It’s 2005 already, but if the 2004 Oscars haven't been awarded, then it’s not too late to recap the most important legal ethics stories of 2004.
1. Many of the Office of Legal Counsel, or OLC, memos written in the wake of 9/11 were leaked, revealing the role of government lawyers in a difficult time. The OLC’s so-called "Torture Memos" came under criticism and lead to the re-writing of one of the memos. The "Geneva Convention Memo" also provoked debate. The debates were re-ignited by the confirmation hearings of Alberto Gonzales.
2. Justice Scalia's non-recusal in "duck-hunting case" and his recusal in the “Pledge of Allegiance” case raised issues about conflicts/recusals for US Supreme Court justices, who decides the issues, and on what basis.
3. The Hamdi, Padilla, and Rasul cases raised the issue of access to lawyers, access to courts, and access to legal process.
4. The outsourcing of legal services to foreign jurisdictions raised issues about whether clients will be as constrained by local legal regulation as the US lawyers are. Links here and here (reg. req'd)
5. In Florida v. Nixon, the US Supreme Court ruled that the defense lawyer's admission of the client guilt, made without client pre-approval, is not necessarily ineffective assistance of counsel. The question, "who decides, the lawyer or the client?" is especially difficult in capital cases—as we saw when the Ninth Circuit essentially ducked the issue in its Unabomber decision.
6. Revisions to the ABA Model Code of Judicial Conduct were proposed, and public hearings were held throughout the year. The new version retains the much-debated “appearance of impropriety” standard—which has proved problematic when applied to lawyers, public officials, and government employees, but which many feel is essential to judicial ethics.
7. The financial infrastructure of the profession keeps changing: "biglaw" mergers continued, as the structure and management of the large firms continued to converge with the practices of market-based businesses. Gary Cary, Piper Rudnick and DLA merged; Hale & Dorr merged with Wilmer Cutler Pickering; etc.
8. Good news news for biglaw partners: there were more profits for fewer equity holders. Profits per partner climbed at top firms, but making the top level of equity partner grew ever more elusive.
9. Criminal defense attorney Lynne Stewart was criminally prosecuted and convicted for allegedly aiding her client, Sheik Omar Abdel Rahman, to publish political messages to his followers. Sherry Colb takes a dim view of Stewart's conduct. (The conviction came down in 2005, but the trial was mainly in 2004. Had the conviction occurred in 2004, this story would have been ranked much higher.)