News here. Lockstep compensation -- pay based on seniority alone -- has almost entirely disappeared as a means of compensating partners. But it's still the formal mode of compensating associates. I say "formal" because firms can use hefty bonuses to reward associates in high-demand areas and to compensate star associates. Firms have also paid different rates for associates that have Ph.D's or other pertinent degrees. Still, for Howrey to formally and publicly abandon associate lockstep is sure to raise eyebrows and prompt discussion at other biglaw firms. A key argument for associate lockstep pay has been the desire to reduce competition and envy among associates. This will be a closely watched innovation.
Steve Lubet gets it right. I wish more judges grasped his point: a rule that gives lawyers defending outrageous deposition questions only the choice between (1) having the witness answer the question; and (2) walking out of the deposition is a rule that makes abusive depositions more likely.
It's been a while since I've posted here, which I will blame on a combination of starting a new job, moving across the country, and prepping new courses. In other words, it's been quite a year! Now that the lazy days of summer are upon us, however, I can finally turn back to blogging.
Serendipitiously, the past few weeks have presented me with one of my favorite topics: overzealous and unethical prosecutors. (Those of you who have been with us for a while may remember my rantings about Nancy Grace). I'm talking, of course, about Mike Nifong, the now disbarred and disgraced D.A. formerly in charge of the Duke lacrosse case.
For those no longer following the story, Nifong was disbarred by the North Carolina Bar this past Saturday, and plans to resign his post as D.A. The NC Bar found him guilty of fraud, dishonesty, deceit or misrepresentation; of making false statements of material fact before a judge; of making false statements of material fact before bar investigators, and of lying about withholding exculpatory DNA evidence, among other violations. Unsurprisingly, Nifong did not dispute the disbarment.
There's been acres of print and blogging expended on Nifong and the Duke lacrosse case, much of it speculating why Nifong continued to pursue the case after it began to fall apart. But one aspect little discussed is the interesting role Nifong played in trying to simultaneously mediate the norms and social values of two communities in one area.
Traditionally, most elected D.A.'s have a mediating function between the formal demands of state and local law and the community's role as moral arbiters of local punishment. But Nifong had a particularly tricky role to play, one which involved balancing the two rather different views of punishment embodied in town and in gown. These two communities saw the lacrosse team members through entirely different lenses--as playful fraternity brothers vs. despoilers of young, working class women--to which was added a strong racial component, further complicating things. So if Nifong is supposed to reflect the values of the community through his job as D.A., which community should that be? Are you allowed to pick one community over the other (as Nifong clearly did), or should you try to balance? If you balance, do you do it case by case? Issue by issue? Or just by your own internal ethical pendulum?
I'm not advocating what Nifong did, of course. But I do have some sympathy for those elected prosecutors who represent a multitude of communities and must balance their competing needs. Robert Morgenthau, N.Y.'s long-running D.A., provides one example of how this can be done, but it's no easy task.
I have been meaning for some time to write up an argument explaining why, in my view, federal courts may not exclude self-incriminating statements gained through contacts with represented parties, in violation of MR 4.2. I hope to get to the piece this summer, but I'll offer the gist of the argument here to see if anyone spots any fatal flaws.
The issue comes up because of United States v. Hammad, 858 F.2d 834 (2d Cir. 1988), cert denied 498 U.S. 871 (1990), which chided a prosecutor for providing a cooperating witness with a fake grand jury subpoena the witness could use to rope a represented party into making incriminating statements to the witness.
As everyone no doubt knows, Hammad threatened to exclude the statements but the 2d Circuit ultimately backed down on the ground that the rule it pronounced was not well-enough established to justify exclusion. Hammad is therefore not much of a precedent, but I still see it cited for the possibility of exclusion. (I know of only one state case, State v. Miller, 600 N.W. 2d 457 (MN 1999), that actually excludes such evidence, but my argument does not apply to state cases, so it is not a counter example.)
So here is the argument. Hammad rested the possibility of exclusion on the inherent power of courts to control proceedings before them, including crafting sanctions for ethical violations. I know of no other basis for exclusion. Inherent supervisory power gives way in the face of legislative action: if Congress says evidence comes in, courts may not exercise supervisory power to exclude it. As the Court said in Dickerson v. United States, 520 U.S. 428, "the power to judicially create and enforce nonconstitutional `rules of procedure and evidence for the federal courts exists only in the absence of a relevant Act of Congress.’"
The Federal Rules of Evidence, passed after the decisions cited by the Hammad court, are one body of law holding that relevant evidence is to be admitted unless otherwise precluded by those rules (including their incorporation of common law rules). That could be read to trump the supervisory power argument of Hammad. A more specific provision, though, is 18 U.S.C. §1801, the provision at issue in Dickerson.
That section states that voluntary confessions (defined to include any self-incriminating statement) must be admitted in evidence in federal criminal prosecutions. Everyone thought it amounted to a Congressional attempt to override Miranda v. Arizona, which it certainly was, and the Court rejected that attempt in Dickerson. But the language of the statute is not limited to exclusionary rule cases. Its scope extends to all voluntary confessions, and Dickerson holds only that it must give way in the face of a constitutional rule.
Rule 4.2 is not a constitutional rule, of course, so when it is combined with inherent power to create an exclusion argument, Section 3501 trumps. Cf United States v. Lowery, 166 F.3d 1119 (11th Cir. 1999) (violation of state ethics rules not a basis for exclusion). This argument is consistent with a 1980 OLC opinion on the subject, 4B U.S. Op. Off. Legal Counsel 576, 1980 WL 20955 (O.L.C.), which I do not recall seeing cited in the literature on the exclusion issue.
