Legal Ethics Forum

Internal Investigation of Incompetent Advising at OLC

There are currently two legal proceedings pending which may have the effect of focusing official -- as opposed to academic and media -- attention on the legal advice given by OLC lawyers on the permissibility of certain "enhanced interrogation techniques."  One is the lawsuit by Jose Padilla against John Yoo (and many others, including former SecDef Donald Rumsfeld) alleging that he had been subjected to cruel, inhuman, and degrading treatment amounting to a deprivation of his constitutional advice.  There have been extensive discussions of this lawsuit in various blogs, including a post by our very own John Steele, as well as David Luban's post over at Balkinization.  The second proceeding is the recently reported internal investigation by the Justice Department's Office of Professional Responsibility.  That investigation is aimed at determining whether OLC lawyers violated their ethical obligations by concluding that waterboarding, among other "enhanced interrogation techniques," is lawful.  Marty Lederman and David Luban disagree over whether there is any point to this investigation.  Since Lederman and Luban are just about the most knowledgable people around, with respect to these issues, I've been wondering what they disagree about.

The Meaning of "Material" in MR 3.3

MR 3.3(a)(3) forbids a lawyer to knowingly offer "evidence" that the lawyer knows to be false.  It also requires a lawyer to take remedial measures if the lawyer has unwittingly offered "material evidence" that the lawyer comes to know is false.  The implication is that "material evidence" is more serious than "evidence."  What is your understanding of what "material" means in this context?

Col. Morris Davis to testify for Gitmo detainee?

You may recall Col. Morris Davis from an earlier dust-up.  Davis was the prosecutor who accused a military defense lawyer (Michael Mori) of acting unethically by disparaging the Gitmo military tribunals during a press tour through Australia.  Davis was vilified and some suggested he himself should be sanctioned for unethical conduct.  Indeed, Mori's side fired back at Davis in court papers.

Davis recently resigned from the military commission process, saying that they had been politically compromised.  Now it appears that Davis is willing to testify on behalf of one of the detainees, to prove up the allegations of political interference.   Stories at Volokh and Opinio Juris.  It's not clear to me exactly what the expected testimony would be, or if it would be deemed relevant and admissible.  Perhaps there will be a proffer and/or motion in limine that will give us more details.

Do 2 massive sanctions make a trend?

A federal court has sanctioned a party $10 million for the trial conduct of its lawyers.  The ruling follows a similar fine dished out recently for basically the same conduct: pushing a trial theory at odds with the claims construction.

Political Affiliations and Law School Pedagogy

Thanks to Alan Childress at the Legal Profession Blog for the tip on this remarkable site at the Huffington Post, where you can learn who donates to political candidates, how much they donate, where the donors live, where the donors work, etc. 

I understand why we need to know this sort of information, but I did feel kind of creepy when I saw the names, addresses, and political donations of my colleagues in legal academia by using simple search criteria.  In case you're interested in the bottom line, the data for legal academics is similar to the results of other studies: law professors give a lot more money to Democrats than to Republicans.  (In my unscientific analysis at the Huffington site, donations from law professors favor the Democrats by a 10-1 margin.)   

Back in 2005, Brian Leiter argued that this kind of information is relatively meaningless.  In contrast, others, such as Professor Peter Schuck, suggested that political party affiliations probably do impact the way in which law professors teach their courses.  He argued that "it seems likely that professors' decidedly liberal ideology has a significant influence on what their students think. After all, spending two to four hours a week for over three months listening to an articulate, knowledgeable, skilled rhetorician expound on the law must have some persuasive effect."

Personally, I am somewhat skeptical that our party affiliations have a strong impact on what students learn or how we teach most classes.  For example, I have trouble believing that Democrats teach legal ethics in a meaningfully different way than Republicans or that students end up with different views about legal ethics as a result of their professors' party affiliations.

One of my colleagues suggests (and I agree) that other factors probably have a greater impact on how we teach our courses.  For example, law professors have more experience at elite law firms than most lawyers, which means that many (most?) law professors have spent thousands of hours representing the legal interests of business entities.  This experience is much more likely to influence how we understand and teach about the law than party affiliation. 

To be specific, I'd imagine that someone with large law firm experience would teach legal ethics in a different way (e.g., focusing on issues that impact law firm lawyers and their business clients) than someone who had spent her career as a prosecutor or a legal aid lawyer.  This tendency is likely to affect some students, including their perceptions of what the typical lawyer does for a living and what kinds of careers are held in high esteem.

