Legal Ethics Forum

Ethics in the News (6/14/05)

You sometimes hear this kind of quote when an organizational client replaces its lawyers with a new firm: "It just became clear to us that we needed a deeper bench, a firm that was able to handle more issues simultaneously."  But how often do you hear that from a Catholic diocese?    . . . .    A Rhode Island magistrate has been suspended without pay for bouncing a check.    . . . .    A grant from Norway has enabled Kenyan courts to adopt digital voice recording.    . . . .    Ralph Nader has called for an ethics investigation of the DOJ's Robert McCallum for allegedly tanking the government's RICO suit against the tobacco industry.    . . . .    A labor lawyer's tactics are being criticized by his client, the St. Louis musician's union.  I can't comment on that matter, but I am usually skeptical of hindsight claims that question tactical moves.    . . . .    Mauritius's plans to enter the offshore financial markets is being hampered by prohibitions against international lawyers -- illustrating that major international law firms are key players in globalization.    . . . .    Corporate Board Member magazine has this article on the growing importance of teaching ethics at law schools, and the article features our guest blogger, Andrew Perlman.

Andrew Perlman on Ritalin in Law School

[Guest blogger Andrew Perlman, of Suffolk University Law School, has these thoughts about Ritalin use in law school.  NOTE: as originally posted, some text was out of order and has been corrected.]

You probably have read news stories over the last few years about Ritalin and its ability to improve academic performance, even among students who do not have any learning disabilities like attention deficit disorder.  You might also have read about how these non-learning disabled students are increasingly using Ritalin to improve their academic performance in school, including in law school.  The controversial and somewhat provocative question that I want to pose is whether law schools should randomly test students for Ritalin use and take action against those students who test positive and don’t have a prescription.

In support of the idea, one could argue that Ritalin taken without a prescription is illegal.  Schools, particularly law schools, should be concerned if their students are breaking the law.  Second, and more importantly, if students who illegally take Ritalin get an academic advantage over non-Ritalin takers, the law breakers are getting an unfair bump up in terms of law school grades and career options.

    Moreover, the existence of illicit Ritalin use puts pressure on non-Ritalin takers to use the drug, either through an illegal purchase or by faking symptoms to a physician to get a prescription.  Because Ritalin can have adverse side effects in some people and has unclear long term health consequences, unnecessary Ritalin use is not recommended. In short, to avoid unfairness and to discourage unnecessary Ritalin use, it seems reasonable to randomly test law students for Ritalin and the related drug, Adderall, and to take action against those students who have used the drug without a prescription.

    The situation seems to me to be similar to the one professional sports leagues face.  We know that steroids give athletes an unfair advantage and that steroids are illegal without a prescription.  As a result, all major sports now prohibit athletes from taking steroids.  Arguably, we should do the same when it comes to Ritalin.

    Of course, there are differences.  First, Ritalin does have some very therapeutic effects, whereas anabolic steroids are (to my knowledge) much more dangerous and of limited therapeutic value.  Also, given the number of students who genuinely need Ritalin, we would be invading their privacy by forcing them to reveal their legal use of the drug in order to be cleared after a positive test.  Despite these differences with steroids, there seems to be a strong case for student Ritalin testing, especially given the fairness concern.

    Another objection is that caffeine and even nicotine can enhance test performance, and we don’t ban those drugs.  But the key difference is that those drugs are completely legal without a prescription.  The problem with drugs like Ritalin is that they are both performance enhancing AND illegal without a prescription. 

    In the end, it seems that we have gotten to the point where athletic performance is not the only ability that can be enhanced through illegal drug use.  Unfortunately, the rules have not yet caught up to address these changes.  Is it time we do something about it?  Should we start testing law students for illegal Ritalin and Adderall use?  And if so, what should the punishment be for violators?  Expulsion?  Reprimand with a report to the relevant bar association regarding illegal drug use?  I look forward to comments.

What's Going On (6/13/05)

The South Dakota Supreme Court has ruled that intended beneficiaries of a will can bring negligence suits against the lawyers who negligently drafted the will.    . . . .     Family fights aren't fun; neither are law firm break-ups.  Here's a combination of the two, at Utah law firm Gregory, Barton & Swapp.    . . . .    An Australian lawyer prepares to meet his client in Guantanamo, Cuba.    . . . .    Barclays (UK) has released its selection of panel counsel and specialist counsel.

Imputed Confidences, Double Imputations, and the Briefcase Metaphor

One of the recurring legal ethics problems is deciding how to treat lawyers who move laterally between jobs.  Here's the metaphor I use.  While at the prior firm, the lawyer has two kinds of confidences in her briefcase: actual confidences and imputed confidences.  The former are client confidences the lawyer learned, whether or not the lawyer was actually working on the client's matter.  The latter are all the confidences held by anyone in the firm, even though the lawyer herself doesn't actually know them.  As long as she's at that firm, those confidences are imputed to her.

