At the Lectern has a nice post about the passing of California Court of Appeal Justice Walter Croskey. In our field, Croskey is perhaps best known for his thougtful opinion in Kirk, recognizing the efficacy of ethical screens.
At CorporateCounsel.net, James Brashear offers some pointed comments about the ABA and cyber-security. Excerpt:
At the ABA's 2014 annual meeting earlier this month, delegates approved a resolution that “encourages all private and public sector organizations to develop, implement and maintain an appropriate cybersecurity program.” When you consider that some pundits characterize lawyers as technology Luddites and law firms as “the soft underbelly” of data security in corporate America, it may seem odd for the legal industry to be lecturing other organizations about getting their cyber houses in order.
Browning Marean is remembered here, here, and here. I first heard of him some time time in the 1990s, when I was a newly minted ethics partner and Marean was already well known in biglaw circles for playing that role at Gray Cary, which was to eventually become part of DLA Piper. He generously shared his knowledge with ethics partners and law firm GC types and was also known for his innovative thoughts on e-discovery.
The respondents' bar in California has seen a significant "ratcheting up" of demands by the Office of Trial Counsel. David Cameron Carr has details. At what point does a prosecutor acknowledge that what he/she is demading is not what the system is delivering?
Very big news and a "must read" for our field. Do the feds have options left to attack this ruling? I imagine they are deeply disappointed by it. The opinion is below. Our earlier coverage here. I'm told that the credit for this goes to NACDL (Vince Aprile, John Wesley Hall and Ellen Yaroshefsky). Well done.
A NYT editorial tonight says Robert McCulloch should should step aside in the Michael Brown case. Among the reasons:
When he was a boy, "his father [a police officer] was killed on the job...by a black suspect while helping another officer. ...
"The St. Louis Post-Dispatch reported that after a shooting in 2000, when two detectives shot two unarmed black men in the town next to Ferguson, Mr. McCulloch failed to bring any independent evidence to the grand jury. He claimed that 'every witness' testified that the detectives were defending themselves, but secret grand jury tapes showed that several witnesses did not do so...."
This is not as clear as we might expect. Was there "independent evidence" not brought to the grand jury? That would be quite damning if true. Why was the evidence the grand jury heard not independent? Perhaps we need transcripts.
(Unfortunately, McCulloch foolishly called on the governor to "man up" and decide. Why do I question the objectivity of a prosecutor who calls on others to "man up?" What would he say if the governor were a woman?)
Anyway, the paper is not saying McCulloch must step aside -- I doubt a judge would remove him -- but that he should do so voluntarily or if he does not, that the governor should replace him. He may not be required to step aside but neither is he required to stay in.
There's much to be said for stepping aside in the face of widespread public distrust, espeically in this case, but there's something to be said for staying and not creating a precedent. After all, he is elected and poltically accountable to the entire population of the county. A special prosecutor may have no political accountability at all.
Sung Hui Kim has a post at The Conglomerate about a recent decision by the Delaware high court, affirming a Garner exception to attorney client privilege in the context of the Wal-Mart bribery scandal. I'm not up to speed on this scandal, but it appears that Wal-Mart's GC, Maritza Munich, tried to do a compliance investigation and was blocked from doing so. The opinion is below. For more links on the legal issue, see Delaware Corporate and Commercial Litigation Blog.
I read with great interest the CBA Legal Futures Initiative’s recent report, Transforming the Delivery of Legal Services in Canada (“CBA Report”). Although I disagree with much of the CBA Report, it eloquently expresses an increasingly common vision of the legal market, one that is more attuned to technology and does not view legal services as all that dissimilar from other goods and services.
I expect that anyone who is not already sympathetic to the need for greater liberalization in the legal market will find the CBA Report unconvincing, however. The CBA Report relies heavily on the work of Richard Susskind, who also served as a special advisor on the Report. Dr. Susskind is a creative and original thinker and some of his predictions regarding the future of the market may come to pass. But, as revealed by the Initiative’s consultations, Canadian lawyers are divided on the current state of legal market as well as the benefits of Alternative Business Structures (“ABS”):
Responses to the consultation demonstrated two over-arching perspectives: those who believe that change is happening in the legal profession, and those who doubt that transformative change is occurring or that there are compelling reasons to meet that change . . . respondents who cautioned against the need for change often expressed strong support for the public policy reasons underlying lawyers’ existing regulatory regimes.
