liability law, where consumers ignore warnings of serious safety hazards because they've become inured to excessively lurid warnings. 

In short, I can see why firms adopt these disclaimers, but an intelligent complaince program could probably get by without them. 

Privilege Controversy Not Going Away

Today's Daily Kos blog has an entry taking the Washington Post editorial page to task for supporting the administration's claim that it need not release memos prepared by John Roberts while serving as Deputy Solicitor General in the Reagan administration.  Although I'm a faithful Daily Kos reader, I have to point out that many of these arguments are off-base. 

First, the Post editorial rightly points out that this is primarily a political issue.  The administration can waive the privilege if it chooses to, and Democratic Senators are free to press for waiver if they believe it is warranted.  That's different, though, from advancing the claim that the documents are not privileged, as Sen. Leahy has done.  Second, the Post does not uncritically support the administration's position, but simply urges a narrowing down of the scope of memos in controversy, so that any waiver of privilege will be minimally intrusive on the legitimate confidentiality interests of the SG's office.

This last point seems to be the principal point of contention between the Post and the blogger on Daily Kos.  The Daily Kos position is essentially Leahy's -- that the American people as a whole are the "client" of a government lawyer, so there is no attorney-client privilege that may be asserted to block representatives of the American people from obtaining discovery of confidential communications.  On the doctrinal argument, Daily Kos is simply wrong that the Eighth Circuit's In re Grand Jury Subpoena case and the D.C. Circuit's Lindsey case don't depend on the context of a criminal investigation.  That is a critical aspect of both decisions, as the courts emphasize repeatedly.  It might have been analytically cleaner if the courts had recognized a privilege but held that the privilege is inapplicable due to the crime-fraud exception.  The balancing approach adopted by the courts does cause some confusion, because it invites the argument that such-and-such an interest is more compelling than the government's interest in confidentiality in a given case.  But I don't think either court meant to endorse an open-ended balancing process; the significance of both cases is that a criminal investigation is unique, and completely upends any justification that might be offered for a government attorney-client privilege.

Which brings us to the last point made by Daily Kos -- that, as a policy matter, a government lawyer ought not to have an attorney-client privilege to assert in any case.  That's surely too strong.  As the Restatement comments recognize, not all citizens are acting in the public interest when they seek to compel the government to do something: 

Members of the public who assert legal interests against a public agency or officer act not in the general public interest but in their private interest or in what they assert is the public interest.  The public acting through its public agencies is entitled to resist claims and contentions that the agency considers legally or factually unwarranted.

Rest. sec. 74, cmt. b.  That sounds right to me.  The SG's office, as the litigation-policy head of the executive branch, is entitled to resist the demands of every member of the public that it reveal its internal deliberative processes.  The executive branch does purport to act in the public interest, but "the public interest" is not something that any citizen is entitled to assert on his or her own behalf.  Rather, claims about what the public interest requires are channeled through the electoral process. 

Just to be clear, I don't personally think the Bush administration is acting in the public interest, as I would define it.  But my side lost the last presidential election fair and square, so my personal beliefs about the public interest are irrelevant to what the administration is entitled to assert, in the name of the public.  And that's the crucial point underlying the government attorney-client privilege.  Although a political case might be made for waiving it, the legal case for asserting it is solid.

Roberts and Role Differentiation

A story in today's L.A. Times is a nice follow-up to yesterday's post on how not to argue against a Supreme Court nominee.  My claim was that we take very seriously the claim by lawyers that they are able to put aside their personal moral beliefs when acting on behalf of a client, yet we tend to discount statements by judicial nominees that they are willing to decide cases impartially, despite their preexisting political views.  Today's L.A. Times piece provides an interesting bit of evidence in favor of Roberts's claim to be able to act impartially:  While a partner at Hogan & Hartson, he assisted, in a pro bono capacity, the lawyers challenging a Colorado initiative prohibiting local government bodies from enacting anti-discrimination ordinances on the basis of sexual orientation.  Although he did not write the briefs, he advised the plaintiffs' lead counsel, and helped moot the oral argument.  The plaintiffs' position was ultimately upheld in Romer v. Evans. 

The lesson of this episode is not that Roberts is pro-gay rights, and is likely to be acceptable to moderates and liberals for that reason, but that he takes seriously the ideal of professional neutrality often stated by lawyers.  As the article puts it:  "Roberts' work on behalf of gay rights activists, whose cause is anathema to many conservatives, appears to illustrate his allegiance to the credo of the legal profession: to zealously represent the interests of the client, whoever it might be."  Speaking as a liberal observer of the Roberts nomination, I can live with a conservative nominee who is likely to make a good faith effort to decide cases impartially as a judge.  In fact, I think that's the best anyone can hope for.