When the lawyer picks up her briefcase and crosses the street to join a new firm, only the actual confidences remain in her briefcase; the imputed confidences stay behind.  We need to determine what happens to those actual confidences when she arrives with them.  Usually, those actual confidences fly out of her briefcase and are imputed to all the lawyers at the new firm.  (The other lawyers aren't infected by her actual confidences if, for example, there is a legally recognized "ethical wall" around her.)

You sometimes hear the phrase "double imputation."  That's a faulty argument that goes like this: while she was at the prior firm certain confidences were imputed to her and now that she's at the new firm those [imputed] confidences are imputed to everyone at her new firm.  That argument gets floated, but just as "there's no crying in baseball," "there's no double imputation in DQ law."

There are different approaches to who bears the burden of proving what was or wasn't in that briefcase as she crossed the street, and there are some wrinkles to how her actual confidences get imputed to lawyers at the new firm, but the "only actual confidences come over in the briefcase" rubric steers you toward the correct result.

Expert Witnesses May Seek Indemnity from Retaining Lawyer

The California Court of Appeal held that an expert witness sued for professional negligence may seek equitable indemnity from the lawyer who retained the expert.  Forensis Group, Inc., v. Frantz, Townsend & Foldenauer, 2005 DJDAR 6757 (6/9/05)

After a fatal forklift accident, the decedent's family sued and the defendants moved for summary judgment.  The family proffered expert witness testimony, but the motion was mostly granted.  The family settled the case, hired new lawyers, and sued the expert witnesses.  When the experts cross-claimed against the retaining lawyers, the lawyers successfully moved for summary judgment, citing the "attorney exception" to the general rule that indemnity can be sought from any joint tortfeasor. 

The "attorney exception" was initially developed when lawyers who had been sued for malpractice sought indemnity from successor counsel.  California courts rejected those claims because they would cause successor counsel to focus not only on maximizing the client's interests, but also on minimizing predecessor counsel's liability (and hence minimizing successor counsel's liability as well).  Equitable claims would dilute the lawyer's loyalty.  But the Court of Appeal held that in the case of equitable claims by experts against retaining lawyers, the retaining lawyer would not necessarily betray the former client or reveal the former client's privileged communications.  So, the equitable claim may proceed.

Daily News (6/11/05)

An Indiana judge has been accused of improperly releasing his bailiff, without a bond posting, following the bailiff's arrest for domestic battery charges.    . . . .      A San Francisco prosecutor, Robert Roland, has been arrested on charges of giving lenient treatment to defendants in exchange for drugs.    . . . .     A San Luis Obispo (CA) lawyer stole $300-600K from clients.  He settled their cases quickly for little money, spent the money, and then told the clients that the settlement discussions were ongoing.

A Compromise on Blogging as Advertising?

The proposal by the Kentucky Attorney Advertising Commission to assert jurisdiction over a lawyer-blogger has spawned quite a discussion among lawyer blogs, including Prawfs, Volokh Conspiracy, Bainbridge, Legal Underground, David Giacolone, and others.  I'm willing to assume for the sake of argument that Bainbridge is right -- i.e. part of the motivation for Ben Cowgill's blog is to promote his practice.  I'm sure he has other motives, and maybe they're the only ones, but the concern of the Kentucky Commission is that someone might read his blog and think "hmm, that Cowgill fellow seems like a smart guy . . . maybe I'll see if he wants to represent me."  Thus, the treatment as advertising.  As others have pointed out, however, other exempted forms of communication (such as writing op-eds and bar journal articles) may lend themselves to lawyers acting for mixed motives.  Thus, is there any justification for treating blogs differently? 

Evan Schaeffer at Legal Underground argues that Cowgill (and other lawyer-blogger-wanabees) should argue that their blog is more like a law review article or book, which is specifically exempted from the advertising rules.  That's a reasonable approach.  My only addition would be to suggest that the Kentucky Commission consider an interpretation of the advertising regulations that avoids a serious constitutional question.  (As a general principle of statutory interpretation, where a statute is susceptible of more than one reasonable construction, a court should favor the one which avoids "grave and doubtful constitutional questions.")  Disproportionately burdening one medium of advertising would require at least a rational basis for doing so, and it's hard to think of what that basis would be for singling out blogging.  Imagine as an analogy a rule which required a $50 fee per copy of an advertisement, so that a billboard would cost $50 but an ad in a mass-circulation publication would be exponentially more expensive.  What would be the point of that pricing structure?  Probably none, so it would not withstand rational-basis review. 

Maybe the Kentucky Commission would respond that the fee is needed to defray the cost of pre-publication review.  As Eugene Volokh notes, however, Kentucky recently amended its advertising rules to eliminate the requirement of pre-publication review.  Good thing, too, because it would almost certainly be an unconstitutional prior restraint to require pre-publication review.  So what could then be the rational basis for charging $50 for a print ad vs. $50 x the number of blog posts?  I can't think of one. 

