Legal Ethics Forum

Wendel on McGowan on Wendel on Delahunty

David McGowan has offered a powerful response to my competence-based critique of the work of lawyers in the Office of Legal Counsel, who advised the President on various legal questions raised by the prosecution of the war on terror.  Although documents containing the advise provided by OLC lawyers are often referred to as the torture memos, they concern many subjects in addition to the definition of torture.  The memo particularly of concern here was written by John Yoo and Robert Delahunty, and addressed the applicability of Common Article 3 of the Geneva Conventions to detainees captured around the world, who were alleged to be members of al-Qaeda.  The focus on that particular memo is due to a controversy at the University of Minnesota, sparked by the engagement of Delahunty as a visiting professor.  Several U. Minn. professors signed a letter objecting to Delahunty’s visiting appointment, and this letter was criticized as an interference with his academic freedom, or an attempt to impose an ideological litmus test on hiring. 

 

While schools can hire or refuse to hire short-term visitors and adjunct professors for any number of reasons, and no one has a legally cognizable “academic freedom”-based right to be hired to teach constitutional law, I do think it would be disreputable for a school to refuse to hire someone just because they worked for an administration whose policies many deem to be wrongheaded.  For that reason, I proposed what I take to be an ideologically neutral way to criticize Delahunty’s work as a lawyer, and to justify the opposition to hiring him as a visitor.  The criticism would be that the memo showed bad lawyering.  I actually said “incompetent” lawyering, but this term provoked the predictable response that OLC employs only the best and the brightest, and no one could say Delahunty is not a very smart, very talented lawyer.  Perhaps I should have chosen a different term, but I intended the word competence to suggest a thicker sense of lawyering excellence than mere legal-analytic ability.  David captured it well when he alluded to the craft of lawyering in an email to me about the controversy.  That’s exactly right – I competent lawyering to include respecting the professional craft.  I’ll have more to say in a minute about what that craft consists of, and how we know that.  But I want to save the detailed response for “below the fold” – otherwise this posting will become unwieldy.

 

One last above-the-fold note:  Sandy Levinson recently wrote something quite interesting on Balkinization, on whether a former card-carrying member of the Conference on Critical Legal Studies can criticize the Bush administration for not respecting the rule of law.  In other words, is there a such thing as a non-ideological, non-political notion of the rule of law, or is it “all politics”?  If the latter – which was a position espoused by many crits – then it seem that a critic of the administration is left with only ideological grounds for criticizing Yoo or Delahunty, or the Justice Department for its recent firing of U.S. Attorneys.  Levinson notes approvingly that many on the left seem to be trying to “revive some classical central-liberal verities.” 

 

That description locates my general project pretty well.  I think there is a such thing as legality (or the rule of law); I think the law is relatively stable and determinate in a sufficient number of cases to enable citizens to coordinate their activities using legal entitlements as a point of reference; I believe that lawyers can ascertain the content of the law and figure out what it means for their clients in the vast majority of cases; and I argue that the basic subject matter of legal ethics is given by the lawyer’s obligation to respect the value of legality and not treat the law merely as an inconvenient obstacle standing in the way of the realization of their clients’ ends.  The Delahunty controversy provided a good case study for this general theory, and is the target of David’s criticism. 

New Article By Monroe Freedman

Professor Freedman sent me a note about an article draft that he has posted on SSRN.  Here's what he has to say about it:

I have written an article on the current status of the perjury trilemma issue. A draft is on line at SSRN Legal Ethics and Professional Responsibility.  I would be very grateful for editorial or other comments. My email address is here.

The article notes that the two principal proponents of Model Rule 3.3 -- Judge Frankel and Professor Hazard --have recanted their support for the rule. Also, the article traces the history of the controversy. The most important portions of the article, however, are Part III, which deals with the serious and totally neglected policy issue under MR 3.3, and Part IV, which analyzes the unconstitutionality of MR 3.3 under the Fifth and Sixth Amendments--an issue that has never been dealt with by any court.

The Problems of Self-Referential Theories of Legal Ethics (or: Hume vs. Wendel)

Writing about the Yoo-Delahunty memorandum I had occasion to think about co-blogger Brad Wendel’s criticism of the “torture memos” as an example of his theory of competence.  I wound up deleting what I wrote about his theory, but it seemed worth posting here to see what people think of the argument.  I think it is right, but I am open to persuasion that I am wrong.

