In conducting some research in Campbell's Lives of the Lord Chancellors of England (1857), Professor Monroe Freedman came across a fascinating exchange involving Lord Erskine's defiance of the court. Professor Freedman asked me to pass this along:
Lord Erskine for the defense of the Dean of St. Asaph, Sir William Jones, in a trial for seditious libel for having written a tract on general principles of government and recommending parliamentary reform. Camp. VIII, 272-279. After a long series of contentious exchanges between Erskine and Justice Buller over how the language of the jury's verdict should be recorded, the following occurred (Camp. VIII, 277; small capitals in the original):
Buller, J.: "Sir, I will not be interrupted." Erskine: "I stand here as an advocate for a brother citizen, and I desire that the [record be complete]." Buller, J.: "Sit down, Sir; remember your duty or I shall be obliged to proceed in another manner [i.e., with imprisonment for contempt of court]. Erskine: "Your Lordship may proceed in what manner you think fit; I know my duty as well as your Lordship knows yours. I shall not alter my conduct."
Campbell continued: "The learned judge took no notice of this reply, and, quailing under the rebuke of his pupil, did not repeat the menace of commitment. This noble stand for the independence of the Bar would of itself have entitled Erskine to the statue which the profession affectionately erected to his memory in Lincon's Inn Hall.... The example had had a salutary effect in illustrating and establishing the relative duties of Judge and Advocate in England."
[Update: The comments below have discussed the recent Lynne Stewart affair and have made reference to the similar debate that's been ongoing at Opino Juris. (JJS)]
The Justice Department has asked a federal appeals court to impose tighter restrictions on the hundreds of lawyers who represent detainees at Guantanamo Bay, Cuba, and the request has become a central issue in a new legal battle over the administration’s detention policies.
I have very high regard for Judge Patel of the NDCA. Not only did she once rule for my client in a somewhat complex Williams Act case, she wrote U.S. v. Stepney, a wonderful opinion on joint defense privilege, which I use in class.
I also enjoyed her scathing opinion (Download PatelOrickDirect.pdf) in Bodner v. Oreck Direct, LLC, which I found via the WSJ law blog. The gist of the opinion was that plaintiff's counsel came up with the idea for a B&P 17200 claim against an air filter manufacturer, worked up the case, and then found a plaintiff (via a newspaper ad), who (i) met counsel only on the day of the class rep deposition; (ii) had never read the complaint; and (iii) knew nothing about the case.
Judge Patel writes: "It is clear from the record that plaintiff’s counsel, and not plaintiff, is the driving force behind this action. Such a “cart before the horse” approach to litigation is not the proper mechanism for the vindication of legal rights," and concludes "the conduct in this action does not look good, does not sound good, and does not smell good. In fact, it reeks. The court will not participate in this scheme by certifying a class."
I used to defend this sort of case, so my heart is with Judge Patel. But my head is not so sure these are good reasons to deny class certification.
I think it must be very common for counsel to work up a theory first and then find a plaintiff. Potential securities class actions, for example, can be recognized at least as well by counsel as by plaintiffs, who might know only of price movements and not disclosures. Individual investors who serve as class reps know very little about the litigation, and certainly would not control it in any meaningful way. (This has changed somewhat with the greater participation of institutional investors following the PSLRA.) Probably the same would be true of many consumer class actions.
I don't think it follows from such facts that the case should not proceed as a class. Suppose the putative class rep had read the complaint, recounted its allegations, and otherwise sounded knowledgeable. He probably would not have exercised any more control over the case than he would on the facts as alleged. It was bad form for counsel to have done so little to prepare him, and perhaps such carelessness bespeaks a cavalier attitude toward the class, but I would bet it is a matter of form, not substance.
Thanks to Mike Frisch for the pointer to a recent Vermont Supreme Court opinion that rejects a constitutional challenge to the admission by motion procedures in that state. In essence, the Court concluded that those procedures are constitutional because they do not discriminate against out-of-state citizens. The Court explained that the admission by motion rules impose the same requirements regardless of whether someone resides in Vermont, making the rules effectively citizenship-neutral.
