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
Jane Mayer’s The Dark Side is a must read for our generation of legal ethicists. (I strongly recommend that you read it in tandem with Jack Goldsmith’s The Terror Presidency.)
10. Ethics Opinions
The ABA Formal Opinion 08-451 clarified the ethical issues inherent in the outsourcing of legal work and related services.
*************
Here's the full list, with Honorable Mentions for each category.
*************
Top Ten Legal Ethics Stories of 2008
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.
Honorable Mentions.
To the relief of biglaw firms and their insurers, in the Stoneridge case the United States Supreme Court rejected an expansion of secondary liability in securities fraud cases that would have targeted law firms under the theory of “enterprise liability.”
In Indiana v. Edwards, the United States Supreme Court declined to overrule the famous Faretta v. California decision, which liberally permits criminal defendants to represent themselves. In a nuanced ruling in Edwards, the court held that "the Constitution permits judges to take realistic account of the particular defendant’s mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. That is to say, the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under [ the standard set in the Dusky case] but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves."
The California Supreme Court, in In re Chalisse C, ruled that ethical walls can cure former client conflicts in matters handled by publically funded legal organizations.
In Regents v. Superior Court, the California Court of Appeal ruled that revealing privileged information to the DOJ under a threat of coercion is not necessarily a waiver of the privilege as to others who seek that information.
We continue to see a split in the court over whether legal malpractice claims against patent lawyers are within the exclusive jurisdiction of the federal courts.
I’m sure I’ve missed some key cases, so please leave comments about others.
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.
Honorable Mention.
Marc Dreir allegedly ran a Ponzi-like-scheme through his law firm.
Plaintiffs lawyers had a rough year. Famed plaintiffs lawyer Dickie Scruggs pled guilty to bribery charges. Mel Weiss, the famed plaintiffs class action lawyer, pled guilty to federal charges. Bill Lerach, the imprisoned plaintiffs class action lawyer, was disciplined in prison for offering NFL game tickets to guards.
Massachusetts lawyers were severely disciplined for setting up a sting operation to entice a judge’s former clerk to reveal what had happened in chambers during a trial.
A scathing report was issued about the use of political filters in DOJ hiring. Attorney General Mukasey declared that there would be no criminal prosecution of those at fault.
Kwame Kilpatrick, a lawyer who was mayor of Detroit, was nailed for perjury. Other lawyers involved in the matter may be the subject of discipline themselves.
Eliot Spitzer dodged a criminal prosecution.
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.
Honorable Mention
New York, which has relied upon the Model Code, announced the adoption of rules based upon the Model Rules.
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 cases.
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.
Honorable Mention.
Marc Galanter and William Henderson’s article, The Elastic Tournament, was published in the Stanford Law Review. The article captures the economic evolution of large law firms and predicts future consequences.
Georgetown University Law Center held a path-breaking conference on the future of the global law firm.
Harvard held its own path-breaking conference on globalization, which was helpfully live-blogged by Jeff Lipshaw.
The University of Michigan announced that some incoming students will not be required to take the LSATs.
9. Important Books
Jane Mayer’s The Dark Side is a must read for our generation of legal ethicists. (I strongly recommend that you read it in tandem with Jack Goldsmith’s The Terror Presidency.)
Honorable Mention (alphabetically).
Richard Abel wrote, Lawyers in the Dock: Learning from Attorney Disciplinary Proceedings.
David Kairys wrote, Philadelphia Freedom: Memoirs of a Civil Rights Lawyer.
Daniel Markovitz wrote A Modern Legal Ethics: Adversary Advocacy in a Democratic Age.
Abbe Smith wrote, Case of a Lifetime: A Criminal Defense Lawyer’s Story.
10. Ethics Opinions
The ABA clarified the ethical issues inherent in the outsourcing of legal work and related services.
Honorable Mention.
Honorable Mentions.
The ABA opined regarding in-house counsel within law firms.
The ABCNY opined regarding electronic files.
Various jurisdictions continued to opine in various ways about meta-data.
The New Jersey Supreme court vacated an ethics opinion that had prevented NJ lawyers from calling them "Super Lawyers."
An excellent and useful list, John. One quibble: I think you give a bit of short shrift to the Kwami Kilpatrick case, where, at last count, the mayor and seven other attorneys, including his, the City of Detroit's, plaintiffs' counsel, AND the lawyer who mediated the illicit settlement agreement, are all facing discipline by the Michigan bar. Has there ever been such a high-profile, multilateral ethics breakdown on all sides of one matter?
Posted by: Jack Marshall | December 31, 2008 at 03:55 PM
I think I will update in light of your suggestion, Jack.
Posted by: John Steele | December 31, 2008 at 05:10 PM