I assert two points: No normative theory of lawyering can ground itself in what lawyers do because of the familiar point that an “ought” cannot be derived from an “is.”  Any non-normative theory of mere competence has to be agnostic among methods of interpretation and thus is likely to have no real teeth except for arguments that, at any given point in time, are so widely recognized as loony that they are not made.  Here is the argument:

1.    The gist of Brad’s argument is that the law has a presumptive claim to our allegiance because it is an effective means of settling differences.  Settlement is valuable because society cannot thrive if citizens endlessly argue and re-argue points; decisions have to be made and enforced.  For lawyers to assist in evasion of the law is to undermine the settlement function.  Advising and assisting clients in evasion can therefore be condemned as, in essence, anti-social behavior.

2.    Brad recognizes that this theory has to incorporate a theory of interpretation. One cannot tell evasion from avoidance, or from a good-faith conclusion that a law does not apply, without knowing how laws are supposed to be read.  He thinks the text of a rule often does not answer questions, particularly in “hard” cases. Thus, interpretation must aim at “recovering the spirit, purpose, or normative background underlying a set of textual rules, not merely the meaning that the textual expression of these norms might plausibly bear.” Toward this end, interpretation is dynamic and necessarily requires reference to “an interpretive community of lawyers, judges, and scholars that is constituted by fidelity to law as a cooperative social enterprise.”

3.    Brad’s theory plays favorites among interpretive methods.  He rejects the view that interpretation is, almost by definition, a search for the intention of an author.  He rejects more grammatical notions such as “original public meaning originalism.” Both these theories see interpretation as having a fixed reference point; they reject the dynamic interpretation he posits as an element of competence.  They reject the notion that meaning comes from an interpretive community, at least insofar as that idea means more than some sort of “public meaning.”

4.    Brad justifies his theory on the ground that it promotes settlement, which is good.  But why should settlement be better promoted by a dynamic theory than one with a fixed reference point, such as some flavor of originalism? Even if, as sometimes will be the case, no original meaning can be found it does not follow that it is incompetent to try, especially when trying might force change to go through recognized procedures rather than (unsettling) judicial ukases. (To be clear, I am not an originalist; my use of it here is to make a point about Brad’s theory, not to defend it as such (I am a legal-process purposivist).)

5.    The Yoo-Delahunty memorandum exemplifies the problems, which I assert are insurmountable, this approach faces.  The memo endorses an originalist approach to the question whether common Article 3 of the Geneva conventions applies to international conducts that are not civil wars.  Both OLC and State agreed that the drafters of the language probably had that interpretation in mind, but State endorsed a pragmatic, dynamic interpretive approach and OLC did not.  Each side agreed with the interpretation produced by the other’s methodology, but their methodologies differed.  Unless there are grounds for rejecting originalism as incompetent, which Brad does not offer, then use of that methodology cannot support a claim of incompetence.

6.    I believe this point is generalizable.  The concept of competent lawyering has to be agnostic as to methods of legal analysis except insofar as those methods relate to client interests.  Any method with a plausible claim to advancing client welfare, and which is grounded in the logic of the law and the practice of a reasonable number of practitioners, should be available to lawyers.  No lawyer who employs such a method should be deemed incompetent for such a choice, so long as it is reasonably aimed at advancing client interests.  Any other approach will dilute and discredit the concept of competence by making it a stalking horse for normative commitments—methodological or otherwise—that should fight in the open.

7.    Thus, unless I have made a mistake somewhere along the way, self-reference has no normative bite and cannot be given even descriptive bite without choosing among actual practices.  Because such choices will invariably be made on normative grounds, the aspiration to a self-referential legal ethics will be disappointed.

DM

Get Naked, Flunk C&F Review?

After blogging about the AutoAdmit controversy, I suppose I have a professional obligation to comment on another story about law students doing stupid things.  As reported in the New York Daily News, a 3L at Brooklyn Law School decided to "do something a little crazy" before graduation, so she answered an ad on Craigslist to appear in a series for Playboy TV called Naked Happy Girls.  The Daily News article suggests the student "may have to kiss off her career."  It may be true that employers may be reluctant to hire someone who seems to exhibit poor judgment (although plenty of students do stupider things than this), but the idea that a state bar character and fitness committee would ding her for this episode is, frankly, incredible.  Eugene Volokh says the state may be prohibited by the First Amendment from penalizing her for making the video.  Maybe, although as I've noted with reference to Hale and the 1950's and 60's loyalty-oath cases, the Court has been extremely reluctant to recognize any substantial First Amendment protections for bar applicants.  The real reason this is going nowhere is that there is no conceivable connection between the student's appearance in the video and the professional obligations of lawyers. 

