Insurance Journal. The news article says that the Connecticut court held that lawyers are immune from suits for fraud, but it appears to be a re-affirmance of the traditional rule that for most statements within the litigation proceeding, lawyers are responsible to non-clients under only a few doctrines (malicious prosecution, abuse of process, sanctionable conduct, etc.) Excerpt:
The principal Issue in this appeal is whether attorneys are protected by the common-law doctrine of absolute immunity against claims of fraud and intentional infliction of emotional distress arising out of their conduct during judicial proceedings.
The Plaintiff claims that his former spouse, Donna Simms, and the defendants, her former attorneys, are liable for fraud and intentional infliction of emotional distress because they failed to disclose her true financial situation during post-dissolution proceedings in which the plaintiff sought modification of the alimony award. The defendants counter that the conduct of attorneys during judicial proceedings is absolutely privileged. We affirm the judgment of the Appellate Court.
The ABA has a new opinion out, No. 463, which isn't so much an ethics opinion as an attempt to reconcile the loyalty and confidentiality provisions of the Model Rules with the 2010-issued Voluntary Good Practices Guidance for Lawyers to Detect and Combat Money Laundering and Terrorist Financing. (h/t: Legal Ethics in Motion)
The new opinion looks at the role of lawyer as gate-keeper and claims to reject that role. From the summmary at the start of the opinion:
Article. (This article could be useful for PR profs, especially if they're not familiar with opinion letter practice.) Abstract:
some point during their years of practice, most corporate or
transactional lawyers will be asked to work on a legal opinion for the
closing of a deal in progress in their law firm or legal department.
Their assignment is to prepare the first draft of a closing opinion
letter, which will be reviewed and revised by a partner or other more
experienced lawyers, perhaps including a formal opinion committee. The
letter is to be addressed and delivered to the other side at the closing
– and is therefore called a “third-party” opinion letter.
Lawyers tend to have one of two basic reactions upon receipt of an opinion drafting assignment. Some view it as merely a rote exercise, requiring nothing more than marking up an old officer’s certificate and a recent opinion letter their firm has delivered. Others cringe a little when they get this assignment. Clearly, third-party opinion letters are legal oddities – giving legal advice to one’s opponents is not normal behavior. It runs against the grain. It is very important to note that no matter how important the transaction is to the client, the opinion letter is the attorney’s, not the client’s, risk.
Attorneys drafting opinion letters must understand “customary practice” among those giving and receiving legal opinions. Whether desired or not, customary practice among lawyers is incorporated into closing opinions.
This paper reviews customary practice in a number of specific aspects of legal opinion writing, and provides a fully annotated form legal opinion.
paper considers a non-consequentialist argument raised by opponents of
alternative litigation financing (sometimes called third-party
litigation financing). The objection is that, apart from any effect
that this method of funding might have on litigation rates, settlement
incentives, or the lawyer-client relationship, something is
intrinsically wrong with allowing a third party (not a litigant, the
lawyer, or a liability insurer) to invest in a litigated claim. Somehow
the participation of third-party funders transforms a non-market good
into a commodity. This is a familiar form of argument, made familiar in
legal scholarship by the work of Margaret Radin, and recently advanced
by Michael Sandel in his critique of market modes of valuing various
My argument here is that, first of all, opponents of third-party funding have not made the commodification objection with any real rigor and, second, if they were to make it rigorously, the most promising way to flesh it out would be using an expressive account of values. On an expressive approach, the argument would be that alternative litigation finance somehow manifests an inappropriate attitude toward the civil justice system. An expressivist might contend, for example, that in a tort lawsuit there is an intrinsically relational quality to a cause of action, which gives rise to agent-relative reasons which create obligations for wrongdoers to rectify harms. Allowing third parties to invest in these claims manifests the wrong type of attitude toward rights-based, relational values, by implying that the victim's rights are fungible with money.
The trouble with that argument, however, is that the tort system includes practices such as insurance and settlement which depart from a strictly agent-relative understanding of the normative basis of tort liability. Other tort doctrines, such as the recoverability of damages for emotional distress and the enforceability of advance contractual waivers of liability, similarly exhibit the commodifying tendency to which opponents of alternative litigation finance object. Moreover, the anti-commodification is only an argument that works with a corrective justice approach; most opponents of alternative litigation finance are probably not committed corrective justice (or civil recourse) theorists. On a welfarist or consequentialist account of the tort system, third-party funding seems acceptable from the get-go, since all doctrines are evaluated in terms of their efficiency.
While this paper does not endorse the anti-commodification critique of alternative litigation finance, it aims to show what a non-strategic anti-commodification argument would look like.
The First Department Appellate Division in New York today (May 23) decided Matter of Lawrence, a case that had been up to the N.Y. Court of Appeals, was then remanded for a hearing that was held before former Court of Appeals Judge Howard Levine, and follwed by a review by Surrogate Nora Anderson in New York County, and finally the appellate court per curiam decision. Discretionary review in the N.Y. Court of Appeals is possible. The Reuters news summary is at the URL below.
The case involves much money, but more important it has several fascinating issues that will be of great interest to the legal ethics community. The court's opinion can easily be located through the information in the Reuters report (which has detail the short opinion lacks) or John Steele can add a link here. I was a tesifying expert for the Lawrence estate so will say no more.
[editor's note by john steele. see the opinion here: http://www.nycourts.gov/reporter/3dseries/2013/2013_03759.htm]
From a comparative view of the IRS scandal using the legal ethics rules (altho, admittedly, the legal ethics rules don't govern for the most part), two aspects of the IRS scandal stand out: (1) the IRS's duty of candor (as to prior false statements and as to ongoing requests for information) to the Congress in its oversight role; and (2) the law and prudence of "reporting up" bad news. Legal ethicists immediately think about the provisions of MR 3.3 and 1.13. As I've commented previously, it seems to me that key players in the IRS actively concealed their bad conduct and were deceptive to the Congress about the conduct.
We've also discussed the decision made by various players not to "report up" the matter to the president and I've commented that I have seen no law requiring that and that political prudence dicated not reporting up. Professor Stephen Bainbridge analyzed the issue with a comparison to corporate law and was critical of the failure to report up.