The constitutional argument is particularly interesting to me, since I wrote an article a couple of years ago that explained why rules (like those in Vermont) violate the privileges and immunities clause, the privileges or immunities clause (yes, those are two different provisions), and the dormant commerce clause. Since I wrote the article, the argument has been advanced twice -- once in a Fourth Circuit decision and again in the Vermont case. Unfortunately, both courts have rejected the theory (alas, without citing my article!), but I'm still hopeful that some court, some day will see it differently.
The essence of my argument is that, although many admissions rules are neutral on their face in that they don't explicitly discriminate on the basis of citizenship status, the intent behind many such rules (e.g., requiring out-of-state lawyers to re-take the entire bar exam, including the MBE) is to make it more difficult for out-of-state citizens or newly arrived residents to gain permanent admission. As I explain in the article, discriminatory intent or effect in this context can overcome what is otherwise a facially neutral rule, making many admissions rules unconstitutional forms of discrimination.
Word from Mitt Regan: Here is a a short paper that the Georgetown University Law Center has just published entitled Law Firms, Ethics, and Equity Capital. The paper is a discussion of rules governing ownership of law firms among [Mitt Regan]; Bruce MacEwen, the editor of the on-line publication Adam Smith, Esq.; and Larry Ribstein, a Professor at the University of Illinois College of Law, an expert on partnership law and regulation of professionals. The impetus for the exchange is pending legislation in the United Kingdom that would permit outside non-lawyer investment in law firms. Such ownership is forbidden by all state ethics rules in the United States, but the exchange discusses whether law firm sale of securities reflecting the value of the firm also would be prohibited under these rules. The discussion quickly expands into an analysis of the possible implications of publicly-traded law firms for the global market in legal services, the obligations of lawyers to their clients, the role of lawyers in sustaining a well-functioning legal system, and the self-understanding of lawyers as professionals. With significant change in law firm financing just over the horizon, our aim is to prompt a wide-ranging discussion about the future of the legal profession in a global economy.
If you have thougths on the paper, feel free to contact Mitt Regan, and/or leave some thoughts here.
X and Y (allegedly) run a murderous drug ring. X flees to Hong Kong, Y is indicted and tried. Y's lawyer, L, employs the empty-chair defense: X did it. Hung jury; Y walks. X is later caught; pending extradition, he decides to hire a lawyer and, sensibly, asks for L, who knows the case and did well for Y.
L flies to Hong Kong, meets with X, and explains that she blamed him for everything as her defense in Y's trial. He gets a transcript of the trial--with her blaming him--and reads it, to see how she did. He retains her, paying $200K up front in a retainer agreement that provides for return of $150K if she is disqualifed in the matter. X and L later have a falling out, and X sues to get his money back.
Surprisingly, in my view, he does. The court in this opinion (Download A111844.pdf) argues that L violated Cal. R. Prof. Conduct 3-310, which requires that conflict waivers be in writing. The court does not dispute the trial court findings that (i) L disclosed the conflict; (ii) X understood the disclosure (including by reading the transcripts); and (iii) the conflict contingency built into the fee agreement did not materialize. The court also agrees that insubstantial rule violations do not support forfeiture, and that the purpose of the writing requirement is to ensure that the client's waiver was informed, which, not to belabor the point, the trial court found X's waiver was.
So why does L owe X $200K? Because the writing requirement is not trivial. Why is the requirement not trivial? Because the conflict went to the heart of the representation. Assume that is right. That means X's waiver had better be informed. But it was; the court does not deny that. So why is the violation material? The court does not say.
(It is not clear to me that this is such a serious conflict in the first place. L proposes to argue factually inconsistent defenses at different trials of different defendants. So what? Is there a consistency obligation I am missing here? How is the prosecution going to get before the jury her arguments in the last trial? I can see why L can't repeat the empty-chair defense and point the finger at former client Y, but is there more to it than that? Perhaps I am just ignorant on this point.)
I favor the general rule that faithless conduct implies forfeiture. Lying to the client about the previous representation, or downplaying the fact that L pointed the finger at X, would have been faithless. But that is not what happened, and the requirement of papering the disclosure is, on these facts, not material.
Reprimand counsel, if you want, but forfeiture should be reserved for faithless conduct, and this was not.
Big news from the UK. Clifford Chance will be seeking to limit its liability to its clients. Here in the US, the Model Rules permit that under certain circumstances but to my knowledge it's not permitted in any state.
