Legal Ethics Forum

Qualcomm-Broadcom ruling: a taste of what's to come?

Here's the American Lawyer Media coverage.

This sort of dispute will happen more often, as the federal courts place more responsibility on the lawyers to ensure full discovery compliance in big cases with e-discovery.  And once the judge displays unhappiness with the quality of discovery compliance, there will arise a tension, if not an outright conflict, between clients and their lawyers.  That tension has always been there, but in the wake of the Kirkland-Morgan Stanley matter and this Qualcomm matter, I expect large firms and their large clients will begin to discuss, negotiate, and document discovery compliance issues more intensely at the outset of large litigations than they do now.  They will also create more internal documentation in the course of litigation, to build a better record of who is responsible for what compliance.

Luban's new book, "Legal Ethics and Human Dignity"

A must-read for legal ethics wonks and for those interested in the intersection of legal process and human rights, David Luban's new book, Legal Ethics and Human Dignity, is now available (at a steep price).  Over at Balkinization, Luban outlines the contents, which include a chapter on "The Torture Lawyers of Washington."  I won't be able to read it for several weeks, but if anyone has early thoughts, let us know.  It would be interesting to read Luban's book in conjunction with Jack Goldsmith's new book, The Terror Presidency.

More about Lynne Stewart at Hofstra's "Lawyering at the Edge" Conference

Here's the site for the conference, and for the curious readers out there, here are my earlier posts guiding you through the actual transcripts of the crime she committed and arguing that she had betrayed the criminal defense bar.  I'm looking forward to seeing her speak, although I certainly don't consider her as a model of legal ethics.  And it's not really accurate to say that she's "teaching legal ethics."  It's an academic conference about "lawyering at the edge."  In fact, I will be using her crime as part of my case study on how not to lawyer.  The conference will have some great speakers who have been involved in a number of high-profile cases.  If you're near NYC next month, check it out.

UPDATE:  Welcome, Insta-readers.    One more comment about the conference: we'll be discussing lawyering in the context of Nifong, the torture memos, Gitmo, Lynne Stewart, and much more. 

Lynne Stewart at Hofstra

There was a nasty comment on a WSJ blog about the fact that we have invited Lynne Stewart to be a speaker at our upcoming Ethics conference Oct. 14-16.   (Please let me know if you want a brochure.)  That has produced several letters to the Dean, ranging from angry to strident.  Here is my reaction.  Comments appreciated.

Ms. Stewart is not being invited to teach trial advocacy or legal ethics.  Implicit in lawyering at the edge is the risk of going over the edge, both ethically and legally.  Like every speaker at our highly successful conferences, Stewart will speak for twenty minutes and then be subjected to sharp questioning for an equal twenty minutes.  Students are more likely, therefore, to come away viewing her not as a role model, but as a cautionary lesson.  That’s effective education in lawyers’ ethics, which is too often considered a dry, uninteresting, and unimportant subject.

2.75 Cheers for Qualcomm

Qualcomm has filed a very reasonable response to the Heller self-defense motion I discussed earlier: Download QualcommNonOpp.pdf.  Qualcomm does not argue against allowing disclosure on a self-defense theory but asks that such disclosures be sealed to prevent them being used in other litigation between Broadcom and Qualcomm.  I would prefer that the court not seal the relevant declarations; this case has attracted much attention and has the potential to be a marvelous teaching tool.  (And if the declarations are made public, I can guarantee that it will be.)  But one can hardly expect Qualcomm to care about that. Nicely done. 

Broadcom's response is here: Download BroadcommNonOpp.pdf. It does not oppose the motion either, but asks that the relevant documents not be sealed, or at least that it be allowed to review the declarations in connection with its pending sanctions motion.  No surprise on either count.

DM

Law School Promotional Materials (redux)

A couple of years ago, I posted my thoughts about the misleading nature of some law school promotional materials.  As John noted in his post, the Wall Street Journal ran a story this morning that makes a very similar point.  In light of the buzz that the WSJ story has generated, I thought that I would re-post my thoughts.  I would urge people to take a look at the rather lenghty comments that appeared after my original post before leaving a comment here:

As you know, Model Rule 7.1 prohibits lawyers from advertising in a way that could be misleading to potential clients.  What has troubled me is that so many law schools distribute promotional materials that would probably violate Rule 7.1, if that rule applied in the context of legal education.

Consider some examples.  One law school’s promotional literature cites a report showing that its graduates claim to have among the best job prospects in the country, when in fact the law school’s own employment data doesn’t support the claim.  Many law schools frequently talk about the quality of their clinical programs, not mentioning that their clinical programs are typically not big enough to accommodate all students who express an interest.  Schools also brag about how their graduates take all sorts of interesting public sector jobs, when the reality is that many graduates won’t be able to afford those jobs given the crushing debt that they will have.  The list goes on and on.

