Legal Ethics Forum

"Jeffrey Mundt's attorneys say prosecutors not allowed to tell jurors he is lying"

Courier-Journal  (Ky): The headline is attention grabbing. The gist of it is that the defendant now standing trial for murder had previously testified at the trial of a co-defendant and the prosecutors did not challenge the content of that previous testimony. The defense argues that since a lawyer “shall not knowingly” offer evidence that he or she knows to be false, it necessarily follows that the prosecutors who raised no concerns at the first trial must have believed that the then-witness (who's now on trial) was telling the truth.

Kristen A. Carpenter & Eli Wald, "Lawyering for Groups: The Case of American Indian Tribal Attorneys"

Article. Abstract below.

This article mentions (at fn. 81) a book that might interest people who teach PR. It's Black Hills, White Justice, the story of a decades-long battle to compensate Native Americans for the taking of the Black Hills in violation of a treaty. I have to credit the hard work, skill, and intentions of the lawyers who handled that case for the Sioux Nation, but the story also shows how easily a lawyer can fall into the trap of paternalism and end up dis-serving the client's interests. Kirsten Carlson has written a new article about the case, Priceless Property. 

Anyway, here's the abstract to the new article:

Lawyering for groups, broadly defined as the legal representation of a client who is not an individual, is a significant and booming phenomenon. Encompassing the representation of governments, corporations, institutions, peoples, classes, communities, and causes, lawyering for groups is what many, if not most, lawyers do. And yet, the dominant theory of law practice — the Standard Conception, with its principles of zealous advocacy, nonaccountability, and professional role-based morality — and the rules of professional conduct that codify it, continue to be premised on the basic antiquated assumption that the paradigmatic client-attorney relationship is between an individual client and an individual attorney. The result is a set of rules and a theory of law practice that often ill fit the practice of group lawyers.

This Article explores the theoretical and practical challenges of group lawyering through the study of lawyers for American Indian tribes. We believe that a focus on tribal lawyers furthers two important goals. First, the individualistic impulse of the dominant theory of law practice is so ingrained that it forecloses the possibility of challenging and imagining genuine group-based alternatives. In order to truly see the shortcomings of the Standard Conception and conceive of alternatives to it, one must start not with an abstract theory of group representation, but with a detailed study of the meaning, needs, interests, and realities of actual groups and build a corresponding theory from the ground up. Second, the story of tribal lawyers, an important narrative of both the legal profession and of tribes, is still largely untold. This Article thus aims to challenge the homogeneity of the Standard Conception of law practice and to begin the process of imagining group-based alternatives to it, while at the same time telling part of the story of tribal lawyers.

Blogging about politically charged issues

At The Atlantic, Conor Friedersdorf explores how progressive journalists "got Pigford so wrong." Pigford is the huge litigation against the federal government for discriminating against black farmers. Conservative bloggers and journalists claimed that the program had morphed from the processing of legitimate claims by victims of discrimination into a full-scale fraud on the tax payers. Recently, as I blogged about, the NYT basically confirmed that account. Friedersdorf (and many others) believe that progressive journalists downplayed or reject the story because their political biases got in the way.

More broadly, this is an issue that worries me. I've blogged about any number of legal ethics stories that have political valence -- Lynne Stewart, John Yoo, the allegations of UPL against Elizabeth Warren, the recusal issues swirling around SCOTUS justices, and other issues. I believe that the law of legal ethics is supposed to protect the legal system from ordinary politics. One of the upsides of being a case lawyer (as opposed to a cause lawyer) should be an increased ability to spot biases in others and correct one's own biases. At the same time, a case lawyer ought to always remain skeptical about his or her own ability to be free from bias.

ABA eLawyering Task Force Project on Top Law Schools Teaching Legal Practice Technology in Memory of Gary Munneke

From Richard Granat at his eLawyering Blog comes an announcement about a special project in Gary Munneke's memory:

In honor and in memory of Gary Munneke, the eLawyering Task Force is working on a project to identify the top law schools teaching legal practice technology today. Our methodology is to review law schools web site catalogs and also seek input and recommendations from law schools themselves through a self-nomination process.

The eLawyering Task Force of the Law Practice Management Section of the ABA was created in 2000 by then President of the ABA, William Paul. At that initial meeting Gary Munneke, a founding member of the Task Force and the leading law school educator and author on the subject of law practice management and then Chair of the Law Practice Management Section of the ABA (now deceased),  recommended that law schools update their law practice management courses to reflect the impact that the Internet would have on the practice of law.  13 years later there are few law schools that have made a sustained commitment to teaching what the Task Force calls "law practice technology".

