In Memoriam.
We lost one of our best and most prolific scholars, Fred Zacharias of the University of San Diego. A round-up of tributes to Fred is here. Fred’s scholarship casts a long shadow on our field. He will be missed.
Jeffrey Tidus, a professional liability litigator and former member of the State Bar of California’s Board of Governors, was shot and killed outside his home. The investigation is still continuing.
1. Caperton v. A.T. Massey Coal Company, Inc., et al.
The United States Supreme Court held in Caperton, which we discussed here, here, and here, that due process required recusal of a judge in a case involving a major contributor to the judge’s election campaign. Although the majority opinion predicted that the holding would not cause a flood of recusal motions, the case has generated news and prompted a variety of suggestions for reform and for revised recusal standards.
2. The Economy.
The economics of private practice continued to deteriorate in 2009, especially in the highly-leveraged biglaw sector. New associates were un-hired, or deferred, or otherwise incented to find new work. The layoffs that began in 2008 continued in 2009 and affected partners as well as associates. Will 2010 be the year when the bursting bubble affects law schools?
3. Social Websites
Lawyers and judges made a series of blunders using social websites in 2009. Judges “friended” lawyers they should not have. Lawyers blogged about matters they should not have. The Philadelphia Bar issued an ethics opinion condemning as “deception” a lawyer’s conduct in making a “friend request” of a witness in order to obtain access to the witness’s Facebook page where, it was hoped, the lawyer could find useful evidence. [First edit: The Electronic Frontier Foundation has filed an FOIA suit to obtain government documents, including DOJ documents, relating to investigations, fact-gathering, and surveillance using social websites. If email has been "where the best facts are," then social websites are catching up fast.]
4. Federal Criminal Prosecutions Gone Awry.
The federal criminal prosecutions against Sen. Ted Stevens, Gregory Reyes, and Broadcom-William Ruehle were all tossed for prosecutorial misconduct. Following the KPMG debacle, we must ask if there is a systematic problem, or if this was just a string of unfortunate coincidences. [Edit: Monroe's post alerts us to yet another debacle, the prosecution of J. Mark Shelnutt.]
5. The United States Supreme Court Takes a Liking to the Law of Lawyering.
Rebecca Knake discussed the SCOTUS’s increased interest in the law of lawyering. (The authors of this blog and our faithful readers have long known that it’s the most interesting of all legal fields.) The federal government’s growing regulation of lawyers will no doubt continue to shape the SCOTUS docket
6. The “Civil Gideon” Movement Gains a Toehold
For years, a “Civil Gideon” reform movement has been steadily planning and patiently waiting for the day that state and federal government will supply taxpayer-paid lawyers to litigants in certain kinds of civil litigation, such as child custody disputes, evictions, administrative benefits, etc. California’s new pilot project may be the acorn from which a large oak will grow.
7. ABA Amends Model Rule 1.10; Adopts Unilateral Screens to Cure Imputation of Lateral Conflicts.
After cleaning up some drafting errors, the ABA amended Model Rule 1.10 to permit the use of unilateral screens to prevent the imputation of a lateral lawyer’s conflicts to other lawyers at the new firm. If adopted by enough states, the amendment may make lateral movement far easier, which could have large effects on law firm size and the power of rain-makers within firms. Will it also affect the way clients view their law firms? Will it weaken the trust that clients place in their firms?
8. Lawyers Accused, Convicted, and Fully Exonerated from Claims that Their Lawyering Was a Criminal Act.
When is lawyering or lawyering-like-conduct a crime? This year we saw a handful of cases grappling with that issue, with a variety of results.
Criminal defense lawyer Robert Simels was convicted and sentenced to fourteen years in jail for plotting to harm witnesses. Lynne Stewart’s conviction was upheld by the Second Circuit. A Spanish court considered a request to bring criminal charges against six US lawyers who had been involved with the Bush administration’s legal work in the war on terrorism. (Can someone let me know the status of the Spanish court’s efforts?) The Obama administration apparently will not initiate criminal prosecutions against the OLC lawyers. Three former Jenkins & Gilchrist lawyers were indicted for their alleged role in tax evasion schemes. Criminal defense lawyer Paul Bergin was indicted for murder and witness intimidation. A lawyer from Proskauer was not indicted but was reportedly the “Lawyer A” identified in the indictment following the collapse of the Stanford Financial Group. Former general counsel of McKesson, Jay Lapine, was acquitted by a San Francisco jury. Well respected Miami-based criminal defense lawyer Ben Kuehne saw all the charges against him dropped after an appeals court ruled in his favor. (I deeply question what the DOJ was thinking when it decided to bring charges against Kuehne.)
9. Towards a Unified Bar Examination?
The National Conference of Bar Examiners has created a Uniform Bar Exam. How many states will join the movement? And will the movement lead to increasing reciprocity for bar admissions?
10. Patent prosecution malpractice verdict of $72 million against Akin Gump.
Honorable Mentions
Cases
Padilla v. Yoo. John Yoo appealed the district court’s denial of his motion to dismiss, and the Obama administration DOJ filed a brief siding with Yoo. The matter is awaiting argument before the Ninth Circuit.
In Knowles v. Mirzayance, the United States Supreme Court unanimously reversed a finding of ineffective assistance of counsel. The United States Supreme Court has been overturning lower courts on the issue of ineffective assistance of counsel.
The Texas Court of Criminal Appeals rejected a request for a new trial from Charles Hood, even though it was finally revealed that the prosecutor and judge had had an intimate romantic relationship just before and/or during the trial.
In Montejo v. Louisiana, the United States Supreme Court, in a 5-4 decision, overturned the presumption announced in Michigan v. Jackson that a deffendant’s waiver of Sixth Amendment rights is presumptively invalid after a certain point in the proceedings.
