General Links

« January 2008 | Main | March 2008 »

February 2008

February 29, 2008

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.

Continue reading "Internal Investigation of Incompetent Advising at OLC" »

February 28, 2008

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?

February 27, 2008

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.

February 26, 2008

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.

February 25, 2008

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....

February 21, 2008

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!