There is more to the argument, but this is the gist of it. Unless I am missing something, the exclusion issue in federal cases involving self-incriminating statements is simply not an issue. Am I wrong?
California's confidentiality rules present some problems I have been thinking about lately, which I'll summarize here in the hope of prompting discussion that might lead to some answers.
California's Business & Professions Code §6068(e) creates a very restrictive duty of confidentiality. It provides it is the duty of an attorney to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” The only statutory exception to this duty grants lawyers discretion to disclose client confidential information if and to the extent the lawyer “reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual,” and then only after providing warnings to the client that are specified in CA Rule of Prof. Conduct 3-100(c).
The text of this rule lacks two exceptions present in most jurisdictions. It does not allow disclosure in disputes between lawyers and clients, and it does not allow disclosure if a lawyer is sued by someone other than the client whose information is at stake. Courts have implied an exception for the first problem, but not the second.
Nifong resigned as District Attorney. That doesn't preclude discipline, which imho should be severe. If a fact finder believes he asked the DNA expert to withhold exculpatory information about the three accuseds that normally would have been included, then the matter could still conceivably be treated as criminal. (I realize that there has been conflicting testimony on that point. Head to Durham-in-Wonderland for detailed reporting of the trial, albeit from an anti-Nifong point of view.)
The lawyer who used the phrase "a few fries short of a Happy Meal" when addressing a bankruptcy judge, and the chairman of that firm as well, are preparing to give live apologies to the judge. If, as many have suggested, the phrase was meant simply as "there will still be some essential elements missing," and not in the normal pejorative sense of that "a few X short of a Y" meme, and if the apology is sincere, then the judge should graciously accept the apology and move on.
I'm not much of celebrity trial watcher, so I haven't been following the Phil Spector murder trial closely, if at all. (Moreover, I've been down on Spector ever since the Ramones described working with him as "a hassle.") However, it did catch my eye this morning when I noticed that one of Spector's former lawyers, Sara Caplan, who worked with Robert Shapiro while the latter served as Spector's attorney, has been held in contempt by trial Judge Larry Fidler for refusing to testify as a prosecution witness at the trial. (Here is the link to Court TV's report of the judge's ruling). The prosecution seeks to call Caplan for purposes of impeaching defense expert Henry Lee (of O.J. Simpson defense team fame). Caplan testified at a pre-trial hearing that she saw Lee remove evidence from the crime scene which Lee improperly failed to disclose to the prosecution. (Lee denies this.)
Judge Fidler is certainly correct that Caplan's observations at the crime scene are not covered by the attorney-client privilege. However, Caplan is also correct that her broader duty of confidentiality to former clieint Spector prevents her from voluntarily disclosing this information against his wishes. (California's confidentiality rules here are at least as strong as the Model Rules, as California's rules do not contain an express exception to confidentiality "pursuant to court order" as in MR 1.6(b)(6)).
What is surprising is that Caplan apparently did not raise any such objections prior to testifying at the pretrial hearing six weeks ago. Caplan's current argument simply seems to be that testifying against her former client in front of a jury is impermissibly disloyal in a way that testifying against her former client in a pre-trial hearing wasn't (even though the prior testimony was reported widely throughout the media). Does this make any sense?
By the way, it appears that discussions are under way to allow Caplan's testimony to be read to the jury by way of stipulation in an effort to spare her from incarceration for contempt.
Here is a query from a colleague, and my response.
Prosecutor (P) gets a horrible case of marital rape - bad facts, bad guy as defendant. P charges D with kidnaping, assault, and also rape. The hitch is that the state penal code unambiguously provides an affirmative defense to rape if the D proves the victim was his spouse. P thinks the affirmative defense statute is antiquated, sexist, etc. etc., so he charges D with rape anyway, assuming some court will throw it out.
Substantive criminal law that might matter: Crimes must be defined by statute. Although defenses can be defined either by statute or judicially recognized, it's pretty clear that a defense defined by statute cannot be taken away retroactively without creating an ex post facto problem.
The prosecutor acted unethically.
“No prosecutor should knowingly fail to disclose to the grand jury evidence which tends to negate guilt or mitigate the offense.” ABA Std. 3-3.6(b). The commentary to the Standards relates this requirement to MR 3.8(d), which deals with disclosure to the defense of similar kinds of evidence, noting that the disclosure obligation “flows from the basic duty of the prosecutor to seek justice.” Also, Std. 3-3.7 imposes a similar obligation to take such evidence into account when the prosecutor charges by information.
The term “probable cause” in the context of MR 3.8(a), therefore, forbids a prosecutor to impose on the accused – and on the court – by going forward when the prosecutor admittedly knows that the case does not have any prosecutorial merit because the court will throw the case out as soon as a proper motion is made. That seems to me to be a situation that is well within the concept of frivolous conduct and, more importantly, an abuse of prosecutorial power.
Also, assuming one justifies the prosecutor’s action, why should “some court throw the case out”? Wouldn’t it similarly be proper for a judge to reason that the defendant is a bad guy and that the defense is antiquated, sexist, etc. etc., and to tell the jury to disregard it in determining guilt? In short, we don’t need criminal statutes at all; as long as, somewhere, there’s a prosecutor and a judge who are satisfied that the defendant is a bad guy, just convict him and lock him up.