This is our 10th annual list of top ethics stories. Time flies.
If you are aware of anyone in our field who passed away this year, please let us know in the comments. In alphabetical order:
Jeanne Gray was central to the functioning of the ABA’s Center of Professional Responsibility and it isn’t possible to describe the impact she had on our field in just a blog post.
Harlow Sprouse served as a Board Member for the Texas Center for Legal Ethics and Professionalism from 1978-1999.
John Sutton, a dean at the University of Texas - Austin School of Law, was a drafter of the ABA Model Code.
Top Ten Legal Ethics Stories of 2013
Please use the comments to let me know if I missed any big stories or if you would have ordered them differently. (Most of the links below are to posts from this site. You can then surf to original news accounts, source documents, etc.)
1. Intra-firm privilege.
On consecutive days this summer, high courts in Massachusetts (in RFF Family Partnership, LP v. Burns & Levinson LLP) and Georgia (in St. Simons Waterfront, LLC v . Hunter, Maclean, Exley & Dunn, P.C.) upheld the assertion of attorney client privilege as to internal law firm communications about potential claims the firms faced from current clients. This issue has been percolating for years. The thoroughness and depth of the two opinions suggests that they embody what will become the majority rule on this issue.
2. Blurred Boundaries.
On a variety of fronts, the profession’s boundaries continued to blur, soften, and become more porous. ABA Formal Opinion 464, issued on August 19, 2013, opined that a lawyer may share legal fees with another lawyer who is permitted to share legal fees with non-lawyers. There was discussion of the propriety of "verein" structures for law firms. In posts here, we explored the increasing use of non-lawyers to do law-related tasks such as compliance advice and due diligence. Bill Henderson posted about the business model of Axiom and we did too. (Axiom’s model is to do work for in-house counsel, so that all such work is ostensibly supervised by a licensed lawyer.) The NYC Bar Committee on Professional Responsibility issued a report suggesting that non-lawyers be permitted to serve as advocates in some matters and to render legal advice on some matters. In California, a state bar worked group recommended further study of a proposal to grant limited licenses to practice law.
Now that we are seeing fewer enrolled students at law schools, we can expect to see increasing pressure to permit non-lawyers to render services to people who already cannot pay for a lawyer or find one to take their matter.
3. Prosecutors and Brady.
Brady turned 50 years old and yet we still see prosecutors failing to fulfill their basic constitutional and ethical duties to provide discovery to the accused. A Texas prosecutor was sent to jail for failing to provide evidence to the accused, as discussed in this post (which has links to numerous posts we’ve had on this topic). California admonished a prosecutor and went after another for failing to produce discovery. Judge Kozinski wrote a blistering dissent, imploring appellate judges to enforce the prosecutors’ duties. Are we finally seeing enforcement of the prosecutor’s Brady obligations? History says no; my optimism says maybe.
4. Judge Scheindlin was removed from the stop-and-frisk cases.
We covered this story in many posts. The respected United States District Court judge, Shira Scheindlin, presided over a series of cases dealing with the stop-and-frisk policies of the New York City police. On appeal, a Second Circuit panel removed Judge Scheindlin from the cases, citing (1) improper designations of cases as related; and (2) a series of interviews Judge Scheindlin had given to the media. Scheindlin and her supporters supporters fought back and the appellate panel softened its criticisms (but did not reverse the removal).
On a related issue, we’ve seen increading focus on the propriety of judges speaking out in the media. I’m not a fan of the practice but perhaps the tides are changing. (We’ve seen articles on this issue dealing with Justice Ginsburg and Judge Rakoff. Justice Scalia is a perennial focus of such articles.)
5. Blogging, Confidentiality, and Advertising Rules.
One of our most blogged about matters came out of Virginia, where a criminal defense lawyer was disciplined for his blog because it lacked advertising disclaimers and discussed client matters without consent. The lawyer appealed and the high court in Virginia upheld the state bar on the advertising regulations but held that the lawyer could not be disciplined for his comments about former clients when the comments were based upon matters in the public record. That ruling flouts the common belief that client confidences must be protected even when they are matters of public knowledge, so long as they are not matters of common knowledge. Whether or not the Virginia decision, Hunter v. State Bar, will be followed elsewhere will be a matter of great interest for our field.
6. Should the Supreme Court of the United States adopt a binding ethics code?
I don’t see any signs that the SCOTUS will adopt a binding code, but it sure was a topic of conversation this year within our field and in the greater punditry.