Richard's full post is here.

The criteria for inclusion on the list as well as an inaugural list of ten law school programs follows after the jump.

"Chief Judge Lamberth, Counsel Access, and the Guantánamo Mail"

Lawfare carries the story.

Gail Silverstein, " All's Well that Ends Well: The Importance of Full and Effective Closure in Lawyer-Client Relationships"

Article. Abstract:

This Article addresses a subject that has not received serious academic attention in law or in clinical scholarship: how lawyers should end their relationships with clients. As human beings, we intuitively understand the importance of endings in relationships, and lawyerclient relationships often impact both the lawyer and the client. Despite the amount of attention paid to other aspects of client interviewing and counseling, such as how to conduct an effective initial client interview, there is relatively little literature on how to achieve effective closure. This Article draws on research from the therapeutic professional field about how to effectively end professional relationships. Going beyond the minimal ethical considerations about how to end the lawyer-client business relationship, it derives a three-step model that can be used by practitioners and by clinical professors preparing their students for ending meetings with clients to help bring effective closure to the emotional and relational aspects of the representation.

"Reading My Client’s Post-Miranda Admissions In The Police Report"

PD's have a tough job and I appreciate their sense of humor.

Judge lowers the boom on lawyers in the downloading-porn-copyright-infringement cases

Over the last few years, I've had some odd emails and phone calls from people who thought I was the John Steele who had monetized copyright infringement claims against downloaders of adult entertainment. I am not. That was "the other John Steele," a lawyer from Chicago. There were all sorts of problems with the copyright lawsuits and the matter reached a crisis point a month or so ago when a federal judge ordered the plaintiffs' lawyers to appear and show cause -- and "the other John Steele" took the Fifth Amendment in a hearing before a federal judge.

Well, the judge's order has arrived (download below) and it's an interesting one: it quotes Spock from Wrath of Khan; it uses a Google map search pic in the order itself; it has nifty graphics; it refers lawyers to the state bar; it says that lawyers blatently lied. You don't see those sorts of orders every day. Or maybe ever. The order begins:

Plaintiffs have outmaneuvered the legal system.They’ve discovered thenexus of antiquated copyright laws, paralyzing social stigma, and unaffordable defense costs. And they exploit this anomaly by accusing individuals of illegally downloading a single pornographic video. Then they offer to settle—for a sum calculated to be just below the cost of a bare-bones defense. For these individuals, resistance is futile; most reluctantly pay rather than have their names associated with illegally downloading porn.So now, copyright laws originally designed to compensate starving artists allow, starving attorneys in this electronic-media era to plunder the citizenry. [¶] Plaintiffs do have a right to assert their intellectual-property rights, so long as they do it right. But Plaintiffs’ filing of cases using the same boilerplate complaint against dozens of defendants raised the Court’s alert. It was when the Court realized Plaintiffs engaged their cloak of shell companies and fraud that the Court went to battlestations.

Taking a step back, it makes me wonder about monetized and commercialized lawsuits. We've seen that in the context of robo-litigation, monetized infringement litigation, monetized litigation over lack of access in commercial sites, and other contexts. Disaster has followed disaster.

Update: Techdirt has more coverage.

Download Gov.uscourts.cacd.543744.130.0

Record companies went after lawyer: "Sony settles lawsuit by lawyer for gospel artists"

Idaho Statesman: "Sony Music Entertainment has settled a lawsuit filed by a Connecticut lawyer who said record company executives retaliated against him for winning higher pay for gospel music artists."

Read more here: http://www.idahostatesman.com/2013/05/01/2558938/sony-settles-lawsuit-by-lawyer.html#storylink=cpy

Rakesh K. Anand, "Resisting Commercialism"

Article. Abstract:

This essay was presented at a conference on “The Law: Business or Profession? The Continuing Relevance of Julius Henry Cohen for the Practice of Law in the 21st Century.” It addresses a broad social issue: commercialism’s growing impact on society as a whole and how we might think about law and the role for lawyers in light of this state of affairs. Organized around an understanding of both economics and law as cultural practices – and, as such, as ways of knowing, or being in, the world – at least in United States, the broad message of the essay is that (a) the American embrace of the cultural practice of economics has put the political order in a bad place and, thus, the social situation is a troubled one and (b) the cultural practice of law and the legal profession represent a locus within which to assist society in moving in the direction of change.