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Andy Perlman is at the ABA-CPR conference in Boston, and I'm at the LSA conference in Montreal. We've had a number of great panels on the legal profession, which were meta-organized by Bill Henderson of IU. Lots of data and new studies are being presented here. Plus, I finally met Alan Childress from the Legal Profession Blog. I'll try to post some info about the panels tomorrow.
I had a wonderful dinner last night at the ABA's National Conference on Professional Responsibility with some readers of this blog. It was nice to chat with some people who stop in to read what we have to say and contribute such great comments after the posts.
One issue that came up is that some people find it to be a hassle to check in on the blog every day to see if there is new content. I mentioned at dinner that there are a number of great services on the web that can make that process a lot easier. For example, I use bloglines, a free service that you can sign up for at bloglines.com. The idea is that you can subscribe to the feeds of a bunch of blogs simultaneously (including Legal Ethics Forum) through bloglines and then simply go to bloglines to see if any of the blogs that you read have new posts. Bloglines even shows you the titles and summaries of the blog posts of the blogs to which you have subscribed. I realize a number of people are already aware of these kinds of blog-reader services, but if you don't use one already, I highly recommend it as a way of making your blog reading more efficient.
I hope to see readers again next year in Chicago!
The Northwestern Law Review is publishing this piece by John Marshall's Colin Miller on whether the Model Rules should have a wrongful incarceration/execution exception to the duty of confidentiality. Professor Miller draws on the Alton Logan case, which we have discussed previously here and here, and concludes that such an exception (which already exists in Massachusetts) is worth adopting. I tend to agree, but with some caution expressed in the comments to this post.
Blacking out text in a word file doesn't erase it. But a plaintiff's firm suing GE in a $500m class action didn't realize that... and put a whole slew of GE confidential information in the public domain as a result. Read about it here.
You can read about it here, but essentially the claim is that a Morgan Lewis partner botched a patent application (negligently, apparently), and then intentionally tried to cover up the mistake. The plaintiff claims millions in damages.
i've been watching the growth in claims in this area, and recently saw data indicating that the number of claims in IP area remains constant but the severity -- the amount of damages -- remains high and is increasing. Every patent is worth more today, no doubt, than when I started practicing 20 years ago, but still... some patents are worthless or worth little, but it's interesting to see that trend continue.
Story here. Text of speech below the fold. Mukasey makes the distinction between legal advice and policy advice, and suggests that a lawyer sometimes permits clients to do things that the lawyer wishes the client wouldn't do.
There has been a lot of recent talk about the outsourcing of legal work, especially to India. I have heard a variety of concerns about the trend, but one that I had not considered is that the United States government is permitted to examine electronic data that leaves the country. This power raises the possibility that, when a lawyer sends a client's confidential information abroad, the government might view that information and use it against the client in some subsequent proceeding. A recently filed lawsuit raises this very concern, ultimately seeking
declaratory judgment and equitable relief in order to gain certainty about whether the electronic transmission of data from the United States to Acumen India waives Fourth Amendment protection with respect to the data that is electronically transmitted. It seeks this declaration knowing that foreign nationals who reside overseas lack Fourth Amendment protections. It seeks this declaration having been informed, through published materials, that the United States Government engages in pervasive surveillance of electronically transmitted data wherein one party to the transmission is a foreign national residing overseas.
More here.
This concern sounds serious, but I'm not sure that the risks from outsourcing are any greater than they are from the many other ways confidential client information can end up in the wrong hands. Before I could reach any conclusions, I'd need to know more about how great of a risk there really is. I'd also need to know what the consequences are in the event that the government looks at privileged or confidential information. For example, if the government reviewed privileged information as it left the country and the information was only relevant to some civil dispute between private parties, I would assume that the privilege would still apply in the civil proceeding. So is the concern really about criminal proceedings or civil proceedings in which the government is involved? Or am I missing the potential breadth of the problem?
Thanks to Bill Henderson for the original pointer.
Martha Coakley was once a district attorney in Massachusetts, and her office was inside a state courthouse. That courthouse apparently had health and safety issues, so Coakley brought a lawsuit against the Commonwealth to force the government to take remedial measures.