In short, it seems to me that party affiliation (as interesting as it may be) is a pretty weak predictor of how legal academics teach and that our professional experiences have a greater impact on how we perceive and teach about the law. 

Conflict for Roger Clemens's lawyer?

WSJ law blog has the details.  If you're interested in who has standing to assert that a lawyer has a disqualifying conflict of interest, visit this page from Freivogel on Conflicts.

Justice Department opens another ethics probe of OLC memos

According to the Washington Post (nod to Volokh):

An internal watchdog office at the Justice Department is investigating whether Bush administration lawyers violated professional standards by issuing legal opinions that authorized the CIA to use waterboarding and other harsh interrogation techniques, officials confirmed yesterday.

Most of the process won't be transparent to the public, so the only source of information about the precise grounds for the investigation may be leaks.  The article says that a public summary may be realeased at the conclusion.

We've had discussions here and have cited to David Luban, Kathleen Clark, Stephen Gillers, and others, about the possible bases for ethics charges against OLC lawyers (independence and candor of advice; competence, etc.).  I imagine that the recent Goldsmith book provided some grist for the investigations.

Update on New Jersey "Super Lawyers" Case

There's a brief piece here updating on the New Jersey litigation over whether it is ethical for a lawyer to use their designation "super lawyer." I've seen lawyers tout their "selection" as indicating, also, that it means they are one of only "2.5% of all lawyers" who receive the designation (or something like that). Hmmmm....

Legal Ethics and "Pitching"

Here are three stories that relate to legal ethics and "pitching."  The first concerns the legal ethics issues associated with the representation of Roger Clemens and his lawyer's use of the press.  The second involves a potential conflict of interest for the law firm that represents both Major League Baseball and Roger Clemens.  And the third "pitching" related story involves a proposed bill in Missouri that imposes rather draconian restrictions on lawyer advertising in the state.  (Hat tip to Hofstra's Roy Simon for the first and third stories.  I take full credit for the poor attempt to tie all three stories together.)

Yet Another Misdirected Email to a Reporter

This time, the mistake was made by a very respected litigator at Skadden.  This comes on the heals of a similar mistake by a lawyer at Pepper Hamilton.  The ABA e-Journal, which covered both stories, offers a very sensible suggestion: remove the names of reporters from your email address book! 

An Introduction to the Legal Ethics Issues Associated with Metadata

Here's a nice overview from the National Law Journal.  (Self-serving blog post alert: Co-blogger David Hricik and I are both quoted in the article.)

Scalia on Torture of Suspects

According to the NYT, Scalia said on BBC Radio that it would be “extraordinary” to understand the Eighth Amendment to mean that “so-called” torture could not be used in the face of an imminent threat.  He said that the Amendment refers only to “punishment for crime.”  He added that it would be “absurd” to say that you can’t “smack someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles.... And once you acknowledge that, we’re into a different game.”

I understand Scalia to be saying in those quotations that the Eighth Amendment applies only after one has had due process, but that it has no relevance prior to a judicial determination of guilt.  It appears to me also that he is prepared to assume that the person who is being tortured is indeed guilty of having hidden the bomb, because the interrogators say that he is guilty.

A colleague sent the following email:

I thought (based largely on behavior of nominee judges before the Senate) that one of the serious restrictions on judges was not to comment on cases or matters that might come before them.  In that light,  might not the constitutionality of torture, or at least the power of the Executive to order torture in support of national security, be questions likely to come before the Supreme Court?  Doesn't that make Scalia's comments, (point of view aside) inappropriate?

I responded:

Nominees are not required to decline to answer questions.  They use that to avoid appearing to have prejudged an issue and/or to avoid alienating senators by their positions.  Scalia has stated for the Court that a candidate for a judgeship has a constitutional right to announce a position on a disputed issue of law.  See Minnesota Republican Party v. White.

I agree with Scalia's view (Ibid.) that judges retain First Amendment rights.  However, his gratuitous comment on a critical issue in an impending case, appears to indicate that he has prejudged the issue without the benefit of adversarial presentations and that his mind is not open to persuasion to the contrary (“extraordinary,” “so-called torture,” "absurd").  Thus, a reasonable person might question his impartiality.  That is ground for mandatory recusal under a federal statute and under the Due Process Clause (both of which Scalia has violated in the past with impunity).

