Legal Ethics Forum

Have we passed "peak spam"?

Email haunts today's lawyer, and news that we may have passed peak spam is welcome news.

Yagman gets three years

Story here.  One can acknowledge his flaws and also admire his tenacity.  He didn't go quietly, quoting Kafka to the judge:

"A cage went in search of a bird.  I'm the bird, and they got me."

"CUNY Law Bounces Back"

Editorial here, about how CUNY Law's more rigorous standards dramatically increased their bar passage rate from 50% to 83%.

Confidentiality and the Dead Client

Lawyer’s Revelation of Confession May Ruin Him

Staples Hughes’ career is in jeopardy for having disclosed the confession of a client, now dead, that he alone killed a couple

Titan Barksdale, Staff Writer, News & Observer

Lawyer Staples Hughes was trying to do the right thing when he disclosed information that could help prove a man innocent of murder.  Now it may cost him his law license.  Hughes, the state’s appellate defender, disclosed earlier this year that his client, a co-defendant in the murder, had confessed 20 years earlier that he alone killed Roland and Lisa Matthews in Fayetteville.

After his client, Jerry Cashwell, died, Hughes spoke up. The confession, coupled with challenges to how bullet evidence was analyzed, could get a new trial for Lee Wayne Hunt, who was convicted of the slayings 21 years ago and sentenced to life in prison.

It also puts Hughes in a fight for his career.  During a hearing to seek a new trial for Hunt, a Cumberland County Superior Court judge said he would file a complaint with the N.C. State Bar over Hughes’ testimony about the confession. As Cashwell’s attorney, Hughes was bound by attorney-client privilege to keep the confession secret. But Hughes believed that his duty to Cashwell died with his client.

Judge Jack Thompson rejected Hughes’ testimony, and Hunt’s bid for freedom. Hughes was later notified that a bar grievance had been filed against him.  “It crossed my mind a thousand times that somebody might report me to the bar,” Hughes said. “I’m sure the judge thought he was doing what he thought was right, and I thought I was doing what was right under the circumstances. It was a sobering moment.”

Hughes said he has filed a response to the complaint, but it is unclear when the bar will make a decision. The N.C. Supreme Court could determine whether Hughes is right or wrong when Hunt’s attorneys ask the court to review the murder case.  Meanwhile, the issue has exposed a thorny ethical dilemma that cuts to the heart of a lawyer’s mission -- serving justice.

Hunt had been a notorious drug dealer in Fayetteville but maintained from the start that he had not murdered the Matthewses.  In March 1984, the couple were found shot and stabbed to death in their home on a rural road in Cumberland County. About one year later, Hunt, Cashwell and Kenneth Wayne West were arrested and charged with the murders.

Hughes interviewed Cashwell at the Cumberland jail in the weeks after the arrest. That’s when Cashwell confessed that he was the sole killer. Hughes, a young public defender assigned to the case, was stunned, but he couldn’t tell anyone.  “All of a sudden, time just stands still in a way,” Hughes said. “I don’t know whether ethical behavior is always the same as being a moral hero. Maybe if I were some moral hero, I would have told. But it was very clear-cut to me that the only ethical course was that it was not in my client’s interest to reveal it, and of course I did not.”

Cashwell was tried first, convicted of the double murder and sentenced to two life terms.  Hunt was tried later and convicted in October 1986. He also received two life sentences.  The only physical evidence connecting Hunt to the crime was a bullet lead analysis conducted by the FBI. It appeared to show that crime-scene bullets matched those in a box that Hunt owned. Scientists now say the bullet lead analysis that the prosecutor relied on is misleading and should not be used as evidence.  The remaining evidence against him was from Hunt’s co-defendants: drug dealers who had agreed to testify against Hunt in exchange for immunity or reduced prison time for their roles in the crime.  “It was awful, because I know what’s going on in the courtroom down the hall from my office is a bunch of fabrications,” Hughes said, recalling his reaction to Hunt’s trial years ago.

