Essay demonstrates that the theory underlying ABA Model Rule of
Professional Conduct 1.13(c), granting lawyers the option to reveal
certain client confidences on a discretionary basis, doesn’t work.
Despite some compelling reasons for permitting disclosure of clients’
“bad” behavior, economics dictate that it should be a rare case in which
a lawyer will actually disclose. The Essay utilizes the facts of a
recent case involving in-house certified public accountants who revealed
to state tax authorities that their employer had not been compliant
with state tax laws, and were fired from their jobs. In thinking about
whether similarly situated attorneys could be fired or would violate
their professional ethical duties if they engaged in the same acts, the
Essay reviews and reflects upon the existing commentary on
organizational/corporate lawyers’ duties of confidentiality and the
Model Rules’ up-the-ladder reporting requirements. The conclusion:
Even if the Rules permit disclosure in some circumstances, the real
possibilities of being fired or tagged as a lawyer who can’t be trusted
with a secret are simply too great for even well-intentioned lawyers.
The rule, then, is unlikely to encourage lawyers to disclose.
argument is made through a brief Essay rather than a longer analytical
piece for two reasons. First, there exists ample and excellent
literature filled with good and comprehensive analyses of the rules.
What is lacking is an examination of how theory plays out in the real
world. Second, the Essay is meant to provoke thought both among
scholars, who function primarily in the realm of theory, and
practitioners, who reside in the world of practice.
The opening of the 2012 Supreme Court term is this coming Monday. The Court has granted cert to less than a handful of cases involving lawyering to date...but stay tuned. We'll be keeping track here at the Legal Ethics Forum. I recently created a tool for researching the lawyering cases that the Court has taken up since the 2009 term (where 18 cases involved the law of lawyering). You can access it by clicking the image below, and search by topic or date.
Scholarship on the legal profession tends to situate cause lawyers in a
state of adversarial tension with government lawyers. In this
conventional account, cause lawyers challenge the agenda of government
attorneys, who represent institutional interests and the status quo.
From this oppositional perspective, socio-legal scholars explore the
activity of lawyers working at public-interest law firms, for general
social movement organizations, and in private practice. For some time,
however, cause lawyers have moved in and out of government, thus
complicating the traditional picture of lawyer-state opposition. This
Article aims to identify and understand the significant role that cause
lawyers play inside the state. It does so by drawing on recent social
movement scholarship exploring the overlapping and interdependent
relationship between movements and the state. Ultimately, this Article
identifies four key impacts that cause lawyers within the state may
produce: (1) reforming the state itself; (2) shaping state personnel and
priorities; (3) harnessing state power to advance shared movement-state
goals; and (4) facilitating and mediating relationships between the
movement and the state. These productive functions, however, also come
with significant limitations. By appealing to governmental authority and
involving the state as a pro-movement force, cause lawyers in
government positions may channel movement activity toward moderate goals
and into institutional, state-centered tactics. Accordingly, this
Article explores not only the benefits but also the costs of cause
lawyer movement in and out of the state.
If a referee’s call is wrong, does the “winning” player have to say: “Sorry ref, you got it wrong; I did not have the ball; the other guy had it”? No, he does not (please let me know if there is a NFL rule on this that I am not aware of).
What are the obligations of a lawyer if a judge makes or is about to make a wrong call in litigation? See Rule 3.3. The answer turns on why the judge is getting it wrong.
And why is the role of a lawyer different from the role of a football player?
hold a prestigious place in our judicial system, and they earn double
the income of the average American household. How does the privileged
socioeconomic status of judges affect their decisions on the bench?
This article examines the ethical implications of what Ninth Circuit
Chief Judge Alex Kozinski recently called the “unselfconscious cultural
elitism” of judges. This elitism can manifest as implicit socioeconomic
Despite the attention paid to income inequality,
implicit bias research and judicial bias, no other scholar to date has
fully examined the ramifications of implicit socioeconomic bias on the
bench. The article explains that socioeconomic bias may be more obscure
than other forms of bias, but its impact on judicial decision-making
processes can create very real harm for disadvantaged populations. The
article reviews social science studies confirming that implicit bias can
be prevalent even in people who profess to hold no explicit prejudices.
Thus, even those judges who believe their wealthy backgrounds play no
role in their judicial deliberations may be influenced by implicit
socioeconomic bias. The article verifies the existence of implicit
socioeconomic bias on the part of judges through examination of recent
Fourth Amendment and child custody cases. These cases reveal that
judges can and do favor wealthy litigants over those living in poverty,
with significant negative consequences for low-income people.
article contends that the ABA Model Code of Judicial Conduct (the
“Code”), the document designed to regulate the behavior of judges, fails
to effectively eliminate implicit socioeconomic bias. The article
recommends innovative revisions designed to strengthen the Code’s
prohibition against bias, and suggests improvements to judicial training
materials in this context. These changes will serve to increase
judicial awareness of the potential for implicit socioeconomic bias in
their judicial decisions, and will bring this issue to the forefront of
the judicial agenda.
