Legal Ethics Forum

around the web (March 22, 2010)

Jim Mille explains why his PR course will emphasize scholarship on cognitive dissonance.     .  .  .  .  .    Main Justice has a long, detailed article about whether the Office of the Inspector General will, or should, take over the OPR's role in investigating the ethics of DOJ lawyers.     .  .  .  .  .     Encyclopaedia Britannic has sued Dickstein Shapiro for $250 million over allegedly botched patent prosecution.     .  .  .  .  .     A Connecticut lawyer is accused of trading legal services for sexual relations.     .  .  .  .  .     If you're interested in the interplay between insurers and insured about how to notify the carrier and and to self-represent in liability cases, here's an article about a county counsel who allegedly informed the carrier just days before discovery closed of a tort action that was thought to be well within the $300,000 retention amount -- and that resulted in a $30 million jury verdict (since reduced to $19 million).  The county's trial lawyer is not liable to the carriers, according to a United States District Court judge.

Disposable income and a zeal to litigate = professional disaster

Story at Legal Profession Blog.

IP Profs: Inequitable Conduct doctrine needs rethinking

Q:  When does a lawyer's ordinary negligence, judged in hindsight by the client's enemy, constitute actual fraud?  

A: When the Federal Circuit is applying the "inequitable conduct" doctrine against patent prosecutors.

Over at Patently-O (one of the great topic-specific law blogs) here's news of an amicus brief by IP profs asking the Federal Circuit to stop the insanity.  (Disclaimer: David Hricik, one of our own, is on the brief, as are profs I know and respect like Lisa Dolak, Bill Gallagher, and Michael Risch.  As long as I'm on the topic, it's worth mentioning that among Bill's many accomplishments, it's my understanding that he is the world's leading authority on intellectual property and bobblehead dolls.  No joke.)

No Privacy in Emails?!

Posted On: March 17, 2010 by Kish & Lietz

Eleventh Circuit Holds No Expectation of Privacy in Delivered Email Messages

Last week in Rehberg v. Paulk, the Eleventh Circuit held that sending “emails to third parties constitute[s] a voluntary relinquishment of the right to privacy in that information.” In this case, the investigators subpoenaed the emails directly from the Internet Service Provider (ISP) through which Rehberg transmitted his messages. The Court held that he did not have a valid expectation of privacy in the email information, so he failed to state a Fourth Amendment violation.

This ruling might be a dangerous precedent, for several reasons. First, the Court of Appeals says that none of us has any privacy in our emails the moment we hit the ‘send’ button. Second, this means that the government can get our otherwise private messages from every ISP we use to connect us with the outside world. This ruling represents one more step towards a lack of privacy, and in favor of the government’s ability to intrude into our lives.

The opinion in Rehberg v. Paulk is here.
A lengthy analysis by Orin Kerr on why the Eleventh Circuit got this wrong is here at the Volokh Conspiracy.

Posted by Kish & Lietz | Permalink | Email This Post

Posted In: Criminal Justice Issues , Eleventh Circuit Court of Appeals , Federal Criminal Law News , Fourth Amendment

Prosecutors who do or don't seek publicity

Over at Huffington Post, Adam Goldberg and Joshua Draper have a run-down on prosecutors who've been conspicuous for seeking publicity.

Overlawyered at the SEC?

Over at Conglomerate, Gordon Smith comments on this NYT interview with a would-be whistleblower who says that the SEC is overlawyered -- that lawyers lack the technical competence in finance that is essential for sound regulation.  The post ties together two themes you often hear these days: that we over rely upon lawyers to make decisions that ought to be left to technical experts and that the law school of the future is the interdisciplinary school that graduates lawyers with deep knowledge of non-law field.

Paula Schaefer, "Harming Business Clients with Zealous Advocacy: Rethinking the Attorney Advisor's Touchstone.”

In the wake of the OPR report on John Yoo, we discussed whether the counselor/advisor rule (2.1) was too “thin” or if it might be read holistically.  Little did we know that Paula Schaefer had been nearing completion of this article, “Harming Business Clients with Zealous Advocacy: Rethinking the Attorney Advisor's Touchstone.”  Abstract:

Joseph Collins was a successful business lawyer, with a sophisticated practice at Mayer Brown LLP. In January 2010, Collins was sentenced to seven years in prison for his role in a massive fraud that cost investors millions and sent his client Refco, Inc. into bankruptcy. At sentencing, the judge reportedly stated, “I think this is a case of excessive loyalty to his client.” Collins’ own testimony reflects a lawyer who believed he was zealously representing his client's interests. But in reality, Collins’ conduct was not “loyal” to his client. He contributed to his client’s destruction.

With the Collins example and others, I argue that business lawyers act as zealous advocates to their own clients’ peril. I explain that professional conduct rules are central to the problem. The advisor’s duties are relegated to a single rule that provides scant direction about how to advise. In the absence of direction, lawyers fill in the gaps with zealous advocacy. After examining the problems of the zealous advocacy mantra, I suggest that “fiduciary duty” would be a preferable touchstone for attorney-advisors. While it is true lawyers are already fiduciaries, fiduciary duty is not the focus for most lawyers. I argue that it should be. Using fiduciary duty as a framework, I propose professional conduct rules that would provide direction to business lawyers that is more consistent with their clients’ interests. 

Richard Painter: "The John Adams Analogy"

Richard Painter has forwarded this post:

In their rightful condemnation of a thoughtless vilification campaign,
defenders of the DOJ lawyers who previously represented detainees point in
their letter to a famed representation by John Adams “The American
tradition of zealous representation of unpopular clients is at least as old
as John Adams’s representation of the British soldiers charged in the
Boston massacre.”

Nobody could reasonably question John Adams' patriotism because he
represented these clients --Captain Preston and his men -- in what was a
capital case of murder. As I point out in my casebook with Judge Noonan,
however, there were conflicts of interest that compromised the quality of
the representation.

One set of conflicts arose between Captain Preston and his men, who
arguably should have been represented by separate counsel. Captain Preston
could have defended the case by claiming the men fired without his orders.
This conflict was apparent to the men at the time, and they were worried
that Captain Preston’s defense would leave them hanging -- literally. One
of the men, named Kilroy, petitioned for a joint trial with Captain
Preston. If there had been separate trials and separate counsel, it is true
that the men could have defended the case by claiming that Captain Preston
ordered them to fire, subjecting them to court martial if they did not
obey. It turned out that Adams and Quincy represented both Captain Preston
and his men, precluding either of these lines of argument. The case would
have to proceed on the argument that both Captain Preston and his men were
innocent because the crowd had threatened them.

This, however, was difficult because of another set of conflicts. Adams and
his family were very close to the patriots who had challenged the
soldiers’ presence in Boston and who may have instigated the unruly crowd
that allegedly attacked the soldiers. Adams’ co-counsel in the case,
Josiah Quincy had similar conflicts as his brother Samuel Quincy was
employed by the prosecution. For Adams and Quincy to condemn the actions of
the crowd in order to show they were threatening the soldiers would be
difficult without condemning the townspeople in general. The crowd
allegedly included people who were throwing objects at the soldiers, and
some people in the crowd may have been drunk. John’s cousin Sam – a
figure more familiar to 21st Century law students than John – was a
supplier of beer, and after the shooting Sam was actively urging
prosecution of the soldiers.

We are critical in Chapter 7 of our casebook of the strategy that Adams
used at trial to deal with this conflict. First, he may have held back on
evidence prejudicial to the townspeople in order to avoid putting his
fellow Bostonians in a bad light. As one observer, named Hutchison, pointed
out:

"The employing counsel who were warmly engaged in popular measures caused
some of the evidence to be kept back which would otherwise have been
produced for the prisoners. The counsel for the crown insisted upon
producing evidence to prove the menaces of the soldiers preceding the
action, and the counsel for the prisoners consented to it, provided they
might have the like liberty with respect to the inhabitants. After the
evidence had been given on the part of the crown, and divers witnesses had
been examined to shew the premeditated plan of the inhabitants to drive out
the soldiers, one of the counsel, Mr. John Adams, for the prisoners then
declined proceeding any further, and declared that he would leave the
cause, if such witnesses must be produced as served only to set the town in
a bad light. A stop therefore was put to any further examination of such
witnesses, by which means many facts were not brought to light . . . .."