Hunt was 16 years into his prison sentence when Cashwell committed suicide in prison in 2002.  With his client dead, Hughes said, he immediately thought of revealing Cashwell’s secret. But he decided to wait, knowing that the Supreme Court was considering a crucial ruling on an unrelated case in Wake County that explored whether a dead person’s confidentiality trumped the search for justice.

In 2003, the Supreme Court said that a judge can force a lawyer to reveal confidential statements from a dead client. The decision helped crack the arsenic poisoning case of Eric Miller, leading to his wife’s arrest and conviction.  Bolstered by that decision, Hughes eventually decided he would reveal his dead client’s confession. In 2004, Hughes called Rich Rosen, who is known for handling cases for prisoners who insist they are wrongly convicted, and said he had evidence that could help prove Hunt’s innocence.  Hughes drove from his home in Chatham County to Rosen’s office at UNC-Chapel Hill, where Rosen is a law professor. After brief pleasantries, Hughes spilled the secret.

“What he was saying was so obviously true,” Rosen said. “I contacted Hunt and told him that I wanted to come see him and I was willing to take on the case.”  Hughes later returned to Rosen’s office to sign a sworn statement. He was now a witness for Hunt’s defense team, and the investigation into Hunt’s case took a new turn.

Hunt’s case landed back in court when Rosen filed a motion to get Hunt a new trial based on the faulty bullet evidence and Hughes’ statement of Cashwell’s confession. A hearing was held earlier this year in Cumberland County, before Judge Jack Thompson. Thompson declined to comment about the case.

As Hughes began to testify about the confession, Thompson gave him a blunt warning.  Be aware, Thompson said, that he planned to file a complaint with the bar against Hughes for testifying.  “I said, ‘Yes, I understand,’ and I think he was just telling me what he was going to do,” Hughes said.

Thompson rejected the testimony. Hughes told what happened anyway, to establish a record for an appeal.  The N.C. Appeals Court refused to consider hearing the case, leaving Hunt with one rarely successful option -- a request to the N.C. Supreme Court to review his case.

Meanwhile, Hughes received a letter from the bar asking for a response to an allegation of a violation of ethics.

Hughes’ case represents the larger ethical dilemma many lawyers face, said Jim Coleman, a professor at Duke University Law School. There is no clear right or wrong, he said.  “On one hand, you have the attorney-client privilege and the value it has because it protects the client,” Coleman said. “And on the other hand, you have the question about justice, and the fact that you have information that can prevent the miscarriage of justice.”

Thompson’s warning to Hughes is a professional duty that all lawyers are bound to do, Coleman said.  “What the judge is trying to do is prevent him from making the disclosure and tell him as a lawyer in North Carolina, he will report it to the bar,” Coleman said. “Lawyers in North Carolina have an obligation to report alleged misconduct by other lawyers.”

Bar rules contain an exception that a lawyer can reveal a client’s confidential information to prevent “reasonably certain death or bodily harm.”  “He’s not killed, but for all practical purposes, he’s lost his life and he’s lost his liberty,” Coleman said of Hunt.

Hughes said he doesn’t know Hunt and has only spoken with the inmate once, years ago outside a magistrate’s office in Fayetteville. But he hopes he risked his career so that one day, he can meet Hunt again -- as a free man.

“It’s not that I’m not apprehensive about the possible consequences, because I am,” Hughes said. “But when you think about that up against the fact that this guy is innocent and has been locked up, it puts a different light on that.”

Beware the BK Trustees

One of the dicier legal matters is representing a large company on the brink of insolvency.  When the company goes under, the Trustee's job is to claw back money and, often, to sue the professionals.  Story here.

Yagman sentencing postponed

We've been getting lots of hits about the criminal sentencing of Stephen Yagman, the LA lawyer famous for bringing civil rights actions.  It seems that the judge will take more evidence and decide later.

Biglaw news: (1) Do politics and firm life mix? (2) Firm hires "Social Responsibility Director"

Mixing law firm life and political activism can be tricky.  Story here.     . . . .     Pillsbury, following a European trend, has hired a Director of Social Responsibility, who will oversee firm initiatives in the areas of dirversity, pro bono, charitable giving, environmental sustainabilty, and other issues.  (The full story is reg req'd, sadly.)