Currently, none of these claims are considered to be unethical or impermissible, although many of them would probably violate 7.1 if it applied.  So I wonder why law schools are treated differently than lawyers for purposes of advertising?  Indeed, many of the same rationales for lawyer advertising restrictions would also apply to law school promotional literature.  First, just like someone who hires a lawyer, the prospective law student has a lot at stake.  The student is about to invest three or more years and more than $100,000 (at many schools) to attend.  Shouldn’t the promotional material avoid being misleading in any way?

Second, some information is hard to verify, just as it is for lawyers.  Claims about job opportunities and clinical programs can be researched, but there is a lot of information that is typically hard to uncover for the average applicant without a good deal of homework.

Aside from any analogies to lawyer advertising, shouldn’t law schools simply be setting an example for lawyers about truthfulness in advertising?  If we are trying to teach our students about ethics, aren’t we starting that instruction rather awkwardly if we engage in conduct that would be considered unethical if our graduates engaged in it?  And in an era of concerns about the role of misleading lawyer conduct in various recent scandals, shouldn’t we be particularly sensitive to being misleading in our own promotional materials?

Law schools and law professors typically don’t have an incentive to take the lead on these issues.  Indeed, no school wants to be the first one to eliminate spin from their promotional literature.  Doing so would put that school at a competitive disadvantage, especially given the importance of admission data in various law school rankings.  The solution (if there is to be one) would likely have to be in the form of an ABA or AALS regulation that more closely resembles 7.1 than is currently the case in regulations such as ABA Standard 509.

To be honest, I’m not a big fan of the restrictions on lawyer advertising for a number of reasons.  (I set out some of my thoughts in this article.)  But if we have them, there’s certainly a bit of hypocrisy if we (as legal educators) fail to follow them ourselves. 

WSJ Article: "A Stingier Job Market" for law school graduates

This informative article concludes with this striking quote from a struggling new lawyer: "I didn't think three years out [of law school] I'd be uninsured, thinking it's a great day when a crackhead brings me $500."

A Motion Worth Granting

California's anachronistic confidentiality rule has become an issue in the Qualcomm discovery dispute.  The two firms in the cross hairs want to disclose client information they believe will exculpate them and their lawyers. (Disclosure: Cal.Law reports that one of my old firms, Howard, Rice, represents Day, Casebeer as a firm.) California's Business & Professions Code §6068(e) forbids voluntary disclosure of client confidences or secrets.  Unlike Model Rule 1.6(b)(5), California law does not qualify this provision to allow lawyers to disclose confidences or secrets to defend against allegations leveled at the lawyer.

The seemingly flat prohibition of Section 6068(e) has prompted the Heller firm to file this motion Download HellerSelfDefenseBrief.pdf asking the court to allow it to disclose client information. I have been researching the history of Section 6068(e) for some time.  In my view, the court has the power to grant this motion and the facts justify the exercise of that power.

"Professionalism" Rules

From BNA
Federal Court Invalidates Michigan Rules
Requiring 'Courtesy,' 'Respect' From Lawyers

                  Michigan's lawyer conduct rules that require attorneys in that state to act with courtesy and respect are so nebulous as to be unconstitutional and "shall not be enforced," the U.S. District Court for the Eastern District of Michigan declared Sept. 4 (Fieger v. Michigan Supreme Court, E.D. Mich., Civ. No. 06-11684, 9/4/07).

                  The court struck down Rule 3.5(c) of the Michigan Rules of Professional Conduct, which forbids lawyers to engage in "undignified or discourteous conduct" toward tribunals, and Rule 6.5(a), which commands lawyers to treat everyone involved in the legal process with "courtesy and respect."

                  These rules violate the constitutional rights to free speech and due process because they are overbroad and vague, Judge Arthur J. Tarnow decided.

                  The two rules are not found in the ABA Model Rules of Professional Conduct. Their language is adapted from the predecessor Model Code of Professional Responsibility.

                  Facial Challenge to Rules

                  The background for this action involves outspoken lawyer Geoffrey N. Fieger, who last year was reprimanded by a bitterly divided Michigan Supreme Court for a series of profane epithets he used on a radio show about appellate court judges who overturned a multimillion-dollar verdict he had won. Splitting 4-3, the supreme court held that Fieger's tirade--in which he called the judges Nazis and jackasses, said they deserved to be anally violated, and invited them to "kiss my ass"--were so over the top that they brought disrepute on the legal system and were not protected by the First Amendment. See Grievance Adm'r v. Fieger, 719 N.W.2d 123, 22 Law. Man. Prof. Conduct 387 a0b3d0f0q5 (Mich. 2006).

