Legal Ethics Forum

Blame it on the Lattes.

This (insane) article from the Washington Post suggests that law students are going into massive debt and reluctantly turning down the low paying public interest jobs they really want not because of the tuition, room & board, text book costs, bar exam prep monopolies, and three years of deferred income, but rather because of the expensive lattes and espressos some students buy.  Really. 

Now, I am a big believer in what my mom told me ("if you're going to drink coffee, drink it black"), and my students can confirm that I urge them to live beneath their means as much as possible, but shouldn't we focus on the real costs?  And at what point will we take a hard look at opening a second, less expensive route to practicing law?

Daily Dose (6/17/05)

Can it be that Long Island has more than its share of crooked lawyers?  If you have a good explanation, please leave a comment below.    . . . .   Former House Democratic Leader Dick Gephardt has joined the law firm DLA Piper Rudnick Gray Cary.    . . . .    Ed Fagan, who brought the first claims against Swiss banks for profiting from the accounts of Holocaust victims and refugees, is fighting to keep his law license.    . . . .    A New Hampshire lawyer faces suspension or disbarment for taking an elderly client's beachfront cottage as payment for what were held to be clearly excessive legal fees.    . . . .    According to this story from South Africa, the Director General of the Justice Department wants two-thirds of South Africa's judges and magistrate to be black.    . . . .    Some lawyers are tough as nails, but I'm struggling for the appropriate cliche for this lawyer, Maridee Costanzo, who pled guilty to trying to hire a hit man to kill her estranged husband.  She reportedly may have mental health issues.  When asked by the judge is she knew that she had a right to a jury trial, she replied, "Been there.  Done that.  Understand thoroughly."

DOJ Lawyers Leak Details about Tobacco Case?

Orin Kerr, at Volokh, explores the possibility that career DOJ lawyers working on the tobacco industry RICO case are the ones leaking information to the New York Times.  The story is being framed as a case where politically appointed DOJ lawyers swooped in and saved the industry by reducing the damages being sought from $130 billion to $10 billion.  That's certainly plausible.  The article also contains all the hallmarks of the trial lawyers being furious over losing control of their case after years of hard work.  Kerr is right that this story is only getting started.  We reported earlier that Ralph Nader has filed formal ethics charges on the matter.  No doubt many reporters are on the story.

The reasoning proffered by the DOJ for reducing the amount sought seems a little suspect to me.  If there's a new appellate opinion that absolutely bars the higher number, you'd go with the lower number.  But if the new opinion may limit damages, you could present the damages in a separable amounts, note the distinction raised by the appellate argument, and put both kinds of damages out there for the judge.  That way, if the appellate decision really is limiting, you'd still hold onto what you deserved, and if the appellate decision were not limiting, then you'd get the big number.

There are two major ethics issues at work.  First, did political influence interfere with the merits of the case?  That's what the DOJ's Office of Professional Responsibility has been asked to review.  Congress and the press will be investigating as well.  Second, there is the leak.  To analyze the disclosure under the ethics rules, we'd need to make a choice of law.  The DOJ has some internal guidelines and the local rule of the presiding federal court probably adopts the ethics code of the local jurisdiction (DC?).  Here's the ABA Model Rule on confidentiality, which has no exception that appears to permit any of the DOJ lawyers to be leaking.  It might be argued that the exception under (b)(1) applies, because smoking causes deaths, but I don't think that reduced penalties are a "reasonably certain" cause of death.

a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or  fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

(4)  to secure legal advice about the lawyer's compliance with these Rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(6) to comply with other law or a court order.

International News

Here's an interview with Justice Chukwudifu Oputa, of Nigeria, who's known for his incorruptibility.    . . . .    When Shearman & Sterling made Rohan Weerasinghe, a Sri Lankan, a senior partner of the firm, it made big news in the South Asian community.

Great Graphic of Scandals

I like this graphic of recent scandals.  I'm not sure if it's a useful schematic of corruption or a paranoid vision of corruption, but it's fun simply to run your eyes over.  To see the details, click on the graphic and then click on the "expand" button that will pop up.

Census of Prof Blogs at Prawfsblawg

Over at Prawfsblawg is version 2.0 of the law professor blawg census, with over 100 profs blogging.  It will be interesting to see which media the profs use for communicating which ideas; they have law reviews, specialty listservs, workshops, working papers, circulating drafts, SSRN, and now blogs.

Longer Track to Partnership

Daniel Solove, at Prawfsblawg, discusses the ever-lengthening road to partnership.

Debate over Raising the Bar for New York Bar Exam

The New York Court of Appeals has called for more study of a proposal to raise the passing score on the New York bar exam -- a move that critics say will not increase the quality of lawyers but will have a disparate impact on the passage rates of minority lawyers.  The two great choke points for exclusion in the legal profession are law school accreditation/admission and bar exams.  Hence any changes to those standards are inevitably political and provoke the debate over whether exclusion is for quality control or for the protection of the existing guild of lawyers.

Robert Hillman on the "Evolving Status of Partners"

Robert Hillman, of UC-Davis (King Hall), who's written the definitive treatment on "Lawyer Mobility: The Law and Ethics of Partner Withdrawals and Law Firm Breakups," has a new article posted to SSRN, Law, Culture and the Lore of Partnership: Of Entrepreneurs, Accountability, and the Evolving Status of Partners, with this abstract (nod to Legal Theory Blog):

In important respects, contemporary partnerships are modifying the associational form under which they operate in ways that represent clear departures from the classic partnership model. This article explores the mystique of partnership, the role of partnership in our culture, and how partnership law has evolved to encourage the structuring of relationships that bear little resemblance to the partnership model on which the law was developed (e.g., nonequity partners in professional services firms). It considers the implications of this change and questions whether long-standing assumptions concerning what it means to be a partner continue to hold.

Quick Hits (6/15/05)

When a lawyer communicates directly with the employee of an opposing party in litigation, and knows that the opposing party is represented by counsel, sparks fly.  There are some somewhat complicated rules about which opposing party employees you can or can't talk to, and what you can and can't talk about.  But you cannot set up that employee as your ongoing, continuing spy, or manipulate your "mole" to obtain privileged and confidential information from the opponent, says this court.  And who would disagree with that holding?  It's one of those stories that prompts the eternal question, "what were they thinking?"    . . . .    A client has sued his former law firm, alleging that his own lawyer had an affair with the client's wife.  The article examines corporate America's growing intolerance of extra-marital affairs by executives, and the way that personal behavior is increasingly being treated as a business ethics issue.    . . . .    Human rights lawyer Rosemary Nelson was murdered in 1999 with a car bomb.  Eversheds, a leading London firm, has been named as counsel to an investigation into the event.  Eversheds had been counsel to the Bloody Sunday inquiry.    . . . .    A survey of UK law firms reveals that many firms will admit non-lawyers to partnership, but few will seek outside investors and even fewer will opt for public ownership.  Those changes were made possibly by the Clementi reforms.    . . . .    Microsoft has donated $1 million to the Berkeley Center for Law & Technology at Boalt Hall, where the new Dean has been seeking more private funding.