The WSJ is now reporting that the IG was governed by a provision of law requiring that it immediately report up serious problems to the head of the agency within seven days. The IG did not do that in this case, reasoning that such letters were rare and that it was better to complete the investigation first.
But suppose that the IG had reported up to the head of the IRS, or that the IG had signaled to the head of the IRS that such a letter may be forthcoming, or that the head of the IRS knew that such reports were commonly done in a timely way. That threat would be analogous to the theory behind 1.13, in that a lawyer may use the express or implicit threat of reporting out to force the client to do the right thing. Had that happened here, it would have permitted the IRS to come clean to Congress, the president, and the nation in a timely way.
[edited since posting]
Miami-Herald. The court did not rule that such conditions exist at this time and it remanded the matter for a factual finding on that point. Excerpts:
"Third-degree felony attorneys often have as many as fifty cases set for trial in one week because of the excessive caseload. Attorneys are routinely unable to interview clients, conduct investigations, take depositions, prepare mitigation, or counsel clients about pleas offered at arraignment."
"Consistent with the analysis above, we quash the Third District’s decision in Public Defender and quash in part and affirm in part its decision in Bowens. We also remand for the trial court to determine if the circumstances still warrant granting the Public Defender’s motion to decline appointments in future third-degree felony cases under the standards approved in this decision."
(h/t: 360 News)
A judge in Texas appears to have handled an ethics dilemma on Facebook in textbook fashion. The judge was presiding over a criminal case involving defendant William Scott Youkers, who was sentenced to eight years in prison for assaulting his girlfriend. Youkers moved for a new trial on the ground that the judge’s Facebook friendship with the girlfriend’s father created both actual and apparent bias. According to Youkers, the judge failed to disclose a private Facebook message he received from the father that – ironically – had sought leniency for Youkers.
The Texas court of appeals rejected Youkers’ request. According to the opinion, upon receiving the Facebook message, the judge immediately advised the father that his message violated the ex parte communication rules. He then placed a copy of the message in the court files, disclosed it to the lawyers, including Youkers’ attorney, and reported the incident to the state’s judicial conduct commission.
The ABA and several state judicial ethics committees have issued opinions concerning the use of social media by judges, with varying results. ABA Formal Op. 462 (2013) concluded that judges “may participate in electronic social networking,” even with those who appear before them in court, as long as they “comply with the relevant provisions of the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impropriety.” Thus, a social media connection, by itself, will not necessarily require recusal.
Several states, including New York, have taken a similar view. A 2009 opinion issued by the New York Judicial Ethics Committee approves the use of social media by judges, but advises appropriate discretion. See N.Y. Jud. Ethics Comm. Informal Op. 08-176 (2009). Like the ABA opinion, the New York opinion does not prohibit judges from establishing social media connections with those who appear before them in court, but cautions judges to “be mindful of the appearance created” by such connections and to consider whether they “rise to the level of a ‘close social relationship’ requiring disclosure and/or recusal.” Id.; see also Md. Jud. Ethics Comm. Formal Op. 2012-07 (2012) (social media connection with a lawyer, absent other connections, will not generally require recusal); Ohio Bd. Of Comm’rs on Grievances and Discipline Formal Op. 2010-7 (2010) (judges may have social media connections with lawyers as long as relationship otherwise comports with ethics rules); Ky. Jud. Ethics Comm. Formal Op. JE-119 (2010) (judges should consider whether social media connection with lawyer, along with other factors, requires disclosure or recusal); S.C. Jud. Dep’t Adv. Comm. on Standards of Jud. Conduct Op. 17-2009 (magistrate judge may have social media connections with lawyers as long as they do not discuss anything related to judge’s judicial position).
Other states have taken a more draconian approach, prohibiting any social media connections between judges and those who appear before them in court. See, e.g., Okla. Jud. Ethics Adv. Panel Op. 2011-3 (2011) (judges may not “friend” anyone who appears before them in court); Mass. Jud. Ethics Comm. Op. 2011-6 (2011); Cal. Judges Ass’n Jud. Ethics Comm. Op. 66 (2010); Fla. Jud. Ethics Adv. Comm. Formal Op. No. 2009-20 (2009).
As the Texas court observed, permitting judges to use social media is “consistent with the premise that judges do not ‘forfeit [their] right to associate with [their] friends and acquaintances nor [are they] condemned to live the life of a hermit.” The opinion also noted that social media platforms are a way for judges to “remain active in the community.” They also function as campaign tools for judges who, in Texas, are elected officials. In fact, the judge testified that his Facebook friendship with the father occurred solely because they were running for office at the same time and there was no relationship between them beyond their social media connection.
As social media use continues to grow, we will likely see more incidents like this – where judges or lawyers receive ex parte or other improper communications from well-meaning but misguided individuals. The judge’s conduct serves as a shining example of how to handle such communications.
now commonly accepted that law schools are graduating students who are
under-prepared for practice in the real world. In other words,
students that perform adequately in the classroom seem to struggle or
suffer — to an unnecessary degree — when they enter practice. It is as
though law schools are graduating inchoate or “partially-formed”
lawyers, who demonstrate classroom fluency but lack meaningful ability
to grapple with the wrinkles and complexity of real-world practice. The
bottom line is that to create practice-ready or “fully formed” lawyers,
law schools should reform to prioritize hands-on training in public
It may seem counterintuitive to suggest that the key to private practice skills is to emphasize public interest experience during law school, but there are several reasons why the private sector should support it: through public service, law students can (1) help to address the current access to counsel crisis; (2) learn their moral and professional obligations to provide pro bono service; (3) receive incomparable training in core lawyering skills; and (4) sustain their emotional and psychological health by connecting with relevant, meaningful work.
