Legal Ethics Forum

Quick Hits (3/31)

General counsel from large corporations are renewing their demands that large law firms increase diversity.  (Sub req'd).  The renewed "Call to Action" is here and the original statement is here.    . . .     The Wisconsin Supreme Court will be considering revisions to the legal ethics rules, now that the court has received a 141 page report from a commission on the revisions.    . . .     Howell Heflin died.  He was a trial lawyer, the Chief Justice of the Alabama Supreme Court, and chair of the Senate Ethics Committee.    . . .     As others in the blogosphere have reported, former mayor Rudy Giuliani is joining a law firm and becoming a litigator.  Giuliani was the US Attorney for the Southern District of New York, so he clearly knows a thing or two about litigation.    . . .     This is an unusual criminal charge against a lawyer: prostitution.  According to LawyerNews, a lawyer offered to represent a woman's husband if the woman would have sex with the lawyer.

Sullivan & Cromwell and the Magic Circle

Sullivan & Cromwell is garnering larger amounts of European M&A work, and has now surpassed some of London's "Magic Circle" firms.  Law firms are increasingly evaluated on "scorecards" and "rankings," as market-like behavior continues to infiltrate the old guild-like economic structures.  Will we ever reach the point where the "Global 25" law firms are making quarterly analysts calls? 

Business Ethics Enforcement: Overdue or Overkill?

The NYT ran this article, about post-Enron enforcement of ethics codes in business settings.  (NYT version; sub req'd)  Some people find the enforcement "puritanical."  But most of the punishments recounted in the article were meted out by businesses and not by federal agencies, so I assume that businesses can readjust if readjustments are really needed.

Johnnie Cochran Dies

Johnnie Cochran died today.  His storied career was mostly known for the OJ Simpson trial, but his practice was interesting and varied, and he had a long history of challenging the LA Police Department.  The OJ defense raised ethical issues of defending someone that "everyone knew" was guilty; the disparities between wealthy and poor criminal defendants; and playing the so-called "race card."  It's been said that the OJ trial has had a profound impact in preventing the televising of major trials. 

Cochran's most famous line, in the OJ closing, was "if it doesn't fit, you must acquit."  That line was actually authored by another member of the OJ Dream Team, Gerry Uelman of Santa Clara University School of Law.  Uelman has taught legal ethics for years.  But who can forget Johnnie Cochran's delivery of that line, his style, or his presence?

Judicial Elections Prompt Donations, which Lead to Disqualifications?

Judicial elelctions have always raised ethics issues, and here's an example of that.  Justice Lloyd Karmeier of the Illinois Supreme Court was backed by business interests in his election bid, and now the plaintiffs bar thinks that Karmeier should be disqualified from cases involving or affecting his donors.

Fee Dispute Opens Window on Discretionary Bonus Fees

This article, recounting a $300,000 verdict against an attorney for breach of contract, sheds light on discretionary bonus fees.  As written in the fee agreement, the high-powered lawyer could request an additional charge, above the normal hourly fee, for matters that proved unusually difficult, or which required special priority or special expertise.  The bonus fee would be paid only if the client agreed.  According to the client -- and according to the jury that heard the matter -- the bonus was obtained in an extraordinarily coercive way.  Now the $300,000 is coming back to the client.

The Professional Responsibility of Law Professors

Orin Kerr, a member of the Volokh Conspiracy, has a post on an issue that has been debated at length in the legal academy:  Should law professors spend some time practicing law? (His post makes reference to an article by Amy Cohen, a professor at Western New England College of Law, entitled The Dangers of the Ivory Tower: The Obligation of Law Professors to Engage in the Practice of Law.)  Readers outside the legal academy may be surprised that this is even an issue.  Law is a practical discipline and law school apparently exist to train students to do something — namely, practice law.  If law professors don’t have any experience in the practice of law, how are they supposed to prepare students for practice?  To quote Woody Allen’s paraphrase of an old joke, "Those who can’t do, teach; those who can’t teach, teach gym."  A common caricature of the legal academy is that it is stocked with refugees from practice, or people who never went into practice in the first place, who are trying to avoid the kinds of practical questions that lawyers grapple with on a daily basis.

Laura Appleman on the Use of Race to Pick Juries

[Editor's Note:  We're delighted to post this guest blog entry by Laura I Appleman, a criminal appellate defender at the Center for Appellate Litigation in New York City.  She writes about the intersection between criminal law and legal ethics, and has researched the issue of using impermissable reasons (e.g., race or gender) to strike prospective jurors from the jury box.  "Batson" was the case ruling that those grounds were improper.  In the Quatman matter, it's alleged that the prosecutor improperly struck jurors who might have favored the defendant.  Here, Laura explores the more difficult issue of the use of impermissible grounds by defense counsel.]

Batson challenges—specifically, the improper usage of Batson challenges—are one of those issues that seem to be perennially in the news. Before the Quatman matter, the last national uproar was the Lemerick Nelson case. As you may recall, Lemrick Nelson and Charles Price were convicted in 1997 of killing Yankel Rosenblum in the Crown Heights riots. The defendants appealed their conviction and sentences through several levels of appeals, finally arriving in the Second Circuit Court of Appeals. During jury selection, the judge, prosecutor and defense counsel all colluded in a scheme to reshuffle the jury on the bases of both race and religion (i.e., balancing the numbers of Jews and blacks).

ABA Speaks Out about Schiavo Case; Creates Task Force on Privilege

ABA President Robert J. Grey, Jr., has issued a statement in defense of the judges who have suffered personal attacks from commentators during the Terri Schiavo matter.   (He's also condemned violence against judges and court personnel.)  I've read a lot of criticism of Judge Greer and the federal judges who've issued recent rulings, but I haven't read any criticism that seems meritorious to me.

The ABA has also formed a Presidential Task Force on the Attorney-Client Privilege.  The task force's mission statement mentions the efforts of the SEC and DOJ to force corporations to waive the privilege -- a topic I've covered here  before -- but that's not the only erosion of the privilege we've seen recently.  We've added numerous exceptions to the duty of confidentiality, the DOJ has been very aggressive in impinging on privilege during the war on terror, and federal agencies have floated proposals to further diminish the privilege.  I'm not going to say that the sky is falling but, as I've argued elsewhere, these erosions have the hallmarks of a tragedy of the commons.  We are nibbling away at the privilege and are reducing the public goods that the privilege produces.  Each erosion, by itself, has little negative effect -- or so we are told by each federal agency that proposes to further erode the privilege.  But who is looking at the larger picture?  I hope the ABA task force is.

Portrait of Blake's Laywer: Gerry Schwartzbach

The Marin Independent Journal is carrying this well-done piece on Robert Blake's lawyer, Gerry Schwartzbach.  Schwartzbach comments that LA District Attorney Steve Cooley "should be ashamed of himself" for slamming the jury.