Legal Ethics Forum

Odd and Ends about Previous Posts (as reported by the WSJ Law Blog)

Regarding Ben Kuehne, the Miami criminal defense lawyer who was criminally charged for rendering an ethics opinion approving of Roy Black's receipt of legal fees from an alleged drug kingpin: we've heard the extraordinary rumor -- we repeat "rumor" -- reported by the WSJ Law Blog is that DOJ has replaced the prosecutor and is considering dropping the charges.  If that really comes true, someone's career (the person who made the initial decision) should be effectively over.    . . . .    Regarding the motion filed by Enron's Jeff Skilling, alleging that the government's failure to turn over allegedly exculpatory interview notes: WSJ Law Blog reports that the government doesn't think the notes were that exculpatory.    . . . .    Regarding the Second Circuit appellate argument about the trial judge in the KPMG matter dismissing numerous claims because the government interfered with the defendants' ability to secure defense counsel: WSJ Law Blog reports that the government faced a skeptical and hostile panel.    . . . .    Regarding the Milberg Weiss saga, Mel Weiss pled (yes, "pled," not "pleaded") guilty, as reported by the WSJ Law Blog.    . . . .    Finally, here's a WSJ Law Blog story we didn't previously cover: USDC Judge Manual Real, who sits in LA, has been removed from a case on retrial.  I was on a trial team that tried a six-week case in LA before USDC Judge A. Andrew Hauk, so there's nothing Judge Real could do that would shock me.

More on US News

I tried to post this as a comment, but we don't allow html, so this is a follow on to Andy's post, below.

Andy, when I view the "below 101" numbers, there's no "score" and they seem to be alphabetical. If you pay, does it show the score and "ranking" below 100? As you know, the ranking system is, rightly or wrongly, taken by students -- customers -- to be important. Thus, rightly or wrongly (and many, including Brian Leiter think wrongly), it affects what those institutions do: there is a famous story, for example, of Nancy Rapoport's deanship at University of Houston Law Center ending in large part because of UH's "fall" in the rankings.

Mercer, my institution, has hovered between 100 and 90 for the past five years. I obviously think we deserve a better place in the system, but what I have always been bothered by is the critical distortion that the rankings system creates at the 100th place, at least from the way it has been done and appears (at least in the free version) to be done: the top 100 schools are ranked one to one hundred by "score," but after 100... they have been ranked, and I think they still get ranked, in two groups in "tiers" by name only, without a score. So, a school that falls only from 100 to 101 may in appearance fall 50 "places."

So, you know that schools just "below" 100 are doing everything they can to affect their score upward, while those in the 90's are doing everything they can to distort their score, too. No one wants to fall from the top, ranked tier to the bottom, unranked, two tiers.

Anyhow, the whole thing is odd to me, since I don't believe that a school can be distilled down to a number, but the distortion that the system causes -- what US News includes that a school can affect will matter more than it perhaps should to the school -- is particularly amplified by the 1-100 then "two tier" system.

And now we return to your regularly scheduled broadcast...

The Misdirected Message and the Search for Truth

The following illustrates how the misdirected fax or email can aid in the search for truth -- an issue that is consistently ignored or minimized in discussions supporting a requirement that lawyers ignore such messages, send them back, etc.

Misdirected E-Mail Set the Stage for Clear Channel Suits

Posted Mar 27, 2008, 10:00 am CDT
By Debra Cassens Weiss

A misdirected e-mail from Credit Suisse helped set the stage for two lawsuits filed this week by two private equity firms seeking to purchase Clear Channel Communications, the New York Times reports.

The suits accuse Credit Suisse and five other banks of breaching a contract to finance the $19.5 billion sale and interfering with the purchase agreement. The court filings come less than a year after the buyers, Bain Capital and THL Partners, received an unusual e-mail from Credit Suisse. The July e-mail contained confidential documents discussing how the banks planned to renege on terms of the lending agreement, the Times story says.

The suits were filed in state courts in Manhattan and Bexar County, Texas. Late yesterday, the judge in the Texas suit, which seeks $26 billion in damages, issued a temporary restraining order requiring the banks to carry out the deal, the Wall Street Journal reports.