Participants exhibited polarized reactions to [ABS] . . . some felt it would create a new form of “Big Law” without any concomitant benefits to lower-income and middle-income clients, whereas others felt it presented great possibilities for access to justice and innovation.
In light of these divergent views, one would expect the CBA Report to set out how the legal market is currently failing Canadians and how liberalization will help. For example, are clients dissatisfied with the services provided by their lawyers? Are they unhappy with the fees they are being charged? Has access to justice worsened in Canada and in what areas? How might "innovation" address these problems? What innovations are occurring in countries with ABS that are not occurring in Canada? How much business is going to alternative providers of legal services? Is there any evidence to suggest that ABS invest heavily in R&D?  The CBA Report provides very little data and states on page 37:
Throughout the CBA Legal Futures Initiative, participants were stymied by the lack of credible and accessible data on the Canadian legal profession. There is limited data available on the profession in terms of services offered, pricing, profitability, incomes, and cost structures. There is mostly anecdotal information on client needs, preferences, and satisfaction, and on access to legal services more generally. The legal profession has little information on emerging competitors and their business specifics, including marketing and pricing strategies.
The CBA Report proposes that a centre be created to collect such information but the lack of data did not stop it from calling for bold reforms.
One potentially useful data point cited by the Initiative from this study is that Canadians seek legal advice for only 11.7% of “justiciable events.” The CBA Report takes this to mean that lawyers are failing to meet the public’s need for legal services and that alternative providers of legal services are filling the gap. But these claims reflect a basic misunderstanding of empirical access to justice research, which is otherwise unexamined in the CBA Report. Non-lawyers frequently fail to conceptualize their problems as “justiciable events,” often believe they can address their problems on their own, and go to their unions, governments, or friends and family members for help (see table 40 in the above study). Consequently, it is unsurprising that most legal needs are satisfied without attorneys. If liberalization is intended to expand access to justice, the CBA Report should have at least examined why Canadians do not seek legal assistance (see table 39).
I do not mean to suggest that reforms should not be considered in the absence of perfect information, but there seems to be a high degree of innovation occurring without de-regulation (some examples are highlighted in the CBA Report). Asking Canadian lawyers to “experiment and accept some failure as a prerequisite to true innovation” (page 15) based on little more than Professor Susskind’s theorizing is highly problematic even if the consequences of failure to clients and the rule of law are not as great as many believe.
In a future post (time permitting!), I will question some of the CBA Report's assumptions about non-lawyer involvement in the legal services market.
 Although not an ABS, a perusal of LegalZoom's SEC documents reveals that it spent $41 million on marketing in 2011 compared to just over $8 million on technology and development.
The United Nations has appointed Canadian Professor William Schabas to head up Israel’s operations in Gaza. When asked who should be tried in the Internation Court for War Crimes, Shabas named as his favorite candidate Benjamin Natanyahu - not Mahmoud Achmanijad of Iran, Bashar al Hassad of Syria, or Kaled Mashal of Hamas. He also compared Nobel Peace Laureate Shimon Peres to the President of Sudan, who was responsible for the genocide in Darfur. Canada’s Foreign Minister opposed the appointment of Schabas, and has called the new inquiry a sham.
Does anyone think that Shabas is an impartial judge, or that the United Nations has shown impartiality in appointing him?
The CBA’s report constitutes a watershed moment for the legal marketplace in Canada, and possibly in North America. No document like this has ever been produced by a legal organization on this continent; the only reasonable comparison I can draw (albeit obviously not as groundbreaking) is Britain’s Clementi Report, released nearly 10 years ago. That’s how significant I think the CBA Futures Report could turn out to be: it has the potential to help usher in a new era in legal services on this side of the Atlantic, and to utterly remake the Canadian legal market in any event.