As a result of Watergate, the legal profession’s reputation was badly damaged. Disciplinary action was taken against eighteen lawyers, which prompted the American Bar Association to focus on improving ethical standards and education for lawyers. Over the subsequent decades, the Model Rules were drafted and revised to promote this goal. Legal education also changed by requiring all accredited law schools to provide training in the area of professional ethics. Subsequent events involving the lawyers, however, should cause the legal profession to question whether lawyers have adequate tools to navigate their often competing roles of public servant, guardian of the rule of law and client advocate or advisor in a way that furthers justice and public trust. In particular, the legal profession needs to focus on improving the Rules and legal education to inculcate not just respect for the rule of law, but more explicitly, respect for the interests of third parties.
The video clip from Anatomy of a Murder in which Paul Biegler (Jimmy Stewart) meets with his client Lt. Frederic Manion (Ben Gazzara) and tells him the legal defenses to homicide before asking what happened is, of course, often used in legal ethics classes and at CLEs. (The value of the video is that we can see Biegler's body language cues, missing from the novel. We also get to see Lee Remick portray Mrs. Manion. )
Lawyers largely support Biegler and many law students do, too, though not as many.
Now comes Matter of Rios (Appellate Division, First Department, May 14, 2013). The two young lawyers charged with disciplinary violations had met in law school and after a few years, formed a practice. Their personal injury client told them that she had fallen on a sidewalk in front of a church. The lawyers located the church but the sidewalk was in good repair. However, the sidewalk across the street was cracked. The lawyers met with their client and explained
"the law, emphasizing that if she fell on the sidewalk abutting the church, she would have no viable claim for her injuries. However, they indicated that if she fell across the street on the driveway, she had a viable case against the owner of the abutting property. They then showed their client pictures of both the undamaged sidewalk abutting the church and of the badly cracked sidewalk/driveway across the street. Upon asking her where she fell, the client indicated that she had fallen on the sidewalk across the street from the church. Shortly thereafter, respondents notified both the owner of the home abutting the sidewalk/driveway across the street from the church and her insurance company of their client's accident. In June 2008, respondents commenced an action against the homeowner and pursued discovery."
So did the lawyers cross a line? In their favor, one might say they were only trying to ensure the client's accurate recollection. Perhaps given the trauma of the fall, she forget where she fell. They didn't ask her to lie. They told her which facts would support a case and which would not. Would that explanation have saved them?
This would have made for an interesting opinion except that the lawyers conceded that they intended by their conduct to influence the client to lie. The lawyers could not refuse to testify if called and they would have had to tell the truth if asked for their motive, but they had no duty to volunteer their motive. It would be interesting to know how it came to pass that their motive was conceded. But once it was, what could their defense lawyer have done to help them?
The court was therefore able to write:
"Here, based on the record, it is clear that respondents intentionally influenced their client to misrepresent the situs of her accident in order to pursue an action which they knew was fraudulent from its inception. Thereafter, respondents, with full knowledge that they were perpetrating a fraud, commenced an action against an innocent third party, filing papers, such as pleadings, containing misrepresentations with the court."
The lawyers were suspended for nine months.
What if the facts were different. What if the lawyers argued that their only objective was to ensure that the client correctly recalled the location of the fall and showed her the pictures of the two sidewalks to refresh her recollection?
On a day when Senator Hatch accused a lawyer (Steven Miller) of lying by omission for failing to correct earlier false statements to Congress, we are told that another lawyer (Lois Lerner, whose job at the IRS was apparently not a legal job per se) will take the Fifth Amendment rather than testify before Congress. I completely support her right to assert that right and my sense is that she's smart to do so. But as I listened to Miller unconvincingly defend his decision not to tell Congress about the prior false statements (even as Miller responded to Congress on related questions), both Fisons and Qualcomm kept coming to mind.
I have to wonder if all those lawyers (including Douglas Shulman) wish they could have a do-over, go back in time, and tell themselves, "now that we know that the IRS has been giving untruthful answers to Congress on a question that Congress keeps asking us over and over, let's correct it right away, to the Congress itself." It always seem obvious in hindsight. It's also curious to see that "doing the right thing" would have been "doing the thing that protects me the most" -- but, for whatever reason, that's not what they did.
UPDATE: As I was listening to Miller respond to Senator Hatch, his response reminded me of a lawyer at law & motion when he/she got caught carefully not producing the one "hot doc" that the other side had been asking for repeatedly. Miller asserted to Hatch that he had no duty to correct the prior false responses the IRS had sent to the Congress and that when the Congress asked closely related questions Miller was justified in sending back narrow, literally true responses that carefully omitted the one fact that Miller knew the Congress had been asking for all along. Miller, a lawyer, was acting in a non-lawyer role. Still, it's worth asking, does a government lawyer have a higher duty? If it were a lawyer's decision about whether to inform the Congress, should the lawyer do so? Or is all fair in love and inter-governmental jousting?
[edited since posting]
Short article. Abstract:
Professor Abrams authors a column, Writing It Right, in Precedent, the Missouri Bar's quarterly magazine. In a variety of contexts, the column stresses the fundamentals of quality legal writing - precision, conciseness, simplicity and clarity. Future columns will be posted as they are published, every three months or so.
With thanks and a hat tip to Richard Carmody, here are some resources about the ABI's recent report on ethics in bankrupty practice. (It reminds me of the ACTEC gloss on the ethics rules.)
The final report:
And here is an audio recording of a panel with BK ethics experts discussing the report (Task Force reporter, Profs. Nancy B. Rapoport of the UNLV William S. Boyd School of Law (Las Vegas); Task Force reporter, Lois R. Lupica of the University of Maine School of Law (Portland, Maine); Task Force member, Edward T. Gavin of Gavin/Solmonese LLC (Wilmington, Del.))
California Opinion 2013-188 asks:
If an attorney receives from a non-party a confidential written communication between opposing counsel and opposing counsel‟s client, what should the attorney do if the attorney reasonably believes that the communication may not be privileged because of the crime-fraud exception to the attorney-client privilege?