Full U.S. News Law School Rankings Now Posted

You don't have to rely on fuzzy images of early-released copies any longer.  The 2009 rankings are now up on the U.S. News web site. 

Of note this year is that third and fourth tier schools appear to be listed by rank order (at least in the online edition).  In the past, schools outside of the top 100 were simply listed alphabetically within each tier.  With all the attention paid to the top 100 schools, people forget that just shy of half of all accredited law schools fall outside of the top 100, so the new ranking will have greater significance for those schools.  For what it's worth, the third tier rankings start here.

March Madness! (think USN&WR rankings, not basketball)

Well, the rankings are [probably] out.  In a perfect world, law schools would provide data about their students' debt loads, their entering credentials, their bar passage rates by entering credentials and by class rank, their hiring statistics (including starting salary) by entering credentials and class rank, and other data that students would find useful when deciding whether to enrol, when deciding what 2L and 3L courses to take, and when deciding how to enter the profession.  The schools don't want to, and so far nobody can make them.  While the number of (largely irrelevant) ranking schemes continue to proliferate, the grand-daddy of them all, the USN&WR rankings, are [purportedly] now out.  (Bracketed text was subsequently added.)

Harvard Law Review note on "Government Counsel and their Obligations"

Pdf here.  (nod to Concurring Opinions)

UPDATE:  Having read the piece, I find it to be an interesting but flawed thought experiment.  The thesis is that we adapt the corporate lawyer's gatekeeping function to the world of Executive Branch (EB) lawyers and conceive of the EB lawyer as having primary, secondary, and tertiary clients -- a kind of tripartite client depending on the facts of the situation.  The first client is the president; the secondary client is the presidency; the third client is the public (whose agent is the Congress).  To make this scheme work, the Attorney General would be required to report to Congress the substance of opinions that the AG has rendered to the President, and individaul EB lawyers would have discretion to "report out" to Congress in extreme cases.

What I like about the proposal is that it emphasizes (i) the need to define the client and (ii) the need to "report up" when the organizational client is going astray.  But for anyone who's actually handled legal ethics matters, the idea of tripartite clients cries out for a more thorough explanation than the Note provides.   Moreover, it treats the President as subordinate to Congress when it requires "reporting out" to Congress.  We shouldn't create professional duties that would conflict with the balance of powers.

It seems to me that we are still moving down the learning curve on how to define the professional duties of lawyers in the federal government.  My intuition suggests that (i) we shouldn't adopt multi-client models but rather use the pre-exising model of the organizational client that has fiduciary duties to other persons and that is bound to follow the law; and (ii) we will need to look more closely at the particular roles of the various government lawyers.   That is, we'll need to ask about how the work of each EB lawyer plugs into larger social systems, how it relates to the balance of powers, and how it relates to the traditional sub-roles of advocate, negotiator, evaluator, and counselor.  I'd expect that this process of sorting out the ethical duties will be slow and event-driven, and that over time we'll recognize quite different duties for the various EB lawyers.  (And notice that we haven't yet discussed lawyers employed by Congress or the judiciary.) 

Ethical Infrastructures in Australian Firms

Here's an article about building a more formal ethics infrastructure in Australian firms.  The article acknowledges the help of, among others, Elizabeth Chambliss, Susan Fortney, and Kimberly Kirkland, who have all written good pieces about ethics and structural issues in US firms.

Posts about non-lawyers in court

The first one, viaMike Frisch at Legal Profession Blog, says that "the Montana Supreme Court has adopted rules that permit non-lawyers to act as counsel before the Montana Water Court."  The second, via Erica Hashimoto of Concurring Opinions, discusses tomorrow's Supreme Court hearing in Indiana v. Edwards, which deals with the right of self-representation.   

Lawyer's demand letter as criminal extortion?

Sometimes, it's extortion.  News from Simple Justice.

Wearing a Wireless Microphone to Court

That's what a Massachusetts lawyer did during a murder trial in order to take part in a television documentary.  The client was convicted and appealed on the grounds that the lawyer's microphone-wearing resulted in ineffective assistance of counsel.  (Thanks to my colleague, Diane Juliar, for alerting me to the story.)

