Legal ethics odds and ends (January 24, 2012)

• Lawfare: Fourth Circuit dismisses claims by Jose Padilla.

• ABA: Variations in the enactment of 3.8(g)-(h) regarding the prosecutor's duty to assist post-conviction relief.

• CNN: Supreme Court won't hear argument about Kagan's non-recusal in healthcare case.

• Leagle: Seventh Circuit reinstates malpractice claim. "Mary Bucksbaum Scanlan ("Scanlan") is a current beneficiary of several discretionary trusts. Scanlan brought claims of legal malpractice and breach of fiduciary duty against the trustee and her lawyers. The district court dismissed all of her claims with prejudice and ruled that Scanlan lacked Article III standing because she did not allege facts showing a likelihood that the trusts' corpus were insufficient to pay her discretionary distributions. We reverse and remand."

• Faculty Lounge: Is legal education like dental education? (That is, does it need some reinvention?)

Comments

[Patrick S. O'Donnell]

Steve Vladek's analysis of a Bivens claim/remedy and related topics is a breath of fresh air and, I think, absolutely necessary reading. And I agree with Kevin Jon Heller at Opinio Juris: "it's worth noting that, on the same day, (1) the Fourth Circuit threw out Jose Padilla's lawsuit seeking damages for his mistreatment while being detained and (2) the U.S. government arrested John Kiriakou, a former CIA officer, for revealing critical aspects of the systematic torture regime created by the Bush administration and swept under the table by the Obama administration, the latter of the wonderfully selective 'look forward, not backward' philosophy. (Though it’s worth noting that Kiriakou isn’t anti-torture himself.)

So, to sum up: torturing people fine, revealing torture criminal.

Welcome to the shining city upon a hill, circa 2012."

[Pam Loginsky]

The summary of variations in RPC 3.8 is incomplete. Washington State adopted a variation of the proposed language on December 13, 2011. The text of the newly adopted rule may be viewed here:
http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=ga&set=RPC&ruleid=garpc3.8

[John Steele]

@Patrick: those two decisions present an interesting juxtaposition.

fwiw, Kiriakou was accused of revealing some specific information about the identity of agents, right? so it's similar to the allegations that were leveled against Rove and Libby. i have no idea if the allegations are true or not.

[John Steele]

@Pam: thanks for that info. For readers who don't know Pam, she's one of our faithful readers (thanks!) and has provided me with a lot of useful information and pointers.

[Patrick S. O'Donnell]

John, I don't think this is similar at all to the allegations against Rove and Libby: they were not involved in anything remotely like "whistleblowing," the difference in both motives and ends rather transparent. As Daniel Ellsberg has said (and Kevin noted above), this is tantamount to criminalizing the revelation of illegality, while at the same time decriminalizing torture. The national security rationale, overused yet again, is in this case probably a cover for a rather different rationale, one consistent with the Administration's refusal to prosecute those involved in torture (which makes the juxtaposition comprehensible):

"Scott Horton, a professor at Columbia Law School and a prominent human rights attorney, noted that the names of CIA operatives that Kiarakou allegedly leaked to the media would be extremely useful to foreign prosecutors pursuing possible war crimes charges against U.S. intelligence agents and officials.

Such probes, focusing on the use of torture against detainees and the kidnapping of terror suspects, known as 'extraordinary rendition,' are under way in Spain, Italy and Germany.

'You have to put this in the context of pending criminal investigations overseas which target these very people,' Horton said. 'That is why the CIA is so concerned.'"

[Roy Simon]

Regarding Scooter Libby, I just finished watching "Fair Game," which is the (fictionalized) story of Valerie Plame and her husband, Joe Wilson (who told the White House that the alleged shipment of yellowcake uranium from Niger could not have occurred). I thought the movie was excellent -- but does anyone know whether "Fair Game" is accurate?

[John Steele]

@Roy: I'd strongly recommend reading the portion of James Stewart's recent book, "Tangled Webs," that looks at the Libby situation. (The book also has nice summaries of the Martha Stewart, Barry Bonds, and Bernie Madoff matters.) Stewart's a well respected journalist.