I've been reading page proofs of my friend Paul Barrett's forthcoming book, "Law of the Jungle," about lawyer Steven Donziger's unsuccessful effort (so far) to enforce a $19 billion Ecuadorian judgment against Chevron for enviroinmental harms in the rain forest. In the U.S., Chevron hired Gibson Dunn's Randy Mastro (the same Mastro whose investigation exonerated Governor Christie; where does he find the time?) and to date, nearly all victories have been Mastro's.
The case is now headed to the 2nd Circuit (again). I pity the poor law clerk who is assigned to work on this massive record or draft whatever opinion eventually emerges. Judge Lewis Kaplan's district court opinion ran 485 pages with 1842 footnotes, but then Lew Kaplan is in reality a scholar masquerading as a trial judge.
Anyway, I mention the book because not only is the tale fascinating, and not only is Paul, a lawyer and a journalist, a mesmerizing teller of it, but the entire litigation could be the basis for a law school seminar. It is brimming with legal ethics and civil procedure issues, among others, and (very) agggressive litigation strategies.
Of course, as Yogi said, it's not over til it's over and it will be years more before it is.
Meanwhile, the story so far reads like a cross between "The Verdict" and "A Civil Action," with more intrigue (and bigger stakes) than in either. "My Cousin Vinny" it is not.
It was once true that a film about a David and Goliath battle had to end with David's victory. Hollywood isn't like that anymore. In our time, cynicism can play better than justice. I imply no view on where justice resides in this saga. Probably no single place, probably we'll never know for sure.
But that very uncertainty, and the audience discomfort it creates, today qualifies as a Hollywood ending.
This is my idea of great summer reading. Article. Abstract:
In 1850 David Dudley Field added some language to the Oath of the Canton of Geneva, which he copied into his draft Code of Civil Procedure for New York. His brother, future Justice Stephen Field, deliberately avoided adding this language to his revision of California's Practice Act, though for his own reasons rather than because of the language itself. California adopted Field's language in 1872. In 2014 California clings to a literal interpretation of this language in defense of the state's uniquely conservative rule of confidentiality.
This article traces the history of Field's language: why he added it, how he and his contemporaries thought about confidentiality, how they viewed codes as opposed to statutes in general, and how they viewed interpretation of this language in particular. At the time confidentiality reflected the power lawyers gained when they learned their clients' secrets, and precepts of gentlemanly behavior, which served as a model for certain aspects of lawyers' conduct. At present, lawyers cling to strict standards of confidentiality to minimize the risk of third party suits and to retain a competitive advantage relative to other highly skilled service providers who might perform a large fraction of lawyers' work but who enjoy no legal privilege and who operate under the more liberal confidentiality standard of agency law.
The history of this provision illustrates some important general points. California’s experience shows the risk of arid textualism (not all textualism is). All law is purposive and legal texts cannot be fully understood without considering the purposes texts express and embody. Those purposes are sensitive to time and other elements of context. To focus exclusively on a subset of those purposes is to misunderstand the text and thus to misapprehend the law.
The WSJ reports on a dispute between Vanguard and a former in-house lawyer who has filed a complaint in NY alleging Vanguard has underpaid federal taxes. Vanguard is reported to accuse the lawyer of breaching confidentiality; the lawyer has asked the SEC to intervene on his side.
Such cases may raise two distinct issues: the report itself, which may fall within exceptions to confidentiality in a Model Rules jurisdiction or under the SEC's rules, and backup for the report in the form of information--such as documents either in hard copy or digital form--the reporting lawyer might take from his or her employment. Even if we assume the report is protected the taking of documents raises distinct issues regarding client property.
I tend to think those issues should be resolved as issues regarding the report are resolved--i.e., taking such information does not violate a duty to a client to the extent the information is reasonably necessary to facilitate a permissible report. In essence the report would create a privilege (in the tort law sense) covering the disclosure to enforcement officials or courts; no privilege would attach if the lawyer put the documents up on the internet or mailed them to a reporter.
The documents issue lurks in the background of Meyerhofer v. Empire Fire & Marine Ins. Co., 497 F.2d 1190, 1194–96 (2d Cir.), cert. denied, 419 U.S. 998 (1974). Often discussed as a self-defense case there are actually two disclosures in that case--an initial report (including documents) to the SEC and a subsequent disclosure (of the material provided the SEC) to plaintiffs' counsel on a self-defense basis. It provides some clues but, arising in the context of self-defense, does not decide these isues.