The Digest answer:
If an attorney receives an unsolicited intentionally transmitted written communication between opposing counsel and opposing counsel‟s client under circumstances reasonably suggesting that it is a confidential communication apparently sent without the consent of its owner, the attorney may not ethically read the communication, even if she suspects the crime-fraud exception might vitiate the privilege. The attorney must notify opposing counsel as soon as possible that the attorney has possession of the communication. The two attorneys should try to resolve the privilege issue or, if that fails, obtain the assistance of a court. Attorney may not read, disseminate, or otherwise use the communication or its contents absent court approval or consent of its owner.
Some of you may know that this has been an interesting week in Canadian politics. There was the allegedly crack smoking mayor of Toronto (to see the video donate at the "crackstarter" campaign on Gawker) and, as well, a story of malfeasance in the office of Prime Minister Stephen Harper. Here is the background. Mike Duffy is a former journalist and current Senator, appointed by PM Harper. Duffy's appointment was controversial because he was appointed as a representative of Prince Edward Island, even though he hadn't lived there for many years since he was working as a journalist in Ottawa. In the last six months Duffy had become even more controversial as he was claiming expenses that were bogus, most notably expenses based on the assertion that his primary residence was in PEI. He owned a house in Ottawa where he had lived for many years, and his cottage in PEI was obviously unlived in - there were unhelpful photos of the cottage surrounded by untrammelled snow. Duffy and some other senate colleagues were the subjects of audits for these sorts of expenses. The audit of Duffy was brought to a close, however, when he repaid the disputed expenses.
This weekend it was discovered that Duffy was able to repay the expenses because the PM's Chief of Staff, wealthy lawyer Nigel Wright, had personally cut Duffy a cheque for $90K. It is now alleged that this payment was approved by a legal advisor to the PM, although it is still maintained that the PM knew nothing about it.
So here's what I don't get. You have two lawyers who, by all accounts, are highly intelligent, well educated and decent people. One of them (the advisor ot the PM) is an academic who I've met, and he did indeed seem like a decent guy. And yet neither of them seems to have clued in to the fact that paying money to government officials in order to obtain a benefit - in this case the conclusion of an audit that was apparently going to look bad for the Conservative party - is totally unlawful. You don't have to dig far to find the various legal rules that prohbit it.
Why? Why didn't they see it? My own guess is that the insularity of that kind of office can make you blind to even the most obvious of ethical issues and answers. That you only see how things are or seem from the perspective you occupy, and you lose the ability to see how they will seem from a different perspective.
If that's right it makes me wonder how possible it is to construct a regulatory system that will prevent misconduct. No matter how good your rules or structures, someone is going to have the capacity to make terrible choices, and to occupy circumstances in which the terribleness of those choices is obscured.
The Inspector General released a report about an unlawful leak by the then-US-Attorney arising out of the "Fast and Furious" snafu. We discussed the matter when it the issue arose, but now the IG report is out. (We've also repeated the rule of thumb that the almost all the leakers are lawyers. I hope it's rare that the US Attorney is the unlawful leaker.)
When a critic of the F&F program went public, the US Attorney in Arizona, Dennis Burke, unlawfully released an internal memorandum designed to discredit the critic. When asked if he was the leaker, Burke at first obfuscated, then finally admitted it, resigned, and declined to talk to investigators. The report is extremely unflattering to Burke. An exceprt:
To follow up on a prior post, below are the DOJ briefs asking that the Florida and Kentucky opinions on IAC waivers be vacated. And here is the Virginia opinion, LEO 1857 (which strikes me as overreaching, even though my sympathies are with the legal rights of the accuseds). (h/t: Rick Underwood)
[Tigran Edlred passes along this news.]
For those with a continuing interest in the OLC torture memos (which have been discussed extensively on LEF), you might be interested in a recent symposium hosted by the New England Journal on Criminal and Civil Confinement at New England Law|Boston. Taking a unique approach to the issue, the Journal’s symposium focuses on a powerful new play about US detention policy at Guantanamo Bay by Michael Meltsner, the former dean of Northeastern Law School, entitled “In Our Name.”
As part of the symposium, which included a performance of the play and a panel discussion by legal experts, the Journal has published a series of scholarly essays, which can be accessed here (http://www.nesl.edu/students/NEJCCCFall12PlayPaperSymposium.cfm). Authors include LEF’s own Brad Wendel, whose essay “Virtue and Vice in Legal Advising” describes how “In Our Name” illuminates the real world impact of OLC’s legal advice. Other authors include Stephen Oleskey, who was co-lead counsel in Boumediene v. Bush, 553 U.S. 723 (2008); Professor at New England Law|Boston and former JAG prosecutor Victor Hansen; Dean Emeritius of New Hampshire Law School John Hutson; and Assistant Professor of Human Rights Law at Seton Hall University Elizabeth Wilson. For anyone who wants additional information about the symposium, contact Tigran Eldred.
Article. Given that this is the 50th anniversary of Brady, and given all the inadequacies we've seen in the DOJ's exercise of that duty, isn't it time for a legislatve solution?
In general, discovery is far narrower in federal criminal cases than in federal civil litigation. Under current federal law, prosecutors do not have to disclose evidence and information that is favorable to the defense for its use in investigating, advising the defendant, plea negotiations or trial, unless the favorable evidence falls within one of several narrow categories or might be probative enough to produce an acquittal. Proponents of broader federal criminal discovery law express concern both that disclosure is too limited to ensure fair outcomes and provide a fair process in criminal cases and that prosecutors do not universally comply even with their existing obligations. Last year, largely in response to the disastrous federal corruption prosecution of U.S. Senator Ted Stevens, Senator Lisa Murkowski proposed the “Fairness in Disclosure of Evidence Act of 2012,” which would generally require federal prosecutors to disclose favorable evidence to the accused. Although this would only modestly expand prosecutors’ disclosure obligations and be far less demanding than the “open file” discovery adopted in some state and local jurisdictions, the Department of Justice opposes the bill. This article discusses the proposed legislation and various arguments that might be made for and against it. It concludes that DOJ’s opposition to expanding its disclosure obligations may seem reasonable if one’s objective is simply to ensure that federal prosecutors comply with existing constitutional obligations. The Department is taking significant measures to educate federal prosecutors and to develop a national culture in which compliance with current law is taken seriously. But if one believes that a fair process requires greater and earlier disclosures of relevant evidence - and certainly of favorable evidence - DOJ’s position becomes far less reasonable. The interest in public safety and other countervailing interests it cites, although implicated in a comparatively small number of cases, would not justify curtailing defendants’ access to evidence in all cases. In many other jurisdictions, prosecutors make broader disclosure, subject to exceptions in individual cases where there are particular countervailing concerns. Absent evidence that more generous disclosure undermines the public interest in these jurisdictions, DOJ’s opposition in principle to discovery reform is unpersuasive.
