Legal ethics odds and ends (May 3, 2012)

• How Appealing. Ninth Circuit tosses suit against John Yoo for his conduct as OLC lawyer. The Ninth Circuit's opinion: Download Padilla Yoo 9th Cir  Here's the "Legal Ethics Scholars" amicus brief, which has an interesting section about authorities upholding the criminal prosecution of lawyers:  Download 012210yooamicus1

• WSJ: SEC targets defense lawyers for conflicts of interest and the representation of witnesses. Some of what the SEC is complaining about -- e.g., the representation of multiple witnesses who, in the SEC's view, have conflicting interests -- could be valid but could also be the government's hostility to active, aggressive, and appropriate defense tactics. 

UPDATE: At Prawfsblawg, one of the drafters of the Legal Ethics Scholars brief has furthr thoughts about the Padilla v. Yoo case. More thoughts, by Steve Vladeck, at Lawfare.

Comments

[paulbkk]

re odds and ends

I would be interested in your take on a recent Daily Kos post concerning legal ethics of corporate counsel:

http://www.dailykos.com/story/2012/05/01/1087784/-Where-were-the-lawyers-

[John Steele]

paulbkk,

thanks for commenting. your posting at Daily Kos is a concise and provocative piece -- but for that reason it's hard for me to respond in specifics. as for the state bars, many people think that they have just enough resources to pursue lawyers who steal from clients and commit easy-to-prove offenses. proving up the role of lawyers in something as complex as the mortgage-backed-securities scandals isn't easy to do. i'm not defending that inability so much as i'm describing it.

as for the role of lawyers as key enablers of all the matters you list, it takes a far more detailed theory of their role for me (or state bar regulators) to assess the lawyers' complicity.

you are correct that if the client's intent in meeting with lawyers is to further a crime or fraud then the communication is not privileged. you're wrong, though, in suggesting that lawyers generally have a duty to report clients to the authorities. that is rarely the case.

[paulbkk]

Mr Steele,

thank you, I will update the post at Daily Kos to correct my mistake about the duty to report. I appreciate you taking the time to respond.