"It has to be that kind of chair," Cassini said. "We won't settle for anything less."

I remember those.  (via The Onion)  In Silicon Valley we tend toward these.

Advocacy outside the courthouse: Bonds's lawyer comes out swinging

Barry Bonds's lawyer, Michael Rains, who has an impressive if non-traditional resume, took some nice cuts at the government's case in recent interviews.  Reading between the lines, it seems Rains has already picked his defense and needs to get it out there in the press.  He's alleged an unspecified ethical violation by the prosecutors.  I will follow up once we learn his theory on that.  Some critics have suggested that Rains's tough talk will backfire, because it may harden the prosecutors' stance and force Bonds to fight the matter all the way through trial.  I can't discout that 100%, but what were the odds that the prosecutors were going to offer Bonds a generous settlement anyway? 

In the mean time, here are some choice quotes from Rains, as provided in these two articles:

"[The DOJ] doesn't know if waterboarding is torture and can't tell the difference between prosecution and persecution."

"My initial reaction was that they cherry-picked four statements occupying a combined total of two or three minutes of testimony out of what amounted to four hours of testimony in December of 2003."

"Barry got up on the stand and did his best to answer questions and to answer them truthfully."  "He told them like it is."

"They have spent millions of dollars and turned (chief Balco investigator) Jeff Novitzy loose in an unsupervised fashion for half a decade now."  "They need to say they got something for their efforts. Why not take a flier now?"

"Everybody has an opinion about Barry. A lot of people love and respect him and a lot of people dislike him. He understands that."  "Whether you like him or dislike him, the way the federal government has proceeded in this case is going to be a very, very sad commentary on the enormous power of the government to ruin people's lives and to scar their reputation for no good reason."

Advocacy outside the courthouse is sometimes frowned upon,  but sometimes is what the client needs.  It's seems that Bonds is going to come out fighting.

Lawyer's reaction to Bonds's indictment . . .

I was a little surprised by the reaction of Bonds's lawyer:

"I'm surprised," said John Burris, one of Bonds' attorneys, "but there's been an effort to get Barry for a long time. I'm curious what evidence they have now they didn't have before."

He says he's "curious" about what evidence they have now?  Well, we all are, aren't we?

Why didn't the Burris just trot out some version of, "We are shocked at the unfair, untrue indictments and look forward to complete exoneration"?

Expert Bias and Disclosure: Professor Bill Simon's Reply to Andrew Perlman and John Steele

Both Andy and John suggest that the credibility of my argument about the "case study" in the second part of the article is affected by the fact that I learned about the case as a consultant to one side and/or by my limited disclosure about my participation.  I don't entirely disagree, but I think they exaggerate, and I'm concerned that the tendency of their arguments is to make it too difficult to criticize professional conduct of public significance when a powerful party wants secrecy. 

The Record

One reason I thought the Nextel case a good illustration was that the credibility of the most important opinions can be assessed with relatively few documents.  Some of the conclusions, I argued, were wrong on their face.  Most of the rest are based entirely or largely on a "Dispute Resolution and Settlement Agreement" (DRSA).  The major exception is the issue of the adequacy of disclosure for informed consent, though even here I thought some of the opinions suggestive on their face of either carelessness or bad judgment.

The website on which I intend to make materials from the case available is not up yet, but the DRSA has always been available to anyone who knows how to reach me.  Eventually, the article will be vetted by the editors of the Stanford Law Review, and I know from past experience that they are not lax about matters of substantiation.  In the meantime, I could make specific materials available in response to specific requests. 

DOJ OPR to investigate warrantless surveillance

Via Orin Kerr at Volokh, the ethics arm of DOJ, known as the Office of Professional Responsibility, will reopen its investigation of the lawyering behind the warrantless surveillance.