Scalia might say that any prejudging on his part was with regard to an issue, not a party, and that only the latter requires disqualification.  However, he has acknowledge (Ibid.) that a position on an issue can constitute, or appear to be, a bias against a party or class of parties.  Here, the apparent bias is against those suspected or charged with being involved in terrorist activities.

This is almost certain to be another case in which Scalia disregards his statutory obligation on specious grounds.

Georgia Sugar Explosion Draws Legal Vultures

There's a predictable story here about the number of lawyers soliciting business from those injured or surviving those killed in the tragic sugar refinery explosion we had here in Savannah.

I think, personally, that if you're going to have these "no contact" laws, they have to apply to lawyers for both sides, and also to insurance companies. If vulnerability is the source of the need to regulate, it cuts both ways.

New article on metadata

David Hricik and Chase Scott have published a thorough piece on where most common software creates metadata, available here in the February 2008 Georgia Bar Journal.  The next issue will have a thorough piece on the split about whether it's ethical to look and/or there's a duty to notify the sender of the presence of metadta.

White Collar Crime Prof Blog on Dickie Scruggs and KPMG

The White Collar Crime Prof blog is doing a great job covering two stories I wish we had more time to cover here: the KPMG case and the Dickie Scruggs matter.

More on that Misdirected Email

Following up on the misdirected email story, here is what the New York Times reporter had to say about it.  (Thanks to my colleague, Marc Greenbaum, for the tip.)

Newspaper series on dependency court

The San Jose Mercury News is running a powerful series of articles on dependency court in Santa Clara County.  You could use the series as a supplement text -- if not the main text -- in a PR or family law course.  There are articles about how zeal is tempered (or eliminated) in the system, for better or worse; how judges treat their assignment to the court; about procedural innovations; and much more.

Lawyers' Liability Down Under: Stephen Warne's Blog

Stephen Warne blogs about the legal profession in Australia, where they are trying some innovations (e.g., public ownership of law firms) that may someday find their way to the US.

Client Perjury - Again, and Still

The current issue of the GJLE has the first law review article I have written on the perjury trilemma since the 1966 one in the Mich. L. Rev.  I'd be interested in comments.  Here is the TOC.

I.  The Beginning of the Client Perjury Controversy

II.  The ABA’s Solutions to Client Perjury

    (A) The Canons of  Professional Ethics (1908-1969) – Protecting Client’s Confidences Given Primacy Over Candor to the Court

    (B) The Model Code of Professional Responsibility (1969-1983) – Disclosing Client Perjury Continues To Be “Unthinkable”

    (C) The Model Rules of Professional Conduct (1983) – The Apparent Change in Policy in Rule 3.3 Has Been Virtually Nullified by Interpretation of “Knowing”

III.  Model Rule 3.3 Unfairly Prejudices Defendants Who Are Poor and Members of Minority Groups

IV.  Model Rule 3.3 Violates the Fifth and Sixth Amendments

Lerach to Lecture on Legal Ethics at Pittsburgh?

Given how much press the Lynne Stewart story got, this is sure to get some attention as well. 

Unlike Stewart, who gave a single lecture at an ethics conference, William Lerach could be more heavily involved in teaching the basic legal ethics course at Pittsburgh.  Lerach's sentencing memo (see page 25) suggests that he wouldn't be the primary faculty member in charge of the course, but that he would simply be a regular lecturer in pre-existing courses.   (The memo is somewhat unclear as to how much authority he would have in the classroom.)

I don't see a problem with using Lerach as a frequent guest speaker in an existing course, though I would have more concerns if he were going to be the primary teacher for the legal ethics class.  It is pretty common in legal ethics courses to invite guest lecturers to talk about their ethical violations, so I don't see Lerach's involvement in an ethics class to be extraordinary if it takes that form. 

But if he were asked to teach his own course, I think that would send the wrong message to students.  Whereas a lecturer can be held out as a cautionary tale, the person in charge of the course is being held out by the law school as an expert on legal ethics.  Lerach can certainly tell the cautionary tale, but I don't think he should be held out as a legal ethics expert for students.  The sentencing memo suggests that Pittsburgh is erring on the right side of this line (just as I think Hofstra erred on the right side of this line), but the details of this proposed arrangement are still a bit unclear.

Why Maryland's State Bar Doesn't Give Ethics Opinions for Free

In the comments to an earlier post, Paul Raschke, the chair of Maryland's ethics committee, explains the history behind their decision to charge for access to their ethics opinions.