The Massachusetts Supreme Judicial Court ruled last week that the lawyer's conduct resulted in a conflict of interest.  But the Court affirmed the conviction, holding that the client consented to the conflict.

I certainly agree that the microphone created a conflict of interest.  The Court explained it this way:

On the one hand, counsel had a duty to give undivided loyalty to and zealous representation of his client. On the other hand, counsel assumed the obligation of wearing a wireless microphone and giving third parties seemingly unfettered access to his confidential relationship with the defendant. These competing responsibilities created an actual conflict of interest for counsel. 

Notably, in Massachusetts (unlike many jurisdictions), a defendant does not have to show that the conflict had an adverse effect on the lawyer's performance.  A mere showing of a conflict is sufficient to result in a reversal. 

The Court, however, said that the defendant consented to the conflict, because his lawyer described the dangers of the microphone with sufficient detail so as to get a knowing and intelligent waiver.  I wonder, however, whether consent would satisfy Rule 1.7, which states that a conflict isn't consentable unless the lawyer reasonably believes that he/she can represent the client effectively.  Although the microphone apparently could have been turned off at will by the attorney, it's at least arguable that no reasonable attorney could have represented her client effectively under these circumstances.  I'm not sure I necessarily disagree with the Court's ultimate conclusion on this point, but I do think this case is a tougher call than the SJC opinion suggests.

The defendant also contended that the trial court should have engaged in a colloquy with him to ensure that he fully understood the conflict and his waiver of it.  Indeed, the SJC explained that some conflicts are so severe, such as when a defense lawyer represents multiple co-defendants, that a trial judge should engage in a colloquy before permitting consent.  The SJC, however, thought that the conflict in this case was not so serious as to warrant a colloquy.  Personally, I agree that the microphone doesn't rise to the same level as representing multiple co-defendants, but where exactly is the line between conflicts that require a colloquy and those that don't?  The answer is not entirely clear to me, so I'm not sure where this microphone-wearing conflict should fall.

As my analysis reveals, I'm not that familiar with the law on colloquies or consent in the criminal context, so if anyone has deeper insights, please post them in the comments.  Was the case correctly decided?

Galanter and Henderson on "The Elastic Tournament of Lawyers"

The SSRN paper is here.  Because it follows up on the seminal Galanter/Palay book, this new article is a must read for people interested in private firm pratice in the US.

Rob Vischer on Moral Engagement Without the "Moral Law"

Professor Rob Vischer has a new article with the above title, which can be found here.  I haven't read the article yet, but it appears to tackle some important, foundational questions about role differentiated morality and moral dialogue.  Here's the abstract:

Several years ago in my Professional Responsibility class, I wanted to see how far I could push my students in their embrace of the notion that the moral evaluation of conduct depends on the professional role one occupies. I asked students to imagine that they were medical researchers in Nazi Germany, and that the authorities brought them to a concentration camp, inviting them to experiment on live human subjects. Would they, as scientists, proceed with the experiments? The first three students I called on answered that they would do the experiments if it would advance the research. One explained that morality is constructed by society, and in that particular society, the experiments would not be considered immoral. Another asked, "If those inmates are going to die anyway, why not have them contribute to the greater good?" The third insisted that the job of the researcher is to expand scientific knowledge, and the job of the government is to define the limits of that research. Absent government prohibition, the researcher has no moral reason not to proceed.

These students, I am confident, did not believe what they were saying. They were engaging my question according to the rules of good lawyering, as they perceived them - figuring out a way around any and all obstacles standing between the actor and a given course of conduct. Indeed, much of the blame for their answers belongs with the messages they receive about the values of the legal profession. Much of the law school experience sends the message, subtly but unmistakably, that cleverness is valued over wisdom, and that the law is simply a problem to be solved, rather than an inescapably moral endeavor.

In comparison to the era when the American Bar Association, via the 1908 Canons of Professional Ethics, could confidently instruct lawyers to "impress upon the client and his undertaking exact compliance with the strictest principles of moral law," today we are more skeptical about the existence of any "moral law," much less that it could or should be impressed upon the client. Recognizing the variability of moral convictions and complexity of moral analysis has understandably made lawyers reluctant to judge their clients by moral standards not reflected in positive law. But this reluctance to judge seems also to have brought a reluctance to engage the client on moral terms. The resulting technocratic view of law is evidenced far beyond the walls of my classroom. A refusal to acknowledge the moral dimension of legal practice has contributed to several of the leading lawyer-fueled scandals of recent years, as well as to the broader malaise that has afflicted the profession for some time. Nevertheless, the prospect of putting morality onto the table of legal representation is unsettling to many. This essay looks to reframe our conception of morality's relevance to professionalism, using the Canons' espousal of moral accountability as an insightful point of entry.

