As for the skills requirement, I'd do things a different way. I'd give the students advice from several sources about what courses they should consider taking, I'd ask the students what courses they want to take, and I'd meet them at least half-way.
The Chamber of Commerce has kicked off a campaign to attack what it calls "sue and settle" litigation where environmental groups sue the EPA, which in turn is all too happy to lose the litigation -- at least in the Chamber's eyes. The Chamber's report is here. A contributor to Forbes has this op-ed.
Story at New York Times about GM's use of King & Spaulding first as litigators and now as investigators regarding a product defect. Excerpt:
And King & Spalding, the law firm that handled the Melton case for the company, has undergone a role reversal. This month, G.M. asked the firm, along with Jenner & Block, to conduct what the G.M. chief executive, Mary T. Barra, has called an “unvarnished” investigation into why the company failed for more than a decade to alert regulators and consumers to the defect.
Saturday's NYT has a James Stewart column trying to understand (as many of us are) why the Dewey indictments included Zachary Warren, who worked at the firm (about five years ago) for two years after college and before going to law school (Georgetown). His mother is a law professor; his father is a retired California state court judge. He is now in the second of two federal clerkships. He has an offer from Williams & Connolly.
I've read what I take to be the main indictment, where Warren is barely mentioned. Stewart says there's a second indictment, which I haven't seen but will search for (or John Steele can post both here).
The mere fact of the indictment, of course, will in some measure derail Warren's personal and professional life, even if he is never convicted. I sure hope Cyrus Vance thought long and hard about this. Right now we can't know the basis for charges or the evidence the state will offer. We'll have to wait to see what emerges.
Stewart quotes Tom Curran, who worked in Robert Morgenthau's office, as highly skeptical:
“The whole thing is bizarre,” Mr. Curran said. “Why indict him twice? Why indict him at all? I can tell you that in Morgenthau’s office, a more measured approach would likely have prevailed. We’d have told him, ‘You’d better get a lawyer because the train is pulling out and you’re on the tracks.’ There must be a reason the district attorney proceeded against this young kid this way, and I and a lot of other people will be very interested to hear what it is.”
[by JJS: at Steven's invitation, I'm posting this link to our earlier coverage, including a link to what I had thought was the one and only indictment, but I will search for a second indictment.]
I don't know much about the Project on Government Oversight, but they havbe released a report (below) on the discipline of government lawyers. A couple of issues that strike me : (1) should the DOJ be the body to discipline DOJ lawyers?; and (2) should the names of disciplined DOJ lawyers be shielded from public scrutiny? Story here at the POGO site. News analysis here, and this excerpt:
Under the George W. Bush administration, the office of professional responsibility made less information on misconduct findings available to the public, the report said, and the Obama administration has continued the pattern.
NSA is firmly committed to the rule of law and the bedrock legal principle of attorney-client privilege, which as you noted, is one of the oldest recognized privileges for confidential communications. We absolutely agree that the attorney-client privilege deserves the strong protections afforded by our legal system, and that it is vital that proper policies and practices are in place to prevent its erosion. Although it is not possible to address press reports about any specific alleged intelligence activities -- and thus to point out the absence of critical factual information in any such reports -- we appreciate the opportunity to clarify our current policies and practices and to work with the ABA to ensure that the public has confidence that our intelligence institutions respect the role of privileged communications.
Let me be absolutely clear: NSA has afforded, and will continue to afford, appropriate protection to privileged attorney-client communications acquired during its lawful foreign intelligence mission in accordance with privacy procedures required by Congress, approved by the Attorney General, and, as appropriate, reviewed by the Foreign Intelligence Surveillance Court. Moreover, NSA cannot and does not ask its foreign partners to conduct any intelligence activity that it would be prohibited from conducting itself in accordance with U.S. law. This broad principle applies to all of our signals intelligence activities, including any activities that could implicate potentially privileged communications.
NSA conducts signals intelligence activities in accordance with Executive Order (EO) 12333 and the Foreign Intelligence Surveillance Act (FISA), as appropriate. As you are aware, under FISA the Agency may not target any unconsenting U.S. person anywhere in the world under circumstances in which the U.S. person would enjoy a reasonable expectation of privacy without an individualized determination of probable cause by a federal judge (absent certain limited exceptions, such as an emergency) that the target is a foreign power or an agent of a foreign power. The term "U.S. person" could include an individual, company, or other organization such as a U.S. law firm. Moreover, FISA states that "[n]o otherwise privileged communication obtained in accordance with, or in violation of, the provisions of this Act shall lose its privileged character." 50 U.S.C. § 1806(a). Finally, FISA also provides that "[n]o information acquired from electronic surveillance pursuant to this title may be used or disclosed by Federal officers or employees except for lawful purposes." Id.
We appreciate that "[t]he ABA understands the critical role that NSA plays in gathering intelligence information and protecting our national security." As the ABA acknowledges,"during the course of these activities, it is inevitable that certain communications between U.S. law firms and their clients may be collected or otherwise obtained by the agency." Given the inevitability of incidental collection of U.S. person information during the course ofNSA's lawful foreign intelligence mission -- to include potentially privileged information -- the issue is how to provide appropriate protections for any such information when it may be acquired. Accordingly, EO 12333 and FISA require compliance with procedures designed to protect the privacy of U.S. persons, which would include U.S. law firms. These privacy procedures must be approved by the Attorney General and, when appropriate, by the Foreign Intelligence Surveillance Court.