Now here's the interesting part. Coakley was subsequently elected to become Attorney General of Massachusetts while the case against the Commonwealth was pending. As AG, her office became constitutionally responsible for defending the case in which she was the named plaintiff.
The question is: what is she ethically required to do? (A recent Massachusetts Lawyers Weekly story covers the facts in somewhat more detail, but the story is only available to subscribers. You can find it on Westlaw at 2008 WLNR 9544593.)
It seems pretty obvious to me that Rule 1.9 precludes her from handling the case herself. But if she screens herself off, can someone else in her office take charge of the case? Massachusetts does have a screening provision in its version of Rule 1.10, but it applies only if the lawyer who is being screened acquired no confidential information about the matter or had neither substantial involvement nor substantial material information relating to the matter. Ms. Coakley, as the named plaintiff, almost certainly doesn't fit these descriptions.
Technically, this would mean that the AG's office would have to hire outside counsel to handle the case. What troubles me about that result is that the AG's Office has a constitutional obligation to defend the Commonwealth, and hiring outside counsel comes at significant taxpayer expense. Indeed, if nobody in the AG's office could touch the case, who would make the ultimate decision about whether to settle? The governor? Outside counsel?
It seems to me that, although the rules technically prohibit screening here (Rule 1.11 is also not applicable, because AG Coakley was not moving between public and private practice), there is a decent argument that the normal conflicts restrictions should be loosened as a public policy matter in this particular case. Indeed, my understanding is that in some contexts (e.g., public defender offices), there is authority for the idea that the usual conflicts rules do not apply. Should there also be an exception for a case like AG Coakley's?
Because last year's ABA Conference/blog reception went so well, I thought it would be fun to get together again next week at the Conference in Boston.
I propose meeting for dinner on Thursday, May 29 at 6:30, which is right after a conference reception. Since I live in the Boston area, I have a few restaurant ideas. And since I am unlikely to be much of a draw myself, my co-bloggers have agreed to let me raid our google ad sense account to offer a modest subsidy for the event. Needless to say, the money in that account has been fully earned, and we have maintained the account pursuant to Model Rule 1.15. (I promise to work on my ethics-related humor in advance of the event.)
Anyway, let me know if you might be interested in going out to dinner in downtown Boston. Send me an email by early next week, even if you might cancel at the last minute; I'd like to have a rough estimate of attendance so that I can make an appropriate reservation.
And if you don't come out to dinner, be sure to say hello at the Conference!
Can you tell that we're busy grading? I'd rather play around with the colors on the blog than grade my exams. It's cheaper than re-painting my house and more fun than reorganizing my sock drawer.
In addition to Steve Lubet's new book, which David McGowan referenced below, you should also take a look at the new AALS PR newsletter, which The Legal Profession blog has posted on its site. The newsletter highlights recent scholarship and upcoming conferences; it also has a fabulous section written by Hofstra's Roy Simon, which identifies dozens of recent changes to ethics rules in various jurisdictions around the country. And for something else to add to your summer reading list, have a look at the widely praised book from Michael J. Kelly, entitled Lives of Lawyers Revisited, Transformation and Resilience in the Organizations of Practice. Here's a summary offered by the author:
Lives of Lawyers Revisited represents a sustained argument that the subject matter of the course in law school variously called legal ethics or professional responsibility or legal profession needs to be expanded to include analysis of the work lives of lawyers. In order to make sense of the work of about a million lawyers, the strategy of the book is to focus on the most important and dynamic development within the legal profession over the last few decades--the organizations of law practice. It first draws the reader into non-fiction stories of five markedly different law practices---illustrating how they function, handle conflict, articulate organizational values and manage their sense of economic realities and necessities. The practice accounts are followed by chapters on the nature of recent change in the legal profession, analytical methods of understanding law practice organizations and finally, the way in which all law practices work within a framework of incommensurate ideas of the meaning of a profession. By placing the spotlight on organizations as settings that deeply affect lawyer behavior and generate their own logic and tensions, Lives of Lawyers Revisited speaks to the experience of most lawyers, as well as the curiosity and expectations of law students. The book surfaces important issues, not typically part of law school curricula, directly relevant to the meaning of "professionalism" in law.