The basis for denying any applicant on character and fitness grounds is a prediction, on the basis of the applicant's past conduct, that the applicant will be unable to comply with the rules governing the legal profession.  It's true that the statutory character and fitness requirements make reference to vague concepts like "good moral character," but these have pretty uniformly been interpreted as including a germaneness requirement -- i.e. that any deficiencies in the applicant's character are likely to manifest themselves as an inability to comply with the bar's rules of professional conduct.  See, e.g., Cord v. Gibb, 254 S.E.2d 71 (Va. 1979) (fact that applicant is cohabiting with member of the opposite sex [horrors!] is not relevant to applicant's fitness as a lawyer).  Cases upholding the denial of admission on character and fitness grounds inevitably rely on an inference from the past conduct to a prediction that the applicant will do something prohibited by the lawyer disciplinary rules.  See, e.g., In re Mustafa, 631 A.2d 45 (D.C. App. 1993) (mishandling moot court funds); In re Simmons, 584 N.E.2d 1159 (Ohio 1992) (misappropriation of funds from student organization).  For example, an applicant who has mishandled funds entrusted to him may be substantially more likely than the average applicant to have a problem managing client trust funds, in violation of the local version of Model Rule 1.15(a).  Similarly, applicants with a repeated pattern of convictions may suggest to the bar authorities an inability to comply with the law.  See, e.g., In re Kapel, 651 N.E.2d 955 (Ohio 1995) (repeated traffic violations and psychiatric treatment for impulse control problems); Frasher v. Board of Law Examiners, 408 S.E.2d 675 (W. Va. 1991) (applicant had three DUI convictions and 24 speeding tickets).  The inference here would be that the pattern of lawbreaking indicates a disposition to disobey the law, which would likely result in a violation of the state's version of Model Rule 1.2(d).   

Being obnoxious or showing poor judgment is not, by itself, a sufficient basis for predicting that an applicant will have problems complying with his or her legal obligations.  However, it may be possible for a court to construe obnoxiousness differently -- e.g. as a disposition to abuse the legal process.  In my favorite goofy case of In re Converse, 602 N.W.2d 500 (Neb. 1999), the applicant had made himself a gigantic headache to the administration of his law school, but what gave the character and fitness committee the legal hook to deny his application was his use of frivolous legal proceedings as a means of harassment. 

In the case of the student running the AutoAdmit board, and some of the students who have posted comments there, the basis for denying their admission on character and fitness grounds would be a prediction that they would be unable to refrain from violating the legal rights of others.  Their disrespect for the privacy rights of others and their cavalier attitude toward making defamatory comments might support an inference that they would be likely to have a problem complying with the law in practice.  Following the Hale case, a character and fitness committee might similarly conclude that the posters and the student who maintained the board are less likely to be able to comply with the anti-discrimination rules in effect in many jurisdictions, which prohibit lawyers from discriminating on the basis of race, sex, and other protected classes.  (The racism of many of the comments is what first struck me as troubling about the discussion on AutoAdmit.) 

I should note again, for the record, that I am strongly opposed to what I think is incredibly sloppy use of past conduct to predict future behavior.  Aren't these character and fitness committees committing the fundamental attribution error by assuming that the explanation of past misconduct is a stable disposition, and not some features of the situation that may not be repeated in practice?  A shout-out here is due:  Long before the current trendiness of behavioral social science research, Deborah Rhode criticized the character and fitness process for wrongly assuming that past conduct could predict future instances of professional misconduct.  See Deborah L. Rhode, Moral Character as a Professional Credential, 94 Yale L.J. 491 (1985).  Unfortunately, state bars seem fairly untroubled by the lack of rigor in the character and fitness screening process, and continue to rely on past conduct. 