From an August 5th decision out of the SDNY. (Regulatory Fundamentals Group LLC v. Governance Risk Mgmt. Compliance, LLC, 2014 U.S. Dist. LEXIS 107616 (S.D.N.Y. Aug. 5, 2014)) (h/t: Eric Goldman) "A party to a lawsuit may not destroy relevant evidence without consequence." Agreed. Here's more from the opinion, and then a question.
A party to a lawsuit may not destroy relevant evidence without consequence. The nature and magnitude of the consequence follows from the level of culpability. Was, for instance, the destruction of evidence inadvertent and the result of an oversight? Or was it the product of a plan?
The individual defendant in this lawsuit destroyed a large number of highly relevant documents — preventing plaintiff and any finder of fact from ever knowing the full truth of what occurred. Following discovery, lengthy briefing, and an evidentiary hearing, the Court has found that defendant's destruction was planned, repeated, and comprehensive. It was malicious. This finding is particularly unfortunate in light of the plain fact that the spoliation has turned what was a straightforward commercial dispute into a far more serious issue.
The spoliator here — defendant Gregory V. Wood — is a graduate of Cornell Law School and a member of the bar of the State of New York. His conduct has resulted in entry of judgment against him.
The case is worth reading if you're interested in spoliation. My question: what is the legitimate purpose for mentioning his law school? Is it to embarrass that school? Or is it the notion (which would bother me) that graduates of lower ranked schools might do bad things but it's especially disappointing to see it from grads of elite schools?
"... from Bill Frievogel comes another Canadian pro-ethical screening/information barrier decision: Province of Ontario v. Chartis Ins. Co. of Canada, 2014 ONSC 4221 (Ont. Super. Ct. July 16, 2014) --
"We are simplifying the history somewhat, but the essentials for this audience are this: Lawyer worked at Firm A to some considerable extent on cases for the Province against InsCo. Lawyer wound up at Firm B, which is representing InsCo against the Province in those same cases. Firm B erected in advance a screen essentially in compliance with ethics rules of the Law Society of Upper Canada. Nevertheless, the Province moved to disqualify Firm B. In this opinion the court denied the motion, finding that the screen was satisfactory. Excellent discussion of the judicial history of screening in Canada."
Back in May, I mentioned the misguided Texas State Bar ethics opinion prohibiting anyone without a law degree from holding a position like "Chief Technology Officer" in a law firm.
The opinion appears to have caused more bucking than a bronco at a rodeo. Legal Technology News is reporting that 53 law firms have protested the decision, including 24 firms in the Am Law 100. The professional ethics committee responsible for the opinion plans to revisit it (lasso it?) next month.
In the long debate over whether the US has executed anyone who was innocent, one of the cases most frequently mentioned is of Cameron Todd Willingham, who was put to death in Texas in 2004 for setting fire in his home that killed his three young children. Most of the attention in the case has focused on the extensive forensic analysis addressing whether the prosecution relied on “junk science” to establish that the fire was arson rather than an accident. Some LEF readers may have read David Grann’s excellent 2009 article in the New Yorker, Trial By Fire, which describes in detail the problems with the forensic evidence used to convict Willingham (the case also received extensive media coverage during the last presidential cycle when Gov. Rick Perry was criticized for allegedly interfering with the commission that was investigating the matter; see here and here).
Now there is a separate and more recent basis for the claim of Willingham’s innocence: mounting allegations that the prosecutor in the case, John Jackson, for more than two decades has suppressed evidence of a secret deal made with a key witness in the case -- the jailhouse snitch who testified at trial that he overheard Willingham confess to the murders. The witness has recently provided an extensive interview that describes how he fabricated his testimony in exchange for substantial leniency he was promised by Jackson’s office.