Second, Adams found a way of condemning the crowd without condemning the
townspeople of Boston, or at least the elements with which his family and
Quincy’s family were associated. He portrayed the crowd as outsiders and
appealed to juror prejudice in his closing argument when he describes the
crowd as "a motley rabble of saucy boys, negroes and mulattoes, Irish
[t]eagues and out landish jack tarrs." Referring to Crispus Attucks, one of
the persons killed, Adams said, "[s]upposing in this case, the Mulatto man
was the person made the assault, suppose he was concerned in the unlawful
assembly, and this party of soldiers endeavoring to defend themselves
against him, happened to kill another person who was innocent...." There
was no evidence in the record that Attucks in particular threatened anyone.
Adams compensated for not "putting the town on trial" by blaming the
incident on a portion of the town, including persons of Irish and African
descent. Then, as now, prejudices run deep in Boston. Adams won his case.
He had managed his conflict of interest by playing the race card.

The lesson to be learned from the Boston Massacre trials is that conflicts
do matter. Although Adams still should have accepted the representation –
he and his co-counsel Quincy may have been the only lawyers in Boston with
the courage to do so – the conflicts of interest were real and some of
those conflicts arose because of Adams’ loyalty to the Patriot cause.
Those conflicts had a genuine impact on the representation. He won
acquittals, but at a cost.

The types of conflicts that would have been more pertinent to the current
controversy over DOJ lawyers apparently did not occur. They would have
occurred if Adams had represented Captain Preston against the government
and then joined the government's prosecution of the men who took or were
supposed to take orders from Captain Preston. It would not matter if
Captain Preston and his men were detained in separate jails or tried in
separate trials. Adams’ subsequent representation of the government would
have been wrong. An arguably more remote – but still genuine -- conflict
would have arisen if another group of soldiers under the same command as
Captain Preston – and acting on similar instructions from British
military superiors -- had shot and killed some colonists somewhere else. It
would still have been improper for Adams to be employed by the prosecution.
He could, for example, have learned from Captain Preston some details about
what precisely the orders from British military superiors were that
soldiers in these situations were acting upon and the extent to which
soldiers who fired upon crowds were acting without authorization. Based on
information he learned from his prior client, he could have penetrated deep
into a subsequent defense case built upon at least this premise and
probably others as well.
   

Richard Painter's Curious Letter to the NYT

In a letter to the New York Times today, Richard Painter, my friend and co-author on a law review article, argues that lawyers in the Justice Department who had represented accused terrorists in private life should not work on terrorism matters - apparently at all - at Justice. They "should work on other matters."

Why? Because the "government has stated that most of these people are acting in concert, and that information obtained from interrogating one detainee has led to the apprehension of others." In effect, having worked for one, a lawyer will have worked for all because the terrorists act in concert.

It may be that Richard means only that the lawyers cannot represent the U.S. "in its effort to detain, interrogate, or try"  any alleged terrorists. That would not exclude policy work that is not specific to any investigation, trial, ec. But the last line - "they should work on other matters" - suggests Richard is saying they may not even work on terrorism-related  policies apart from specific matters.

Richard is identified as a law professor at Minnesota and chief White House ethics lawyer 2005-2007, bolstering his credibility on these issues.

I think Richard is wrong in so far as he is saying that because terrorists are all "acting in concert," we should treat all terrorists as if they were one client for conflict purposes, without further inquiry into the relationship in fact between cases.

 And I believe he is certainly wrong in then concluding, as I read him to say, that the Justice Department lawyers may not now have any role whatsoever in terrorism policy or matters at Justice.

If Richard means only that this is what the Department's policy "should be," not what it must be and not what the conflict rules require, then his letter has a very different focus and is much weaker. But I don't read it that way.

[CO-EDITOR's UPDATE: In the comments below, Richard Painter was kind enough to respond to Steve Gillers's post.]

NY Lawyer Advertising Restrictions Invalidated

Noeleen G. Walder, Media Watch, 03-15-2010

In rejecting the bulk of New York's content-based restrictions on attorney advertising, the U.S. Court of Appeals for the Second Circuit today held that a ban on the use of nicknames like "Heavy Hitters" or client testimonials about pending cases violates the First Amendment.

The circuit also held that preventing lawyers from employing special effects or portraying a judge in an ad did not "materially advance" the state's interest in prohibiting misleading speech.

"The speech that Defendants' content-based restrictions seeks to regulate—that which is irrelevant, unverifiable, and non-informational—is not inherently false, deceptive, or misleading. Defendants' own press release described its proposed rules as protecting consumers against 'potentially misleading ads,'" the panel wrote in Alexander v. Cahill, 07-3677-cv, 07-3900- cv.

The ruling primarily affirms the July 2007 decision by Northern District Judge Frederick J. Scullin (NYLJ, July 24, 2007) 

The appellate panel disagreed with Judge Scullin in finding that one provision of the rules, which bars ads from portraying a "fictitious law firm" or "the use of a fictitious name to refer to lawyers not associated together in a law firm" was "actually misleading" and not entitled to First Amendment protection.

The panel also upheld a portion of the rules requiring attorneys to wait 30 days after accidents before targeting advertising to solicit personal injury clients.

The rules, which went into effect on Feb. 1, 2007, and are codified in New York's Code of Professional Responsibility at 22 NYCRR §1200, were adopted by the four state Appellate Divisions and challenged by Alexander & Catalano, a Syracuse-based personal injury firm, as well as Public Citizen Inc.

The circuit opinion was written by Judge Guido Calabresi and joined by Judge John M. Walker Jr. Judge Sonia Sotomayor was the third member of the panel before being elevated to the U.S. Supreme Court last year.

A lawyer provides bad advice and it works.

Thanks to Neil Wilson at The Court for highlighting this issue.

 Last week the Supreme Court of Canada issued a decision holding that the government of the Northwest Territories was not negligent when it failed to close down a mine in the midst of a long and violent strike involving the use of replacement workers. A striker had ultimately entered the mine and planted a bomb, which detonated, killing 9 miners.  The Court held (2010 SCC 5) that while the Government owed a duty of care, and had had the legal authority to shut down the mine given the known and clear safety issues that had arisen, it was not negligent in failing to do so because it had relied on a legal opinion that it lacked that legal authority.  The fact that the legal advice was wrong - and it appears badly wrong - was not relevant.  The Court said:

But in the context of allegations of negligence against those responsible for regulating mine safety, the fact that this advice was received and acted on cannot be dismissed, as the trial judge did, as being of "no consequence” (para. 834). This advice goes precisely to the issue of whether the government took reasonable care in deciding not to close the mine. It will rarely be negligent for officials to refrain from taking discretionary actions that they have been advised by counsel, whose competence and good faith in giving the advice they have no reason to doubt, are beyond their statutory authority: see, e.g., Dunlop v. Woollahra Municipal Council, [1981] 1 All E.R. 1202 (P.C.), at p. 1209; Stafford v. British Columbia, [1996] B.C.J. No. 1010 (QL) (S.C.), at paras. 78‑81.  In the context of this case, the opposite view leads to alarming results, as the trial judge's holding here demonstrates. The effect of the trial judge's holding is that officials may be found to have acted negligently by refraining from taking action that they believed in good faith and on the basis of reputable, professional legal advice, to be unlawful.  In other words, the law of negligence would require the inspectors to take action which they believed abused their powers.  This cannot be the law. There is no argument advanced on behalf of the appellants that it was unreasonable for officials to rely on the advice received or that they did not seek or rely on it in good faith.