Like it or not, character and fitness review is here to stay.  Bar committees and courts have not shown any particular interest in applying robust First Amendment protections to applicants, and have shown even less interest in modifying the process to reflect our best understandings about the predictive value of past acts.  However, even given these deficiencies in the process, there's no way the applicant in the Playboy videos should have any difficulty with the character and fitness process.  The challenge for anyone who disagrees is to find a professional obligation that you believe she is more likely to commit (as compared with the overall applicant population) based on her appearance in the video.  In other words, what exactly did she do wrong here, legally speaking, and how is that likely to manifest itself in her conduct as a lawyer?  I'm coming up with a blank. 

Confusion Over Breach of Fiduciary Duty

There seems to be more confusion than there should be over causes of action against lawyers for breach of fiduciary duty.  A recent complaint (Download irell0409.pdf) by Charter Communications against Irell & Manella exemplifies the tendency of malpractice plaintiffs to plead breach of fiduciary duty claims as well, based on much the same conduct and claiming the same damages. 

A recent opinion requiring the Wilson, Elser firm to disgorge over over $3 million in fees (see story here) pointed me to a very fine article on the subject by Chuck Wolfram.  I largely agree with what I see as his conclusion--that courts should not recognize as independent causes of action breach of fiduciary duty claims that do no more than re-hash malpractice claims, seeking the same relief based on the same facts--though I think of it in a slightly different way.  (NY and Illinois courts follow this approach; California does not, so far as I know).

I don't think the argument needs to be more complicated than this:

1.  Fiduciary duties are duties that only fiduciaries owe
    (a) Duties that non-fiduciaries owe but which fiduciaries owe as well are not "fiduciary" duties

2. Many people (perhaps most) owe duties to act carefully in doing different things

3. The duty of care is not a "fiduciary duty," though fiduciaries must act carefully

From this it follows that carelessness and incompetence are not fiduciary breaches, though fiduciaries may act carelessly and be held liable for doing so.  The true "fiduciary" duty is the duty of loyalty.  (On this point I may differ with Professor Wolfram, who, in the colloquy printed following his article, characterized carelessness as a form of "betrayal."  I think that usage is too broad; it equates carelessness with self-interested profiteering, thus making it impossible to draw what I see as an important distinction.)

From this it follows (as it does for Wolfram) that the breach of fiduciary duty cause of action should lie for disloyal acts, such as profiting from client information, self-dealing with clients, taking client business opportunities, etc. 

The remedies for disloyalty should be disgorgement of profits, including fees, earned from disloyal acts.  There should be no need for showing causation of damages to clients, as there is in the negligence context, because the purpose of the claim is to remove the incentive for disloyal conduct by confiscating the profits of that conduct, not to restore the client to their position ex ante by compensating their losses.  For that relief, standard negligence elements should have to be shown.

This analysis implies that clients should not have to show damage as an element of a fiduciary duty claim; profit (including fees) to the lawyer should be enough to support a disgorgement remedy.  That is the general rule, I believe, but the odd facts of Frye v. Tenderloin Housing Clinic prompted the CA Supreme Court to reject a disgorgement claim where the fees at issue were paid by defendants in the underling suit rather than the plaintiff, who was the client of the public interest firm that brought the case.

Slovensky v. Friedman, 142 Cal. App. 4th 1518 (2006) extended Frye to a situation in which a client received some recovery on a time-barred claim but sued her counsel for allegedly lying to her and pressuring her to settle.  The court seemed to reason that she had no claim to begin with so her counsel's alleged misconduct did her no harm and, therefore, was not actionable.  The no-harm premise disposes of the malpractice claim but should not dispose of the fiduciary claim: disgorgement is appropriate to reduce the incentive to (allegedly) lie to and browbeat clients into fee-generating settlements, even if the client would have been worse off had her claim been subjected to stand-alone scrutiny rather than folded into a package settlement (which it was). 

Limited strictly to those facts, the opinion is not too worrisome, but it would be better if courts distinguished violations unrelated to disloyalty from disloyalty, and noted that the purpose of damage claims differs from the purpose of disgorgement.

DM

GCs Engaging in UPL

Here's an interesting article about eight general counsels at Fortune 250 companies who are apparently engaging in the unauthorized practice of law.

I have written on the subject of lawyers moving to new states, and I have found that the rules in most jurisdictions are unduly restrictive and may actually be unconstitutional.  That said, in the absence of a constitutional challenge, it certainly seems advisable for these general counsels to comply with the licensing rules in their jurisdictions.  If any of them want to challenge the rules in their states, however, have them give me a call!