The details of the alleged cooperation agreement, and how it further reveals why Willingham may have been innocent, are set out in this 69-page bar grievance filed by the Innocence Project and others (including lawyers from powerhouse law firm, Susman Godfrey) [news account here; Jackson’s response to the press here]. The grievance alleges that Jackson (who, after Willingham’s conviction, became a judge and has since retired) violated a host of disciplinary rules and Texas criminal laws, including tampering with evidence and perjury. Coming on the heels of the Ken Anderson case (the former Texas prosecutor who was disbarred and sentenced to jail for suppressing evidence), it will be interesting to see what comes of this grievance, one of the most extensive I’ve seen.
For more on the Willingham case, see the Innocence Project’s webpage.
I came across a comment in Washington State's version of Rule 4.4 that appears to forbid threatenting to report an undocumented immigrant as a negotiating strategy. It provides in part as follows. Is this provision unique?
"The duty imposed by paragraph (a) of this Rule includes a lawyer's assertion or inquiry about a third person's immigration status when the lawyer's purpose is to intimidate, coerce, or obstruct that person from participating in a civil matter. Issues involving immigration status carry a significant danger of interfering with the proper functioning of the justice system. See Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 230 P.3d 583 (2010). When a lawyer is representing a client in a civil matter, a lawyer's communication to a party or a witness that the lawyer will report that person to immigration authorities, or a lawyer's report of that person to immigration authorities, furthers no substantial purpose of the civil adjudicative system if the lawyer's purpose is to intimidate, coerce, or obstruct that person. A communication in violation of this Rule can also occur by an implied assertion that is the equivalent of an express assertion prohibited by paragraph (a)...."
Interesting article at Forbes. (h/t: Eric Goldman) If that's what is really happening (let's treat it as a hypo for now and assume it's true), doesn't that violate the rule against deceit and dishonesty? Is it different than stings for civil rights testing and IP investigation because it isn't for representing a client but rather for drumming up business? And because the ploy (if it's really real) doesn't disclose that it's a form of advertising?
Stanley Chesley, the famed Ohio trial lawyer brought low by his involvement in a disputed diet-drug lawsuit, could be on the hook for at least $25 million to settle claims that he took $7.5 million more than his share of a 2001 settlement.
Once known as the “Master of Disaster,” Mr. Chesley was disbarred last year in Kentucky after that state’s Supreme Court sanctioned him for professional misconduct in the case, though the court did not require him to pay any restitution. Soon after he surrendered his Ohio law license, effectively ending a decades-long career in mass tort litigation.
Now a Kentucky judge has ruled that Mr. Chesley is indeed “jointly and severally liable” for $42 million in damages awarded to plaintiffs in 2007 against three other lawyers in the case, all of whom were found to have violated their fiduciary duty to their clients.
The WSJ qutoes our own Stephen Gillers. Stephen's paper is here. Excerpt:
New York’s system for disciplining lawyers is shrouded in secrecy and riddled with inconsistency, according to a new paper by a leading legal ethics expert.
“A study of all lawyer discipline cases in New York from mid-2008 through 2013… reveals that the system for lawyer discipline in New York is seriously deficient,” writes New York University law professor Stephen Gillers.
The professor — whose article appears in the most recent issue of the “New York University Journal of Legislation and Public Policy” — levels a number of criticisms at the Empire State’s sanction system. One glaring weakness, he says, is how difficult it is for a prospective client to look up a lawyer’s disciplinary history.
“New York cloaks its process in secrecy unless and until a court imposes public discipline,” he writes. Most of the time, a sanction takes the form of a private reprimand. And even when a sanction is made public, according to Mr. Gillers, it’s hard to find.
Abstract of the paper:
A study of all lawyer discipline cases in New York from mid-2008 through 2013 and many cases in earlier decades reveals that the system for lawyer discipline in New York is seriously deficient. Clients are not protected. The cases take far too long, often many years. Sanctions are dramatically inconsistent. There is no statewide effort to reconcile different sanctions in different courts. Many cases do not attempt to reconcile sanctions with those in similar cases from the same court. Secrecy is rampant. In the small number of cases where discipline is public, a prospective client cannot easily discover a lawyer's disciplinary record.