After reading the WSJ round-up of testimony about the planted question by the IRS, I have to wonder: if Lois Lerner and Steve Miller spent time that week carefully planting a question for the ABA conference as a vehicle to reveal the targeting of conservative groups, why didn't they do the exact same thing in preparation for Lerner's appearance before Congress two days before the ABA conference? Would it have been impossible to call a representative or staffer and say, "given that I'm testifying this week, here's the text of a question we've worked out and would like you to ask us"? If they planted the question with a private practice lawyer, why not with the Congress? After all, Congress had been persistently asking about that issue for a long time and the IRS had persistently been giving false answers.
UPDATE: It appears that powerful Democrats are calling for Lerner to be removed from her position and are incensed over this issue. Joe Crowley (D-Queens) said that he asked Lerner about the issue two days [before Lerner responded to the planted question], at a May 8 subcommittee hearing. Crowley said he was “outraged” that she answered, “at a press event,” the same question she failed to address before the committee two days before.
UPDATE (5/21): AP is reporting that the IRS informed the White House in late April that the IRS would be correcting the record about the targeting. Of course, that makes the "planted question" ruse even worse, because the IRS knew it had a duty of correction but rather than go to Congress or the press, it snuck in a planted question and pretended it was spontaneous. Key quote:
"A Treasury official also disclosed Monday that the department told the White House twice in late April about IRS plans to address the targeting publicly, including during congressional testimony and a possible speech by Lois Lerner, the head of the IRS division that oversees tax-exempt groups. White House deputy chief of staff Mark Childress and Treasury chief of staff Mark Patterson were in communication on the matter, as were lawyers at the White House and Treasury."
I think that a WH lawyer would want to insulate the president from the news of the targeting if it expected that the IG report would be published and that it would be in appropriate to create an inference that the WH interefered with the report.
UPDATE (5/21): At this film clip, Sen. Hatch nails Miller for "lying by omission."
Rick Underwood's comment to an earlier post highlighted a hot issue that I'm trying to get a better handle on: the enforceabilty of a waiver of IAC claims by an accused. I found this law review article by Nancy King (abstract below), and this post at Sentencing Law & Policy by Douglas Berman, and this brief article by Michael Downey of Armstrong Teasdale. But I am wondering if our readers can identify which states have ethics opinions or appellate cases on this topic. Thanks.
I haven't dug too far into the topic but it already strikes me as one where the courts will be more willing to declare the waivers enforceable than ethics commitees will. Doesn't the lawyer have a conflict of interest if the potential IAC claim would be directed at that lawyer? And, if so, wouldn't the standard answer under the law of lawyering be a warning to the client about the conflict, coupled with an appropriate discussion with a judge on the record to see if the waiver is knowing and voluntary? (Both King and Berman seem to be leaning that way as well.)
The abstract of Prof. King's article:
This essay addresses the growing use and enforcement of terms in plea agreements by which a defendant waives his right to attack his plea agreement on the basis of constitutionally deficient representation during negotiations leading to the agreement. Contrary to other commentators and some courts, I argue that the Constitution does not forbid the enforcement of such a waiver, and review steps a judge may have to take in order to ensure that a defendant’s express waiver of the right to effective representation during plea bargaining is knowing and voluntary. I also argue that although the Constitution does not prohibit judges from enforcing broad waivers of the right to attack a plea-based conviction on the basis of poor representation during bargaining, routine adoption and enforcement of such terms would be unwise, and suggest several strategies to avoid this result.
In its recent decisions, Lafler v. Cooper and Missouri v. Frye, the Court recognized defendants’ rights to effective assistance of plea-bargaining counsel. Counter-intuitively, however, it is the government that may come to benefit most from the Court’s rulings against it, not only because a well-regulated plea-bargaining market facilitates frequent and expeditious plea deals, but also because prosecutors exercise terrific control over that market. Indeed, by making plea offers that are too attractive to reasonably refuse, prosecutors may constitutionally conscript defense counsel to persuade defendants to plead guilty. Moreover, prosecutors shape the practice norms against which the competency of bargaining counsel is now measured.
News story here. Talk Left has views. There have been recent opinions by the ABA and the DC Bar about the ethics of responding to a former client's claim that you rendered ineffective assistance of counsel.
UPDATE. In the comments, Tigran Eldred writes: "For those not familiar with the ABA and DC Bar ethics opinions, the central question is whether a lawyer accused of ineffectiveness can disclose confidential information relating to the representation to prosecutors before being ordered to do so as part of a formal judicial proceeding. The ABA takes what I believe is the correct view: disclosure under Model Rule 1.6(b)(5)'s "self-defense" exception should only occur in a formal proceeding and after a judicial determination that disclosure is necessary to resolve the allegations of ineffectiveness. The DC Bar takes a less restrictive view, concluding that disclosure in advance of a formal proceeding and without court order can be appropriate (essentially leaving it to the lawyer accused of ineffectiveness to decide if extra-judicial disclosure is appropriate). The primary grounds for the DC Bar's conclusion are the distinctions between the language of Model Rule 1.6 and DC’s counterpart. I think these are distinctions without a difference. The primary basis for the ABA's conclusion is the risk that lawyers accused of ineffectiveness will be motivated to disclose more than is ethically appropriate in order to protect their own personal interests – a risk that the DC Bar opinion largely ignores. I am writing about these risks in an article for Hofstra Law School’s upcoming symposium on the ABA Death Penalty Guidelines. I hope to get the current draft on SSRN soon, but in the meantime would be happy to furnish it (firstname.lastname@example.org) to anyone who might be interested."