The issue this raises for me is as to the impact this has, if any, on the lawyer's ethical obligations in the circumstances.   I can consider this two ways.  First, I think it is clear that the lawyer has an ethical duty not to provide incompetent legal advice, even if nothing bad will happen to the lawyer (or even the client) if the lawyer does so.  Given the facts, and the analysis elsewhere in the Supreme Court's judgment, this advice seems to have been bad, if not actually incompetent.   And of course it had horrible consequences, in the form of 9 dead miners and increased political turmoil.  I think it is reasonable to conclude that the lawyer owed an ethical obligation to give better advice than he did.  Second - and this is the sticking point - can the lawyer in that situation be properly subject to disciplinary consequences?  I am as confident as I can be that the lawyer will not face any such consequences.  

But if the lawyer does not, then what regulatory mechanism exists to prevent the giving of this sort of advice?  Not only is the advice not injurious to the client, it actively benefits the client.  This creates at minimum an incentive for the advice to be given, or at least for little attention to be paid to its quality.  Some might even argue that a lawyer truly seeking to achieve the best legal outcome for the client is ethically obligated to give the advice, no matter how bad.  

The window left in the judgment is the idea that it must be reasonable for the government official to rely on the advice received, that the advice must be given by a "reputable, professional" advisor and that it must have been sought in good faith.  If the advice was bad enough - "not even wrong", to quote the physicist Wolfgang Pauli's description of a colleague's paper - it may not provide the defence for which it was sought.  In my view this, in the end, is far more likely to achieve the regulatory result of incenting lawyers to give good advice than is disciplining lawyers.  It is unfortunate that the Court framed that window so narrowly.

Susan Saab Fortney, "Leaks, Lies, and the Moonlight: Fiduciary Duties of Associates to Their Law Firms"

Article here.  Abstract:

This symposium article examines the fiduciary duties of law firm associates. After applying agency principles to the firm-associate relationship, the article analyzes specific duties and discusses cases involving alleged breaches of fiduciary duties by associates. It explores associate duties in the current legal, organizational, and socio-technological environment in which associates practice. The article closes with observations on the importance of firm principals considering the effect of firm culture on associate attitudes and conduct.

Should NJ relax the rule against contingency fees in criminal and quasi-criminal matters?

George Conk takes a look at the issue.

Toyota's Alleged Litigation Misconduct

Last year, a former Toyota in-house lawyer, Dimitrios Biller, brought a well-publicized wrongful termination action against Toyota (here and here).  At the time, the publicity was focused on Biller's claim that Toyota had failed to turn over damaging information in the context of rollover litigation. 

Here's a story just published at cnn.com that concerns the potentially devastating information that Biller appears to have about the company's litigation practices more generally.  (Thanks to Suffolk's Jeff Lipshaw for sending me the link.)  According to sources quoted in the story, Biller's information reveals that Toyota was aware of more problems with its vehicles and for a longer period of time than the company has acknowledged.

What caught my eye, however, was this section of the story concerning Biller's conduct:

So why, if Biller knew a judge had ordered all information produced, didn't he produce it? He said he tried but was stopped by a superior who told him, "You have to protect the client at all costs."

"Even if that includes," Biller asked, "committing criminal acts or violating the law?"

The answer, Biller said, was yes.

Did he break the law? "No, I did as much as I could as a lawyer for a client to not break the law," he said. "I wrote e-mail after e-mail, memo after memo, explaining the legal obligations Toyota and its affiliates needed to fulfill."

Judge Chatigny's nomination is held up

Here's a collection of article about Judge Robert Chitigny, who's been nominated for the Second Circuit.  The main opposition against him seems to be purely political, but there's an interesting issue in his past that touches on legal ethics and which garnered him an honorable mention my Top Ten Legal Ethics Stories of 2005.  In a tense hearing where a lawyer was representing a so-called "death row volunteer," Judge Chatigny used very heavy-handed, threatening language to the lawyer -- which, depending on your point of view, was appropriate, appropriate given the extreme circumstances, less than ideal but excusable given the circumstances, or just plain over the line.  A panel of the Second Circuit, including Judge Michael Mukasey, reviewed Chatigny's conduct and, using some guarded and nuanced language, concluded that Judge Chatigny's behavior was reasonable and not motivated by bias.

UPDATE: I would not have have wanted to be in the shoes of anyone who was involved in that case. Capital defense and the representation of so-called volunteers -- and the judges, like Judge Chatigny, who have to handle those issues -- are doing the hard work that the rest of society isn't rushing to do. I should mention that my views were shaped by one of my best students, James Oleson, who taught a class session in one of seminars, wrote a class paper on this issue which I turned into an exam question, and who wrote two great articles on this issue.

http://law.wlu.edu/deptimages/Law%20Review/63-1Oleson.pdf

http://cardozolawreview.com/PastIssues/29.2_oleson.pdf

My exam question, based on James Oleson's student paper

Example 2.8
 Death Row Volunteer
 (former exam question)

            One of your friends from law school needs help.  Please respond to her question:

            My big law firm allowed me to take on a pro bono death penalty appeal.  In reality, I’m using the case as a chance to switch to public interest law, and death penalty defense cases in particular.  I’ve been getting lots of help from the California Capital Defense Project (CCDP), which is a public interest group that supports death penalty defense teams by providing briefs, organizing strategy conferences, developing legal theories, etc.

            I will represent Ty Jackson who’s been on San Quentin’s death row for eight years since his conviction for the killing a storeowner during a robbery.  The evidence against him is uncontestable (confession, fingerprints, videotape, eye witnesses, and hot capture in the store’s parking lot!), but the trial was grossly unfair: all people of color were struck from the jury pool for pretextual reasons, the judge obviously favored the prosecutor, and the judge wouldn’t allow the defense to develop its theories during the penalty phase.

            We’re preparing briefing before the Ninth Circuit — our best chance for a new trial.  In the long run, the best chance is to keep Jackson alive long enough for the political winds to change and for the death penalty to be abolished or at least suspended.  Realistically, the best we can hope is that Jackson will spend his remaining years in a brutally harsh prison environment.

            I’m preparing to meet Jackson for the first time.  Terry Rushton, a CCDP lawyer, pulled me aside and talked to me about death row “volunteers”—prisoners who voluntarily drop all appeals and seek an early execution date.  Apparently, Jackson has raised the topic repeatedly.  I said I thought that that was the client’s choice.  Rushton disagreed.  Strongly disagreed.  This morning, my voicemail had the following message.  (It wasn’t Rushton’s voice.) 

“Don’t let your client volunteer.  The death penalty is murder.  By necessity you must stop the murder of your client.  Because your client is on death row, he’s undoubtedly suffering clinical depression.  Imagine the brutality of his living conditions.  He’s a client under a disability.  Choose his objectives for him.  You have a duty not just to clients, but also to the system.  Permitting your client’s execution after the prosecutor struck African-American jurors will make that sort of racist execution easier in the future.  There are lots of techniques to prevent clients from volunteering.  Ask the CCDP attorneys.  I tell you this because I like you.  I want you to be a success at what you do, and not make a fatal mistake on your first matter.”

            How should I approach this problem?

*          *          *          *           

Give the lawyer advice.  The only governing law is the ABA Model Rules 

*          *          *          *          *

Judging Liz Cheney's Values

Critics of Liz Cheney's silly campaign have emphasized that lawyers should not be criticized for representing unpopular clients.  For example, ABA President Carolyn Lamm cites ABA Model Rule of Professional Conduct 1.2(b), which states that a "lawyer’s representation of a client does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”

In my view, the issue is a bit more complicated.  Although it is certainly true that a lawyer's representation of a client does not -- and should not -- be considered an endorsement of the client's views or behavior, I don't think we can say that a lawyer's client selection decisions are completely devoid of value judgments, particularly in the pro bono context.  The problem with Liz Cheney's ads is not that they make value judgments about the so-called "al-Qaeda 7;" it's that they make the wrong value judgments. 

