[by John Steele] I've previously defended the "judge as ump/ref" analogy, in part because the job of the ref/ump is far from mechanical. Mitchell Berman has written an interesting paper about reffing at the end of game -- specifically, on whether the rules should/do change at critical junctures. (h/t: Legal Theory Blog) That aspect of reffing was one I had mentioned in one of my previous posts on the topic, because it demonstrates to me that you can't be a good ref without a theory of reffing.
Existing research suggests that practicing litigators are too confident in the merits of their clients’ cases. But practicing attorneys often self select (1) the area of law in which they practice, (2) the side on which to practice within that area, (3) law firms with whom they practice, and (4) the clients they represent. We explore whether, after stripping away these selection-biases, legal advocates are still overconfident in their clients’ claims by exploiting a natural experiment involving participants in moot court competitions at three U.S. law schools. Students are randomly assigned to advocate for either petitioner or respondent, so none of the selection-bias problems above are present. We find that following participation in moot court contests, students overwhelmingly perceive that the legal merits favor the side that they were randomly assigned to represent. We also find that overconfidence is associated with poorer performance in advocacy as measured by legal writing instructors. Theoretical and practical implications are discussed.
Lots of coverage, including here. One aspect of this matter I'll be watching is the continuing criticism, mostly in hindsight, of Clemens's lawyers for "allowing" Clemens to testify before Congress. At White Collar Crime Prof Blog, Solomon Wisenberg offers his thoughts on the hindsight criticism.
From Law of Criminal Defense: in Ohio, conflicts are not imputed from public defender trial lawyers to public appellate defenders if the appellate lawyers didn't work on the matter.
In Arriola v. MBM, (unpublished) the California Court of Appeal dismissed the appeal of a disqualification order where the underlying class action had been settled and dismissed. The court held that the appeal was moot, and in response to appellant's argument that the disqualification order might have disciplinary consequences, the court noted that in California the remedy of disqualification was not within the purview of the discipline systems.
In In re American International Refinery, the US Bankruptcy Court for the Western District of Louisiana undertook a thorough analysis of a complicated set of facts that had prompted a Trustee to seek disgorgement and sanctions against a big law firm for an alleged conflict and failure to disclose. The result was mixed, but nothing like the Trustee had urged.
The ABA Journal looks at the new wave of entrepreneurs who are offering law-related services and sometimes, perhaps, even legal services.
From WSJ Law Blog: Supreme Court opinions buttress the billable hour. (A lot of the talk about the death of the billable hour is exaggerated, isn't it?)
From TheStateman.com: A court has cleared the way for a former in-house lawyer for Toyota to testify about alleged destruction of documents. (h/t: ABA Journal)
From New York Attorney Malpractice Blog: a short example of why lawyers use forms for standard agreements, should use checklists, and do need to know their subject matter.
Readers might be interested in my new paper, Trust and the Global Law Firm: Are Relationships of Trust Still Central to the Corporate Legal Services Market? Here's the abstract:
This article explores the concept of trust as it relates to the lawyer’s role and explains how recent trends in the structure, operation, and regulation of law firms may make the traditionally “thick” type of attorney-client trust more elusive, particularly in the context of corporate legal practice. Trust may lose its place as a defining element of the attorney-client relationship as the relationship itself becomes less personal, more distant, and more fungible. At the same time, trust may become even more important to consumers in a globalized economy, thereby giving lawyers an opportunity to reassert their value against increasing competition from providers from other jurisdictions and disciplines. In this regard, the article draws an important distinction between cognitive and affective forms of trust, and suggests that attorney-client trust cannot be captured fully in the language of cost-benefit calculation, for the lawyer’s role presumes a relationship of willingly encountered vulnerability. The story of trust’s marginalization in corporate legal practice may resonate most powerfully with lawyers themselves, who may increasingly struggle to find meaning in their work, and with clients, who may discover that technicians work efficiently until a problem calls for counsel that is not strictly technical. More broadly, though, the story of trust’s marginalization should be of interest to a society that has long empowered attorneys to function as quasi-public actors, for the weakening of trust directly compromises the attorney’s capacity and inclination to introduce public values into the representation. After analyzing the market and regulatory trends exerting pressure on a more relationship-centered type of trust, the article offers some tentative suggestions on how the profession can keep relational trust at the center of the lawyer’s role, even in a globalized, efficiency-driven profession.
I welcome feedback, either in the comments or by email.
I previously mentioned that Jean Galbraith's essay (link below), The Ethic of High Expectations, won the Burger Prize from the American Inns of Court. The chair of the prize committee, our own Steve Gillers, added this to the comments section.
On Jean Galbraith's winning essay for the Burger/Inns of Court competition: I chair the selection committee which includes Geoff Hazard, Nancy Moore, and Rob Wilcox. Being chair means I get to call the winner and play Michael Anthony (trivia challenge to all of you) but without the cash. Well actually, there is cash - $5000 - much less than Anthony dispensed for Mr. Tipton.
All submissions we review are anonymous. Galbraith not only wrote a highly polished essay, which will be published in the South Carolina Law Review, but it contributes to the field of law and literature. She analyzes the conduct of one of the lawyer's in Trollope's novel Lady Anna. We use Trollope in our Law and Literature class (co-taught with Kate Stimpson, she's the literature part, which is most important) but I had not read Lady Anna, nor did I know of it. From Galbraith's description it is ideal for our class and for legal ethics as well. Whether it can compete with Orley Farm is yet unknown.
Galbraith's essay explores the option of using human judgment to sense when forbearance and the potential for mutuality between opponents might finesse a situation that would normally lead to the peculiar form of social violence we call "litigation." (She was, I believe, in my ethics class at Berkeley several years ago.)
From California Attorneys Fees Blog: if the local rules require that you show up at a settlement conference with someone who has authority to settle, you'd better do it. Even a public entity can be sanctioned for failure to abide by the rule -- and the attorney can get nicked as well.
From ALM: As more firms turn to "behavioral interviewing" (also called "competency interviewing"), will the firms probe the law students' ethics competencies? Firms are trying to learn more about the students than is revealed simply by grades and by writing samples that may have been edited or reviewed by any number of people. (At Indiana, we place the 1Ls in seven-person practice groups that do assignments together and evaluate each other. The idea is to help students build their team work competencies and to realize the effects of their working styles on their peers.)
LA Times: "Justice Tani Cantil-Sakauye moved one step closer Wednesday to becoming
the first minority California chief justice, winning unanimous confirmation by
a state commission." Described as a moderate Republican, she would be the first Filipina on a state high court.
From Law.com: When hit with a $143 million malpractice suit for allegedly missing deadlines, McDermott filed a $491,000 counterclaim.
A nunc pro tunc prospective client? In this disciplinary opinion, the Indiana Supreme Court conceded that the information that a woman shared with a lawyer had not been shared in the role of prospective client. Later, the woman asked the lawyer for a recommendation, the lawyer recommended a second lawyer in the same firm, and the woman hired that second lawyer. A few months after that, while in a social setting, the first lawyer revealed the woman's confidence to a third party. The court ruled that the first lawyer breached 1.9(c). (h/t:Indiana Law Blog)
This draft chapter’s objective is to raise interesting tax ethics issues in practical contexts. There are 43 notes and questions to prompt and guide discussions, and primary source materials to inform classroom discussions (e.g., cases, IRC provisions, and Circular 230 excerpts). The topics considered include: sharing the tax profession with CPAs; regulating tax lawyering through the criminal and civil penalties of the IRC, Circular 230; and malpractice standards, written tax opinions, tax shelters, mistakes by clients, mistakes by the IRS, and working with the IRS.