Legal Ethics Forum: Top Ten Legal Ethics Stories of 2007 (Updated)

UPDATE: The California Supreme Court's decision in Rico v. Mitsubishi has moved onto the list, meaning that the Top Ten is now an even dozen -- and we could get to a baker's dozen by year's end. The requirement of "stop and notify" isn't all that new but it provides guidance to the approximately 1 in 7 US lawyers practicing under a California license. But that wasn't the only noteworthy aspect of the opinion. The case bolstered the uniquely strong protection given to work product in California. No doubt we will see some commentary and analysis on that in the next few weeks.

The other news story affecting the Top Ten is the op-ed by Morris Davis on why he resigned as prosecutor in Guantanamo. (It was Davis who made ethics accusations against defense counsel Michael Mori, as discussed below.) Davis resigned because of what he felt was political interference in the tribunal process.

ORIGINAL POST: It's that time again. As in previous years, I'm offering a list of the Top Ten Legal Ethics Stories of 2007, along with some "honorable mentions" after the jump. (The honorable mentions in the International section after the jump were supplied by Laurel Terry.) If we get some breaking news in the next couple of weeks, I will update this.

[update] But, at the outset, let's recognize 2007 as the year that Robert Drinan, S.J., passed away after a lifetime of accomplishments, including incredible leadership in the field of legal ethics. (nod to Legal Profession Blog for this suggestion.)

1. Michael Nifong. North Carolina prosecutor Michael Nifong, who led the prosecution of Duke lacrosse players, was himself held in criminal contempt; served a day in jail; and was disbarred. The incident renewed focus on whether prosecutors are sufficiently constrained by the discipline process.

2. After Pakistani president Pervez Musharraf abolished the Supreme Court and set aside the constitution, judges and lawyers protested for the rule of law, and were beaten and jailed for it.

3. "The Vindication of Major Mori" was the apt title of David Luban's article about Major Michael Mori, who represented David Hicks, an Australian detained in Guantanamo. Mori undertook a speaking tour, calling into doubt the legitimacy of the Guantanamo tribunals. The chief prosecutor attacked Mori on legal ethics grounds. The defense fired back at the prosecutor on legal ethics grounds. In the end, Hicks obtained what everyone thought was a terrific settlement agreement, Mori received several awards for his zealous representation of Hicks, and Mori awaits promotion.

4. Former Milberg Weiss lawyer Bill Lerach pled guilty to criminal conspiracy and will serve jail time. He will not go quietly. He continues to fire off op-eds decrying corporate fraud. Former partner David Bershad also pled guilty. The firm itself continues to fight the 2006 indictment.

5. Pentagon official Cully Stimson apologized (January 2007) and later resigned (February 2007) his job. Stimson had attempted to shame US law firms into ceasing their pro bono representations of Guantanamo detainees.

6. In Qualcom v. Broadcom, the court issued multi-million dollar discovery sanctions for failures to produce emails and then waded into the thorny issue of who was at fault: the lawyers or the client. The court immediately faced the issue of whether the threat of sanctions created an exception to the duty of confidentiality. The case highlights the growing tension between firms and clients resulting from the heightened electronic discovery burdens.

7. New rules. New York took a huge step towards adopting the Model Rules and saw some of its new advertising rules enjoined on constitutional grounds. California’s Rules Revision Commission (very slowly) headed in the same direction.

8. Guild behaviors continued to give way to market behaviors. Howrey Simon announced plans to formally abandon lockstep compensation for associates. (Many firms had previously accomplished the same result via various means.) McDermott, Will & Emery announced their plans to create a second tier of associates. Stanford law students began a site designed to disseminate information about law firms and thereby induce firms to improve their performance in terms of life-work balance and diversity.

9. Ethics opinion 115 from the Colorado Bar Association stated that certain aspects of the collaborative law paradigm are unethical. The ABA replied in August 2007 with opinion 04-447, which took the opposite view; collaborative law is permitted so long as the client is fully informed. Doubtless, we will see experiments with collaborative law continue. (My thanks to William Barker for emphasizing the ABA opinion.)

10. Judge Kaplan dismissed federal criminal charges against thirteen of sixteen defendants in the KPMG tax shelter fraud litigation. Judge Kaplan held that the government had coerced KPMG into improperly denying ex-employees funds for a legal defense.

UPDATE: Just after I posted this, I got the first email asking me why a big story wasn't included. Walter Olson of Overlawyered asks about the Dickie Scruggs story, and what can I say, except that it belongs on the list. Maybe my top ten will become a baker's dozen. If I've left out other major stories, please feel free to comment below.

HONORABLE MENTIONS

Lawyers and Judges Behaving Badly

A lawyer told a judge that her reasoning was “a few French fries short of a Happy Meal.” Hilarity did not ensue.

The independence of US Attorneys was an issue when a handful of US Attorney were fired and Alberto Gonzales attempted to distance himself from the situation.

An administrative law judge in Washington, D.C. sued a dry cleaner for $56 million over a pair of pants. The judge lost his pants, his lawsuit, and his job.

Kathleen Culhane, a paralegal doing capital defense work, was sentenced to five years in jail for forging juror affidavits.

Civil rights lawyer and gadfly to the government, Stephen Yagman, was convicted of fraud and will do jail time.

Niagara Falls City Court Judge Robert Restaino was upset when a cellphone went off in his courtroom. When no one confessed to being the culprit, Restaino began sentencing defendant after defendant to jail. Restaino was removed from the bench.

A public defender in Ohio was jailed after failing to be ready for trial just one day after the case was assigned to him. (Just to be clear: I meant that the judge, not the lawyer, had behaved badly.)

