Bidish Sarma, the Clinical Teaching Fellow and Lecturer in Residence, Death Penalty Clinic, at U.C. Berkeley School of Law, has the following request. His email is firstname.lastname@example.org. His request:
For a cert petition in a Louisiana capital case coming off the state supreme court's denial of the direct appeal, we are considering raising a question arising from our conflict of interest claim. Our client and his two co-defendants were represented by attorneys working in the same indigent defense office in a rural area.
I'd be grateful to receive copies of cert petitions or names of cases in which conflict of interest issues have been raised to the Supreme Court since it decided Mickens v. Taylor in 2002.
Law.com carries this neat story about the first major federal courthouse where all the active sitting judges are women: the Oakland division of the Northern District of California. The article contains some interesting discussions about which practice areas still appear to be dominated by men.
I highly recommend Margaret Tarkington's article, A First Amendment Theory for Protecting Attorney Speech. Apart from its critical importance to explaining and advancing the lawyer's constitutional role, the article is a pleasure to read because it is so clearly written and powerfully argued. Abstract:
2010, the United States Supreme Court held that Congress could
constitutionally prohibit attorneys from providing legal assistance and
advice regarding lawful nonviolent conduct to groups that the Secretary
of State has designated as Foreign Terrorist Organizations (FTOs). The
plaintiffs, Ralph Fertig and the Humanitarian Law Project, wished to
assist two such FTOs invoke international human rights law, petition the
United Nations and United States Congress, and peacefully resolve their
disputes. The Supreme Court held that the statute clearly prohibited
plaintiffs’ proposed activities, but did not violate the Free Speech
Clause of the First Amendment because the attorneys could still engage
in “independent advocacy” of any message they wished to promote.
Allegedly, the plaintiff attorneys’ First Amendment rights were not
abridged because the law merely criminalized (with a potential
fifteen-year prison sentence) their speaking “in coordination with or
under the direction of” their proposed clientele.
Humanitarian Law Project underscores some of the distinctive problems
associated with restrictions on attorney speech. Unfortunately, as
demonstrated by the Court’s opinion, as well as Justice Breyer’s
impassioned dissent, there is not a workable First Amendment methodology
for analyzing restrictions on attorney speech.
regulations on attorneys can be couched as restrictions on attorney
speech because the work of an attorney is done primarily through oral
and written communications. Attorneys – through their speech – play a
key role in providing access to justice and the fair administration of
the laws. They provide to clients speech that has the force of law and
that is intended to invoke or avoid the power of government in securing
individual or collective life, liberty, or property.
paper, I propose a new access-to-justice theory of the First Amendment
to be used in examining the constitutionality of restrictions on
attorney speech – regardless of the regulating entity. The
access-to-justice theory proposes that where attorney speech is key to
providing or ensuring access to justice or the fair administration of
the laws, it needs special protection under the Free Speech Clause, akin
to the core protection afforded political speech. The paper identifies
four types of attorney speech that deserve this high level of
protection, namely, (1) the power to invoke the law on a client’s
behalf; (2) the provision of legal advice regarding proposed or past
client conduct; (3) the ability to raise relevant and colorable
arguments in court proceedings; and (4) the ability to preserve the
Constitutional rights of others.
Traditional self-regulation of
attorneys preserved, although imperfectly, the special role of
attorneys in our justice system because, in theory, the judiciary as
regulator understood the attorney’s role. By providing First Amendment
protection to attorney speech that is essential to our justice system,
the access-to-justice theory also safeguards the attorney’s essential
role as self-regulation declines and regulation is imposed by national
and intergovernmental entities, including legislative entities subject
to majoritarian pressures.
In two recent but unrelated disciplinary actions, the lawyers’ good intentions did not insulate them from suspension or disbarment. Both lawyers shared confidential information learned from clients – arguably from a desire to redress a perceived wrong rather than from self-interest.
Ohio criminal defense lawyer, Christopher Cicero, learned from prospective client, Edward Rife (a tatoo parlor owner), that Ohio State University football players were selling and trading memorabilia for tattoos in violation of NCAA rules. Cicero sent e-mails to Ohio State football coach, Jim Tressel, warning him of the situation and promising to try to get the items back if he was retained by Rife. The resulting scandal led to an NCAA investigation, severe sanctions against the university, and Tressel’s firing. In a 5-2 decision, the Ohio Supreme Court suspended Cicero for one year, rejecting his argument that Rife was owed no duty of confidentiality because he never became a client. The two dissenting judges observed that: “Cicero's intentions were not for personal aggrandizement or personal gain, as found by the majority, but were to alert the coach about misconduct by his players that could affect the team.”