Feeling Sorry for Big Firms

John kindly invited me to share a panel with him at the APRL meeting last Friday.  The topic was terms sophisticated clients now demand of sophisticated firms.  I played my role of economic provocateur, and the APRL members were as John promised -- wonderfully engaged and uninhibited.  I wish every audience was even half so good. It was great fun.

I thought the topic might be of some general interest, particularly since my freedom of contract argument was not universally welcomed.  A summary of my argument, and responses to some objections, is below.

The Pepper-Luban-Kaufman debate over lawyers and morality

I'm glad to post some classic articles that are hard to find.  In preparation for an Inn of Court presentation, I corresponded with Professors Stephen Pepper and David Luban, who kindly granted permission to post their classic dialogue about whether lawyers should be amoral agents for their clients (within the bounds of the rules) or should be moral acitivists under the same standards that apply to all human beings.  First is Pepper's The Lawyer's Amoral Ethical Role: Download pepper_article_1.pdf  Next is Luban's response, The Lysistratian Prerogative: Download lubanlysistratian_2.pdf  (David Luban reminded me that his views have undergone some revisions over the last 21 years, but despite that I am sure you'll enjoy his response to Pepper.)  Next is Andrew Kaufman's views on Pepper's piece: Download kaufman_3.pdf   Finally we have Pepper's rejoinder: Download pepper_rejoinder_4.pdf 

Ben Kuehne indicted: gave legal advice about accepting legal fees

Story here, and here.   Kuehne allegedly advised criminal defense attorney Roy Black about the legality of accepting certain cash for the defense of a drug kingpin. Kuehne was presumably acting in the counselor/advisor capacity when he offered the opinion, and from the news stories it appears he undertook the role of doing due diligence to support his opinion.  He apparently has a reputation for high ethics, and is considered somewhat of an ethics guru in his legal community.

I'm just starting to dig into this case, but what caught my attention was the assertion that giving legal advice was a crime.

The Happy Legal Ethicist

Or so says this article from the National Law Journal.

A Remarkable Story About an Inadvertent Disclosure, a Lawyer, and a Journalist

Sound like the start of a really bad joke?  Unfortunately, it's not. 

Here's the story.  Eli Lilly was recently in confidential talks with the federal government regarding the marketing of the company's schizophrenia drug, Zyprexa.  One of Lilly's lawyers apparently intended to send a confidential memorandum regarding those negotiations to co-counsel at Sidley Austin.  The lawyer at Sidley was named Bradford Berenson.  The sending lawyer also happened to have an email address for Alex Berenson, a reporter at the New York Times.  Unfortunately, the email's auto-complete feature filled in the address for the reporter rather than co-counsel.  The reporter thus got the sensitive document by mistake and eventually used the information to good effect: a front page story in the Times.  (HT to http://slashdot.org/) 

UPDATE: There is some suggestion now that, although there was a misdirected email, the reporter got his information from other sources.  What's not clear is whether the reporter was able to follow up with other sources, because he got the email.  That is, the reporter's story might still be the fruit of the misdirected email, even if the email itself did not contain the information that made its way into the story.  At this point, the details are still unclear.

SECOND UPDATE: Here's an interview with the New York Times reporter regarding what happened.

Interesting Piece on "Lessons" from Qualcomm

There's a good piece here on the lessons that lawyers can learn from Qualcomm.  I always tell students that "character is what you are in the dark" (hat tip to Buckaroo Bonzai).  This article does a nice job of parsing what happened and learning from it.

Update on North Carolina Lawyer Facing Discipline

You may recall this story about a North Carolina lawyer who disclosed confidential information from a deceased former client, because it showed that a man who was serving time for murder was actually innocent.  That attorney had been facing discipline, but the North Carolina bar has (wisely, in my view) dropped its complaint against the lawyer. 

EU Considering Case on In-House Counsel Privilege

Should communications with in-house counsel never be privileged, since the lawyer is not independent of the client? If the premise sounds flawed, then you're with me, but you should read about the fight going on in Europe right now. A short piece on that case, Akzo Nobel Chemicals and Akcros Chemicals v. Commission of the European Communities, is available here.

Seems to me that any view of inside counsel as not "separate" from their corporate employers misses the mark, and widely, at least here in the US.

The Trend on Metadata?

