My list has benefited from discussions with Judith Maute, Andy Perlman, Steve Gillers, and correspondents from the APRL listserv -- none of whom are responsible for my choices and possible errors!
Also, I had wanted to find more entries on legal ethics from around the world. If you have suggestions along those lines, please leave a comment.
The post has been edited a couple of times already.
Gary Munneke, a professor at Pace University, was a leader in academic writing about law practice management.
If you are aware of any other lawyers, judges, or professors from our field who passed away in 2012, please let me know or leave a comment below.
THE TOP TEN
1. The Supreme Court of the United States (SCOTUS) expanded its application of constitutional standards in the context of critical pre-trial processes in criminal matters, such as plea bargaining and discovery.
As part of what may be a multi-year, sea change in the law of lawyering, the SCOTUS issued two more opinions that extended the constitutional guarantee of effective assistance of counsel to the plea bargaining stage of criminal matters. In Missouri v. Frye, the prosecutor offered a deal for a limited time but the defense counsel failed to communicate the deal on time to the client. The SCOTUS held that the defendant be given a second chance to more precisely support his claim of ineffective assistance of counsel (IAC). In Lafler v. Cooper, the accused claimed that defense counsel offered bad advice about whether to accept the deal or go to trial. The SCOTUS held that the prosecution should once again make the plea bargain to the defendant. These cases follow the 2009 case, Padilla v. Kentucky, which also dealt with IAC at the plea bargain stage. (Orin Kerr, at Volokh, had a discussion of the new cases when they came out.) Although it’s not an IAC case, the SCOTUS also issued Smith v. Cain, which reversed a criminal conviction because the prosecutors failed to make adequate pre-trial discovery to the defense. And in Martinez v. Ryan, the court clarified when an IAC claim can be asserted. (More discussion here.) Given that so few cases go to trial anymore, this far-reaching expansion of constitutional protections to the critical pretrial stages of criminal matters is a re-fashioning of Bill of Rights protections for a new era. It will also be a major part of Justice Kennedy's legacy. In both cases, he was the swing vote and wrote the majority opinion.
2. The ABA’s 20/20 Commission proposed several amendments to the Model Rules and related policies in August, and the House of Delegates approved all of them.
Andy Perlman, the Chief Reporter for the Commission, offered extensive coverage of those developments. The amendments made improvements and technical corrections to a number of rules and were designed in large part to adapt the ethics rules to changes in technology and the mobility of lawyers and clients both nationally and globally. (The Commission's August 2012 overarching report is here.) The Commission also drafted a new Model Rule on Practice Pending Admission and made amendments to the Model Rule on Admission by Motion. The Commission’s work isn’t done. It recently made recommendations regarding inbound foreign lawyers and choice of law.
3. The outside ownership of law firms took a big step forward in the UK but stalled in the USA.
The outside ownership of law firms came of age in the UK in January 2012, but in the USA the movement lacks momentum for now. The ABA’s 20/20 Commission dropped the topic from its agenda in the Spring. In New York, the law firm of Jacoby & Meyers initially lost its claim that the restrictions against outside ownership were unlawful, but as reported here by Nicole Hyland the Second Circuit recently revived that suit.
4. Politics continued to swirl on the issue of recusal by SCOTUS justices.
We saw op-eds and blog posts galore claiming that various justices needed to recuse themselves from the healthcare decision, the case concerning DOMA, etc. The justices began to push back in the press, politely, on the issue. More recently, it was noted that Justice Breyer’s decision to recuse himself in some environmental cases may affect the outcomes.
5. Our legal education system saw even more turmoil this year as it adjusts to the new normal.
If there has been a bursting bubble in the legal profession, the schools have been the last major player to feel the explosion. Law school applications continued to drop sharply and there have been countless press and blog accounts of whether that’s a good thing, bad thing, or something else. Some of the law suits against law schools for allegedly false and misleading employment statistics failed but some continue. (Even in the major victory for the schools—in the suit against NYLS—the court scolded the schools for failing to display candor.) Disclosure requirements for law schools have been beefed up. The New York courts have flexed their muscle by imposing pro bono requirements and requiring a stand-alone PR course for any applicants who wish to take the New York bar exam. The State Bar of California established a commission to consider a requirement for practical training. (Is it possible for the largest state bars to force the hand of legal educators?) Here at Legal Ethics Forum, Renee Knake ran an online symposium about the educational response to the economic changes in the profession. In light of all that, one wonders if the legal education community doesn’t feel a bit besieged.
