Legal Ethics in the Times

The always superb Adam Liptak covers two recent legal ethics stories in the New York Times.  First, there is this story from today's Times on whether the zealous advocacy norm should be relaxed in the mass tort context. 

And then there is this story (hat tip to the ABA Journal) involving a West Virginia Supreme Court justice who recused himself from a case involving a coal company, because the justice had gone on vacation with the company's CEO.  The latter story sounded very similar to the Justice Scalia duck-hunting trip story, but with a notably different outcome.  Can anyone distinguish the two cases?

Comments

[John Steele]

Andy,

If you can't distinguish between Monte Carlo resorts and sitting in a cold, damp bog at 4:00 am, then you have no future in travel planning!

Seriously, though, the first Liptak item put the finger right on the problem. If we want non-class aggregate cases to proceed, there *must* be a redefinition of the attorney client relationship in that context.

We could ban such cases and insist that they be brought only as one-off matters, but I don't see how that helps plaintiffs. They benefit from the aggregating because these claims are so expensive to prosecute on a one-off basis -- and are susceptible to stonewalling as well.

We could ban such cases and insist that be brought as class actions, but these cases generally have plaintiffs who lack commonality.

Finally, we could take a page out of class action procedures and use judicial oversight, opt-outs, etc., to muddle through a learning process until we figure out what's a fair way to proceed.

[Andrew Perlman]

There has often been talk in legal ethics circles that a single set of ethics rules cannot account for the very different types of law practices that exist within the profession. The one size, fits all approach to regulation is problematic in many ways, which explains the rise of a variety of specialized ethics codes. Perhaps that is the future? Will the Model Rules be the base line in 20 years? Or will we have to teach a wide variety of model rules for different practice settings?

Sorry. I've got more questions than answers!

[John Steele]

Perhaps the morality part of legal ethics continues to shrink as it gives ground to procedural rules. I once tried this thought experiment: what parts of the Model Rules would fit comfortably in rules of procedure? The rules about false evidence could be moved over, right?

[Monroe Freedman]

Interesting. There seems to be universal approval of the disqualification inthe W.Va. case, even by people who disagreed with my GJLE article on Scalia in the duck-hunting case. There are three distinct grounds for the disqualification in each case: personal friendship, opportunity for ex parte communications, and receipt of something of value.
So, no, Andy, I don't see a difference.

[Kyle Robertson]

I enjoyed the first article, thanks for the link.

What leads me to post, however, is Prof. Steele's statement: "Perhaps the morality part of legal ethics continues to shrink as it gives ground to procedural rules. " I would love to hear more about this. On the one hand, this sounds like it could be right to me. On the other hand, it strikes me as a fantastic statement. What, exactly, is legal ethics without a 'morality part'?