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The ABA's ejournal reports that "the ethics committee of the North Carolina State Bar has issued an opinion holding that an attorney can report a client’s wrongful conduct to the U.S. Securities and Exchange Commission, even if such action would seem to violate confidentiality provisions in North Carolina's rules on lawyer ethics."
The WSJ ($) reports today that prosecutors are informing (warning?) firms that they might be less likely to be deemed "cooperative," and thus more likely to be indicted, if they pay the defense fees of indicted officials. White Collar Crime Profs Blog has a related post. The Thompson memo also states that in deciding whether an entity has cooperated, prosecutors should take into account such things as whether the entity disclosed the results of any internal investigation and whether it waived its privilege.
I think the fee issue is different from the waiver and disclosure issues. The case for the privilege itself is not terribly strong, and that is all the more true in an entity context, where properly-advised officials know that they cannot control any privilege that might apply to their communications. Producing evidence, even otherwise privileged communications, will tend to increase the accuracy of fact-finding, and producing internal investigations (if properly done) will tend to decrease the cost of accurate fact-finding.
(The same considerations counsel against allowing selective waiver--waiver only to enforcement officials but not plaintiffs' counsel. Competent private counsel would demand the information in discovery anyway, and should get what is responsive. There is no point increasing the costs of litigation by forcing parties to re-trace investigative work already done. The probability that private litigation will uncover the facts should also reduce any incremental effect the government's policy might have in deterring investigations that might otherwise have been done. These are and will remain business decisions, and I doubt many firms will forgo investigations that might help on the criminal side in order to make life harder for Lerach, Coughlin et al.)
In contrast, leveraging firms not to pay the fees of defense counsel (which many firms may be obligated to do by bylaws or state law) will tend to make cases more one-sided, and might well impede accurate fact-finding by reducing the probability that the government will be put to its proof. I therefore am inclined to think the government should continue to press for privilege waivers and disclosure of internal investigations, but to back off on payment of fees.
It's been a while since I posted, but I claim new professor syndrome--prepping two new courses each semester has been quite time-consuming! As the spring semester begins to draw to a close, however, I've been reflecting on what it means to teach professional responsibility in a law school setting.
I am certainly not the first to note that teaching legal ethics to law students is a tough job. Let me add that if one is not a reknown legal ethics scholar such as Roy Simon, a civil rights trailblazer like Monroe Freedman, or a philosopher-king like Brad Wendel, the task is that much more difficult. Add to this the fact that my class is large (85 students), primarily 3Ls, and at night, and you begin to understand the challenge I've been facing this semester.
Having garnered advice from all sorts of PR law profs, I've really tried to make the class interesting and engaging. I've used lots of true-life stories, required small-group discussion, focused on topics theoretically interesting to law students (like admission to the bar & billing tactics), even tried to be witty. Most of these tactics have met with limited success, however. Thus I've been daydreaming about whether law schools could teach legal ethics in a different way. Here are some other ways of teaching PR that I've been mulling over:
1. The "pervasive" method, where there is no one course in PR, but legal ethics "pervades" the curriculum. Most famously used at Yale, at least until the ABA tightened up requirements.
Pros: Easier to talk about ethical behavior when it is situated in real law--this could be very effective in, say, a crim law or securities class.
Cons: Hard to ensure that the basics of legal ethics are taught this way, what with professorial autonomy and all.
2. The "clinic" method, where all students are required to participate in a three-week clinic (over winter break?) where they work with real clients and think about real-life ethical issues.
Pros: Real clients and real issues would force students to grapple with ethics in an active, not passive way.
Cons: Myriad. Hard to coordinate all these mini-clinics, especially in a large school. Need a huge clinical staff. Possibly not in best interests of clients. Taking away winter break would be extremely unpopular. And I'm for fewer required courses, not more.
3. The "first-year legal writing" method, where PR is taught in the 1st year, combined with writing assignments focused on ethics.
Pros: Students are forced to think more deeply than just reading a casebook. Issues could be taken from real-life incidents.
Cons: Would disrupt legal writing programs already in place. Would need more legal writing staff to supervise. Unclear if first year is the right time to be introducing sophisticated PR ideas.
4. The "seminar" method, where PR is taught as a seminar focusing on one aspect of ethics, such as philosophy or criminal defense.
Pros: If given the option to focus their interests, students might be more engaged and excited. Smaller classes would allow more attention on each student.
Cons: Immense faculty resource grab. Plus, possibility that some students not interested in *any* aspect of legal ethics.
5. Finally, and perhaps most radically, the "post-graduation" method, where legal ethics is not taught in law schools at all. Instead, legal ethics is two-month long required CLE taken after the first year of practice, and given by the state bar.
Pros: After a year of practice, young lawyers would have a greater appreciation of how ethics--or the lack thereof--functions in the legal world. And the possibility of losing their law license would provide plenty of incentive to pay attention.
Cons: Would foist a tremendous amount of work onto the state bar & cle providers. Would leave first-year lawyers with no legal ethics knowledge at all as they start their careers. Finally, removing legal ethics from law schools would put some PR profs out of work!
Quite honestly, I'm not sure if any of the above possibilities would be any better than the system we've got now. But every so often, it's good to shake up the old standards, don't you think? I'd love to get some comments, reactions, or criticism about the above, or any more ideas....
(n.b. snarky comments or long rants about' lack of lawyer ethics will be deleted. Serious comments only, please).