We should explicitly acknowledge and embrace the idea that lawyers who represent unpopular clients are endorsing a particular set of values.  Those values happen to include (among others) safeguarding foundational procedural protections, the need for quality representation in an adversarial system, and ensuring that the government pursues its important work within the bounds of the law.  Lawyers who endorse those values should be praised, not criticized.  In fact, those lawyers are ideally suited to work in a government department that is supposed to be committed to the cause of justice. 

Liz Cheney, therefore, is right about one thing: the work of the "al-Qaeda 7" lawyers does reflect their value judgments.  By criticizing those lawyers, however, Liz Cheney is really criticizing the values that those lawyers embraced.  And by criticizing those values, which are so foundational to America's system of justice, Liz Cheney (ironically) is the one who appears to be endorsing anti-American ideals.   

yet more op-eds and posts on the DOJ lawyers who represented detainees

Predictably (yes, I'm referring to our commenter extraordinaire, Patrick O'Donnell), Liz Cheney's attacks on the DOJ lawyers who formerly represented detainees have generated a large backlash, including from conservative members of the bar, in defense of the role of lawyers.  Today, we have a front page NYT story; an op-ed from former Attorney General Michael Mukasey urging people not to condemn either today's DOJ lawyers or the ones who worked there during the Bush administration for representing their clients; a more sharply partisan piece by Marc Thiessen; and a reply from David Luban at Balkinization arguing that his criticism of the torture memo lawyers was legitimate and Cheney's attack is illegitimate.  Quote of the day, by John Yoo, regarding the DOJ lawyers, "What's the big whoop?"  Yoo suggested that disagreement with the Obama administration's stance on terrorism should be channeled into policy and political opposition.

UPDATE: Follow this link to George Conk's blawg and watch Jon Stewart's interview of Marc Thiessen on this topic:

http://blackstonetoday.blogspot.com/2010/03/jon-stewart-tangles-with-marc-thiessen.html

Thoughts on the Supreme Court's Bankruptcy Decision, Attorney Advice, and the Law of Lawyering

As John noted yesterday, the Court has issued its opinion in Milavetz, Gallop & Milavetz, P.C. v. U.S. and the decision has generated a fair amount of commentary (see, for example, here, here, here, and here).  In my mind, the ruling may be more significant for what the Court declined to decide than for what it actually decided.

Justice Sotomayor authored the essentially unanimous opinion (Justice Scalia wrote a separate concurrence taking issue with a legislative history point and Justice Thomas wrote a separate concurrence questioning the relaxed scrutiny applied by the Court to the advertising disclosures).  The Court reached three conclusions.  First, the Court held that the term "debt relief agencies" as used in the Bankruptcy Abuse and Reform Act of 2005 includes attorneys.  Second, the Court determined that the advertising disclosures required by the Act for any attorney providing bankruptcy services survived the less exacting scrutiny applied to statutes that target misleading commercial speech under Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio.  Third, the Court found that the Act’s prohibition on offering advice to debtors about the accumulation of additional debt in contemplation of filing for bankruptcy was not unconstitutionally overbroad or vague so long as construed narrowly.   As Justice Sotomayor explained:

After reviewing these competing claims, we are persuaded that a narrower reading … is sounder,  although we do not adopt precisely the view the Government advocates. The Government's sources show that the phrase “in contemplation of” bankruptcy has so commonly been associated with abusive conduct that it may readily be understood to prefigure abuse. …[W]e think the phrase refers to a specific type of misconduct designed to manipulate the protections of the bankruptcy system … [and] conclude that [it] prohibits [an attorney] only from advising a debtor to incur more debt because the debtor is filing for bankruptcy, rather than for a valid purpose.

The Court declined to decide, however, “whether the statute so construed withstands First Amendment scrutiny.”  It will be interesting to see if the Court reaches a similar result in Holder v. Humanitarian Law Project, another case this term that raises the question of the First Amendment’s application to attorney advice. 

Also worth noting about the Milavetz opinion is the reference to an additional lawyering case, Mohawk Industries, Inc. v. Carpenter.  In a footnote justifying the Court's narrow reading of the ban on advice, Justice Sotomayor wrote:  "Earlier this Term, we acknowledged the importance of the attorney-client privilege as a means of protecting that relationship and fostering robust discussion.  Reiterating the significance of such dialogue, we note that [the ban], as narrowly construed, presents no impediment to full and frank discussions."  Yet, as readers of this blog will recall, the Court declined in Mohawk to provide a right of immediate appeal for attorney-client privilege rulings, a decision leading some to question the Court's commitment to protecting the unique relationship between attorneys and their clients.

Explaining the Importance of Legal Representation

In another string, I reiterated my position that the Bar has not done an adequate job of explaining the importance of the lawyer's role in fulfilling the constitutional rights of all of us.  I welcomed the criticism by the Liz Cheney group because it might induce that kind of public explanation.  That is happening.  Prominent lawyers, including Kenneth Starr, have published a letter saying in part:

"As attorneys, former officials, and policy specialists who have worked on detention issues, we consider these attacks both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications."  They added that "the American tradition of zealous representation of unpopular clients goes back at least as far as John Adams' defense of British soldiers accused of killing colonists in what became known as the Boston massacre.”

Also, the Association of the Bar of the City of New York said that it “unequivocally condemns these attacks as an assault on our nation's most fundamental values and traditions and on the very notion of the rule of law itself.  It is fundamental that all persons no matter how unpopular have a right to representation by counsel and that lawyers have a duty to provide such representation and to do so on a pro bono basis where such persons cannot afford counsel."

In addition, American Bar Association President Carolyn Lamm, issued the following statement:

"Individuals and organizations conducting a witch hunt in order to name names of Department of Justice lawyers who earlier represented Guantanamo detainees are showing a profound disregard for a fundamental tenet of our justice system and our Constitution: that anyone who faces loss of liberty has a right to legal counsel."

Updates: SCOTUS rules that bankruptcy law covers lawyers; torture suit against Rumsfeld proceeds to discovery

The SCOTUS opinion is here (nod to Legal Profession Blog, and expect a fair bit of blawgospheric commentary).  The news about the suit against Rumsfeld is here and the opinion is here.

Is the judge an umpire? Or maybe the commissioner.

We've previously had discussions on whether a judge is like a baseball umpire.  (I acknowledge that my views are in the minority.)  Over at the Yale Law Journal Online, Aaron Zelinsky gives us a history of the metaphor (which I great enjoyed reading) and then suggests that a SCOTUS justice is really like the Commissioner of Major League Baseball (an analogy I don't like).  So if this topic appeals to you, "play ball!" in the comments.

Jim Fischer on unintended disclosures; Gregory Duhl on the ethics of contract drafting

How Should Lawyers Handle the Unintended Disclosure of Possibly Privileged Information, by Jim Fischer.  Abstract:

The inadvertently sent email that contains opposing counsel’s settlement strategy, the opposing party’s client opinion letter negligently included in a discovery response, and the opposing party’s work papers taken by a whistle blowing client all share a common theme – the materials were not intended to be disclosed by the opposing party to the recipient lawyer. Notwithstanding the similarities, case law, commentary, and ethics opinions have tended to treat the issues as separate. This separation has not, however, helped lawyers who are subjected to conflicting and inconsistent opinions as to how they should respond in situations when they have received information that may possibly be privileged.

This article makes two contentions. First, with respect to the privileged status of the disclosed materials, all disclosures unintended from the standpoint of the privilege holder should be treated under a single standard that asks whether the privilege holder exercised reasonable care in maintaining the confidentiality of the materials. Second, with respect to the receiving lawyers professional obligations, lawyers who receive materials that are possibly privileged should be allowed to read the materials (1) to determine whether the materials are privileged and (2) to better argue the contention to the court that the materials are not privileged. A lawyer who reads the materials, even past the point when the privileged status of the materials is arguably apparent, should not be deemed to have engaged in professionally improper behavior as long as (1) the lawyer notifies opposing counsel of receipt of the materials and (2) makes no surreptious use of the materials until their status has been clarified by the court.

