Here’s my Top Ten Ethics Stories of 2008, which is my 5th annual list. Your comments are welcome and I expect to revise this post based on those comments. Below the fold are the Honorable Mentions under each category.
In Memoriam: Ed Brewer, Mary Daly, and Peter Moser passed away. Each made real contributions to the field. (Feel free to post the names of other deceased contributors in the comments section so that I can edit this post.)
1. ‘It’s the economy, stupid.”
The economic downturn has affected every corner of the profession. Large firms like Heller, Thelen, and Thacher went under. Others are downsizing or teetering on the brink. Between the cutbacks and the increasingly bi-modal distribution of first year incomes, new associates are feeling squeezed. Firms are creating formal tiers for non-partnership track lawyers. For senior lawyers, the economics of the “elastic tournament” will mean more de-equitizations and cutbacks.
Although a downturn typically results in increased law school applications, there is speculation about the economics of obtaining JDs from lower ranked law schools.
As public funding gets squeezed, public defenders are complaining about caseloads that may verge on the unsustainable. The so-called “Civil Gideon Movement" finally has the right president in place, but it’s not clear if the funding will be available.
Remarkably, during the economic crisis, there has been nearly no hue and cry, “where were the lawyers?”
2. Ethics in the Global War on Terrorism.
Once again, this topic lands high on the list. The DOJ initiated probes into the legal work done at OLC. Jose Padilla sued former OLC lawyer John Yoo and others, alleging that the legal work caused Padilla to be tortured. Jane Mayer’s book, The Dark Side, exposed the legal battles within the Bush Administration over the legal framework of detention, interrogation, hard treatment, and torture. John Yoo and others testified before Congress. A prosecutor in Guantanamo resigned over what he believed was suppression of evidence. Prosecutors secured a conviction of Osama Bin Laden’s driver, although not on the top counts. The Obama Administration will have to decide how to handle these issues—which are not going away. Criminal prosecutions and truth commissions are being discussed.
3. KPMG and other leading decisions.
In US v. Stein, the Second Circuit affirmed the dismissal of criminal charges against several KPMG defendants due to the DOJ’s interference with their right to counsel.
4. Lawyers and Judges behaving badly.
The judge and prosecutor in the Charles Hood trial, which resulted in a death sentence for Hood, finally admitted that they had been romantically involved either just before or even during the trial. Hood’s execution was stayed, at least temporarily.
5. Federal Rule of Evidence 502.
Signed into law by President Bush in September 2008, Rule 502 regulates inadvertent disclosures in discovery. But in some situations the rule also gives federal judges power over what constitutes a waiver in state court proceedings. Hence the federalization of legal ethics continues apace, as Professor Noyes explains.
6. Rules, rules, rules.
The ABA and the California Rules Revision Commission both struggled with the issues of unilateral ethical walls to block imputation of conflicts and with advance waivers. Those fights are far from over.
7. Legal Ethics in the popular media.
Criminal law cases, reported by 60 Minutes and the New York Times, resulted in the public being upset that lawyers protect client confidences even when that results in profound unfairness to others. The saga of Alton Logan was perhaps the most widely discussed of the two.
8. On the academic front.
The Dean of the new UC-Irvine School of Law, Erwin Chemerinsky, announced that the first students will pay no tuition, announced the founding faculty, and planned a potentially innovative curriculum.
9. Important Books
10. Ethics Opinions
The ABA Formal Opinion 08-451 clarified the ethical issues inherent in the outsourcing of legal work and related services.