                  During the disciplinary proceeding against Fieger, he and another lawyer, Richard L. Steinberg, filed the present federal lawsuit challenging Rules 3.5(c) and 6.5(a). (See box.) Rule 3.5(c) is adapted from DR 7-106(C)(6) of the Model Code, which forbade lawyers to "[e]ngage in undignified or discourteous conduct which is degrading to a tribunal." Rule 6.5(a)'s origin is found in DR 7-101(A)(1), which stated in part that a lawyer does not violate the duty of zealous representation "by treating with courtesy and consideration all persons involved in the legal process."

                  The complaint, naming the Michigan Supreme Court and its seven justices as defendants, did not contest the discipline imposed on Fieger, but rather asserted that the two rules are unconstitutional on their face.

                  The district court held that Rules 3.5(c) and 6.5(a), which it referred to as the "courtesy and civility provisions" (or courtesy rules for short), violate both the First Amendment right to free speech and the Fourteenth Amendment right to due process of law.

                  "Although it has long been recognized that states have legitimate interests in restricting attorney speech both to protect the fair administration of justice and to preserve the judiciary's integrity as well as the public's perception of it, these interests do not extinguish a Michigan attorney's First and Fourteenth Amendment constitutional rights to free speech and due process," Tarnow wrote.

                  Too Broad

                  The court found that the courtesy rules, as interpreted by the Michigan Supreme Court in the disciplinary case against Fieger, regulate almost every conceivable criticism of the judiciary, whether the disparagement is warranted or unwarranted, political or apolitical, truthful or false, vulgar or artful.

                  The rules provide no exceptions for truth, for political speech, or for speech that does not create a substantial likelihood of material prejudice in a pending case, the court pointed out.

                  Under the blanket prohibition established by the courtesy provisions, "even a trivial, truthful and totally innocuous statement, although perhaps 'discourteous' and 'undignified,' may be a violation," the court noted. "The First Amendment does not allow this broad sweep."

                  "Because the courtesy provisions, as interpreted by the Michigan Supreme Court regulate a substantial amount of protected speech in their plainly legitimate sweep, the provisions are substantially overbroad on their face," the court declared.

                  Tarnow noted that the courtesy rules do not distinguish between two different state interests: the individualized interest in protecting the fair administration of justice in a pending proceeding, and the generalized interest in safeguarding the public's respect for the justice system. The scope of attorney speech that may be restricted is greater when done in the interest of promoting the fair administration of justice as opposed to protecting respect for the judiciary, the court said.

                  Guessing Game

                  The court also decided that the courtesy rules are not precise enough to allow a person of ordinary intelligence to understand what speech is forbidden, and that this vagueness leaves too much room for selective enforcement based on the judiciary's sensibilities.

                  Neither the rules themselves, nor their commentary, nor the Michigan Supreme Court's opinion in the disciplinary case against Fieger clarify the line over which attorneys must not step when they criticize the judiciary in a pending case outside the judicial setting, the court found.

                  To illustrate this point, the court listed a half-dozen ways in which an attorney might say that the court's opinion in a case was wrongly decided. This list illustrates that the courtesy rules are "shapeless standards," the court declared.

                  "The rules as interpreted will not only lead to arbitrary enforcement, but they are so imprecise that persons of ordinary intelligence must guess at their meaning and may differ in their understanding" of the application of the rules, Tarnow stated.

                  No Procedural Barriers

                  Tarnow found no procedural barriers to addressing the merits of the claims that Fieger and Steinberg raised. Although the defendants argued that the lawyers lacked standing because there was no pending grievance against them, Tarnow said that such a narrow view of standing would doom the plaintiffs to a "procedural rabbit hole" because federal abstention is required when a state grievance proceeding is pending.

                  The court also held that the lawyers' constitutional claims were ripe for adjudication and not barred by the doctrines of res judicata or claim preclusion. The plaintiffs were seeking wholly prospective relief to preclude future prosecution, it emphasized.

                  In addition, Tarnow found that the defendants were not shielded by any sort of immunity; however, Tarnow dismissed the action as to the three justices who dissented in the disciplinary case against Fieger, since they already determined that the rules in question were unconstitutional.

                  Fieger was represented by Michael R. Dezsi of Fieger, Fieger, Kenney, Johnson & Giroux in Southfield, Mich., and Richard L. Steinberg, Detroit. Steinberg appeared pro se.