These procedures, many of which have been recently declassified and are available at icontherecord.tumblr.com, are designed to minimize the acquisition, retention, and dissemination of information to, from, or about U.S. persons, including any potentially privileged information, consistent with NSA's foreign intelligence mission. For example, these procedures require NSA personnel to destroy any non-pertinent information of or concerning any U.S. person that NSA may incidentally acquire during signals intelligence operations. This destruction requirement applies to privileged as well as non-privileged communications. Moreover, as a general matter, these procedures provide that the dissemination of information about U.S. persons -- privileged or not -- is expressly prohibited unless it is necessary to understand foreign intelligence or assess its importance; is evidence of a crime; or indicates a threat of death or serious bodily harm.
Recognizing that special considerations apply to potentially privileged communications, NSA's approved procedures also contain provisions that expressly address privileged material and require consultation with the Office of General Counsel when such situations arise. For example, NSA's procedures state:
All proposed disseminations of information constituting U.S. person privileged communications (e.g. attorney/client, doctor/patient) and all information concerning criminal activities criminal or judicial proceedings in the United States must be reviewed by the Office of General Counsel prior to dissemination.
USSID SP00018, Section 7.4.
The purpose of this requirement is to ensure that, in the event NSA personnel discover a potentially privileged communication during their review of signals intelligence information, the Office of General Counsel must be consulted on a case-by-case basis to determine whether the information is in fact privileged and, if so, the appropriate steps to be taken.
Although it is not possible to discuss the specific advice provided with respect to any particular classified intelligence operation, NSA's Office of General Counsel has, in the past, provided clear guidance on the appropriate steps to protect privileged information. Such steps could include -- among other advice tailored to the particular facts and circumstances under which sensitive intelligence activities have been or are to be undertaken -- requesting that certain collection or reporting be limited; that intelligence reports be written so as to prevent or limit the inclusion of privileged material and to exclude U.S. identities; and that dissemination of such reports be limited and subject to appropriate warnings or restrictions on use.
Finally, it is important to note that NSA's approved procedures expressly recognize that the acquisition of privileged communications raises particularly sensitive concerns in the context of criminal proceedings. For example, NSA's procedures for certain FISA information state:
As soon as it becomes apparent that a communication is between a person who is known to be under a criminal indictment in the United States and an attorney who represents that individual in the matter under indictment (or someone acting on behalf of the attorney), monitoring of that communication will cease and the communication will be identified as an attorney-client communication in a log maintained for that purpose. The relevant portion of the communication containing that conversation will be segregated and the National Security Division of the Department of Justice will be notified so that appropriate procedures may be established to protect such communications from review or use in any criminal prosecution, while preserving foreign intelligence information contained therein.
Section 4 of NSA's Section 702 Minimization Procedures.
In sum, NSA recognizes the importance of attorney-client privileged communications consistent with our legal traditions and the provisions ofthe Foreign Intelligence Surveillance Act; has privacy procedures approved by the Attorney General and the Foreign Intelligence Surveillance Court to address any incidentally acquired U.S. person information and issues of attorney-client privilege when they arise; has taken a variety of appropriate steps to protect potentially privileged information in any circumstance in which it may be encountered; and works closely with the Department of Justice to ensure that privileged communications are handled properly in the context of criminal proceedings.
My take on this response is that it is not going to give lawyers with foreign clients a great deal of comfort.
With a h/t to Bainbridge, here is a fascinating video, now about one year old, in which a corporate lawyer patiently explains how he committed insider trading. If you start the video, it will begin at the seven minute mark. I am trying to fix that. Start watching from the beginning.
As many LEF readers are aware, there has been growing recognition throughout the profession of the importance of a behavioral approach to legal ethics. Scholarship over the last decade – including two recent articles here and here -- has demonstrated how unethical behavior is often the result of ethical blind spots rather than intentional misconduct. Situational forces, many of which are subtle and hard to detect, exert significant influence on behavior as well. At the recently concluded conference on Law and Psychology at UNLV, a number of ethics experts presented on these and related topics, reinforcing that the time is right for a more sustained discussion on behavioral legal ethics. To that end, a new listserv has been set up to facilitate discussion on a broad array of topics, including teaching behavioral legal ethics in the law school classroom; application of behavioral research in the areas of compliance, ethical infrastructure of firms, the situations confronting solo practitioners and small practice settings, the disciplinary process, and other aspects of the profession; highlighting new and interesting social science research findings; announcements of new legal scholarship in the area and relevant conferences, etc.
Prawfsblawg has a post and a link to an exhaustive list of law school hiring for the last cycle, 2013. New hires can list up to four areas of concentration. Here are the names of new hires who listed professional responsibility, along with how they ranked it. (That is, if the new hire listed PR as the first area of concentration, that is a (1).) That doesn't necessarily mean that the new profs will teach or publish in the PR field, but I still thought it was worth listing.
Nathan Chapman (1) (Georgia)
Oscar Miranda (listed "Criminal and Professional Responsibility" as (1)) (Puerto Rico)