Following up on Renee's post, I enjoyed this exchange between Justice Scalia and the lawyer arguing the Filarsky case. In particular, they were discussing the claim that lawyers doing investigations on behalf of governmental entities need qualified immunity so that the lawyer will be able to give fearless advice.(h/t: Adam Liptak, at NYT)
The Ninth Circuit has denied lawyers that immunity, leading Scalia to claim that “there’s a lot of bad, cowardly legal advice being given in the Ninth Circuit,” -- but he then quickly added, "I don’t really know that, but you don’t know the opposite, either, do you?”
“I don’t,” said the lawyer.
Isn't that true of a lot of claims we make about the law of lawyering?
Too true. In the discipline context, we are often told by the discipline authorities in California that a proposed rule or statutory change is necessary to protect the public or to preserve public confidence in the legal profession. There is never any empirical evidence cited for these propositions. Instead we take it on faith that these people know what they are talking about.
Posted by: David Cameron Carr | January 19, 2012 at 08:29 AM
Some basic information that state bars should obviously collect but don't: recidivism rates after discipline; and the effect of discipline less severe than disbarment on attorneys careers. (On why this information is important, see
http://kanbaroo.blogspot.com/2011/09/interlude-22-against-routinely-public.html)
Posted by: Stephen R. Diamond | January 22, 2012 at 03:02 AM
Defective link corrected:
http://kanbaroo.blogspot.com/2011/09/interlude-22-against-routinely-public.html
Posted by: Stephen R. Diamond | January 22, 2012 at 03:05 AM