I've finished bios of Clarence Darrow and Clara Foltz (who, as you may know, was the first woman lawyer in California, successfully argued her own case to open up Hastings law school to women, and proposed the creation of what we'd now call the public defender's office). If you like reading about lawyering, you will enjoy both. (At Legal History Blog, there is a post about a different Darrow bio. There are quite a few to choose from, including Darrow's auto-biography.)
A while back, I floated the idea of teaching a PR course through bios and historical books. As I've mentioned before, the Dircks and Steiner books on Lincoln's legal career are great from a law of lawyering prespective.
I have finally been able to read Alice's article, The Problem of Disagreement in Legal Ethics Theory. Although it was written for the theorists, and not for practitioners and judges, I found it fasciinating. In particular, I hope that the theorists will take to heart Alice's essential point, because, as I have said elsewhere, they have a great deal to contribute. Alice says:
"If theory takes its impact on legal practice seriously, then the result of the arguments here is that theorists need not focus on re-affirming or re-articulating the nature of their disagreements, and should instead focus their attention on what follows for individual action or public policy from the norms they articulate. The nature of the disagreement [among] the types of theories is by now well aired, and it is not obvious that much intellectual progress is made through the types of disputes and arguments discussed above. Indeed, there is a real risk that the arguments create a sense of moral emptiness, that theory is pure abstraction and intellect, with nothing of worth to cummunicate to anyone whose conduct might otherwise be influenced by it. More fruitful is th type of analisis that has been done by theorists of the Bibb case, or of the torture lawyers of Washington, where what theoretical norms mean in practice can be elucidated."
Without taking sides in the partisan election, I wanted to pass on something forwarded to me from a partisan politcal blog.
There's an account floating around that Harvard professor and
senatorial candidate Elizabeth Warren was practicing law in
Massachusetts without a law license there. I don't quite see the UPL unless more facts emerge. It appears that most of her
appearences were in federal appellate matters and as far as I can tell
none of the appearances were in ordinary Massachusetts state court
matters. Assuming that that her appearances were in those tribunals, that she listed her office as being in
Cambridge, that substantial portions (or all) of her work on the cases
was done in Massachusetts, that she was not licensed in Massachusetts,
and that she was licensed somewhere else (Texas or New Jersey, say),
would Massachusetts consider that UPL? I still don't see the UPL. She could have been admitted pro hac vice in the various litigations without needing a Massachusetts license and that would be the typical fact pattern.
National Review Online repeats the allegation of UPL but the readers quickly steered that author to the type of analysis I've been offering here. Of course, it wouldn't surprise me either way if Warren did or did not perfectly button down her various federal court appearances. And normally you'd have to have some active licence to appear pro hac vice in federal court. [edit added 9/26: Just to clarify, because of some responses I've gotten, yes, I'm assuming that Warren was properly admitted in all those federal appearances. If she wasn't, there is an issue for the federal courts and for Massachusetts, although I don't predict that this would be an actual priority for the Massachusetts bar overseers.]
UPDATE: Here's Massachusetts rule 5.5. The problem with applying it
to Warren is that (b)(1) and (d)(2) suggest that we'd have to check on
federal law to see if there's a problem. Suppose that Warren had a valid
Texas license and was appearing in some federal case in New York or
before SCOTUS with the permission of that court. She wouldn't be
engaging in UPL, would she? Couldn't she argue that her appearance was
approved by federal law under (d)(2)? Comment  provides, "Paragraph (d)(2) recognizes that a lawyer may provide legal
services in this jurisdiction even though not admitted when the lawyer
is authorized to do so by federal or other law, which includes statute,
court rule, executive regulation or judicial precedent."
Or could she argue that her
practice in Massachusetts was temporary as opposed to systematic and
continuous? (See 5.5(c)) (h/t: Legal Profession Blog) Comment  provides, "There is no single test to determine whether a lawyer's services are
provided on a "temporary basis" in this jurisdiction, and may therefore
be permissible under paragraph (c). Services may be "temporary" even
though the lawyer provides services in this jurisdiction on a recurring
basis, or for an extended period of time, as when the lawyer is
representing a client in a single lengthy negotiation or litigation."
This post has been edited over the day as I've come across various commentary that furthered the analysis.
I did not expect this topic to take off the way it has.
Although some commenters have suggested that the issue is blown out of
proportion, I have found the exercise to be educational and worthwhile. I know
that I’ve learned a lot.