UPDATE:  Marty Lederman has interesting comments here.  Lederman puts his finger on some of the fault lines running through the analyses of the OLC memos.  First, critics of those memos sometimes split on the issue of whether the memos (1) said what the client wanted to hear even though the lawyer didn't believe it; or (2) provides an analysis the lawyer believed but which were not competent.  The former is a violation of MR 2.1; the latter is a violation of 1.1  It's fair to say that in general a violation of 2.1 would be more serious, because the lawyer's intent is worse.  My best guess is that the authors of the memos believed that their interpretations were legitimate interpretations.  If you read what John Yoo said before, during, and after his work at the OLC, he presents a fairly consistent position.  I'm not a specialist in that area of law, but it's also my guess that certain portions of those memos (e.g., the "failed state" argument regarding Afghanistan) can be attacked on competence grounds and other portions can't easily be attacked for that (e.g., the application of the Geneva Convention as was affirmed by the DC Circuit, even if later reversed by the Supreme Court).  I think it would be very difficult, short of a smoking gun memo, to prove that any of those lawyers knowingly offered advice they disagreed with, in violation of MR 2.1.  There is a comment to MR 2.1 suggesting that sometimes mere technical advice can be inadequate (a comment that seems quite pertinent to the OLC memos), but it's hard to imagine how one could be prosecuted for that standard -- if it is really an enforceable standard at all.

Second, Lederman touches on the unusual aspect of the OLC's role.  It's hard to define the OLC's client and OLC's role.  We know that the President is not bound by the OLC, but others in the Executive Branch may be under certain circumstances.  That's not how most private counseling and advising works.  I can't bind clients when I advise them.  As I understand it, the OLC has delegated powers from the Attorney General to speak authoritatively (under certain conditions) for everyone in the Executive Branch but the President.

Third, how would one prove incompetence in this matter?  In private practice, disciplinary charges for incompetence often involve egregious conduct such as missing statutes of limitation, total abandonment of the matter, and so on.  In other words, the incompetence proves itself.

Fourth, what are the consequences of incompetence?  What did it cause?  Based upon my reading of the leaked materials, the point when the ball was really fumbled was when the President sided with Gonzales over Powell regarding the early memos (dealing with the application of the Geneva Convention).

Anyway, Lederman's post is full of food for thought and it well worth reading.  For an article that is essentially a roadmap for how to discipline the authors of the torture memos, see this article by Kathleen Clark. 

Yet more on aggregate settlement ethics

Via the WSJ Law Blog, there's this story about a proposed Vioxx settlement plan by which the plaintiffs' lawyers would be required to recommend the settlement process to their clients and if the client doesn't agree, the lawyer must "take steps" to withdraw.  The required "steps" are only those permitted by legal ethics rules.

(As you may know, we've had three recent postings here, here, and here about the recent defense verdict in favor of Leeds, Morelli & Brown and the new article by William Simon of Columbia criticizing the settlement procedure and the legal ethicists who opined in favor of all or part of that procedure.)

These cases highlight the tension between (1) the individualized lawyering that clients must receive from their lawyers under the traditional rules, and (2) the collective negotiations that are necessary to make aggregate litigation work.  As Stanford Law professor Deborah Rhode pointed out in the WSJ article, in some situations the incentives of the plaintiffs' lawyers can conflict with the individualized needs of the clients: "[in settling cases lawyers need to be sure that the] 'interests of individual plaintiffs aren’t sacrificed for the good of the whole, which not coincidentally serves the interests of attorney.'”

Berkeley law students split on banning internet in class

Survey results here; story here; original story here.  A narrow majority favor no ban at all.  My rule in class is: no surfing when guest speakers are present.  Other than that, it's their degree, their debt, their choice.

"Quasi-third-party advisor": an unnecessary, unworkable role.

Over the last few decades, perhaps the dominant trend in American legal ethics has been the increased awareness of the need to differentiate the various roles lawyers play.  Gone are the days when every type of lawyer could justify aggressive conduct by invoking ethical norms that apply only to criminal defense lawyers.  In the academic journals and real world tribunals we’ve forged a broad consensus that lawyers’ ethics vary by the particular function they are serving.  You must delineate the role and trace the duties.  (There has been criticism of legal “role morality” but the internal game is governed by roles and this is an “internal” piece.)