What hath Nifong wrought?

The Recorder is carrying the story of a spate of recent California State Bar disciplinary actions against prosecutors.  It's often said that discipline is rarely sought against prosecutors, and so people are naturally asking if this is all a reaction to the Duke lacrosse fiasco masterminded by Michael Nifong.  You should read the whole article but here's a key passage:

Some attorneys who defend lawyers facing discipline believe state bars around the country, including California’s, have begun scrutinizing prosecutors more closely following the North Carolina State Bar’s decision last year to disbar Michael Nifong.

“Lots of prosecutors are getting caught in the crosshairs,” Los Angeles attorney Diane Karpman said, because the public senses some “aren’t playing by the rules.”

But State Bar Supervising Deputy Trial Counsel Donald Steedman,  . . . said that while it’s “fairly rare” to have so many cases against prosecutors under way at once, there really is no rhyme or reason.

Fred Zacharias and Bruce Green have published some good articles about disciplining and regulating prosecutors.

Hricik Asks: Got Claims?

All, I'm in the final stages of preparing the first of two volumes on ethical issues in patent practice: the first is on patent prosecution (co-authored with Drinker Biddle partner Mercedes Meyers, and the second, on litigation, by lil' ol' me).  I think we've about scorched the earth on the types of claims and issues that can arise, but if you've got some unusual ones, please post away.

Thanks -- it's an Oxford University Press project that, the good Lord willing, will be in print late this summer.

David

Peter Margulies on the Office of Legal Counsel

OLC lawyers have found themselves at the center of a lot of recent commentary.  (See, for example, Brad Wendel's excellent post and the links contained in it here.)  Professor Peter Margulies has a new article out that tackles some of the thorny legal ethics issues involved.  You can find a copy of his article here.  The abstract is below:

Post-September 11 legal events have demonstrated that ideological agendas distort the deliberation required for sound advice about national security. Legal issue entrepreneurs who market a theory without context exalt short-term interests and encourage executive unilateralism. These perils have emerged in a number of recent developments, including the torture memos drafted by the Justice Department's Office of Legal Counsel (OLC) and the destruction of CIA interrogation tapes.

In the post-September 11 legal climate, issue entrepreneurs saw legal constraints as "lawfare" against American interests. The lawfare critics extolled parsimony as a virtue - advancing the lawfare construct to explain as many complex events as possible. However, the lawfare critics failed to recognize that legal constraints can also empower decisionmakers, by checking the executive's tendency to discount reputational and other long-term values.

Unfortunately, existing remedies are not a good fit for the problems caused by issue entrepreneurship. Tort litigation, such as the recent suit by Jose Padilla against John Yoo, risks personalizing the problem and neglecting systemic issues. The informal norms approach suggested by a number of OLC alumni, while offering a number of excellent proposals such as citing and distinguishing adverse authority, has not attracted stakeholders across the political spectrum. A structural reform approach that replaces OLC with an adjudicative entity may produce an inquisitorial tribunal that lacks sharp adversarial inputs and loses influence to more pliable players such as White House counsel.

To transcend these difficulties, lawyers should turn to a model of dialogic equipoise relying on two values: transparency and tailoring. Dialogic equipoise allows the president to take action that is inconsistent with the most accurate reading of sources of authority. However, action must be both interstitial - with a clear exit strategy - and publicly disclosed. To implement the dialogic equipoise model, the Article recommends a blended approach, including a safe harbor for publicly disclosed legal opinions, consideration of institutional consequences, assertion of the least drastic rationale for executive power, and an ex ante role for Inspectors General and OLC in document preservation. This blended regime can reinforce deliberation when exigencies obscure the teachings of prudence.