Rule 8.4 of the Model Rules of Professional Conduct requires lawyers to impart honest representations of the law and candid legal advice. Rebuke roused due to advisory opinions furnished by government attorneys who offered an unchecked vision of the Commander in Chief authority, sanctioned illegal detentions and interrogations, and slighted human rights abuses on combatants, suspected terrorists, and innocent detainees. Professor John Yoo confronted much controversy for his memoranda written while serving as Deputy Assistant Attorney General in the Department of Justice Office of Legal Council. Yoo was criticized by academia, sued by a former detainee, subject to a prolonged investigation by the U.S. Department of Justice Office of Professional Responsibility, and faced advocacy for disbarment and penalties at U.C.-Berkeley Law School. Yoo surmounted these challenges, but Spanish prosecutors brought criminal charges for war crimes against Yoo and five other Bush Administration legal advisors. The appeal is currently pending before the Spanish Supreme Court. Combining the obligations of Rule 8.4, fundamentals of democratic governance, and this case study, this article offers a five-point inquiry into the details of the relationship between the attorney-advisor and government-client and the intentions for rendered advice. The work emphasizes that legal consultation to a government-client can have such a reverberating impact on taxpayers and require prolonged sacrifice from citizens that certain considerations should elevate the due diligence of the government. Salient variables include the notoriety and acceptance of the advisor’s preexisting legal positions on issues in question, whether the advisor knew guidance on essential policy questions would be used to substantiate government actions or was to be employed for initial cogitation, whether the substance of the legal opinions would be expected to attain accord from the legal community, and whether consultation would fail a common-sense test that could subject government officials to criminal or civil liability.
UPDATE(5/17): the New York Times is now reporting that the general counsel of the Treasury was informed in 2012, before the election, of the Inspector General's investigation. I have the same questions about that lawyer (as well as IRS and WH lawyers): was there a demand for legal compliance, was there "reporting up," and were any documents created? I also wonder if President Obama shouldn't waive privilege so we can all get to the bottom of this.
UPDATE (5/18): The story is still developing but it now appears that the lawyer who was prompted to ask the planted question at the ABA conference did not know the answer and was surprised at Lerner's answer. If that's true, think about how rotten that was: set up a colleague to ask what will become a notorious Q-and-A when she assumed it was just an ordinary question at an ordinary conference and would be answered with the same, ordinary answer the IRS had been giving Congress and the public for some time. Now, unfortunately, when that lawyer's name pops up here or there it will be associated with the IRS's deceptive scheme. When a federal agency has been falsely answering a persistent, urgent question from Congress, the agency should report the truth directly to the Congress rather than scheme to create a ruse (and use an unwitting accomplice) only when the truth is going to come out anyway. That's active concealment of bad conduct. (Btw, someone mentioned in the comments that Lerner is a lawyer.)
UPDATE (5/19): The Wall Street Journal gathers some of the testimony about the planted question. I find it hard to believe. The IRS had known about the targeting for years but Miller claims, essentially, that he learned of it only once the Inspector General's report was completed, which happly for the IRS timed prescisely so that it could be revealed via a planted question on Friday -- but not revealed earlier that week when Lois Lerner testified before Congress. Put it another way: if Miller and Lerner saw a need to to plant a question with a private practice lawyer on Friday, why not plant the same question with Congress 48 hours earlier? I also find unpersuasive Miller's testimony that the IRS had no obligation to report to the Congress that its earlier answers were false.
UPDATE (5/20): The Wall Street Journal is reporting that "The White House's chief lawyer learned weeks ago that an audit of the Internal Revenue Service likely would show that agency employees inappropriately targeted conservative groups, a senior White House official said Sunday." President Obama said that he first learned of the targeting from the news accounts on May 10th. If both those facts are true, it might have been the case that people around the president thought it best if he didn't know about the facts until the IG report came out. That strike me as plausible, especially if the report was supposed to be released soon.
UPDATE (5/21): Listening to Miller today, I got the sinking feeling that there's a whole 'nother level to this scenario. Recall that the IRS developed two different, problematic screening mechanisms. The second one was developed because the first one was so inappropriate. Yet somehow Miller and Shulman and the IG report author testified that none of them knows how that that scecond protocol was developed or who developed it. That strikes me as very odd -- that on May 21st they would all profess to have no idea who did the second protocol. Stay tuned.
UPDATE (5/22): Here is some speculation from Ed Rogers at the WaPo about how the WH counsel did handle the new and how that counsel might have expected the news to travel -- or not travel -- further up the org chart.
As the IRS scandal unfolds, it's interesting to watch for references to the lawyers. I have not seen any evidence that any lawyers did anything wrong. But knowing how lawyers are supposed to act makes me wonder what role, if any, they played in leaving a document trail or in demanding compliance with law or in "reporting up." The Inspector General's timeline has three references to "chief counsel" inside the IRS who had early meetings about the targeting, but those could be references to the office of chief counsel. Still, the references suggest that some IRS lawyer knew of the targeting a long time ago. Was that lawyer aware of the testimony the IRS officials had been giving Congress? Was there a "reporting up"? Was there a demand that the agency comply with law? (Note, too, that lawyers may give advice about political factors, under MR 2.1. Did any lawyer give that kind of advice, along the lines of, "at a minimum, you're playing with fire.")
And we're now learning the the revelation of the targeting was done very carefully with a planted question at the ABA conference rather than directly to the Congress. Were any lawyers aware of that?
Finally, Lanny Davis has begun to ask questions about the role of White House counsel. President Obama says that he first learned of the situation from the news, just like ordinary Americans. Given that so many people knew the IG's report was imminent, the way the president learned is surprising (because, as Lanny Davis suggests, it's not good to leave the president surprised on big developments) or perhaps not surprising (if some people thought that insulating the president was in the president's best political interests).
Alberto Bernabe passes on this news about meet-ups there.
For those of you planning to attend the upcoming ABA National Conference
on Professional Responsibility in San Antonio, I would like to let you
know of two activities organized by the Professional Responsibility
section of the Association of American Law Schools.