Yes, the criminal defense lawyer’s motto can still be, “just win, baby, without breaking any bright line rules.”  But in the regulatory compliance setting—where there is no zealous adversary, neutral judge or neutral jury—the lawyer must abide by different norms.  (Consider, for example, the IRS’s ethics rules or the PTO’s heightened duty of candor.)  And the securities lawyer is not governed by the “tell just your half of the story and even then just the good facts” norms of the trial lawyer, but rather must abide by duties of material candor and “truth in context.”  (Consider, for example, Vega v. Jones Day, which dealt with alleged “telling just the good facts” in a manner that would have been perfectly ethical in a closing argument.)

In that context, William Simon’s new article disappoints.  Simon is, of course, one of our leading theorists in legal ethics.  But in this instance, rather than precisely delineating particular roles and then carefully tying ethical norms to each role, Simon conflates disparate scenarios and creates a new, unhelpful master role: “quasi-third-party advisor.”  His thesis needs a complete rethinking if not an outright rejection.

At the same time, regarding the particular litigation that Simon uses as a test study, Simon asks the substantive questions one would want to be asked.   Unfortunately, Simon’s article cannot provide enough of the background material for a careful reader to say anything more than, “these are issues that need to be carefully scrutinized whenever they are raised in a dispute.”  (I still have to obtain and read the key documents, so the most I can provide is a “field guide” of what the disputed issues may have been.)  As I understand it, those issues were raised and fully litigated.  One of the trials in which the issues were contested was resolved last week with a complete defense verdict exonerating the lawyers—a rare event, as any legal malpractice lawyer will tell you.  That verdict doesn’t mean that William Simon was wrong or that the professors he criticizes were correct, but it does suggest that readers of Simon’s article will want to ensure that they understand the particulars of that case before making judgments.

Transparency and Professor Bill Simon's Article

For the sake of full disclosure, I have great respect for both Professor Simon and the targets of his article.  Professor Simon graciously offered me valuable insights when I wrote my first legal ethics article about eight years ago.  I have since gotten to know and admire several people whom Professor Simon criticizes in his most recent work.  That's a long way of saying that I don't have any personal axes to grind here.  But I also want to be as transparent as possible, because Professor Simon rightly notes that transparency "is an essential guarantee of the reliability of a scholar's views."

Ironically, it's Professor Simon's lack of transparency that gives me concern, at least in the context of his critique of the three academic defense experts in the Nextel case.  It turns out that Professor Simon was an informal consultant for the plaintiffs' counsel in some of the underlying cases, a fact that Professor Simon only acknowledges in footnote 60.  The problem, which Professor Simon fails to address, is that his involvement in the case raises questions about whether his conclusions are the product of an objective, scholarly inquiry. 

Professor Bill Simon's Controversial New Legal Ethics Article

Brian Leiter describes the piece as "the Blockbuster legal ethics article of the year."  I have not yet read it in full, but from the description, I can see why it is controversial.  Professor Simon criticizes several prominent law professors/legal ethics experts and reaches a provocative conclusion:

The academic professional responsibility experts played important roles as enablers of pernicious (and heretofore largely undiscussed) practices. Thus, the case shows the convergence of an underground of litigation practice with an underground of academic practice – practitioners and academics allying under terms designed to immunize each other from accountability.

When I say that the three academics gave “bad legal advice,” I am being provocative. My opinions are different from theirs. However, the value of the case study does not depend on whether I am right about the merits. The important contribution is to show that the form such advice takes and the conditions under which it is given reflect pressures and incentives that undermine confidence in its reliability.

Professor Simon and any of the law professors who are identified in the article have an open invitation to post comments on this blog.  After all, this is the legal ethics forum, so it certainly seems appropriate to use this space to engage in a dialog about a controversial article in the field.  Contact me here, if you are interested.

Pakistani lawyers & judges suffer in political crackdown

It's moving to see fellow lawyers fighting for the rule of law and fighting for their freedom, if not their for their lives.  An interesting aspect to the controversy is that many of the protesting lawyers were US or UK trained. 