7. Advance Waivers on the March.
This year saw judicial opinions enforcing advance waivers. In one case, the clause was enforced even though the client had not signed the waiver. In another, the court held that in-house counsel was sophisticated where the lawyer had practiced in-house for about ten years since graduating from law school.
8. Admissions Matters in California Raise Big Questions.
California had two high-profile admissions issues. In one, Sergio Garcia, who lacks legal status in the US, was denied admission to the state bar. The US Department of Justice opposed his admission, citing a federal law that banned state licensing of undocumented persons unless the state itself had permitted the practice. After the oral argument, the state legislature quickly passed a bill, since signed by the Governor, paving the way for Garcia’s admission. The state high court is expected to approve his admission Thursday. (In other states, undocumented law school grads may not be as fortunate as Garcia.
9. Attorney Client Privilege for Pre-Merger Discussions with Seller’s Counsel.
Discussed here. One of the longstanding complexities in the law of attorney client privilege concerns the status of the target’s privilege post-merger. Most observers believe it would an odd result if upon closing the buyer could invade the target/acquiree’s privilege as to advice it received on the deal itself. An older New York case, Tekni-Plex, provided that the target’s privilege passed to the buyer as to operational issues but not as to advice on the deal itself.
An appellate opinion in Delaware held that unless the deal documents provided otherwise, the target’s entire privilege passes to the buyer. I’m sure that corporate lawyers across the country are updating their form documents to protect the target’s privilege. (If the issue interests you, you should read the article Harry Bryans wrote, which is cited in footnote 29 of the opinion.)
10. Confidentiality and Celebrities.
Those weren't the only confidentiality issues that popped up. A lawyer was disciplined for posting a video of his client to Youtube without consent. Mark O’Mara, the lawyer who represented George Zimmerman, has apparently been asked to explain to the Florida state bar the propriety of his social media strategy. (Disclaimer: I’ve suggested that O’Mara’s conduct was ethical.) A Philadelphia ethics committee opined that it is proper to read email correspondence sent to a departed partner. The Second Circuit held that a corporate general counsel could not use client confidences to pursue a qui tam action.
Honorable Mentions (in no particular order)
Gideon v. Wainwright turned 50. We haven't seen much movemen on "civil Gideon," and given the next item we have grounds to worry about how well we're enforcing Gideon in the criminal context.
Public Defenders. Over-worked public defenders scored some success. A federal court in Washington state held that the inadequate support of the PD office in two cities amounted to a deprivation of constitutional rights. The Florida supreme court affirmed the right of public defenders to reject appointments when their caseloads prevent competent, diligent, representation.
Social Media Snafus. Arizona opined that it would be difficult for lawyers to ethically use Groupon. The ABA issued an opinion about judges' use of social media. Yelp sued a law firm for allegeldy posting fake reviews of the firm's work. An attorney faced disciplinary charges for responding to negative online reviews of his work. New York City Bar Association offered guidance about use of the cloud. A prosecutor tweeted mid-trial and suggested that it's the wave of the future.
Law Schools and Lying. Two law school officials were disciplined for lying about law school statistics. The Sixth Circuit held that Cooley's statements about itself were objectively untrue but that no one could have reasonably relied upon them.
Legal Education. Applicants and enrollees continued to drop sharply. Rumors of stealth layoffs and retirement buyouts are hard to verify. There was a lot of talk and some movement on the idea of two year law schools. A much bruited study of the economics of a law degree established that the degree was a sound investment in the past 15-16 years (which we already knew) and conjectured that the next 15-16 years will be substantially identical to the prior era (which brings out the skeptic in me).
Arizona Adopts 3.8. News here.
Amnesty International v. Clapper. Holding: plaintiff lacked standing to complain about possible invasion of attorney client privilege.
Legal Malpractice Claims against Patent Lawyers May Proceed in State Courts. Gunn v. Minton.
Waivers of Ineffective Assistance of Counsel Claims. In multiple states, the US Department of Justice fought rulings that no criminal defense lawyer may ethically advise the client about entering into pleas which include waivers of the accused's right to later bring ineffective assistance of counsel claims.
California Ethics Opinion: it’s ok to take advantage of your opponent’s mistakes.
Demand Letter Wasn’t Extortion; Was Privileged. Two California cases noted here.
2013 Fred C. Zacharias Memorial Prize. Awarded to Dana Remus, of UNC.
ABA 20/20 Wraps Up Its Work. As Andy Perlman notes in the comments, the ABA's 20/20 Commission made more changes in 2013 before wrapping up its work. (Most of its work had been adopted back in 2012.)
[edited since first published]