It's an idea that is long overdue. It should be a matter left to the negotiation of lawyers and their clients -- although the size and sophistication of the client should be an important factor in the enforceability.
Professor Monroe Freedman has sent in the beginning of a draft of an article that will also be the subject of a panel on the Lake Pleasant Buried Bodies Case at the upcoming PR conference in Chicago. Professor Freedman said that he's hoping for comments that would be helpful in developing the article. If you have any, you can email him here. Here's the beginning of the draft:
Role Morality, the Ancient Mariner, and Keeping Promises
The bumper-sticker method of condemning role differentiation in making moral judgments is to solemnly assert that "people do things because of role morality that are condemned by ordinary morality." This observation is thought to be so self-evidently shocking that all right-thinking people will react with immediate disapproval of role morality.
A favorite way of illustrating the evils of role morality for lawyers is to use a an extremely rare life-and-death decision. One example is a case in which a lawyer is told by a client that the client committed the murder for which an innocent person has been convicted and is about to be executed. Another is the case in which the defendant's physician in a personal injury case reports to defense counsel that the plaintiff has a life-threatening aneurism of which he is unaware and that might have been caused by the accident. Thus, the moral imperative to save innocent human life is put in the balance to make the lawyer's ethic of confidentiality appear to be inconsequential if not absurd in all cases. I will return to this issue shortly.
First, though, suppose that you are going about some pressing matter when your arm is suddenly seized by an old man with a long gray beard, a wild look in his eye, and what appears to be an enormous dead bird hanging around his neck, and the old man launches into a bizarre tale of an improbable adventure at sea. If he is a stranger and you are alone on a poorly lighted street, you may well call the police. If he is a stranger, but you decide that he is harmless, you may simply go on to your other responsibilities. If he is a member of your family or a friend, you may feel obligated to spend some time listening to the ancient mariner, or even to spend time conferring with others as to how to care for him. If you are a psychiatric social worker, you may act in yet some other way, and that action may depend upon whether you are on duty at your place of employment, or hurrying so that you will not be late to a wedding * and in the latter case, your decision may vary depending upon whether the wedding is someone else's or your own.
Surely there can be no moral objection to those radically different courses of conduct, or to the fact that they are governed substantially by familial, social, and professional context, that is, by role morality. One simply cannot be expected, in any rational, practical moral system, to react to every other person in the same way in which one would respond to a spouse, a child, or a close friend.
The same is true when a lawyer has voluntarily promised to serve as another person's lawyer. That role of lawyer-client is more than an irrelevant amoral abstraction. Among other things, it means that the lawyer has made promises to the client. Those promises, both expressed and implied, include the lawyer's promise that she will not reveal the information that the client has imparted to the lawyer in connection with the representation.
Keeping one's promises, which is related to truth-telling, is a moral imperative. Indeed, according to Kant, it is a categorical imperative. As he says, "That I ought to keep my promise is a postulate of pure reason" that "everyone readily grasps." Yet this moral imperative is consistently left out of the balance by critics of role morality (and by authors of texts and casebooks on lawyers' ethics)
Recently I was describing to a business school friend of mine the thesis behind the OEO legal services program, as articulated by the program's second head, Earl Johnson, Jr.: That lawyers can raise the average income of poor people. My friend laughed out loud.
I did not ask why, but I think I know. An economist would think of average income in terms of wages, and wages in terms of marginal productivity of workers. Can lawyers raise the marginal productivity of poor people? I doubt it. What unique skills do they have in that regard?
Perhaps “income” is the wrong word. Rather than teaching poor people how to fish, as the parable goes, perhaps the thesis is only that lawyers can force others—sometimes the state, sometimes private parties—to give the poor a fish or two, which is better than nothing. Indeed, providing free legal services to help poor people get divorced, arrange child custody, and so on, is a fish of a sort. Maybe not the fish the poor would buy if one gave them money, of course, but perhaps the fish the poor should have, at least according to those lawyers who think access to lawyers is a necessity in modern society.
I thought of this exchange when I saw that my friend and former Skadden compatriot Tom Lininger, a genuinely wonderful and terrifically smart guy, has revived a version of what I will call the utilitarian argument for mandatory pro bono work. His piece, a review of Deborah Rhode's Pro Bono in Principle and Practice, is being blogged at Northwestern L. Rev.'s colloquy.