The Murky Law on Collecting Legal Fees From Criminal Defendants

Here is more on the story involving Ben Kuehne, a highly regarded lawyer in Florida who has been indicted for money laundering in connection with the advice that he gave to well-known criminal defense attorney Roy Black.  Black wanted to know whether he could accept more than five million dollars in legal fees from an alleged drug kingpin of a Colombian drug cartel.  Kuehne investigated the issue by (among other methods) traveling to Colombia to trace the funds, and he concluded that Black could accept the money.

The story makes pretty clear how murky the law is on the subject of a lawyer's acceptance of money that might be the proceeds of criminal activity.  It's worth a read for any criminal defense lawyer.

For other links to this story, see John Steele's post and the comments after it.

Nominations Sought for PR Section Executive Committee Members

Here is an annoucement from Professor Peter Joy regarding executive committee nominations for the Professional Responsibility Section of the AALS:

Nominations are now open to fill six new vacancies on the Professional Responsibility Section Executive Committee.  At the January business meeting of the Section, the Section membership adopted a bylaw amendment expanding the size of the Executive Committee from officers and six members to officers and twelve members.  In order to fill these six openings, Chair Irma Russell has appointed a Nominations Committee consisting of Peter Joy (Chair) (joy@wulaw.wustl.edu), Carol Needham (needhamc@slu,edu), Russell Pearce (rpearce@law.fordham.edu), and Laurel Terry (lterry@psu.edu). 

One reason underlying the expansion of the Executive Committee was to encourage more members to participate and to increase the diversity of the Committee by bringing in newer faculty.  If you are interested in getting more involved in the Section, we encourage you to self-nominate.  The workload is not heavy and should not interfere with your scholarly commitments. 

The Nominations Committee urges you to send your nominations to any member of the committee via e-mail.   Any person who is member of the Professional Responsibility Section is eligible to serve, and persons may suggest themselves as well as others.  The procedure calls for the Nominations Committee to make recommendations to the Section Chair, Irma Russell, who shall appoint members of the Section to fill the vacancies subject to the approval of the Executive Committee.  One new member will be appointed to serve a three-year term, four persons will be appointed to serve a two-year term, and one person will be appointed to serve a one-year term. 

In order to fill these positions expeditiously, a deadline for nominations has been set for the easy to remember deadline of April 15, 2008.  If you know of anyone whom you think would make a good member of the Section Executive Committee, or if you are interested in serving, please send your nominations.

Dennis Ventry on "Cooperative Tax Regulation"

Dennis J. Ventry Jr., of American University, has published "Cooperative Tax Regulation" at SSRN.  Here's an abstract.

The last thirty years have witnessed unprecedented tax avoidance. Corporate tax shelters have cost the government hundreds of billions of dollars in lost revenue, and the annual "tax gap" (the difference between what taxpayers should pay and what they pay on a timely basis) exceeds $400 billion. There are many explanations for overaggressive taxpayer behavior. But adversarial ethical standards for tax professionals and equally adversarial command-and-control tax regulation have been especially culpable in creating the perfect tax avoidance storm.

Debased ethical guidelines promulgated by the American Bar Association and the American Institute of Certified Public Accountants, in combination with government efforts to regulate tax practice, produced a competitive rather than a cooperative regulatory environment. Practice standards steeped in adversarial norms fostered tax shelter behavior among tax practitioners. They authorized tax advisors to assert "any colorable claim" in the name of client advocacy, to advise "noncompliance with scienter," and to view the filing of a tax return as a first offer. Combined with audit rates ranging between one and two percent, taxpayers and their advisors confidently played the "audit lottery" and resolved all questionable positions in the taxpayer-client’s favor. Social norms that rewarded clever tax planning and standards of tax practice emphasizing a client-centered ethical structure subordinated professional duty in upholding the nation’s tax laws to unalloyed client advocacy and tax minimization. Meanwhile, the organized bar failed to rein in members participating in overaggressive tax planning. Beginning in the early 1980s, the abject failure of self-regulation prompted the Treasury Department to deputize tax practitioners (largely involuntarily) and to promulgate disciplinary standards to fill the ethical void left by the professional associations. As Treasury and Congress ramped up efforts to curb tax avoidance with top-down regulation, aggressive tax advisors performed an end around the government. Tax shelter transactions grew increasingly complex at the same time the IRS faced serious shortfalls in money, personnel, and expertise. An eviscerated tax agency was left to enforce tax laws with tools that prompted more rather than less avoidance.