The Obama administration made a controversial decision to hold the trial of Khalid Sheik Mohammed, the alleged mastermind of the 9/11 attacks, and his alleged associates, in Manhattan.
The discipline appeal of California state prosecutor Ben Field apparently did not go well, as the reviewing court asked if Field should not have been fully disbarred. [edit. In response, California DA's have been active in trying create a statute of limitations for discipline offenses.]
In In re Bose, the Federal Circuit raised the bar for proving fraud on the PTO.
In the long-awaited Costco case, the California Supreme Court bolstered protection for attorney client privilege. The case dealt with a lengthy opinion letter from counsel.
In the Textron case, an en banc panel of the First Circuit denied work product protection to materials prepared for use by auditors. The materials included lawyers’ assessments of Textron’s positions in tax filings.
In Mohawk Industries, Inc. v. Carpenter, the United States Supreme Court rejected the notion that litigants could take immediate appeals from lower court rulings that might invade the attorney client privilege.
In In re Mance, the District of Columbia Court of Appeals ruled that flat fees are not earned upon receipt.
In the Matter of Compean, vacated by then-Attorney General Mukasey, was reinstated by new AG Eric Holder, who also announced that the DOJ would promulgate new rules to deal with ineffective assistance of counsel claims by non-citizens in immigration cases.
Scandals
United States District Court Judge Sam Kent was sentenced to 33 months in jail for lying to investigators
A securities lawyer made a “noisy withdrawal” to the SEC shortly before the SEC shut down Stanford Financial Group.
The State Bar of California was victimized by an embezzler who managed to pilfer for eight years.
The DOJ still has not released its long-awaited report on the ethics of the lawyers involved in the war on terrorism.
The University of Illinois apparently acceded to political pressure to admit well-connected students.
The Pennsylvania judges in the “cash for kids” scandal may be civilly immune.
A video of a courtroom deputy swiping a document from defense counsel led to a bizarre saga with twists and turns that played out in the media.
A former Ropes & Gray associate pled guilty to insider trading and another associate has been accused of it.
The accused lawyers in the Qualcomm affair have attempted to place the blame back on the client. (A hearing will be held in January 2010.)
Plaintiffs lawyer Philip Kay was hit with a recommendation that his licensed be suspended for three years.
[edit. The State Bar of California cracked down on lawyers purporting to help homeowners who were caught in the subprime mortgage mess.]
Developments
Metadata: the issue that just won’t go away.
Drafting legal briefs by letting the world chime in via internet? What could possibly go wrong?
Character & Fitness disqualification due to failure to pay down educational debts.
Billable hours remain under pressure; flat fees proliferate.
India shuts its doors to foreign law firms.
Women associates don’t rate women bosses well. Empirical study suggests that child care responsibilities, not gender per se, explain most of the “gender gap.” AmLaw’s second hundred may be more hospitable to women partners.
Law school deans blame USN&WR for the rising cost of law school. (My mother would have asked the deans, "did the magazine put a gun to your head?")
Sonia Sotomayor broke new ground with her elevation to the US Supreme Court. Her nomination hearings touched briefly on her Belizean Grove membership and her use of the “Sotomayor and Associates” but her extraordinary credentials were the real focus.
[edit. the State Bar of California replace Scott Drexel as lead trial counsel.]
The ABA announced its new 20/20 Ethics Commission.
Total Attorneys raises controversy.
E-discovery and bankruptcy trustees remain two of the scariest things to law firms
Rules
New York’s new rules went into effect April 1, 2009.
California’s Rules Revision Commission is getting closer to accomplishing its charter.
Illinois has new rules. So does Maine. Wisconsin adopted a modified version of the controversial new Model Rules 3.8(g)&(h). Texas has put new rules out for comment. California has a new rule about disclosing malpractice insurance.
Ethics Opinions
Linking to sites that evaluate lawyers may require you to police the comments on the site. South Carolina opinion here.
The ABA issued an important new opinion on the prosecutor’s duty to disclose information favorable to criminal defendants.
The Association of the Bar of the City of New York issued an opinion about aggregate settlements.
I agree that social media ethics were a top 2009 story. So where's the scholarship on that topic?
Posted by: Carolyn Elefant | December 22, 2009 at 01:26 PM
Carolyn,
Thanks for commenting. I know that UC-Berkeley had, and Suffolk will have, entire conferences on that topic.
http://www.law.berkeley.edu/institutes/bclt/socialnetworking/schedule.htm
Posted by: John Steele | December 22, 2009 at 02:26 PM
John,
Along with many others, I've enjoyed reading the yearly top ten list. Now that we're ending a decade, have you considered compiling a "Top Ten Legal Ethics Stories of the Decade"? That'd be something interesting to see, with plenty of honorable mentions, I'd guess.
Posted by: Matt Christensen | December 22, 2009 at 06:43 PM
Matt.
Wow, I will give that some thought. I was glancing over the six years of material and was wondering that myself.
Posted by: John Steele | December 22, 2009 at 07:15 PM
Carolyn: I am publishing a series that examines State's opinions governing the use of online social networking by judges. (Follow the thread on my blog.) You may also be interested in my Texas Lawyer article, "Social Networking Sites Pose Risks for Lawyers and Would-Be Attorneys." (Follow the "Articles & Resources" link on the blog).
John: Thanks for your work of compiling these stories.
Posted by: Bruce A. Campbell | December 24, 2009 at 11:07 AM
Bruce,
You're welcome.
John
Posted by: John Steele | December 24, 2009 at 01:03 PM
Um...like the style of your writing.*_*
Posted by: Taobao buy | January 11, 2011 at 10:14 PM