First on May 30th at 12:05, we will get together for lunch. Please gather at the main entrance of the Hilton Hotel from where we will go to the restaurant. If you would like to attend PLEASE contact me at email@example.com before May 21st. We need an accurate count to make the reservation.
Second, on May 31st at noon, Carol Needham will be moderating our annual Scholarship Roundtable. This will be an opportunity to get together to discuss works in progress or recent articles. Please refer to the conference schedule for more details.
I am looking forward to seeing you in San Antonio!
According to this story, Secretary of State Clinton’s closest advisor at the State Department, Huma Abedin changed her status to part time and became a special government employee (SGE) when she went on maternity leave (this is understandable, particularly when her husband former Congressman Anthony Weiner is busy running for mayor of New York). Abedin also began working for several outside employers including the Clinton family and the Clinton Foundation (this raises separate conflict of interest issues because Secretary Clinton was still her superior in the State Department) and a political intelligence firm Teneo, co-founded by former Bill Clinton advisor Doug Band.
More on Teneo here:
It is not clear what services Abedin provided for Teneo and whether she conveyed any information to Teneo that she learned in the course of her employment at the State Department as a full time employee or as a SGE. Nonetheless, it is shocking that the Legal Advisor’s office at the State Department or the Office of Government Ethics would allow a government employee in such a sensitive position to simultaneously work for a political intelligence firm.
I have previously commented on the political intelligence industry and the need to address “leaks” of confidential government information that is then used for trading in securities markets.
An obvious first step would be for high ranking officials, including the Secretary of State, not to allow their full-time or part-time staff members to moonlight for political intelligence firms. The President should issue an executive order barring all federal employees -- full time and part time -- from working for political intelligence firms while they are working for the government. These steps would have been taken a long time ago if the government had been making ethics a priority.
The research reported here uses information from the admissions files of lawyers admitted to the Connecticut bar from 1989 to 1992 to compare those who were disciplined with those who were not disciplined. It analyzes information reported during the bar admissions process that may predict later lawyer misconduct including, inter alia, prior criminal history, problem credit history, prior employment history, academic misconduct, substance abuse, and psychological history. The study reveals that many of the responses on the admissions application are statistically associated with an elevated risk of future discipline. Nevertheless, these variables nevertheless make very poor predictors of subsequent misconduct. The explanation for this seeming paradox is that the overall baseline likelihood of discipline is so low (only about 2.5% of the 6,159 lawyers in our cohort). Thus, even if some variable (e.g., having defaulted on a student loan) doubles the likelihood of subsequent disciplinary action — a very strong effect — the probability of subsequent discipline for someone with a student loan default is still only 5%. It seems highly unlikely that any regulator would be comfortable denying admission to an applicant who had only a 5% chance of subsequent discipline. Put differently, even knowing that an applicant has a substantially elevated risk of future discipline is probably not sufficient to justify some kind of corrective or preventative action, given the low baseline risk.
Just because a lawsuit is weak – with no precedent to support it – does not mean a plaintiffs’ lawyer won’t try to bring it. It is a miscarriage of justice when any defendant must spend money defending a frivolous lawsuit, but the harm is even greater when the defendant is a church or other charitable organization. Litigation over marriage ceremonies that churches perform or refuse to perform could potentially add to this problem.
Ever since legal restrictions on divorce and remarriage disappeared decades ago, churches and other religious organizations have sometimes refused to celebrate marriages recognized by the civil authorities. Same sex marriage – now recognized in Minnesota and eleven other states – makes it even more important to distinguish between civil marriages on the one hand and religious marriage rites on the other.
What would happen if a church or member of the clergy were to be sued for refusing to celebrate or allow the church sanctuary to be used to celebrate, a second, third or fourth marriage between a divorced man and a -- sometimes decades younger -- woman or a same sex marriage. Such a lawsuit would ultimately fail anywhere in the United States because courts understand that the right to a civil marriage recognized by state law does not create an entitlement to particular religious services celebrating that marriage. Forcing someone to participate in such religious services or to allow their church sanctuary to be used for such services would be directly contrary to the First Amendment right of free exercise of religion.
That Constitutional right, however, will not prevent a plaintiffs’ lawyer from filing such a suit to harass a church or its clergy, arguing perhaps that as service providers they are no different from a hotel or restaurant that under anti-discrimination laws cannot refuse a room or a table to the honeymooning couple. Never mind the fact that the Constitution includes no provision protecting the freedom to run boarding houses and taverns, whereas there is a First Amendment protecting the free exercise of religion. Plaintiffs’ lawyers might sue and worry about such niceties as the Constitution later.
Such suits are extremely rare because they ultimately will fail. In the pantheon of frivolous lawsuits they would rank toward the top. But such suits could occur and the universe of potential plaintiffs has expanded with the advent of same sex marriage. Clergy who disapprove of a marriage -- whether between a man and a woman or a man and a man-- could be threatened with a lawsuit.
This possibility of frivolous litigation is now even more remote in Minnesota, however, thanks to a critically important amendment introduced two weeks ago by State Representative David FitzSimmons.
His amendment to Minnesota’s same sex marriage statute expressly states that the Minnesota statutes refer only to “civil marriage.” The plain meaning of the language is clear -- civil marriage is not religious marriage. A legal right to a civil marriage does not create a legal right to a marriage in any church or other religious institution. A civil marriage in Minnesota means that two people are legally married under the laws of the State of Minnesota; it has nothing to do with whether the couple is legally married under the canon law of the Catholic Church or in the eyes of any other religious organization. The parishioner who asks his priest to officiate at his wedding has no legal right to anything other than a civil marriage. And this means that the priest can tell him where to go to get his civil marriage (city hall). The priest can even tell the parishioner exactly where he will go ultimately if he makes this choice to enter into a relationship that the priest believes to be morally wrong. Civil marriage is the domain of the State of Minnesota; religious marriage is the domain in which the priest and his parishioners discern for themselves a definition of marriage that they believe conforms to the will of God.