The Ethics of Contract Drafting, by Gregory Duhl.  Abstract:

This Article provides the first comprehensive discussion of the ethical obligations and duties to non-clients of lawyers drafting contracts. It discusses fraudulent representations, errors, fraud, and "conscious ambiguity" in transcription, as well as "iffy" and invalid clauses, and argues that the standard for lawyer misconduct under the disciplinary rules should be consistent with the purposes of contract law, one of which is to promote trust between contracting parties. Additionally, the Article discusses lawyer liability for negligence to non-parties in contract drafting and contends that lawyers should be liable to non-parties only when they are third-party beneficiaries to the contract between the lawyer and client for the lawyer‘s services. The Article concludes by arguing for a functional set of ethical rules for lawyers drafting contracts that reflect the increasing emphasis on cooperation, rather than competition, in the contracting process.

California case: recorded statements from witnesses aren't work product; are discoverable

Decision here in Coito v. Superior Court, disagreeing with existing California case law in Nacht & Lewis Architects, Inc. v. Superior Court, 47 Cal.App.4th 214 (1996).

Conference Announcement

Lawyers in Practice: Ethical Decision Making in Context

Hosted by the Baldy Center for Law & Social Policy in Buffalo NY, and co-sponsored by the University of Connecticut, this one-day conference will address the following: How do lawyers resolve ethical problems in the everyday context of law practice? What issues commonly emerge in different practice specialties and what are the norms and rules for resolving them? This is the first conference that focuses on the empirical research on lawyers’ work and their actual decision making in a wide variety of practice contexts. Participants will examine the work of lawyers in a number of practice areas, identifying one or more ethical issues that arise in the practice area. Scholars will present their research, embedding lawyers’ decision making in both the professional world of ethical codes and the social and economic setting of the workplace.

When: Friday, Apr 23, 2010 (8am- 5pm)

Where: University at Buffalo Law School (North Campus), 509 O’Brian Hall

Details: http://law.buffalo.edu/baldycenter/

Email: Lmather@buffalo.edu or Leslie.Levin@law.uconn.edu

Registration: BaldyRSVP@buffalo.edu

The Situationist Perspective on the Torture Memos

Cyberspace is already full of excellent commentary about the torture memos, so I've been reluctant to add another two cents.  I was struck, however, by John Yoo's recent live Q&A at the Washington Post's web site, where he said the following:

At the Justice Department in the first months after the 9/11 attacks, we sought to define what torture was, as established by an Act of Congress, to make sure that the CIA did not carry out any interrogation methods that violated the law. If you were to read that work, you will see, in fact, that we indeed looked at the legal reasoning of other countries, specifically Israel and Great Britain. You may have a different result in mind, and maybe you would have drawn the line of what was and was not torture differently, and you may even have done so differently under the circumstances and pressures of those days, but I would like to point out that it should be incumbent on critics to put themselves in that situation and give us their best legal opinion on the meaning of the statute. It is easy to play a Monday morning quarterback and look back with years of hindsight when one has the luxury of not working under the pressures of a recent attack on the country.

Many people have wondered how much of Yoo's legal advice was shaped by the particular environment in which he found himself after the 9/11 attacks.  For example, I previously speculated that contextual forces, such as those that existed at that time, may have affected Yoo's objectivity and the quality of his advice.  It had been my understanding (correct me if I'm wrong) that Yoo had not previously acknowledged that possibility, but the quote above implies that the high pressure context may have affected his analysis, at least to some degree.   

Of course, none of these observations, even if they are accurate, necessarily tell us whether Yoo should be disciplined.  They do illustrate, however, the importance of understanding how situational forces affect lawyer behavior.  In recent years, legal ethics scholarship (like a lot of legal scholarship) has drawn on insights from behavioral psychology, and the torture memo controversy offers a useful backdrop for studying how some of those conceptual insights intersect with the practice of law.

Book about Eliot Spitzer and Client Confidences

I was reading an article in the NYT about a new book on the Spitzer scandal (here) , written by his former employer/mentor/friend/employee Lloyd Constantine.  The book details various incidents about Spitzer's downfall, and details of conversations with the then Governor at the time the prostitution scandal came to light.  The review then says this:

He immediately called the governor. “Eliot was crying and said two jangling if not necessarily inconsistent things,” Mr. Constantine writes. “He said, ‘You can throw me over if you want to, and I won’t blame you if you do.’ And then said, ‘As of now, you are my counsel.’ ”

Does this not suggest that perhaps Mr. Constantine's book is both interesting and a breach of solicitor-client confidentiality?

Self-Defense: Rules v. Code, not what you think?

While researching confidentiality in the Rules and the Code for another reason, I came upon this textual issue.

As we know, the text of the self-defense exception in the Rules is and was meant to be broader than the text in the Code. For example, it allows revelation of client confidences not only for defensive purposes but also to establish a "claim." So an in-house lawyer can sometimes use confidential information to prove discrimination by an employer  or to prove retaliatory discharge. 

The Rules also allow revelation of confidences "to respond to allegations in any proceeding concerning the lawyer's representation of the client." It does not say the lawyer has to be a party or counsel in the proceeding.

But the word "proceeding" is limiting.

What if the lawyer's work is attacked outside a tribunal, say in the press, by the (now former) client or others? Can the lawyer defend with confidential information? It would seem not as the text reads.

But the Code language, though it focuses on defense only, not claims (except for claims for fees), allows a lawyer to reveal confidences "to defend himself...against an accusation of wrongdoing." It is not limited to a "proceeding," unless we read the word "accusation" to mean a "formal accusation" or something like that, which is not self-evident.

So what's the answer? And what should be the answer? I can certainly imagine situations where my reputation can be more seriously harmed in a news story than by what someone says in court in passing.

Lawyer publicly opposes real estate project he had helped client with; suit against lawyer dismissed

Opinion here.  We all know that the duty of confidentiality survives the attorney client relationship, but the extent to which the duty of loyalty survives when it doesn't impact confidentiality has always been an interesting question.  Here, the lawyer wasn't attacking his own work product on behalf of another client; he was engaging in public speech.

Is there a law school bubble, revisted. (and is it now popping?)

Paul Caron reports on the NALP data showing that hiring is way down -- although the numbers vary some by region and area of practice.  When the firms were flush, summer hiring was often seen as a tentative permanent hire 2-3 years in advance, which was a crazy way to do business.  My guess is that firms are hiring much closer to "just in time" now, which means we're seeing a huge accumulation of law students without clear plans for the future.

Yet, we're hearing that law school applications are up and we know that new law schools continue to open.  We've all been wondering if there is a law school bubble and, if so, whether it will pop or deflate.

Related news: are there jobs in-house?

odds and ends (March 4, 2010)

Over at Legal Profession Blog they have a post about a lawyer who used a website to retaliate against a former client, breaching confidentiality.    .  .  .  .    Interesting post on how Microsoft is using off-shoring and "on-shoring" to reduce legal costs.    .  .  .  .    From Sri Lanka, an op-ed on the importance of legal ethics to the rule of law and individual liberties.    .  .  .  .    A law student fulfills a writing requirement for her PR class by creating this journal-blog about her legal ethics class.    .  .  .  .    Speaking of blogs to visit, George Conk, who teaches PR at Fordham, has this blog, which covers issues well beyond legal ethics.    .  .  .  .    On March 19th, Stephen Pepper will be speaking on legal ethics at Washington & Lee.    .  .  .  .    Andrew Bluestone posts about a New York case where an attempt to fee share led to the lawyers all getting less.    