Ninth Circuit Protects Website Communications between Plaintiffs Firm and Prospective Clients

Here it is; the Ninth Circuit has granted a writ and ruled that web-based questionnaires filled out by prospective plaintiffs on the website of a plaintiffs law firm were privileged -- even though the website stressed that no attorney-client relationship was being created.  The case involved a class action related to the defendant's drug, Paxil.  The court suggested that clearer language might have better protected everyone involved.  Fortunately, lawyers now have guidance on how to create such a site and keep the privilege intact. 

As the court noted, it's hardly controversial that the privilege can precede the attorney client relationship itself.  Otherwise, it would be nearly impossible for prospective clients to meet with and retain lawyers.

More on Blogs As Ads

David Giacalone continues the discussion about when blogs are "ads" under the legal ethics rules.  (Meanwhile, things are still quiet over at Legal Ethics Blog, where Ben Cowgill presumably is busy urging the Kentucky State Bar to adopt a realistic approach.)

UPDATE:  Ben Cowgill summarizes reaction to the story but, unfortunately, doesn't mention any resolution.

Chinese Walls: Racist?

On a listserv I'm on, I mentioned the phrase "Chinese Walls" to refer to the "cone of silence" or "ethical walls" that sometimes accompanies efforts to screen tainted lawyers from disqualifying law firms.  Someone pointed out that at least one California judge has taken offense at the phrase.  Peat, Marwick, Mitchell & Co. v.Superior Court 200 Cal.App.3d 272, 293-294, 245 Cal.Rptr. 873, 887-888 (1988) (Low, Presiding Justice, concurring), wrote:

I concur in the opinion of Justice Haning, but write separately to comment on the
apparently widespread use of the term "Chinese Wall" to describe the type of
screening mechanism discussed in this case. While our opinion uses the term
"screen," both the parties and the trial court used the term "Chinese Wall,"which
seems to have become a term of art. I write to express my profound objection to the
use of this phrase in this context.

The origin of the use of "Chinese Wall" in the context of confidentiality is
unclear. Evidently, the term was casually coined in some appellate opinion, then
picked up and used without question or explanation by courts and commentators. The
unquestioned use of the term was perpetuated by a leading note on the subject, The
Chinese Wall Defense to Law Firm Disqualification (1980) 128 U.Pa.L.Rev. 677, which
is otherwise analytical and informative. (See lead opn., fn. 2, p. 878.)

The enthusiasm for handy phrases of verbal shorthand is understandable.
Occasionally, however, lawyers and judges use a term which is singularly
inappropriate. "Chinese Wall" is one such piece of legal flotsam which should be
emphatically abandoned. The term has an ethnic focus which many would consider a
subtle form of linguistic discrimination. Certainly, the continued use of the term
would be insensitive to the ethnic identity of the many persons of Chinese descent.
Modern courts should not perpetuate the biases which creep into language from
outmoded, and more primitive, ways of thought.

It may be sobering to recall that little more than a century ago our own Supreme
Court held that persons of Chinese ancestry could not testify in court against a
person of Caucasian descent. In People v. Hall (1854) 4 Cal. 399, 404, the court,
speaking through Chief Justice Hugh C. Murray, declared that "[t]he same rule which
would admit them to testify, would admit them to all the equal rights of
citizenship, and we might soon see them at the polls, in the jury box, upon the
bench, and in our legislative halls." It is worth noting, given recent events on the
American political stage, that language and attitudes once embodied in a judicial
opinion would now lead to the removal of a Governor, and membership in groups
adhering to those attitudes could lead to denial of confirmation for high public
office.

Aside from this discriminatory flavor, the term "Chinese Wall" is being used to
describe a barrier of silence and secrecy. The barrier itself may work to further
the cause of ethics in litigation; but the term ascribed to that barrier will
necessarily be associated with constraints on the freedom of open communication. To
employ in this context the image of the Great Wall of China, one of the magnificent
wonders of the world and a structure of great beauty, is particularly inappropriate.
One can imagine the response to the negative use of the images of the Eiffel Tower,
the Great Pyramids of Cheops, or the Colossus of Rhodes.

Finally, "Chinese Wall" is not even an architecturally accurate metaphor for the
barrier to communication created to preserve confidentiality. Such a barrier
functions as a hermetic seal to prevent two-way communication between two groups.
The Great Wall of China, on the other hand, was only a one-way barrier. It was built
to keep outsiders out-not to keep insiders in.

It is necessary to raise a clenched cry for jettisoning the outmoded legal jargon of
a bygone time. If the image of a wall must be used, perhaps "ethics wall" is more
suitable phraseology.

I had always thought the phrase referred to the Great Wall of China, and had no racial or improper component. I also think the judge is wrong: we don't care if a tainted lawyer acquires information; it's only to keep information from leaving him, and so the architectural analogy is perfect. What do you all think?