In light of the huge news from California -- declaring unconsitutional the ban on same sex marriage -- you might want to read this great profile of Terry Stewart, who litigated the marriage cases.
Steve Lubet is always worth reading, so I am looking forward to reading his new book The Importance of Being Honest. I'll post a few comments when I have.
DM
Or so, it seems, the Wall Street Journal opines today. Apparently Abdullah Salih Al Ajmi, who blew himself up in order to murder others, had been detained at Guantanamo Bay. A Kuwaiti, Al Ajmi had been represented by Shearman & Sterling, which a group of Kuwaiti families retained to represent the Kuwaitis at Guantanamo Bay.
The Journal seems annoyed that fancy lawyers, part of its readership and economic target market, are willing to represent detainees. Its annoyance impairs its logic, and leads it to insult, no doubt unintentionally, the military officials it wants to defend.
Continue reading "Bombs Don't Kill People, Lawyers For Bombers Kill People" »
Judge Posner recently issued a scathing critique of the immigration court system. He criticized the competence of immigration judges and lamented the dearth of qualified lawyers to handle immigration matters.
For more on these issues, you might want to take a look at this new article by Professor Michele Benedetto on the immigration court system. It is entitled, "Crisis on the Immigration Bench: An Ethical Perspective." Here's the abstract:
The troubled status of the immigration court system has garnered much attention from scholars, appellate judges, and even the United States Attorney General. This article suggests a new lens through which to examine the acknowledged crisis in immigration courts: judicial ethics. Because the term judicial ethics encompasses a broad array of principles, the article narrows its focus to bias and incompetence on the part of immigration judges in the courtroom.
Immigration judges operate as a unique judiciary under the Executive Branch of government. An examination of the modern immigration court system, including inadequate disciplinary procedures for immigration judges, reveals that the existing structural crisis has substantial implications for judicial ethics. Evidence of biased and incompetent judicial conduct has been found in statistics showing inconsistent decisions and cases reviewed by circuit courts. Recognizing the breadth and severity of the problem, the Attorney General proposed new ethical Codes of Conduct for immigration judges in June 2007. However, the proposed Codes are weakened by their lack of specificity and enforceability. Accordingly, the article recommends reforms designed to encourage unbiased and competent judicial behavior. Implementation of these reforms will initiate the process of restoring the ethical integrity of the immigration bench.
Professor David Luban testified yesterday before the House Judiciary Committee. You can find his testimony here.
The San Diego County Bar Association Legal Ethics Committee has posted opinion 2008-01, which discusses what a terminated in-house lawyer may disclose in connection with a wrongful termination claim against a former employer.
Adam Liptak of the Times has a nice overview of the issues that we have discussed here, here, and here.
This article, which I just posted on SSRN, describes in more detail some of the ideas contained in this op-ed. Here's the abstract:
This Article explores the lessons that we can learn from social psychology regarding a lawyer's willingness to comply with authority figures, such as senior partners or deep-pocketed clients, when they make unlawful or unethical demands. The Article reviews some of the basic literature in social psychology regarding conformity and obedience, much of which emphasizes the importance of context as a primary factor in predicting people's behavior. The Article then contends that lawyers frequently find themselves in the kinds of contexts that produce high levels of conformity and obedience and low levels of resistance to illegal or unethical instructions. The result is that subordinate lawyers will find it difficult to resist a superior's commands in circumstances that should produce forceful dissent. Finally, the Article proposes several changes to existing law in light of these insights, including giving lawyers the benefit of whistleblower protection, strengthening a lawyer's duty to report the misconduct of other lawyers, and enhancing a subordinate lawyer's responsibilities upon receiving arguably unethical instructions from a superiors.
I'd welcome feedback, especially in advance of this month's National Conference on Professional Responsibility, where I'll be presenting a portion of the article.
I just published an op-ed in the National Law Journal, where I suggest that John Yoo may have written his torture memos for some of the same reasons that people applied 450 volt electric shocks to a bound older man in Stanley Milgram's famous experiments. Have a look, and let me know if you agree.