This Article describes a new approach to tax regulation based on cooperation, information sharing, and interest convergence. It accepts the findings of general prevention studies in the criminal literature indicating that taxpayers will comply with the law in the presence of effective deterrence and enforcement, but it reconceptualizes traditional notions of deterrence and enforcement. To this end, the Article optimizes the use of penalties as a compliance instrument by, among other things, rewarding compliant taxpayers, engaging taxpayers and their advisors in a participatory process, and utilizing cognitive devices that portray payment of taxes as a bonus rather than nonpayment of taxes as a penalty. Even with optimal penalties, tax officials cannot currently enforce the law effectively due to severe resource and information asymmetries. To overcome these debilitating shortcomings, the government must improve funding, recruiting, training, and retention. It must also partner with taxpayers and practitioners to strengthen detection, enforcement, and prosecution of abusive tax avoidance. If successfully implemented, cooperative tax regulation can accomplish a cultural shift not only in taxpaying, but also in tax advising and tax administration. Ultimately, it can produce a regulatory environment of collaboration rather than adversity, ex ante resolution rather than ex post controversy, and certainty rather than secrecy.

Prosecutorial misconduct alleged in Enron trials; was Skilling nifonged?

Larry Ribstein has the story.  So does Tom Kirkendall.  The allegation is that prosecutors withheld exculpatory evidence -- that they "pulled a Nifong."  The defense brief is here.

UPDATE: Ellen Podgar has thoughts, here.  WR Chambers asks if we'll post the government brief.  I'd like to.  If I miss it, feel free to leave me a comment.

Interesting Hot Potato Case out of Utah

In Flying J Inc v. TA Operating Corp., 2008 WL 648545 (D. Utah March 10, 2008), the court refused to disqualify Gibson Dunn.  It's a fascinating case, where Gibson Dunn tried to get a consent to avoid the "we may develop evidence that can be used against you" disqualification now becoming a real issue, but the client refused, and it involved the striking of an affidavit from ethics expert Thomas D. Morgan, though not due to any defect. 

The court rejected the argument that the conflict had been "thrust upon" Gibson Dunn and so fell within the "thrust upon exception to the hot potato doctrine", emphasizing that the firm had pursued developing claims against its own current client.  Despite that, however, it rejected applying a per se rule of disqualification, and instead adopted a "functional analysis" to a current client disqualification and denied the motion to disqualify, weighing the harm to the movant as well as the harm to the other client. It's an interesting read.

"Cutting to the Core of America's Justice System"

That's what 60 Minutes claims it's doing with its coverage of Alton Logan's case.  But it's hard to see how the story accomplishes that goal; the reporting of Logan's seemingly wrongful conviction focuses almost exclusively on two criminal defense lawyers for another man, Andrew Wilson, who confessed to the crime many years ago.  Indeed, in the television interview, the reporter subjects Wilson's lawyers to some rigorous questioning about why they didn't disclose Wilson's confession at the time of Logan's initial trial.  (For a nice discussion of admissibility issues in the case, see here.)

The problem with the story, which is otherwise a good one, is that it fails to explore the true cause of wrongful convictions.  If the reporters really wanted to "cut to the core of America's justice system," they would have questioned the prosecutor about why he/she focused on Alton Logan in the first place.  They would have questioned the jury, which nearly sentenced Logan to death, and asked them why they found the case against Logan to be so compelling.  And they would have spoken to the three eye witnesses, who all fingered Logan in the crime.  Why were they all wrong?  The answers to these questions would cut to the core of the American justice system, but they received nary a mention on the show. 

So before anyone, including the press or the public, criticizes Wilson's lawyers, ask why the system seems to have failed in Logan's case and why it has failed so regularly in Illinois and elsewhere.

Class Counsel and Stolen Documents

My post on the WSJ's story on Mr. Torkelson's inflated billings generated some critical responses.  (I clarify in comment two below that my criticism is directed to the naming of Messrs Park and Coughlin; I do not question Torkelson's general statement about the firm's knowledge.) 