6. Ethics issues kept arising in the criminal prosecution of George Zimmerman.
Lots of issues: Was the probable cause affidavit proper? In that affidavit, may the prosecutor leave out the evidence that helps the defendant? Should that affidavit use the word “profile”? Was the charging decision ethically appropriate? Should the prosecutor have prayed with the lawyer for Trayvon Martin’s parents? Should the defense counsel have created media sites? Did the first judge have grounds for recusal? Was the next judge properly disqualified? Did Zimmerman’s first set of lawyers say too much when they withdrew? (Yes, they certainly did.); etc. I suspect that we will see fireworks in 2013 as the matter heads to trial.
7. In about 300 jurisdictions, debt collectors used the local District Attorney’s stationary to send out legal warnings and demand payments.
8. There was continued fall-out from the implosion of the Dewey law firm.
Steven Davis, the former chairman of the firm, hired a criminal defense lawyer in wake of an investigation into whether the firm systematically misrepresented the firm’s finances to lateral partners and others.
9. Prosecutorial misconduct was in the headlines.
The biggest story was the report from the DOJ’s Office of Professional Responsibility on the prosecution of then Senator Stevens of Alaska, finding that the lower level prosecutors were guilty of misconduct. The US Attorney in New Orleans resigned after it was revealed that prosecutors in that office had used false names (sock puppets) to comment on the internet about cases involving their office. A disciplinary panel of the Arizona Supreme Court disbarred the elected prosecutor of Maricopa County for using his office to punish political opponents.
10. Congress cited the Attorney General, Eric Holder, for contempt after the assertion of privilege as to documents related to the ATF’s “Fast and Furious” operation.
Whether or not this is purely partisan politics, citing the AG for contempt is precedent setting and the legal basis for the assertion of privilege raises interesting issues.
- In the Filarsky case, the SCOTUS held that a private practice lawyer hired to conduct an investigation for a municipality was entitled to governmental immunity.
- As part of the new regulatory framework for legal services in England and Wales, the Legal Services Board issued an interim baseline report and asked for input and comments.
- There were concerns that increased demographic diversity in the profession may have stalled. (With tuition costs rising and the expected return of a JD dropping, we may see some backsliding.)
- In a high profile disqualification dispute, Covington & Burling was disqualified in the case of State of Minnesota v. 3M. The former client has now sued the firm.
- We continue to hear complaints that the legal system is not adequately representing criminal defendants or civil litigants from the middle and lower economic classes.
- Paul Ceglia, who sued for partial ownership of Facebook, was indicted for allegedly fabricating evidence to support his claim. Ceglia had been represented by a couple of firms who withdrew from the representation.
- We have an ethics opinion out of New Jersey clarifying what counts as UPL and the state is considering whether to eliminate retaining liens.
- During her successful run for the US Senate, allegations were raised that Elizabeth Warren had committed UPL (unauthorized practice of law) by appearing in numerous federal litigations while using her Harvard office. Warren had no license to practice in Massachusetts. (I argued that the claims against Warren weren’t established by the facts as reported so far.)
- Judge Rakoff expressed doubts about the candor of the Solicitor General's office in a case dealing with deportations.
- Attorney advertising restrictions were struck down in New York.
- The SEC continued its policy of challenging the ethics of lawyers representing targets of investigations.
- With good (but flawed) intentions, a trial lawyer purported to settle his disabled client's personal injury case without consent while the jury was finalizing a $9 million judgment in the client's favor.
- What happens when a lawyer schedules depositions for Dunkin Donuts, wears shorts to the depo, and spends time during the depo playing Angry Birds and drawing pictures of male genitalia? The lawyer gets booted from the case.
- The Fourth Circuit dismissed the Bivens claim brought by Jose Padilla, alleging that his confinement and treatment were violations of his constitutional rights. The Ninth Circuit dismissed Padilla's claim against John Yoo.
SOME ISSUES FOR 2013
- California is wrestling with admissions issues involving a serial fabulist, former-journalist and an illegal alien. Diane Karpman had thoughts about the two matters.
- In the Clapper v. Amnesty International case, the SCOTUS will decide whether lawyers and others have standing to challenge US government anti-terrorism wiretapping that could intercept attorney client communications and inhibit the lawyers’ robust representation of their clients. (The Second Circuit had granted standing.)