In another case involving an even stranger fact pattern, a Kansas lawyer was disbarred for disclosing the names of Guantanamo Bay detainees to the Center of Constitutional Rights. The attorney, Matthew Diaz, served as a Judge Advocate for the U.S. Navy (like the Tom Cruise character in A Few Good Men) and was assigned to the Joint Task Force in Guantanamo Bay in 2004. Concerned for the detainee’s civil rights, Diaz printed out a list of their names and other identifying information, cut the list into strips and inserted the strips into a Valentine’s Day card, which he mailed to Barbara Olshansky at the Center of Constitutional Rights. Ms. Olshansky had previously requested the detainees’ names in order to file writs of habeas corpus, but was denied the information because it was deemed “classified.” Believing the list was a hoax, Ms. Olshansky submitted it to the judge handling the detainee litigation and an investigation ensued. Diaz was court-marshaled, sentenced to six months confinement, and dismissed from the Navy. In the subsequent disciplinary proceeding, the Kansas Supreme Court found that Diaz had violated Rule 1.6 by disclosing the confidential information of his client, the Navy, without consent and Rule 8.4(b) by disclosing classified government information.
Interestingly, both of these lawyers seemed to have been affected by emotional connections or experiences that traced back to their youths. Cicero himself had been an Ohio State University football player and may have been motivated by a misplaced sense of loyalty. Diaz’s father – a nurse - had been sentenced to death for murdering 12 patients when Diaz was sixteen years old, but was spared execution because his habeas corpus petition remained pending until his death many years later. The upshot is that lawyers must be wary of confusing their loyalties, even where the justifications for disclosing confidential information may feel compelling. Lawyers should also be mindful of their duties under Rule 1.18, which protects confidential information received from prospective clients, even when the lawyer is never retained.
Hat tip to Jeremy Feinberg, an adjunct professor of legal ethics at Columbia Law School, for bringing the Ohio story to my attention.
Lawrence E. Mitchell, dean of Case Western Reserves's law school, wrote this NYT op-ed to counter what he sees as inaccurate accounts of the economics of going to law school. I found Mitchell's piece to be superficial and somewhat misleading, but perhaps that's inevitable to some degree for a short op-ed in the popular press.
For example, Mitchell suggests that the recent downturn in legal hiring outcomes is just another downturn like earlier ones, without acknowledging how porous the boundaries of the profession have become. When he discusses employment outcomes, Mitchell doesn't acknowledge the hard data. Mitchell doesn't acknowledge the divergence in interest between the needs of debt-burdened students and the desires of the tenured faculty who are for the most part professional writers with an audience of other tenured professors. MItchell uses overwrought language to make it seem like the critics of law school economics have no substantive arguments -- when we all know that it was the critics who finally got the hard data out in the open for everyone to discuss despite recalcitrance and dissembling from the law schools. And so on.
Philip Schrag's new article, available on SSRN and soon to be published in the Georgetown Journal of Legal Ethics, is a substantive counter argument to Brian Tamanaha's book Failing Law Schools. I think we can expect more of these counter arguments, especially from professors at schools that are preceived as offering a bad economic deal for students. UPDATE: Brian Tamanaha responds to Schrag's article at Balkinization. Abstract for Schrag's article:
Brian Tamanaha’s book, Failing Law Schools, usefully collects in one
place the recent critiques of law schools for reacting excessively to
U.S. News rankings, manipulating admissions data, spending excessive
amounts of money to hire “star” professors and to circulate glossy
brochures and magazines, and in some cases, falsifying graduates’
employment statistics. But Tamanaha’s main argument is that law school
has become unaffordable for most applicants, because it will saddle them
with debt that they cannot afford to repay on the incomes that they can
reasonably expect. His thesis is based on a misunderstanding of student
loan repayment methods. In particular, he erroneously assumes that the
only proper way to repay student loans is through so-called “standard”
repayment (over a ten year period). Actually, many law graduates will
find typically law school debt manageable if they repay federal student
loans through income-based repayment plans, particularly the new Pay As
You Earn (PAYE) plan. Tamanaha disparages income-based repayment,
however, because he incorrectly believes that total debt, rather than
the ratio of current repayment obligations to current income, primarily
determines a borrower’s credit-worthiness for mortgages and other large
Based on his belief that law school is no longer
affordable for most students, Tamanaha offers several radical proposals,
such as amending accreditation standards to permit a two-tier system,
in which only a few expensive law schools would continue as research
institutions offering three-year degrees, while most would offer law
degrees after two years of classroom study and a year of some sort of
lightly-supervised apprenticeship. He would also do away with the
standard that requires schools to put most faculty members on tenure
tracks and to support faculty research. This review essay questions the
need for those far-reaching changes in legal education and concludes
with the suggestion that Tamanaha focus his considerable critical skills
on the problems not of law students, but of lower-income clients who
are unable to obtain the legal services that they need.
Here are two fact-intensive, brutal take-downs of Dean Mitchell's article, by Matt Leichter and Paul Campos. The title of Leichter's article is, "If Law School Is Worth the Money, Why Subsidize It?"