The blog, Legal Insurrection, suggested that Elizabeth Warren
has been practicing law in Massachusetts through what we call,
“unauthorized practice of law” or UPL. What first caught my attention about the
claim is that the cases in which Elizabeth Warren appeared were federal
appellate cases. Admission to a federal bar and a state bar are separate,
independent events. (Although any particular federal court may insist that its
admission requires a valid state license.) So, I asserted that if we assume
that Elizabeth Warren properly obtained admission into those federal courts,
her practice of law in those courts (and in preparation for appearing before
those courts) would be lawful under federal law. As I’ve noted, I have no idea
whether those applications were done correctly or not. For now, I just assumed
that they were.
If Warren was
properly admitted to those federal courts, she has two strong arguments as to
why she did not commit UPL under Massachusetts law. First, there is federal
authority, beginning with the Sperry
case, that federal courts and agencies have sweeping authority to permit admission
and practice before them — even if that behavior might otherwise be considered UPL
by the state licensing boards.
Second, the Massachusetts rule itself appears to carve out
an exception such that any practice permitted by federal law is not deemed UPL under state law. That exception is found in rule 5.5 (d) of the
More recently, the Legal Insurrection blog uncovered a
representation in a federal appellate court within Massachusetts during which
Elizabeth Warren argued state law. The new criticism of Warren appears to be that
the federal appellate practice is UPL because she maintains an office Massachusetts
and, further, that even if Warren was properly before the federal appellate
court she was not permitted to represent a Massachusetts resident and argue matters of state law there.
That second argument is a distinction that I have not found
in the case law I have read to date. If there is a case raising that
distinction, I would be grateful to learn about it.
In Sperry v. Florida Ex. Rel. Florida Bar,
373 U.S. 379 (1963), the United State Supreme Court appeared to permit the
lawyer (a patent lawyer located in Florida, where he had no license) to advise
his clients about federal patent law and about state law incident to his
[**1325] do not question the determination that under Florida law the
preparation and prosecution of patent applications for others constitutes the
practice of law. Greenough v. Tax Assessors,
331 U.S. 486; Murdock v. Memphis, 20
Wall. 590. Such conduct inevitably requires the practitioner to consider and
advise his clients as to the patentability of their inventions under the
statutory criteria, 35 U. S. C. §§ 101-103, 161, 171, as well as to consider
the advisability of relying upon alternative forms of protection which may be available under state law.”
Subsequent federal cases have broadly upheld the right of
federal courts to control admission and practice before those courts, and have
concluded that any state laws impinging on that control are preempted. The
following string of cites are from a well-done article by Ron Minkoff (who is a
great guy, very experienced in these issues, and, apparently, someone who disagrees
with me on this state vs. federal issue!). See, e.g., Surrick v. Killion, 449 F.3d 520 (3rd Cir. 2006); “Theard v. U.S., 354 U.S. 278 (1957)
(disbarment in state court does not automatically result in disbarment in
federal court); In re Desilets, 291 F.3d
925 (6th Cir. 2002) (attorney admitted in Michigan federal court may recover
fees for handling bankruptcy matters there, even though he was not admitted in
Michigan state court); In re Mary Poole,
222 F.3d 616 (9th Cir. 2000) (attorney admitted in Arizona federal court but
not in Arizona state court may practice bankruptcy law in District of Arizona;
the exercise of bankruptcy power is exclusively federal).” (To find Ron Minkoff’s article, just google,
Minkoff US courts v. the 50 States)
Minkoff’s article cites some state cases that come right up
the edge of asserting the power to regulate the practice of lawyers in federal
proceedings. But, for example, in Matter
of Perello, 270 Ind. 390 (1979), the state court noted that the local
federal courts had adopted a rule that admission to the federal courts required
a valid Indiana license, so the case never dealt with a true conflict between
state and federal admissions. (Some federal courts do indeed require a valid
state license at the time of admission to the federal court or even throughout
the duration of practice before the federal court. That’s why I’ve offered an
argument based upon the assumption that Warren’s admissions and appearances in federal court were
been properly done.)
