Legal Ethics Forum

Interesting Bar Opinion on Electronic File Ownership, Organization, and Delivery

In Formal Opinion 2008-1 (July 2008), the Committee on Professional and Judicial Ethics of the Association of the Bar of the City of New York addressed various issues concerning the organization, delivery, and the ability to charge clients for delivery of electronic files after the end of a representation.   Among other things, it is the first opinion I know of to address whether the firm has to locate various internal e-mails concerning the matter (generally, no), but also suggests that e-files create issues that might be addressed nowadays in an engagement letter.

Law schools and "cooking the books"

The WSJ has an article about law school rankings, prompting Larry Ribstein to suggest that the schools' efforts to game their rankings has disturbing similarities to accounting fraud. I agree, and it's the most powerful kind of teaching: teaching by example. Here are two posts from mine In 2005,

"American Laywer Media has this article, which uses the recent conference on law school rankings as a vehicle for addressing the gaming of the rankings. . . . . I think that law schools are teaching by example that cooking the books is what lawyers do."

"I don't know if those stories are very real or urban myths, but the law students do talk about them. Assume that one law school uses all those techniques. Which techniques, if any, are unethical? If the techniques yield a process at variance with that school's brochures and advertising materials, why would that be any different than a corporate lawyer 'cooking the figures' when the year end rolls around? Would such a law school be teaching its students, by example, that lawyers should act that way in the real world?"

New ABA Ethics Opinion on Legal Process Outsourcing

A summary of the opinion (08-451) is here.  The opinion itself is here.

For previous commentary on this issue and links to related stories, see here, here, and here.

In the News...

Here's a summary of an interesting legal ethics case out of Delaware involving litigation misconduct.

And here's a new and provocatively titled article from co-blogger Anita Bernstein called, Sanctioning the Ambulance Chaser.  The article raises issues that are addressed to some degree in the comments to this post from last week.  Here's Anita's abstract:

Most scholars of professional responsibility who have written about the ban on solicitation of new clients want to see the prohibition liberalized. This Article offers empirical support for the near-consensus by exploring the two contrary meanings of "sanction." Sanction in the sense of punishment exists in state codes of professional responsibility: Almost every United States jurisdiction deems solicitation a disciplinary offense. The record, however, reveals sanctioning in the sense of condoning. My effort to count every instance of attorney discipline for solicitation reported to the public during 2002-2007 located very few in relation to the 1.3 million licenses held to practice law. The number is apparently only 61, and I argue that, properly understood, this count is much lower - perhaps as low as 1. Purporting to declare a behavior punishable while at the same time permitting it to go on without punishment is a state of hypocrisy that the bar ought to abandon.

Thoughtful new decision on conflicts of interests and experts

From the Southern District of West Virginia comes Rhodes v. DuPont, __ F.Supp.2d __ (S.D. W.Va. 2008), a thoughtful decision addressing conflicts of interest and experts. I've got an article about this issue on ssrn, here, and found this case quite a good read and summary of the competing issues. You also often don't get to read authority from 1900 (Learned Hand, no less) quoted in a case with chemicals that no one can pronounce!

Public Benefits from Lawyer Marketing

Lawyer advertising is frequently criticized, but the criticisms often fail to consider how attorney advertising can benefit the public.  For example, in this article, the authors claim that lawyers could reduce the rate of intestacy by learning to market wills more effectively.  The claim seems both intriguing and quite plausible.  (Tip from the Wills, Trusts, and Estates Law Blog.)

Many segments of the profession grudgingly accept advertising, and law schools don't really teach lawyers about effective marketing.  But there is an argument to be made that we should encourage lawyers to market themselves in ways that both serve the lawyers' financial interests and advance important public policies.  The two are not always mutually exclusive, and wills seem like a good example of how the two interests can be served simultaneously.

Law is quite clearly a business.  Business students are trained about effective marketing techniques, but I don't know of a single law school course that teaches lawyers how to engage in effective lawyer marketing.  Does anybody know of one?  Should we teach law students more about marketing?

Are more corporations relying on a single law firm?

When I teach PR, I talk about the decline of law firms' influence over their corporate clients given the rise of in-house legal departments and the tendency of clients to farm legal work out to many different firms on a matter-by-matter basis.  Perhaps we're beginning to see a trend headed in the other direction.  If so, could firms ever regain their influence over corporate clients?

Hood Case Update

Here is an update on the Hood case.  You may recall that Hood is facing execution next month even though there is substantial evidence that the prosecutor in the case was secretly sleeping with the judge at the time of trial.  (For previous blog commentary on the case, see here, here, here, and here.  For a statement from the Association of Professional Responsibility Lawyers, see here.)

Hood's lawyers are now trying to force the former prosecutor and judge to discuss their previous relationship though discovery in a civil suit.  The execution is scheduled for September 10, so this matter is likely to generate more news in the next few weeks.

King & Spalding Socked with $90k Discovery Sanction

This is one of those "think before you leap" lessons. Lawyer A says Lawyer B had obstructed discovery and misrepresented facts to the court. Judge says he's going to figure out who's telling the truth. He did so. Essentially, the court lambasted K&S's counsel for accusing Duane Morris's counsel of being uncooperative in discovery. The order in the patent infringement suit of CBT Flint Partners v. Return Path, No. 1:07-CV-1822 (N.D. Ga. Aug. 2008) is here, an article about it, here.

Nonlawyer Disbarred by Federal Court

No, that's not a typo. Read the story here.