Lawyer Troy Ellerman pled guilty to leaking grand jury testimony in the case involving Balco and Barry Bonds.

International

Note: For these three items, I thank Laurel Terry, of Penn State, who supplied them to me.

The emergence of the first publicly traded law firm in Australia. Australia has had this legislation for awhile, but someone finally took advantage of it. This is very big news because, among other reasons, the UK just implemented legislation resulting from the Clementi Report and this is now a possibility in the UK, depending on how it is implemented. (As noted below, here in the US, Professor Milton Regan, Professor Larry Ribstein, and blogger/lawyer Bruce MacEwen published a three-way “conversation” about the prospect of US firms having investor owners.)

The new UK legislation, finalized Oct. 31, 2007. It has changed the bar structure in the UK and opened the door for MDPs and publicly traded law firms, among other things. Since there is a lot of pressure in other EU countries on these issues (because of the EU Competition Report) and because a number of US lawyers are also licensed English solicitors, this could have a potential impact in the U.S.

As expected, the European Union’s lower court, in a case called Akzo Nobel, declined to reverse a holding that denied attorney client privilege to communications with US or in-house corporate counsel. A European client's communications with independent lawyers (i.e., lawyers at European firms) are privileged. The case may be appealed to the European Court of Justice.

Global War on Terrorism

The DOJ’s Office of Professional Responsibility announced an investigation into the role of OLC lawyers in the wireless surveillance project.

Jack Goldsmith published a book “The Terror Presidency” with behind the scenes revelations about his tenure at the OLC. His book raised questions about the lawyering within the Executive Branch. Questions were raised about whether the book improperly revealed any confidences. It appears that Goldsmith spent a lot of time discerning what he thought he could or could not reveal.

Important Cases, Rules & Opinions

A Georgia state court judge reversed herself on the disqualification of Duane Morris in a matter involving McKesson. Her ruling, which was premised on a legal error, nonetheless served to reverse her earlier legal error in disqualifying the firm. (Two wrongs sometimes do make a right.) The matter renewed discussion about advance waivers and how to treat corporate affiliates of clients.

An associate filed a discrimination lawsuit against Sullivan & Cromwell, raising the issue of whether lawyers can maintain lawsuits that might reveal client confidences. (The suit later settled.)

In Lucent v. Gateway, 2007 U.S. Dist. Lexis 35502 (May 15, 2007) a federal court rejected the use of unilateral screens to cure lateral conflicts (but also suggested that screens might have worked on a different set of facts.

The ABA issued an ethics opinion stating that “ghostwriting” for pro per litigants can be ethical (07-446).

In Winkelman v.Parma School District, the United States Supreme Court ruled that parents can represent their own interests pro se in disputes with school districts about the appropriate education of their children.

The United States Supreme Court granted cert in the Boumediene case, suggesting that their intervention may deal with the adequacy of the tribunals and the legal process.

The oral argument in the Stoneridge case suggested that a novel form of liability will be shot down.

The Federal Circuit ruled that patent malpractice cases arise under federal patent law jurisdiction.

The United States Supreme Court issues new rules requiring more transparency regarding amicus briefs.

In re Seagate over-ruled Morrison-Knudsen and held that there is no affirmative duty to obtain an opinion of counsel regarding infringement.

DC Ethics Opinion 341 on metadata says that ”A receiving lawyer is prohibited from reviewing metadata sent by an adversary only where he has actual knowledge that the metadata was inadvertently sent. In such instances, the receiving lawyer should not review the metadata before consulting with the sending lawyer to determine whether the metadata includes work product of the sending lawyer or confidences or secrets of the sending lawyer’s client.”

A lawyer (Staples Hughes) decided to reveal a dead client’s confidences to prevent the incarceration of a non-client. The court rejected the argument and reported Hughes to the state bar.

Important Books

The Duke lacrosse prosecutions—and Michael Nifong’s downfall—were chronicled in Until Proven Innocent. The issue was doggedly pursued by KC Johnson, and it appears that his blog, Durham-in-Wonderland, will win the ABA's top blog award in the category of "Lawyers Behaving Badly."

David Luban’s newest book, Lawyers and Human Dignity, was published.

Law Firm Life

Increasing attention was paid to the “graying” of the legal profession. The ABA came out against the practice of mandatory retirement ages at law firms.

Stanford law students began a site, Law Students Building a Better Legal Profession, designed to disseminate information about law firms and thereby induce firms to improve their performance in terms of life-work balance and diversity.

Law Schools

Professor Milton Regan, Professor Larry Ribstein, and blogger/lawyer Bruce MacEwen published a three-way “conversation” about the prospect of US firms having investor owners.

Hofstra Law School held an ethics conference and one of the speakers was convicted lawyer Lynne Stewart. New media and bloggers criticized her participation. Under New York State Bar rules, no CLE credit was given for her presentation. At the conference, Hofstra law students grilled Stewart about her conduct.

Indiana University’s law school announced a bold new plan to teach a 4-credit "Legal Profession" in the 1L year. Indiana law prof Bill Henderson and his colleagues in the Law Firms Working Group continued to produce empirical studies about the legal profession, associate satisfaction, and how the admissions process is gamed.

The independence of law schools and their faculty was at issue when the University of California (Irvine) fired its new dean, Erwin Chemerinsky, because of his views, and then quickly re-hired him after a public uproar.

Corporate Law Departments & Corporate Scandals

Backdating scandals, many of them involving inhouse counsel, continued to percolate

The HP pretexting scandal was finally resolved.