Another review of Markovits's "A Modern Legal Ethics"

Over at Concurring Opinion, by Stephen Galoob, a JSP student at Berkeley.  (Prof. Markovits posted on our site about his book, and we had several posts about it. )

The al-Qaida Seven

... is apparently the name being given by Liz Cheney's group Keep America Safe to unnamed Justice Department lawyers who represented detainees before joining the DOJ.  (Hat tip TPM)  As our own Stephen Gillers points out, allegations of a conflict of interest are entirely bogus.  Unless the lawyer participated personally and substantially in the same matter while in private practice, there is no conflict of interest if that attorney works on detainee issues in the Justice Department -- see MR 1.11(d).  But everyone who knows anything about the law of lawyering knows that.  The point of this line of criticism is not to raise a technical conflict of interest issue, but to question the patriotism of lawyers who represent accused terrorists.  In this way it is reminiscent of the attack by Deputy Defense Secretary Charles "Cully" Stimson, during the Bush Administration, on law firms who represented detainees pro bono.  Stimson recommended that corporate clients fire law firms whose lawyers did pro bono work for detainees.  Interestingly, the suggestion was not only a flop (to my knowledge, no clients retaliated against their firms for doing detainee representation) but provoked clear condemnation from the right and the left.  Charles Fried, for example, wrote an op-ed in the Wall Street Journal reminding readers, for the umpteenth time, of the honorable tradition of lawyers representing unpopular clients. 

Evidently Cheney and other conservative media outlets (e.g., the Weekly Standard, the National Review, Michelle Malkin) think the critique will have some traction this time.  I have no idea why they think this, unless the allegation of a conflict of interest gets people's attention.  So, just to be clear (and to underscore Gillers's point), there is no conflict of interest here -- this is a pure guilt-by-association argument. 

Judicial Ethics Symposium

 The Ethics Across the Profession Initiative at University of the Pacific - McGeorge School of Law (directed by Paul Paton) is presenting a symposium entitled Judicial Ethics and Accountability:  At Home and Abroad.  The symposium will consider the following themes:

What does it mean to be an ethical judge? How can judges preserve independence yet remain accountable? After a year in which a new Justice was confirmed to the Supreme Court, a Supreme Court decision offered the potential to transform judicial elections across the country, sanctions were considered for judges because of their internet postings and activities, and politicians in California blamed the judiciary for the cost of government business, this Symposium will consider issues of ethics, accountability and independence for the judiciary in America and internationally. Domestic experts will be joined by members of the judiciary and international tribunals for a wide-ranging and timely set of discussions of pressing issues, reflecting on recent events and charting the way forward.

Panels will address these subjects, among others:

The Ethical Judge

Judicial Elections, Financing and the Independence of the Bench

The California Commission for Impartial Courts

Roundtable - Judges, (in)Civility and the Media

Regulating Ethics: Judicial Education and Codes of Conduct

Ethics for Judges and Tribunals: An International Perspective

Confirmed speakers include scholars, lawyers, and judges from the U.S. and abroad. 

First result in ethics probe of text messaging scandal surrounding Detroit mayor Kwame Kilpatrick

The 83 page report, finding that Samuel McCargo committed professional misconduct, is here.  Download Mccargo   News article here.  (Thanks to Peter Henning, of Wayne State and the NYT White Collar Watch Blog.)  

Some recent scholarship

Howard Erichson and Benjamin Zipursky, “Consent Versus Closure.”   (nod to Mass Tort Litigation Blog)  Abstract:

Claimants, defendants, courts, and counsel are understandably frustrated by the difficulty of resolving mass tort cases. Defendants demand closure, but class certification has proved elusive and non-class settlements require individual consent. Lawyers and scholars have been drawn to strategies that solve the problem by empowering plaintiffs’ counsel to negotiate package deals that effectively sidestep individual consent. In the massive Vioxx settlement, the parties achieved closure by including terms that made it unrealistic for any claimant to decline. The American Law Institute’s Principles of the Law of Aggregate Litigation offers another path to closure: it proposes to permit clients to consent in advance to be bound by a settlement with a supermajority vote. This article argues that, despite their appeal, both of these strategies must be rejected. Lawyer empowerment strategies render settlements illegitimate when they rely on inauthentic consent or place lawyers in the untenable position of allocating funds among bound clients. Consent, not closure, is the touchstone of legitimacy in mass tort settlements.

Daniel Medwed, “Emotionally Charged: The Prosecutorial Charging Decision and the Innocence Revolution.”  Abstract:

Efforts to rectify wrongful convictions in the United States arguably represent a new civil rights movement for the twentieth-first century. Since 1989, post-conviction DNA testing has exonerated over two hundred inmates, their innocence proven beyond a shadow of a doubt through science, and at least three hundred other innocent prisoners have gained their freedom in cases lacking the magic bullet of DNA. Studies of these cases reveal that specific factors tend to cause wrongful convictions in the first place. Misbehavior by prosecutors - especially involving the suppression of exculpatory evidence - has emerged as one of those factors.

This Symposium directly (and commendably) tackles the problem of under-disclosure of evidence by prosecutors. Encouraging prosecutors to adhere more closely to existing disclosure rules advances the ends by fairness by boosting the capacity of the defense to prepare for trial. Increased disclosure can also bolster the accuracy of criminal adjudications by minimizing the risk that innocent criminal defendants will be wrongfully convicted; armed with exculpatory and other evidence, the innocent are better positioned to reject plea offers and mount solid defenses at trial. In short, more disclosure in more cases in a more timely fashion is a good idea.

Yet any discussion about prosecutorial disclosure is incomplete without paying some attention to an equally vital moment in the pretrial process: the initial decision to charge a suspect with a crime whatsoever. The mere decision to charge tends to set in motion a sequence of events that inexorably lead to either a plea offer or a trial - even where the case is weak and where the prosecution has complied fully with its disclosure duties. This Essay grapples with the topic of prosecutorial charging decisions in light of the “Innocence Revolution.” Part I of the Essay explores the rules and practices surrounding prosecutorial charging decisions, pointing out some of the flaws in this regime that may accidentally lead to charging innocent suspects with crimes. Next, Part II proposes a series of modest reforms to the charging process designed to reduce the possibility that the innocent will face criminal charges at all.

Drury Stevenson, “IOLTA Problems in the Post-Kelo World.”  This is a topic I had thought was "old and cold," but I learned a lot about how IOLTA's work, their politics, their economics, etc., from Stevenson's article, which, by the way, lays out all the competing views even-handedly.  Abstract:

IOLTA programs are a very popular mechanism for funding legal services for the poor, and are now operating in every state. As a result, however, IOLTA has become the most frequent and widespread instance of government takings of private property in America. The post-Kelo era has seen increasing legislative restrictions on takings, and the post-Kelo reforms in several states appear to have inadvertently made their respective IOLTA programs illegal by banning all takings where the government immediately gives the taken property to another private party (in this case, private poverty-law foundations and legal aid clinics).

IOLTA takings also highlight a puzzling gap in our legal system between eminent domain law and administrative law. Eminent domain law tends to downplay the importance of procedure itself for government actions, often allowing states to proceed without regard to procedural due process as long as the victims of takings can bring inverse condemnation actions after the fact. Administrative law, in contrast, includes a long line of Supreme Court precedents that emphasize the importance of procedure itself as a component of due process and fairness; state infringements on the “property interests” of individuals can face reversal simply because an agency failed to provide a fair hearing beforehand.

The ensuing discussion also reaches three inherent tensions or puzzles with public funding of legal services for the poor: crowding-out effects, monopoly/single-payer system problems, and the moral hazard problems with providing free lawyers for the poor. This article addresses, apparently for the first time, these three (rather significant) concerns as they pertain to IOLTA or legal services in general. I offer some modest policy reforms in response to these issues.

Perjury by a CA client in a civil case

This will be of limited interest to those outside California, but I had an interesting conversation today and wanted to post something having no possible connection to the OLC memos, so here goes:

Suppose you represent a client in a civil case and the client perjures himself at his deposition.  You remonstrate but he doesn't care.  Under the CA rules you may not disclose his perjury. Now suppose you are heading to trial and the client gives every indication of planning to repeat his perjury.  You remonstrate; he doesn't care.  You go to the judge and say "for ethical reasons I want out."  The judge says "no."  You remonstrate some more; same result. 