The FitzSimmons Amendment is welcome relief for Minnesotans of faith in an age when plaintiffs’ lawyers run rampant with frivolous lawsuits and government agencies sometimes run roughshod over our religious freedoms (the Obama Administration’s brazen attempt to force Catholic institutions to include birth control in employee health plans is the most recent example of infringement on religious freedom). Representative FitzSimmons had made himself a hero for the cause or religious freedom by confronting this long standing problem head on in Minnesota marriage laws, rather than taking the easy way out of requiring the State to withhold its recognition from some civil marriages because some churches do not recognize those same relationships as religious marriages.
Professor Joshua M. Silverstein at the University of Arkansas at Little Rock argues yes in his article, A Case for Grade Inflation in Legal Education. The article has been reported in the Wall Street Journal Law Blog and the ABA Journal online. Here's the article abstract from SSRN:
This article contends that every American law school ought to substantially eliminate C grades by settings its good academic standing grade point average at the B- level. Grading systems that require or encourage law professors to award a significant number of C marks are flawed for two reasons. First, low grades damage students’ placement prospects. Employers frequently consider a job candidate’s absolute GPA in making hiring decisions. If a school systematically assigns inferior grades, its students are at an unfair disadvantage when competing for employment with students from institutions that award mostly A’s and B’s. Second, marks in the C range injure students psychologically. Students perceive C’s as a sign of failure. Accordingly, when they receive such grades, their stress level is exacerbated in unhealthy ways. This psychological harm is both intrinsically problematic and compromises the educational process. Substantially eliminating C grades will bring about critical improvements in both the fairness of the job market and the mental well-being of our students. These benefits outweigh any problems that might be caused or aggravated by inflated grades. C marks virtually always denote unsatisfactory work in American graduate education. Law schools are the primary exception to this convention. It is time we adopted the practice followed by the rest of the academy.
Attorney General Eric Holder testified that he was recused from the leak investigation that ended up gathering telephone records about AP reporters, but that there is no writing to memorialize the recusal. Are there any experts out there who can explain whether that's normal? It strikes me as odd. If only to protect the recused person, I'd expect a writing. And to protect the DOJ from allegations of conflict of interest down the road, I'd expect a writing. Recusing the AG himself seems like a pretty major event. (This issue brings to mind the way that the Model Rules can disqualify a government lawyer who formerly worked in priviate practice but can do so without the need for a screen, which always struck me as odd.)
Over at Overlawyered, Walter Olson debunks an argument from the Daily Caller that a particular biglaw firm is tied to both President Obama and the IRS scandal, because the IRS official at the center of the story is married to a partner at a firm that has had a few ties to the Obama campaigns (and an equal number of ties to the GOP). I agree with Walter that the argument lacks an understanding of how law firms work.
long been taken as gospel that attorney advertising drives down the
cost of legal services. The Supreme Court assumed it when first
permitting attorney advertising in the landmark First Amendment case,
Bates v. State Bar of Arizona. And, in the decades following Bates,
courts, commentators, the ABA, and the FTC have followed suit,
frequently touting advertising’s ability to cut consumer costs. The
price effect of attorney advertising is thus both seemingly settled and
also deeply embedded in its judicial justification.
But there is a wrinkle. Though it appears advertising did drive down prices for routine legal services in the years immediately following Bates, in the intervening decades, there has been a decided, yet heretofore unexplored, shift. Contemporary attorney advertising is now mostly the province of the personal injury bar. Yet there is scant evidence that attorney advertising reduces the contingency fees personal injury lawyers charge. To the contrary, the best, most sophisticated, most comprehensive study of legal fees and attorney advertising ever conducted found that, unlike for most basic legal services (e.g., wills, personal bankruptcies, uncontested divorces), those who advertised personal injury legal services charged higher prices than their non-advertising counterparts. Other evidence likewise shows contingency fees have not dropped, even while personal injury lawyers’ ad expenditures have soared.
This fact has been all but ignored, though it is of enormous consequence for both the legality of attorney advertising and the delivery of legal services more generally. This Article aims to reopen and reorient the “settled” attorney advertising debate, in light of the particularities of personal injury practice and the changing nature of the market for personal legal services in the United States.
Job description here. (h/t Lisa Lerman) Excerpt:
The Office of General Counsel is seeking a highly qualified Ethics Counsel at the GS-13 to GS-15 level to join its exciting and challenging legal practice. The ethics practice at CIA provides the opportunity to work on challenging issues unique in Government while contributing to the Nation's security. Experienced ethics attorneys looking for an opportunity to serve our country are encouraged to apply. The successful candidate will have a minimum of three years of attorney experience in an Executive Branch agency ethics program. In your application, please include a summary of your experience providing ethics advice to current and former employees, reviewing financial disclosure forms, conducting ethics training, and liaising with Office of Government Ethics personnel.
This forthcoming essay argues that there is not one constitutionally recognized right to counsel, but two. There is a right to legal counsel and a right to extralegal counsel. The right to legal counsel applies principally to the formal domain of the criminal trial; the right to extralegal counsel applies exclusively to the informal domains of the plea bargain and guilty plea. To understand the distinction, consider the Court’s recent decisions in Lafler v. Cooper and Missouri v. Frye. An underappreciated feature of these rulings is the manner by which the Court has encouraged (and perhaps even constitutionally required) counsel to bargain “creatively” around substantive law. Specifically, the Court has signaled that prosecutors and defense attorneys — not legislators — are the system’s real policy makers, and that, accordingly, effective assistance of counsel ought to be measured against their conception of the “sound administration of criminal justice.” In the process, the Court has almost re-conceptualized the right to counsel as a constitutional entitlement to skirt legislative command — an entitlement that Justice Scalia derisively has termed a threat to the legality principle. It does not follow, however, that the Court’s two-track jurisprudential approach is misguided. Whereas the approach continues a troubling trend away from legislative and lay influence over criminal justice and toward professional executive control, it also may constitute the pragmatic (and even normatively compelled) best course in a second-best system of criminal justice that depends procedurally on horse trading and substantively on mandatory sentencing statutes that ill serve any defensible conception of proportionality or crime control.