I've been giving some additional thought to the ethics issues associated with metadata, both because of the recently issued opinions in Arizona and Pennsylvania and because I've recently given several lectures on the problem. 

In my view, I think it's impossible to develop a blanket rule that captures the complexities of this issue.  So I'm inclined to like the Pennsylvania approach, which effectively says that a lawyer who receives an electronic document containing potentially privileged metadata should be able to look at that metadata, but only in certain circumstances.  Although this "sometimes it's ok" approach needs to be fleshed out with concrete illustrations in order to ensure that lawyers have adequate guidance, I think that a nuanced approach is essential.

To see why, consider two examples drawn from litigation.  In the first, a lawyer receives discovery documents from an adversary, some of which are in electronic form.  Some of the electronic documents have been converted to .pdf, and some of the text in those documents has been digitally redacted through the use of what is effectively a digital black magic marker.  In many cases, this digital redaction may cover the visible text, but a savvy user of electronic documents can easily discover the text that lies beneath the digital "black out."  Should the recipient of such a document try to see what's underneath?

ABA urges tougher accreditation standards (at the cost of diversity?)

Story here, with nods to Volokh (where the comments are flying fast and hot) and Paul Caron.  One of the commentors at Paul Caron's site has linked to this data, which shows low  bar passage rates and how far those schools are from the state average -- the two metrics that may be used to crack down on law schools.  Efforts to tighten bar exam standards probably will have a disproportionate impact on certain minority groups, putting further pressure on efforts to increase diversity in the profession.

Issue Spot Exam Question in legal ethics

Here's the issue spotter from my Fall 2007 course at UC-Berkeley.

*****************

You’re a third year associate at Stacy Brent & Associates.  The sole partner, Stacy Brent, left you this voicemail:

“I’m in trial representing a British citizen, Nehal Mehta, in a civil fraud suit against Monterey Finance (MF).  Yesterday morning, MF’s lawyer, Jo Solti, said that MF had just been acquired by Monterey Bank (MB) and that MB should be substituted in as the defendant.  Well, MB either was or is a client!  They haven’t sent us work in a while, but have sent us many projects over the years.  Then the Internal Revenue Service served me with a subpoena demanding that I produce any client files reflecting Mehta’s finances.  I am sure that Solti put the IRS up to it.  Solti said that a treaty between the US and the United Kingdom allows the UK to demand that the IRS subpoena any information relevant to terrorist financing.  Can you believe it?  Solti’s been trying to insinuate a terrorist financing theme into the trial when it’s completely false.  Anyway, identify the ethics issues on all that and we'll talk.

“Brook Hutz telephoned -- again.  Originally, I didn’t even want Hutz as a client.  When a solo practitioner in town, Leslie Sanchez, had a massive stroke, lots of clients went abandoned.  That’s why Hutz sought me out. Hutz pays my legal bills grudgingly.  Thank goodness I got a lien on Hutz’s house in the fee agreement.  Have a non-lawyer staff person let Hutz know that I’ll call back when I’m out of trial.  There’s nothing happening in Hutz’s case—well, actually, Judge Van Falk recently transmitted some of the pleadings to a grand jury investigating the lawyer for Hutz’s opponent.  But the court ordered us not to tell our clients about it.

“On another matter, when reading the newspaper this morning I realized I need some ethics research done.  We represented Alex Adams in negotiations to sell a parcel of land to the county—well, actually, Adams dad, who’s really wealthy, paid the fees.  I told the county’s lawyers that Adams wouldn’t take less than $2.6 million.  The county’s lawyers didn’t trust Adams and wanted to hear some facts about the parcel “straight from the lawyer’s mouth.”  So I gave them some factual representations about the land, which I believed were true.  Then I discovered that Adams wasn’t disclosing that the land is downhill from a toxic waste site!  I found that morally repugnant and so I gave Adams a moral scolding and when that didn’t work I terminated Adams as a client.  But while reading about the possible sale today, I realized that some of my comments to the county lawyers may have been false or misleading.  I can’t do anything about that now, can I?

“Anyway, get back to me and after work we can grab dinner and drinks at Happy Jacks.”

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Only the ABA Model Rules of Professional Conduct apply.  Spot issues arising in this fact pattern, identify the governing rules and/or comment paragraphs, and analyze the issues to the extent the time limits permit. 

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NLJ on Qualcomm Opinions

There's a pretty interesting piece here on this issue and the "tremors it is creating, which we blogged about below.