May you put on the case and allow the client to testify in the narrative (as we do out here), avoiding any use of the perjured testimony, or is that procedure only applicable to criminal cases?  I had thought it would be OK to use the narrative approach in a civil case (so long as the court played ball with the narrative testimony, but that is probably discretionary), but some pretty well-informed people think otherwise. 

My view was that the ethical prohibition is on introducing or using the false testimony and that prohibition applies equally to civil and criminal cases; the criminal part is relevant only insofar as it heightens significantly the accused's interest in testifying.  I think the text of the rules point this way but I don't believe I have seen this come up on the civil side in CA. 

Thoughts, CA mavens?

DM

New blog of interest

LEF readers may (or may not) be interested in a new blog I've helped launch titled Law, Religion, Ethics: A multi-faith dialogue.  The "ethics" will likely focus more on philosophical and theological understandings more than the ABA version, but with legal ethics scholars such as Bob Cochran, Russ Pearce, Sam Levine, and Marie Failinger in the mix, we may even bring the Model Rules into the conversation from time to time.

Reduced diversity in large law firms

Important article here.  During the recent downsizing at biglaw, it appears that diversity has reduced.  Coupled with the earlier news that diversity at US law schools dropped over the last decade, it seems that we need to focus hard on this issue.  Areas to focus on include, but are not limited to: (1) overt and unconscious stereotyping; (2) disparities in human capital across demographic groups (some of which can be affected by the unrepresented minorities themselves); and (3) how the cost of law school impacts socio-economic groups which in turn have disparate impacts on racial groups.

odds and ends (March 1, 2010)

The DC Bar's ethics committee issued Opinion 353, which addresses "whether a lawyer representing a client with diminished capacity can seek the appointment of a substitute surrogate decision-maker when the current surrogate decision-maker is making decisions for the client against the advice of the lawyer."  (nod to Legal Profession Blog)    .  .  .  .    Speaking of Legal Profession Blog, Scott Horton says that Frisch's presentation on the torture memos, focusing on MR 1.2(d), was a scene-stealer.    .  .  .  .    Kristen Holmquist, of Berkeley, discusses the utility of the third year of law school.    .  .  .  .    The New York Times has an editorial -- If the Lawyer Fails -- about the Holland case, which will be heard at the US Supreme Court on Monday, and in which the client, who sits in prison, is seeking equitable relief from his lawyer's failure to file a habeas brief on time.    .  .  .  .    An op-ed from Korea says that its legal profession is a "hidden trade barrier."    .  .  .  .    Discussion in the UK about banning referral fees.    .  .  .  .    In Ireland, there is discussion about the need for an ombudsman for the legal profession.    .  .  .  .    Humor: someone tries to sell his law degree on Craigslist.    .  .  .  .    Scholarship: Catherine Rogers looks at the ethics of advocacy in international arbitrations.

Update on OPR - Torture Memos News

At Main Justice, Joe Palazzolo covers the recent Senate questioning of the DOJ's second-highest lawyer, Gary Grindler, about the OPR report.    . . . .     At Balkinization, David Luban and Stuart Taylor debate the meaning of "torture."    . . . .     Here's an op-ed piece in support of Yoo, by Debra Saunders.    . . . .    Empty Wheel, at FireDogLake, continues with her in-depth (and very critical) analysis of the details of what happened.  She also links to a chart of all the lawyers who concluded that the CIA's proposed form of waterboarding was not torture.    . . . .    There are renewed calls for an inquiry into missing emails, including Yoo's from the crucial time period.  I suppose that if they turn up, we could have another inquiry/report.

Fatal Car Crash; Serious Injuries; Negligent Drivers; Product Defects

Those are the issues that supposedly drive lawyers and their marketers to leave comments on blogs.  Let's see.

Cyber-ambulance-chasing?

Interesting post by Ann Althouse on how commenting on blog posts that mention accidents.  Can any readers confirm if lawyers use that technique to get clients?

UPDATE: Eric Turkewitz, of New York Personal Injury Law Blog, has these thoughts on "attorney solicitation 2.0.

Legal Indeterminacy and the Torture Memos

I'm still working through the draft reports, responses by Yoo and Bybee, and final report released by the Justice Department last Friday.  But for now I wanted to comment on what I think is the most important aspect of this whole controversy -- namely, whether or not we believe the law is capable of possessing (relatively, or moderately) determinate meaning apart from what a clever lawyer can make it mean.  I would talk about "objectivity" but for some reason that term gives everyone the heebie-jeebies; I don't mean anything mysterious by it, however, only that there is something apart from the interpreter (lawyer, judge, scholar, critic, et al.) that makes a legal interpretation better or worse.  In other words, legal objectivity is what we presuppose when we argue that a court or lawyer got it right or wrong in its reasoning.  I don't think this is mysterious, because this is what I and my colleagues do all the time when we teach class or grade exams.  If we didn't believe that law could have meaning apart from what interpreters wanted it to mean, then teaching and grading would be a charade -- an exercise of raw power dressed up as something more noble.  Anyhow, that's what I think is important in the torture memos controversy:  Do we believe it's possible to judge the arguments of Yoo and Bybee with reference to something other than first-order policy preferences or political ideology? 

Readers are probably rolling their eyes right now -- didn't we hash this out in the 80's and 90's?  Haven't we had enough of CLS and Stanley Fish telling us that the law wishes to have a formal existence (whatever that means)?  As I've argued, however, the debates over legal indeterminacy have come back in connection with the torture memos, only with the sides reversed.  Now it's the left that wants to claim that the law can have moderately determinate content apart from the efforts of interpreters, and it's the right arguing that we can't really say that a lawyer is distorting or twisting the law because, well, the law can be made to mean pretty much anything at all. 

This was feeling all very down-the-rabbit-hole to me, and then I read Jack Balkin's post on the "hall of mirrors" quality of the OPR report.  Balkin at least returns to his crit roots, with his argument that the debate over the soundness of the Yoo/Bybee arguments has an endlessly self-referential quality:

The relevant professional responsibility rules in this area depend on criteria of legal objectivity. The rules are violated only when lawyers make arguments that are very bad, so bad that we conclude that the lawyers can't have believed them. However, the question of whether lawyers have made arguments that are so bad that they can't have believed them turns out to be a question on which lawyers themselves disagree. As a result, we end up debating whether Margolis's defense of Yoo and Bybee's arguments as merely weak (and not egregiously bad) is a claim on which reasonable people could disagree or whether Margolis is simply wrong (as Luban claims). But of course, Margolis is a pretty good lawyer; as a result he is able to recharaterize facts and offer various reasons for why reasonable minds could disagree about whether Yoo's arguments were really bad arguments or just pretty weak arguments. The better a lawyer Margolis is, in fact, the easier it is for him to show that Yoo's critics aren't clearly correct that Yoo made objectively bad arguments. And if they aren't clearly correct, then Yoo isn't clearly wrong, and therefore he didn't violate legal ethics rules.

Balkin is right that legal argument is rarely conclusive.  But this is the problem with the term "objectivity" -- people take it to be making a stronger claim than we need.  Objectivity in legal argument doesn't mean conclusiveness.  It doesn't mean that one is forced to agree with a conclusion, under pain of being deemed irrational for failing to agree.  But this is no different from the problem of objectivity in ethics (that is, moral philosophy, not legal ethics).  An ethical argument need not compel assent in order to be objective; it merely must make reference to standards that exist beyond the mind of the judging subject.  The more moderate claim of objectivity here is simply that there are things which lawyers can use to evaluate the arguments of Yoo and Bybee, other than political ideology or client interests. 