As John Steele mentioned in a post last week, the Boston Globe recently reported that Ropes & Gray, a prestigious Boston law firm, dropped Catholic Charities as a client. By most accounts, Catholic Charities has been an outstanding provider of adoption services in the Boston area for decades, but it recently stoppped providing these services because the state threatened to challenge the organization's decision to stop placing children with same-sex couples.
There's more to the story, which you can find here, but the interesting aspect from a legal ethics perspective is whether Ropes & Gray acted appropriately when it dropped Catholic Charities as a client. The story explains that Ropes responded, at least in part, to pressure from a group of Harvard Law School students.
From a purely doctrinal perspective, Massachusetts Rule 1.16(b)(3) (which tracks the Model Rule) says that a lawyer can drop a client if the "client insists upon pursuing an objective that the lawyer considers repugnant or imprudent." In this case, Ropes & Gray appears to have a very strong commitment to gay rights related issues, and it appears that Catholic Charities' decision was at odds with that commitment. So if the lawyers involved with the matter thought that Catholic Charities' decision was repugnant or imprudent, the firm's decision to drop the client was consistent with the rules of ethics.
The ethics rules, however, are a base line. Many lawyers strive to provide services well beyond what the ethics rules require, and many people believe that a lawyer should never drop a client merely because the client is (or has become) unpopular or because the lawyer has some discomfort with a client's position.
That said, a critical question here is whether Ropes & Gray was representing Catholic Charities on a pro bono basis. If so (and there is evidence to support this assumption), the decision to drop the client is much more justifiable. This country has an enormous amount of unmet legal needs; statistics suggest that as much as 80% of the legal needs of the poor go unmet. So when a lawyer takes on a matter pro bono, it's a meaningful act. It's an act that reflects that lawyer's values in a way that taking on a paying client does not.
Imagine a lawyer who represents a local medical clinic on a pro bono basis, because the clinic serves the needs of the poor. Also assume that the lawyer is a devout Catholic who is firmly pro-life. Now imagine that the local medical clinic starts to offer abortion services and asks the lawyer to help with some legal issues that have arisen. Would the lawyer have to help? I think the answer is certainly no, and the lawyer would be justified in dropping the clinic as a client. In the same way, if Ropes & Gray was representing Catholic Charities on a pro bono basis, I believe its decision to drop the organization as a client was entirely justifiable.
What do you think? Comments are open.
The New York Times ran an interesting story yesterday on why so few women become partners at elite law firms. You can find the article here.
If Harvard law students are offended by a law firm's representation of the Catholic Charities in opposition to adoption by gays and lesbians, can those students bring pressure to bear? Apparently they can.
I've always been intrigued by what lawyers hang on their office walls. When I was in practice, some lawyers hung thier bar admission certificates as well as their law school and undergraduate diplomas. Others simply hung their children's art work.
For what it's worth, I hang diplomas, bar admissions, and my children's art work. But I was recently wondering why I put up the diplomas and bar admissions. (I could ask the same question about my kids' art work, but since this is a blog about the legal profession, let's focus on the diplomas and bar admissions.)
Part of it is inertia. I hung the stuff up when I started teaching five years ago, and I have simply been too lazy to find something else for my wall. Also, I spent money getting the things framed, and it seemed a little silly to just stick them in a closet at home, although I have done that with other framed items.
In one way, the hanging of diplomas seems to be a relic from an age when people (e.g., clients, law students) wanted to know more about your educational background. Of course, the relevance of that information is debatable, but you can understand why some people would want to know it. These days, of course, you can find most people's educational background and bar admission status with a google search. So the hanging of these things doesn't serve much of an information-providing function.
One might think that hanging diplomas is pretentious, and in some cases, that might be true. In my experience, I have not observed any correlation between a lawyer's pretentiousness and his/her wall art, so I'm skeptical that diploma hangers are motiviated by snobbery.
Certainly, I could find more attractive things to hang in my office, so my ultimate question is: should lawyers and law professors hang their credentials on their walls? I'm genuinely curious as to what people think. If you leave a comment, please mention whether you are a lawyer, a non-lawyer, or an academic; whether you hang your credentials in your office; and why you have made that decision.
The availability of metadata in electronic documents has raised some interesting and important legal ethics issues. David Hricik has commented on the subject here and elsewhere. Now Ben Cowgill's blog contains an extensive list of resources related to the various issues raised by metadata's existence. If you need to know more about the legal ethics issues associated with metadata, the site is full of great links.
Do you have an article on legal ethics or the legal profession that you recently published or just submitted to law reviews? If so, how about blogging about it on legalethicsforum.com?
We thought it might be fun and interesting to have some legal ethics scholars serve as guest bloggers to describe some of their recently published, or soon to be published, work. This blog offers a nice opportunity to describe your scholarship in more detail than is feasible through the abstracts contained in the Social Science Research Network mailings, and it also offers the opportunity for some interaction with other people regarding your ideas.
If you are interested in presenting your legal ethics scholarship on this blog, please contact me by email. Depending on the level of interest, this could be a regular feature of the blog. But for now, I'll give it a shot for a couple of scholars. We'll tentatively aim for Monday, April 3 for the first author.
Other blogs have used the guest blogger idea to present new scholarship, and the hope is that legalethicsforum.com can do the same for scholarship on the legal profession. I hope to hear from you.