David Cameron Carr, at KafkaEsq., has thoughts on the State Bar of California's Discipline Standards Task Force and on the comment by the Bar's Executive Director that some want the disciplinary standards to move in a more punitive direction. Excerpt:
It’s a worn out cliche but the Supreme Court is the 800 pound gorilla in the room. Except it wasn’t in the room. The Supreme Court’s representative to Discipline Standards Task Force, the protean Beth Jay, did not attend either meeting. Whether this reflects a lack of interest or an aversion to open meetings is unknown (the ED was kind of enough to warn the Task Force members about the open meeting laws at the first meeting.) To paraphrase my comment to the Task Force, their scope of action is entirely circumscribed by Supreme Court authority. Unless they signal a change in direction, the State Bar cannot endorse discipline as punishment.
The dog days, and all that. Just for fun, I thought I'd publish this "throw back Thursday" pic of my older brother and me, which led my younger brother (also a lawyer) to comment that it prefigured Charlie's job as prosecutor and my job in leal ethics.
One of the hardest things to teach students is how to deal with the sometimes significant variation in judicial reactions to similar conduct. The attached sanctions order (Download Memorandum Opinion And Order) is a nice example.
The judge in this case views "object to form" as inadequate to state a deposition objection. He wants to see "objection, compound" or the like, which I prefer as well. The opinion notes, however, that other courts have viewed anything more than "object to form" as impermissible coaching, which I've heard from several lawyers based in the SDNY.
Two things to note about this very thorough and thoughtful order. Noting the division of opinion on stating objections the court does not issue the sanction for counsel's moderately extensive objections. The court seemed to me more concerned by the consistency with which the deponent's answers tracked the objections, which to the court implied impermissible coaching. The opinion is getting more press for the nature of the sanction--having the lawyer create a video on how to make a proper deposition objection--but to me the more interesting issue from a teaching perspective is how to prepare students to deal with a world in which what one judge requires another forbids, which is the real world. "Pay close attention to custom" is helpful, and an obvious point, but I do find that students throw up their hands and tend toward nihilism when they perceive how much variation they will face. Teaching realism without nihilism is important but tough.
Andy Perlman’s timing couldn’t be better. His new article, A Behavioral Theory of Legal Ethics, comes out just as negative reports of lawyers’ conduct are front page news again, this time as part of the GM story. The company’s lawyers failed to save their business and engineering colleagues from disastrous decisions; in fact, their conduct may have hindered GM from addressing problems systemically. While corporation counsel generally are not the sole check on ethical and competent decision making by company insiders, they certainly are positioned structurally to a framework that is intended to lead to good decision making. But it is not just corporate lawyers who are an issue for ethical conduct, of course. Prosecutors’ failure to reveal exculpatory evidence is a continuing concern, tax lawyers’ gaming the tax shelter system is the topic of a new book by Mitt Regan and Tanina Rostain (Confidence Games), and there are many more examples.
Imagine a lawyer who discovers that a client has several smoking gun documents that will doom the client’s case if produced in discovery. Also assume the client tells the lawyer to use all lawful methods to avoid producing the information. Some legal ethicists argue that the lawyer should comply with the client’s instruction and pursue every permissible tactic, i.e., go right up to the line but not cross it. Critics of this so-called “dominant view” suggest that the lawyer should take into account other considerations, such as the interests of justice or morality.
One important practical problem with these competing prescriptions is that they do not help lawyers avoid unethical conduct. For example, even though the dominant view says that lawyers should protect the potentially discoverable documents only to the extent permissible under the law, lawyers who claim to be following the dominant view often cross the line. Similarly, prosecutors who are committed to the pursuit of justice regularly fail to comply with their constitutional obligations to disclose material exculpatory information to defense counsel. These failures raise an important question: why do lawyers who subjectively believe they are complying with prevailing theories of legal ethics — whether the dominant view or its alternatives — fail to apply the theories in the manner scholars intend?
This article suggests that the answer lies in social psychology. A vast body of research reveals that situational factors, such as placing a lawyer in a partisan role, can result in behavior that is inconsistent with conventional ethics theories. This article suggests that legal ethicists can develop more accurate and useful theories by accounting for the ways in which partisanship distorts objectivity, just as behavioral economists have drawn on social psychology to develop more accurate and useful understandings of economics.