The Ethics of Online Marketing

Here's an interesting article about the ethical issues associated with online marketing through sites such as Facebook and LinkedIn.  Thanks go to my colleague Bob Keatinge for the heads up on the story.

Whole Foods restricts its executive's online activities

Story here.  The crackdown followed revelations that an exec had trolled message boards talking up Whole Foods and trashing a competitor.  To my knowleldge, most law firms haven't put systematic policies in place, but we may be headed that way.

NY gets into the groove; adopts Model Rules

It appears that New York is ditching its Model Code rules in favor of the Model Rules.  (That's so 80's.)  It will be nice not to have deal with ECs and DRs anymore.

The American Lawyer Media article says NY is thereby becoming the "last Bar in the United States to have rules of ethical behavior based in form and substance on the American Bar Association's Model Rules of Professional Conduct."  But that depends on how we characterize California.  We have different numbering and while some of the rules are similar to the Model Rules, many of the key provisions are radically different.  Sadly, we lack rules on basic issues and we cram multiple issues into densely packed rules. 

All that is supposed to be changing now that the California State Bar has a Rules Revision Commission that is supposed to revise California's rules to make them closer to the Model Rules.  But no one is expecting California's revisions to be done any time soon.

Overview of the Inadvertent Disclosure Problem

Here's a useful summary of the problem in the National Law Journal.  It's worth a look, and not just because the authors happen to cite me!

Pakistani lawyers oppose Musharraf, are physically beaten

Pakistani lawyers protest for the rule of law and are beaten down for it.  Stories all over the net, including here.  Can any of our readers point me toward information on the kinds of lawyers doing the protesting, or a background piece on the sacking of the Chief Justice?

Alafair Burke on "Prosecutorial Passion, Cognitive Bias, and Plea Bargaining"

My thanks to John for the invitation to blog about my article, Prosecutorial Passion, Cognitive Bias, and Plea Bargaining, forthcoming in Marquette's plea bargaining symposium edition.

Previously, here and here, I have argued that cognitive biases might cause even virtuous prosecutors to engage accidently in what has traditionally been described as prosecutorial misconduct. In this piece, I explore prosecutorial decision making in the plea bargaining context. Using narratives from current and former prosecutors, I argue that prosecutors decide whether and how flexibly to plea bargain based on their level of passion for individual cases, a subjective evaluation that goes beyond the more objective factors identified in traditional descriptions of plea negotiations. As a result of prosecutorial passion, prosecutors might either consciously refrain from plea bargaining or unknowingly skew negotiated outcomes because of cognitive biases that will make settlement less likely. The Article concludes with some brief thoughts regarding the implications of prosecutorial passion for plea bargaining reform.

Law students prevail in fees suit against University of California

A few years ago, some UC-Berkeley graduate students in professional schools felt that the school had broken a promise not to raise professional school fees.  So, they did what law students are trained to do: they sued.  They won at trial.  Now the California Court of Appeal has affirmed that result.  The key graf:

In Friday's ruling, the court noted that Berkeley's Boalt Hall law school made such a promise [not to raise fees] in its catalogs before the lawsuit was filed. For students entering in 1999 or 2000, "the (fee) is $6,000 per year, and it will remain at that level for their three years in the J.D. program," the catalog read.

The driving force behind the suit has been former Berkeley law student Mohammad Kashmiri. 

(Obviously the reporter didn't get the memo: it's not Boalt anymore.  And in case you thought you saw a typo up above, for some reason we Californians don't have a court of "appeals"; we have a court of "appeal.")

McDermott's reserve army of the (lesser employed) laywers

McDermott is officially doing what other firms have done less formally: created a second tier of attorneys to work pricipally on e-discovery and other document review.  It's part of the growing commercialization of law firm structure.  It has lots of implications about student debt, bi-modal salary distributions and the like.

Top Ten Legal Ethics Traps

Hat tip to Jim Calloway's Blog for its link to this nice ABA Journal article that describes some common legal ethics problems and ways to avoid them.