                  Heather S. Meingast and Margaret A. Nelson, Michigan Department of Attorney General, Lansing, Mich., represented the Michigan Supreme Court.

________________________________________

Michigan's 'Courtesy' Rules

"Rule 3.5: Impartiality and Decorum of the Tribunal

"A lawyer shall not:

...

"(c) engage in undignified or discourteous conduct toward the tribunal."

"Rule 6.5: Professional Conduct

"(a) A lawyer shall treat with courtesy and respect all persons involved in the legal process...."

Attorney-Client Privilege for In-House Counsel in the EU

One of my students alerted me to this story, which reports that "the second highest court in the European Union ruled...that attorney-client privilege does not apply to communications between companies and their in-house counsel."  The rationale was that "there is no privilege because in-house lawyers are loyal to their companies and don't offer independent legal advice."

I was intrigued by the last comment for a couple of reasons.  First, on one level, the statement is odd, because all lawyers are supposed to be loyal to their clients.  The EU court must be saying that in-house lawyers are not only loyal, but excessively loyal.  Namely, the in-house lawyer is more likely to give improper advice because the lawyer's personal interests are so intertwined with the client's.

I actually think there is something to that reasoning, but I think it proves too much.  I've always thought that in-house lawyers are not quite as free to exercise independent judgment as many outside counsel, because the in-house lawyer's job depends on pleasing a single client whereas outside counsel is still likely to keep her job even if a single client leaves. 

Nevertheless, even outside lawyers can feel considerable (and excess) loyalty to a particular client, especially when the client is responsible for a significant portion of the lawyer's income.  Similarly, lawyers who take contingency cases will have their interests signficantly intertwined with the clients' and would have the same incentive to engage in excessive loyalty at the expense of independent judgment.  So if the EU court's rationale for rejecting the privilege is sound, the privilege is on shaky ground in a lot of contexts.

Another reason that the opinion is unusual is that Great Britain (and other EU countries?) allow multidisciplinary practices.  The standard critique in the U.S. is that MDPs are problematic because lawyers in such entities will not offer independent legal advice and will be beholden to the interests of non-lawyer partners in the MDP.  So the U.S. rejects MDPs and grants the privilege to in-house lawyers, and the EU takes the opposite approach. 

In my mind, the EU and the U.S. both have it partially right.  I think that the concerns raised by MDPs are not meaningfully different from the concerns that arise in the vast majority of practice settings.  If we trust lawyers to act appropriately in a contingency case or when the lawyer's client is responsible for all of the lawyer's income, we can trust lawyers in MDPs.  At the same time, in-house counsel can face the same kinds of conflicting incentives and constraints as lawyers in other settings.  So treating them differently for purposes of the privilege doesn't make a lot of sense to me. 

Revenge is Sour

George Orwell was right about a lot of things, including this essay on revenge.  I thought of it when I read this report, and this one, of Bill Lerach's plea. 

I spent a large part of the 1990s defending securities cases filed by Mr. Lerach.  I once wrote a brief that annoyed him enough to tell the partner I worked for to reprimand me.  As an academic, I thought his pursuit of Dan Fischel way out of bounds, and I agree with the argument that these suits were about investor losses that were offset by other investors' gains (though they no doubt created a useful deterrent effect as well).  In other words, I am not a natural booster.

But much of the reaction to the plea strikes me as unseemly triumphalism.  The plea is said to taint the cases he brought. What nonsense.  Whatever one thinks about that sort of suit, payments to named plaintiffs are unrelated to the merits, and barely related, if related at all, to the amount of class recovery.  Some of those cases had merit; many, in my view, did not. But whether they did depended on what the defendants knew compared to what they said, not on side payments made from counsel's fee award to the named plaintiff. No one involved in those cases thought they were about the named plaintiffs.

That does not make the payments lawful, of course.  The theories of the indictments are perfectly cogent.  But it counts for something that Lerach protected his firm, and thus innocent employees, from the taint of his own acts, and simply confessed guilt.  (His surprisingly good plea deal--kudos to John Keker--no doubt made that easier, of course.) There is a lot to be said for a clean acknowledgment of guilt and acceptance of punishment. It happens less often than one would expect, and it should not be the occasion for gloating.

DM

Studying affirmative action at law schools

This article from American Lawyer Media discusses a request from a group of scholars to access and study data from the California State Bar to see how law school affirmative action works.  The request has been denied -- at least for now.  Concerns were raised about privacy and about the political uses that the study might be put to.  My view, which was quoted in the article, is that the problem in understanding and combating exclusion in the legal profesison is the absence of statistical studies, not the existence of them.  I realize that political winds are swirling and the public's views are up for grabs, but you can't do social policy without knowing what you're doing and what the effects are.  Bring on the empirical studies, now.