On this subject, Scott Horton has an interesting take on David Margolis.  Horton argues that Margolis (who, arguably, watered down the OPR report to eliminate the conclusion of unethical behavior by Yoo and Bybee) isn't motivated by conventional left/right, Democratic/Republican ideology.  Rather, he is a government lawyer through and through, and is thus marinated in the Justice Department's beliefs that government lawyers should not be bound by state rules of professional conduct.  More broadly, Horton argues, Margolis "represents a culture of craven clientalism in which lawyers are not the champions of the law but instruments in the hands of their employers, dedicated to getting them the results they want."

THAT is why this is an important issue for legal ethics.  The biggest thing that's wrong with the standard conception of legal ethics (otherwise known as the "zealous advocacy" position that all lawyers and law students seem to fall back on reflexively) is that it makes client interests, rather than the client's entitlements (legal rights and obligations), the baseline for assessing lawyers' conduct.  (Shameless plug:  My book arguing against this position is coming out this summer with Princeton University Press.)  Margolis is really nothing more than the guardian of the standard conception, residing within the Justice Department.  In a way this is comforting -- there's no nefarious plot by conservatives to exonerate Yoo and Bybee.  But in a way it's profoundly troubling, because it suggests that the problem is an attitude toward law, and our ethical responsibilities, which is shared by most lawyers.

The title of this post refers to legal (in)determinacy, and that is of course the linchpin of any argument against Margolis's view.  One would have to establish that there is sufficient determinacy in the law that it's possible to point to a position in one of the memos and conclude that it is insufficiently well grounded in law (or, but only if this were a position asserted in litigation, in a good faith argument for the extension, modification, or reversal of existing law).  This is the point where Balkin can't quite be a crit.  He wants to reject the idea of certainty in legal argument (which I do as well), but he also wants to hold on to something that looks like . . . objectivity!  Here is what is says:

The moral of the story is not that legal argument is hopeless. It is rather that you should be careful that you do not demand the wrong things of it. Law works best when it relies on plausibility and reasonableness; when it requires certainty it often badly misfires, because lawyers are trained to upset certainty where ever they find it.

Plausibility and reasonableness make sense as evaluative standards only if they are fleshed out with reference to something other than the attitudes of the interpreter.  Yoo and Bybee believed their arguments were plausible.  But they weren't, and that's the problem.  How do we establish this?  At this point, legal ethicists as a whole have to kind of get off the stage, and allow room for international and criminal law experts, executive-power con law types, and others with expertise in the relevant substantive legal subjects to evaluate the arguments in the memos.  Among prominent commentators, David Luban (int'l humanitarian law), Scott Horton (law of warfare), and Jack Balkin (con law) have this expertise, but I really don't.  My contribution, such as it is, is methodological.  My point is that legal ethics requires a certain attitude toward law and client interests, namely that the lawyer's duties of competent and diligent representation, as well as duties of candor and independence, are all calibrated with reference to the legal entitlements, not the interests, of clients.  As for what those entitlements are, that's a question for the experts.

Around the web: Don Lundberg honored with NOBC "Case of the Month"; Abnormal Use blog interviews Professor Virzi; should private firms reveal financial information?

The National Organization of Bar Counsel (i.e., the state bar discipline lawyers) have chosen their Case of the Month to be a vehicle for paying tribute to Don Lundberg for his years of service to the Indiana discipline system.  (not to Legal Profession Blog)    . . . .     The Abnormal Use blog interviews Professor Virzi on developments in South Carolina's law of lawyering.    . . . .    Interesting story by Vivia Chen (nod to WSJ law blog) about asking private practice firms to make more disclosures about their internal finances.  One of the reasons for the request is so that more pressure can be brought to bear on law firms regarding their diversity.

Charles Hood case: death penalty thrown out -- but not because of relationship between judge and prosecutor

Texas threw out the death penalty in the Charles Hood case due to a faulty jury instruction -- and not because of the intimate relationship between the judge and prosecutor.  I wonder if my initial reaction was too cynical: this Texas panel ruled that way to protect the state's judiciary from the embarrassment that would ensue if the US Supremes got ahold of the issue of judicial bias.  

UPDATE: As I understand it, Hood's lawyers take the position that the new ruling, which deals with the death penalty phase, does not negate Hood's argument that the merits trial was infected by a conflict (because the judge and prosecutor were in, or had just finished, an intimate personal relationship).  

A Twist on the Misdirected Fax Scenario

I hadn't seen one of these before:  employee and employer are in dispute; employer's lawyer faxes something to employer, and employee picks it up off the fax machine.  Nova Southeastern Univ., Inc. v. Jacobson, 25 So.3d 82 (Fla. App. 2009).  Nothing novel to it, except (from what I recall seeing) the fact pattern.

Update on Second Circuit's denial of en banc review in Lynne Stewart case

Howard Bashman has the details about the controversy among Second Circuit judges who ultimately denied a request from convicted lawyer Lynne Stewart that her unsuccessful appeal be heard en banc.  Some of the potshots the judges take at their colleagues are pretty good zingers. Opinions here.

Morgan on the lawyer's future role

Thanks to John Steele for posting Tom Morgan's new paper, based on a forthcoming book, titled The Last Days of the American Lawyer.  It's a must-read for anyone who cares about the future of legal practice and legal education. (And if you're not in that group, why are you visiting this blog?)  He writes:

[T]he interaction of law with increasingly complex economic and social issues will make distinctively legal questions less common and make many of the skills that we stress in law schools less relevant.  Rather than needing professionals whose understanding of law dwarfs their understanding of the substantive issues faced by clients, the world will require legally-trained persons to be more fully integrated into the substantive challenges tomorrow's clients face.  That reality may require that more persons, not fewer, have some legal training, but the training of most people will almost certainly not be today's three year graduate program designed to produce an all-purpose legal generalist.

As for professionalism?

[W]hile many of the characteristics attributed to professionals -- integrity, loyalty, keeping confidences, and a commitment to serve the client effectively -- present highly praiseworthy traits to which any moral person should aspire, those characteristics are ultimately those of individuals, not groups.  It is individual lawyers -- and non-lawyers acting both alongside and in competition with lawyers -- that we hope will act in ways traditionally called "professional."

I think throwing in the towel on professionalism as a meaningful concept that attaches to one's status as a lawyer -- rather than a set of attributes available for cultivation by any individual -- is likely to bring Morgan's vision of the future closer to reality by making lawyers less distinct from other service providers.  There is a role for trust here -- and trust beyond the contracted-for trust -- that must be a distinctive attribute of the lawyer-client relationship, and cautions against equating the practice of law with every other market-driven, globalized "business."  I'm working to develop that idea in a current project.  That said, read the paper!

Interesting Conversation with Students about Downloading and Other "Accepted" but Illegal Things

I just thought this was interesting and so will pass it along. In my Internet law course this morning, we were talking about downloading songs, movies, etc.  The students, to a person, stopped downloading when they started law school because the consequences to them went up -- the risk of getting caught was still low in their view, but the practical consequences to the bar examination process made the costs outweigh the benefit.  They had made the same conclusions about speeding, driving after drinking, and other topics. 

Interestingly, when I asked whether it was because of a greater sense of morality or professionalism instilled into them by law school, they did not think so, attributing it instead to becoming more conservative (i.e., risk averse).

Anyhow, I thought it was an interesting discussion worth passing along for that reason alone.

odds and ends (February 23, 2010)

The GOP continues to push the idea that there are improper conflicts within DOJ because lawyers who formerly represented Guantanamo detainees now represent the United States on related issues.  But as far as I can tell, the DOJ was careful in its staffing decisions and walls.    . . . .    Adam Liptak of the NYT weighs in on the Charles Hood cert petition.    . . . .    Charbourne & Park lawyers weigh in on the lastest e-discovery sanctions case from Judge Scheindlin.  Here's the decision.    . . . .    The National Law Journal reports on the Astrue v. Ratliff case.  (To follow how the US Supremes are handling law of lawyering issues, make sure to read our posts by Renee Newman Knake.)    . . . .