Update: I recently got reprint permission. Here's the text of the op-ed:
The "Torture Memos": Lessons for all of us
Andrew Perlman / Special to The National Law Journal
May 05, 2008
It is easy to believe that John Yoo wrote his widely discredited "torture memos" because he holds radical views of presidential authority or because he has some unusual moral failing. The reality, however, may be far more ordinary and disturbing: He willfully followed the lead of White House officials who were eager to find a legal justification for torture. The banality of Yoo's compliance shouldn't excuse him in any way, but his mistakes can help us understand why attorneys might offer equally troubling legal advice in much less public settings.
We can draw some valuable insights in this regard from one of the most stunning social psychology experiments ever conducted. More than 40 years ago, Stanley Milgram found that, under the right conditions, an experimenter could successfully order more than 60% of adults to administer what they believed to be painful and dangerous electric shocks to an innocent, bound older man with a heart condition, despite the man's repeated pleas to be let go. In essence, Milgram found that people are surprisingly likely to obey authority figures under certain conditions.
Social psychologists have identified many of the conditions that tend to promote this type of wrongful obedience, including (1) a plausible legitimate reason for the wrongful conduct (Milgram's subjects were told that the experimenters were studying the learning process); (2) positive language to describe the negative behavior (Milgram's subjects were told that the shocks would help the bound person to learn); (3) rules that, on their face, seem benign; (4) the creation of a contractual obligation to help; (5) the assignment of specific roles (Milgram's subjects were "teachers"); (6) the physical separation of the victim from the person carrying out the orders; (7) the proximity of the person issuing the orders to the person following them; (8) the blurring of responsibility for the wrongful conduct; (9) the incremental nature of the requests (Milgram's subjects started shocking the "learner" at a benign 15 volts and increased the shocks by small increments); (10) the social prestige of the setting; and (11) the elimination of dissent (Milgram found that the presence of a dissenter dramatically reduced obedience). For a similar list, see Philip Zimbardo, The Lucifer Effect: Understanding How Good People Turn Evil 273-75 (2007).
Notably, the conditions that produced obedience in Milgram's experiments probably also existed at the Office of Legal Counsel (OLC) when Yoo wrote his infamous memos. The White House gave Yoo a plausible legitimate reason for the wrongful conduct — preventing future terrorist attacks (factor No. 1). Administration officials often referred to "torture" as "enhanced interrogation" (nos. 2 and 3). Yoo probably felt some obligation to help the White House, given the OLC's stated role as adviser to the president and the climate of fear regarding terrorism (No. 4). The lawyering role also insulated Yoo from feeling personally responsible for torture; he was "merely" offering a legal opinion (No. 5). In addition, the detainees were removed from him in time and place, making it easier for him to ignore the consequences of his memos (No. 6).
Yoo had to report directly to top officials at the White House, who were insistent on getting the legal opinions that they wanted (No. 7). Moreover, Yoo could have perceived that he was "simply" giving a legal opinion; he wasn't engaging in torture, nor was he advising as a policy matter that torture should occur (No. 8). And the move toward torture occurred gradually over a period of months, with increasing pressure from top officials to justify "enhanced interrogation" techniques (No. 9). The prestige of the White House (No. 10) would also have contributed to Yoo's willingness to comply, especially given Yoo's relative youth at the time. (He was in his 30s.) Finally, the White House was well-known for quashing dissent on issues of this sort, making it even more difficult for someone to express independent judgment (No. 11).
Continue reading "John Yoo's Torture Memos: Lessons for All of Us" »
Timothy McVeigh's attorney donated his file to the Univerity of Texas at Austin. The file was appraised at $300,000 and he sought a tax deduction. The IRS disallowed it because he didn't own the file. Jones v. Comm'r of Internal Revenue, 129 T.C. 16 (2007).
On a side note, I presume the file was going to the Ransom Center, which is an amazing place to visit.
A legal ethics listserv recently had some back and forth about retainer letters for legal ethics experts and what should be in them. During last year's National Conference on Professional Responsibility, there was a great panel on legal ethics experts that included several prominent folks, and one of them (Professor Charles Wolfram) offered a sample retainer letter for people to review. Professor Wolfram has given me permission to reproduce it here.