Likewise, in Attorney
Grievance Comm. of Maryland v. Harris-Smith, 356 Md. 72 (1999), the lawyer
had held herself out as a generally available, licensed lawyer in Maryland
rather than limit her practice to federal appearances. [added 9/28: By visiting the Overlawyered site, I also learned about In
the Matter of the Reinstatment of Mooreland-Rucker, a case from the
Oklahoma Spureme Court analyzing whether a practice in Texas focusing on
federal bankruptcy was UPL. The fact pattern is similar to the Harris-Smith case, in that the attorney was drumming up local clients and advising them about their debt and financial situation. The Oklahoma court makes a few comments about the inability of states to regulate federal practice, but then goes on to conclude (in dicta?) that the practice at issue would be UPL under Texas law. If I were advocating against Warren, I'd certainly cite the case. But I don't think it resolves the issue of whether Warren's federal appellate appearances were UPL. First, if it is broadly construed it strikes me as counter to the federal cases I've cited above. Second, it may be dicta, in that it's a forward-looking opinion under the laws of a different state. Third, if the case is given a reasonably narrow construction, it can be distinguished from the Warren situation. The concern in Harris-Smith and Mooreland-Rucker is that the lawyer is building a local practice of locally resident clients that involves giving the full range of advice that debtors counsel typically give to their clients. In contrast, Warren's practice appears to be limited to federal appellate appearances permitted under the rules of those appellate courts. I'm still of the belief that so long as she did her applications properly, those appellate appearances aren't within the regulatory scope of the state bars.]
Finally, I have come across an older Massachusetts case that
may well be superseded by subsequent rules and developments. But it illustrates the type of restraint that I think is proper for state bars and that I predict would govern in this matter if Warren her applications correctly. In re Lyons, 301 Mass. 30; 16 N.E.2d 74;
1938 Mass. LEXIS 990. In that case, the court did need to discuss whether the
state had the power to regulate appearances before federal courts. There is language
back and forth on the issue but in the end the court modified the injunction
against the attorney so that:
“The references to proceedings in
bankruptcy and to the District Court of the United States will remain in
paragraphs 9 and 12 of the order, but the wording of those paragraphs will be
modified by adding a statement or proviso that they shall not affect the
exercise by the respondents of any privilege which they now possess or may
acquire under any statute, rule, order or established practice of the Federal
government or of its courts con-trolling methods of practice in respect to
matters within Federal jurisdiction.” Id at 13.
In short, while I concede that I haven’t read every case in
this area, and that there are non-frivolous arguments to the contrary, it’s still my belief that if Warren’s admission to federal court was
proper, the fact that she argued some state law there does not mean she
committed UPL. If I’m wrong about that, please let me know. Politely!
[added 9/28: In a private conversation, a reader stressed that it's important to note that we have not seen any of Warren's clients complain or any allegation that the public is in danger as a result of Warren's appellate work. I agree that that's very important. Still, the issue of proper admisisons is important to the legal system.]
[added 9/30: I've seen that the general counsel for the Massachusetts Board of Bar Overseeers, Michael Fredrickson, is quoted as saying that Prof. Warren's office at the law school might not be properly considered a law office under the releveant rules. In offering that view, Fredrickson was not officially speaking for the BBO and it would be the BBO prosecutors, not Fredrickson, who would make the important decisions. Conceding all that, Fredrickson's quote sounds to me like the right analysis and is consistent with my posts above. Fredrickson was quoted as saying, “'If they [law professors] actually practice here -- as some part-time law professors at
some of the smaller schools do -- they might [have a continuous presence or an office practicing law],' Fredrickson says. 'But
being a professor at one of the large schools, their office is a
professor’s office, and the fact that they tend to dabble in the
practice of law doesn’t run afoul of our rule. I don’t think Elizabeth
Warren would fall within that, such that she would have to register
here.'” I think that's right, based on the facts that have come out to date and it's consistent with what I said up above. If, on the other hand, it were shown that Warren had a litigation secretary, paralegals, etc., I suppose the result could be different. And it could be different if she was busily engaged drumming up local clients for a law practice being run out of her faculty office. But we've seen nothing to support any of those notions. She appears to "parachute" into federal court at the appellate stage -- which is a very different set of facts.]
[update 10/1: Warren released a list of some legal matters she working on, found by her campaign after some online searching. The Boston Globe has the story. If that list is all or most of her legal matters, it strengthens my opinions that she has no UPL issue, assuming she did her admisssions properly. (At this point, I'm assuming that her opponents will dig into the court records to see if she handled her federal court admissions correctly. If they turn up anthing, I'm sure we will hear about it.]
[Update 10/3: It looks like Scott Brown is now claiming that Warren has a UPL issue. The NPR reporter, Fred Thys, told me that he checked with the Texas bar and he therefore wrote:
"She has been licensed to practice in Texas since 1986. Her license has
always been inactive, but she pays her inactive dues, and that allows
her to be in good standing with the Supreme Court of Texas. The Supreme
Court of Texas confirms that Warren is in good standing with the court.
That good standing allows her to practice before the Supreme Court,
which also allows her to appear before the lower federal appeals courts."
I'm not sure that every bar has defined inactive status to be "in good standing," but if Texas does then presumably Warren could represent that she's in good standing. I don't know the pro hac vice standard for every federal court in the US, but it seems to me that many of them ask if you're "in good standing" with a state bar and some of them ask if you're a member of the SCOTUS bar. In either of those cases, Warren would appear to have a solid basis for admission.]