One correspondent mentioned a recent WSJ law blog story (piggybacking on Fortune's Roger Parloff) that a special master has recommended that the Coughlin, Stoia firm be found inadequate to act as counsel for a class of investors suing Coca Cola.  The master was disturbed that the firm (in its previous incarnation as Milberg) had, as he saw it, paid former Coke employees for documents he found they stole from Coke when they were fired. 

My economic analysis my moral intuitions conflict in this case. 

Revealing Confidential Information to Free an Innoncent Man

Legal ethics professors like to ask students whether a lawyer should be allowed to disclose a client's confidential information in order prevent the wrongful execution or incarceration of another person.  The issue, it turns out, is not simply a good classroom hypo; there are a number of reported cases where lawyers have faced this very question.

The question, in fact, has arisen twice recently, in North Carolina and in Illinois.  Just this evening (Sunday), 60 Minutes ran a compelling story about the Illinois case, which involves the apparent innocence of a man named Alton Logan.  (Thanks to my colleague, Gabe Teninbaum, for the tip.) 

According to the 60 Minutes account, another man, Andrew Wilson, confessed more than twenty years ago to committing the crime for which Logan was convicted.  The only problem for Logan: Wilson confessed to his own lawyers, not to the police.  Wilson's lawyers sat on the information, until Wilson died recently, and then disclosed the decades-old confession to Logan's counsel.  Logan's lawyers are now seeking a new trial based on the confession. 

You can watch the story here, or if you'd prefer, you can simply read the transcript.

The WSJ and Mr. Torkelson

The WSJ reports that John Torkelson, formerly a plaintiff-side expert witness in securities litigation, has submitted a statement (in connection with a plea deal) admitting to submitting to district courts for reimbursement false statements of his billings on cases.  Mr. Torkelson apparently states as well that the firm he worked with, then Milberg Weiss, knew his numbers were inflated. 

Though Torkelson's statement apparently did not name names, the story mentions that Keith Park, who dealt with settlements at what in those days was Milberg Weiss and is now Coughlin Stoia, signed a reimbursement request in one relevant case.  I only worked with Mr. Park on one settlement, about 11 years ago, but he struck me as a true gentleman.  I can't believe he  would submit false reimbursement claims if he had any idea they were false.  I had even briefer contact with Pat Coughlin, also named in the story as signing a request for reimbursement in one case, but he seemed and is known as a smart, forthright person.  It seems extremely unlikely to me that he would agree to submit false claims.  Most likely, their names appear on standard documents that were part of a fairly standardized settlement process.  I would draw no adverse inferences from their signatures.

The WSJ states "It isn't known whether Messrs. Park or Coughlin knew fees were inflated," but we know from the story that their names do not appear in Torkelson's plea papers.  Although the story is appropriately qualified, and includes a denial of wrongdoing from the Coughlin, Stoia firm, I think it would have been better had the WSJ taken more care with a story that may well be read as raising doubts which the facts reported do not, in my view, justify.

Qualcomm Sanctions Order Vacated: Privilege Waiver Found

Here is Judge Brewster's order:Download QCPrivWaiverOrder.pdf. 

I agree with his reasoning.  Stay tuned.

DM

Lawyer and client hammered for F-bombs at depo

I wonder if there's video tape of the depo.  We usually imagine that the lawyer is the one out of line.  Sometimes it's the client.  Two of the best known Youtube deposition clips feature foul-mouthed deponents.  In one, the lawyer remains professional, which sets up the comedic finish.  In the other, the lawyers follow the lead of the deponent and chaos ensues.

Website as extrajudicial statement violation?

There's been news coverage of the recent suit by Duke lacrosse players against Duke administrators.  Someone who's allegdly associated with the plantiffs' lawyers set up the site Dukelawsuit.com and, more pertinent to our site, the defendants have now filed a motion alleging that the website and other meetings with the press are violations of the ethics rule against extra-judicial statements that may prejudice the proceeding.  The motion has several interesting wrinkles (e.g., how close a connection between the site and the plaintiff's lawyer is needed before we hold the lawyer responsible?).  The larger issue is whether in this internet age we can and will stick to the traditional rule against trying one's case in the press.