I tried to come up with just 10 stories for a list of the Top Ten Legal Ethics Stories of 2005. I failed. So I have listed the Top Ten, with 21 honorable mentions. In my opinion, the top legal ethics themes of the year were (1) judicial independence, which was driven by multiple issues related to the three SCOTUS nominations, political rhetoric directed against judges, the Terri Schiavo case, the tragic murder of Judge Lefkow's family members, and the tragic courtroom shooting in Fulton County; and (2) the rule of law, which was driven by debates over OLC and other legal memos written by John Yoo and others, and by the detainees' suits for access to the legal system. I'm sure I've missed some obvious ones, but here's the list. John Steele ******************************************** 1. Legal advice from government lawyers, including OLC memos by John Yoo and others, on issues such as the Geneva Convention, torture, and intelligence intercepts, prompted widespread debate over the ethical duties of government lawyers. 2. The detainee cases raised issues of access to the legal system and access to a legal defense. 3. All three SCOTUS nominations raised the issue of how far a judge should go in answering the Senate's questions during the nomination hearings. 4. Judicial recusals were once again a hot topic. Nominee Sam Alito's belated recusal after he had already ruled in the Vanguard case raised debate because he had invested in Vanguard mutal funds. Likewise, the propriety of John Roberts non-recusal in the Hamdan case provoked heated debate. 5. Criminal defense lawyer Lynn Stewart was convicted for assisting her client, a convicted terrorist, to unlawfully send political messages from jail. 6. For both Roberts and Alito, older memos and briefs raised the issue of whether a lawyer is accountable for the client's views. 7. Scott Wiegand, general counsel of PurchasePro, was acquitted in his criminal fraud trial; Mark Belnick, general counsel of Tyco, was likewise acquitted. 8. The Terri Schiavo case highlighted the role of guardians ad litem and judicial independence.
10. Judge Lefkow's husband and her mother murdered, raising concerns about judicial safety and independence. For a time, one suspect was Matthew Hale (who, years earlier, had been denied law license for racist beliefs).
UPDATE: In the comments, Walter Olson suggested that I should have added Judge Janis Graham Jack's ruling which found indications of massive fraud in the silicosis litigation. He's right, so I've added it here.HONORABLE MENTIONS
11. In the UK, the Clementi Report prompted wide-ranging and fundamental reforms.
12. There were an increasing number of judicial recusals, based on personal conscience, in cases where teens were seeking abortions without parental consent. The recusals highlighted the tension between personal morality and professional morality.
13. Judge Calabresi was admonished by Second Circuit Judicial Panel for inappropriate remarks.
14. The Milberg Weiss investigation continued to simmer.
15. Judge Robert Chatigny threatened disciplinary proceedings agaist a lawyer for a so-called "death row volunteer."16. Florida State Bar forbade use of ice cream cones and pit bulls in lawyer ads.
17. Ninth Circuit clarified privilege issues regarding a law firm's website communications with potential clients.
18. Massachusetts lawyers were recommended for discipline after tricking a judge's clerk into revealing the judge's in-chambers deliberations.
19. Morgan Stanley and Kirkland & Ellis parted ways, citing conflict, as a $604 million judgment was entered against Morgan Stanley.
20. A Los Angeles jury delivered a $6.5 million malpractice verdict against a public defender.
21. The Arthur Andersen conviction, implicating advice of counsel, was overturned by a unanimous US Supreme Court.
22. The Kentucky State Bar considered a lawyer's blog as "advertising."
23. DOJ lawyers claimed that political appointees had sabotaged the tobacco case damages phase.
24. Ethics allegations dogged David Boies.
25. There was increased focus on, and criticism of, law school rankings.
26. San Diego City Attorney Michael Aguirre raised "who's the client" issues.
27. Large law firms continued to grow larger; more firms adopted two-tier or multi-tier structure; and empirical studies probed satisfaction levels and profitability at biglaw firms.
28. After a hearing, a California judge rejected Jack Quatman's allegations that it was routine practice for prosecutors to keep Jews off of Alameda County death penalty juries.
29. A Fulton County judge, a sheriff's deputy and a court reporter were shot and killed by a prisoner.30. There were criminal indictments arising out of the structured tax avoidance plan scandal. (Hat tip to Tanina Rostain for suggesting this story.)
31. SCOTUS Nominee Harriett Miers was attacked on grounds of her credentials. Her nomination was withdrawn purportedly on need to protect privilege.
Surprised to see that Judge Janis Graham Jack's ruling finding indications of massive fraud in silicosis litigation didn't make the cut. It was certainly much talked about in mass-tort circles, and poses uncomfortable ethical questions for a number of large law firms handling asbestos cases.
Posted by: Walter Olson | January 08, 2006 at 10:06 PM
Walter,
You are dead right. I missed that one completely in my review of the year's news. I will add an update. It does belong in the Top Ten.
Posted by: John Steele | January 08, 2006 at 10:21 PM
I have a question for anyone regarding the propriety of Alito being prepped by NSA and DOJ staff on how to answer questions about the extra-judicial wiretapping the Bush administration claims it could order. Is it merely unethical if it's true, or might it even be illegal if Alito was actually "advised" or coached on what to say if asked?
Also, I understand a Republican Senator was on one of Alito's murder boards. Who was that Senator? It wasn't someone on the committee, was it?
Posted by: Chris P. | January 11, 2006 at 02:37 PM