Art Garwin, the Deputy Director of the ABA Center for Professional Responsibility, sends word that nominations for the 2013 Michael Franck Professional Responsibility Award are open through December 31, 2012.
More information, including a list of past winners, is here. Notable past recipients include two bloggers here at Legal Ethics Forum, Monroe Freedman and Stephen Gillers.
I've written a short piece outlining steps that might make law school more useful to students and which might also prove palatable to faculties empowered to decide on such steps. The piece includes modest recommendations, such as teaching issue spotting only and always in conjunction with prioritization, and slightly more unconventional steps, such as making factual as well as legal research central to information training law schools provide.
The piece also argues that one traditional division of labor--schools teach students how to think and firms teach practice--presumes a practice structure that is much less common than it used to be. Many students spend their early years working intermittently for different firms and practitioners without the continuity of employment that may provide repeated interactions and feedback congenial to learning. The piece argues that schools should attend to post-graduate needs of such students and suggests ways schools might do so.
JD Journal: "On Tuesday, the Catholic University of America announced that the
managing partner of Kirkland & Ellis’s Washington D.C. office,
Daniel F. Attridge, would join as the new dean of the Columbus School of
Law. The appointment ended an 18-month long search to find the best
possible person to handle the dean’s seat."
Nicole Hyland (of the Frankfurt, Kurnit, Klein & Selz firm) will be doing some blogging here. Here's her first piece. Welcome, Nicole!
The Second Circuit has revived Jacoby & Meyers’s lawsuit challenging the constitutionality of Rule 5.4 of the NY Rules of Professional Conduct, which prohibits non-lawyer ownership of law firms. The district court had dismissed the lawsuit on the ground that multiple state laws –notably N.Y. Jud. Law § 495 and N.Y. LLC Law § 201 – independently prohibit non-lawyer equity investment in law firms and, thus, any decision invalidating Rule 5.4 would be merely advisory. At oral argument, the Second Circuit Panel, consisting of Judges Lynch, Walker and Gleeson, appeared to paint the parties into a corner, first eliciting a representation from Jacoby & Meyers that it decided not to challenge the New York statutes out of concern that the district court might abstain from deciding the case (under Railroad Commission v. Pullman Co., 312 U.S. 496 (1941)) on the ground that the state laws are unclear as to whether they prohibit non-lawyer ownership of law firms. The Panel then got the defendants to concede that, if the plaintiff amended its Complaint to challenge the state laws, the defendants would be collaterally estopped from arguing those laws are unclear, since they had argued below and on appeal that the laws unambiguously prohibited non-lawyer ownership of law firms (indeed, that was the basis for their successful motion to dismiss). Having brokered these dual admissions, the Second Circuit concluded that it no longer needed to decide the “interesting theoretical issues” raised by the appeal, because Jacoby & Meyers may now include the New York statutes in its lawsuit, free from any concern that the district court will exercise a Pullman abstention. Accordingly, the Second Circuit remanded the case to the district court with instructions to vacate the judgment and grant leave to amend.
This judicial transaction, while brilliantly executed, raises some troubling questions. First, now that the dismissal order will be vacated, are the defendants still collaterally estopped from taking a contrary position concerning the ambiguity of the state statues? Second, even though the parties may agree that the statutes are unambiguous, does that preclude the district court from deciding otherwise? Although Second Circuit notes that both the parties “and the district court” agree that the statutes are clear, could the district court revisit that issue and determine that at least some of the NY statutes are ambiguous? Indeed, according to the New York Law Journal, Judge Kaplan, who issued the district court decision, suggested at some point he was open to a Pullman abstention. The Second Circuit appears to equate Judge Kaplan’s ruling on the standing issue with a holding that the New York statutes on the subject of non-lawyer ownership are unambiguous. I’m not sure his decision goes that far. Third, as the Second Circuit observes, amending the complaint would bring in additional defendants, who arguably have the right to take a different position on the Pullman abstention. The opinion attempts to preempt this concern by noting that any new defendants, like the current ones, would be represented by the New York Attorney General, the implication being that the new defendants would take the same position on the clarity of the state statutes. But that is not necessarily the case. Had Jacoby & Meyers challenged the New York statutes to begin with, the defendants presumably would not have argued that a ruling on Rule 5.4, alone, would be advisory. Accordingly, they would not have had to argue the state statutes are unambiguous and would be free to advocate for a Pullman abstention.
In the end, these questions may all be academic, since the defendants probably won’t change their position on the statutory interpretation. On a more substantive note, it seems unlikely that New York’s long-standing prohibitions against non-lawyer ownership of law firms will be struck down, since the Supreme Court traditionally defers to states on lawyer regulation. So, while this decision hands Jacoby & Meyers a temporary victory, non-lawyer ownership of New York law firms remains a distant goal. In fact, the New York State Bar recently reaffirmed its opposition to non-lawyer ownership at its recent House of Delegates meeting.