Lerach to jail?

As a Silicon Valley lawyer, all I can say is "wow."

UCI's new law school

There's news flashing around the blogosphere that UC-Irvine's Chancellor fired Erwin Chemerinsky, who had just recently been hired as the Dean of UCI's new law school, because of Chemerinsky's politics.  If so, it's way beyond mere bad judgment and consequences will be severe.  No doubt we will learn lots more in the next few weeks. 

I want to address a different point.  News accounts suggest that UCI wants to have a special focus on public interest lawyering.  What is the economic model for that?  Don't we already have a dearth of jobs for students who want to do public interest lawyering?  Haven't we seen how low the pay is for that kind of lawyering?    Just as a thought experiment, I wonder what an economist would say to a bright undergraduate who was considering applying to UCI as a first step toward public interest lawyering?  And will UCI provide those students the information they need to make those decisions, or will UCI supply them "sales talk" and "puffing"?  Obviously, you can color me quite skeptical about all that.

UPDATE: Although this story strays a bit from legal etihcs, I do find it instructive regarding the ethics of making accusations.  As so often happens with fast-moving scandals, we discover that initial impressions didn't tell the whole story.   Early conjecture -- anonymous, second-hand, unburdened by facts -- was that a conservative business was behind the plot.  I laughed out loud when the businessman's press release said that he didn't even know who Chemerinsky was!  That was 100% plausible to me, but apparently had been unthinkable to some accusers.  More recently, after Berkeley's law dean shed light on the UCI Chancellor's decision, some are leaping to the conclusion that Berkeley's dean is defending the decision.  But if you read his quote, he expressly declined to defend it.  For me, the ethical point is not to let myself become scandalized by the scandal.  Easier said than done, sometimes.

DC Addresses Metadata Mining

The opinion is obviously a compromise, and you can find it here.

Jack Goldsmith and the Duty of Confidentiality

There has been a lot of news recently about Jack Goldsmith's book, The Terror Presidency, which describes Goldsmith's tenure as the head of the Office of Legal Counsel (OLC) around the time of the torture memo controversy.  The book appears to reveal conversations that Goldsmith, now a Harvard Law School professor, had with members of the administration in connection with various legal issues that were pending before the OLC.

The question that I have is whether the book in any way breaches the duty of confidentiality.  The answer turns on a number of issues, including who it was that Goldsmith was representing.  It is not always clear who a government lawyer represents, but according to the government's web site, the OLC is the "legal advisor" for the President and the executive branch.  In that case, if Professor Goldsmith's book reveals conversations that he had with members of the executive branch regarding legal issues that the OLC handled, wouldn't those revelations violate the duty of confidentiality? 

Of course, there are a few exceptions to the duty of confidentiality, but I don't think any of them apply here.  For example, the self-protection exception could apply if Goldsmith were facing litigation by his former client or from third parties regarding his conduct.  But I am not aware of any such justification in Goldsmith's case. 

Also, if the President agreed to let him write the book, that might be a different story.  I doubt that is the case, however, given the book's content.

The Restatement of the Law Governing Lawyers says that information is not confidential if it is generally known.  (See Restatement Section 59.)  So perhaps Professor Goldsmith's book is permissible on these grounds.  But from what I understand about his book, he includes information that most people have never heard before, in which case the "generally known" exception would not apply.

There may be other statutes or rules that apply to government lawyers that affect Professor Goldsmith's obligations.  Does anyone have any better insights into this issue?

UPDATE:  As someone notes in the comments, Professor Paulsen has a very thorough discussion of this issue on Balkinization.  It's definitely worth a read.

The guild and the bureaucracy

I'd expect that over time the profession's historic guild-orientation would be slowly eroded by the market and by the government's bureaucracy.  But here's news about a bureaucratic initiative within the federal judiciary to reduce the use of professional law clerks and, presumably, increase the use of clerks straight out of law school.  I can't comment on whether the proposal will save money, but it's definitely a backwards step in terms of rationalizing the production of law.  According to the news story, some federal judges are none too happy about the proposal.

More on Public Defender Resources

Following up on my posts last week about Judge Plough, here is a story about the representation of capital defendants in Georgia that underscores the point about the need for adequate resources to ensure competent representation.

Update:  And here's another story out of Florida on a similar issue.  (Registration is required to read the story.)

Another Update: And yet another story out of Tennessee.

And another out of New Orleans.