Legal Ethics Forum

Harsh Comments by Judge in Successive Representation Case

A judge in New York City has disqualified Epstein Becker & Green from representing the plaintiff in a case alleging the defendant had raided some of the plaintiff's employees.  The judge claimed the firm exhibited a "fundamental lack of appreciation for the obligations imposed" by the disciplinary rules.  That's a bit unfair, although the judge's decision looks right to me. 

This is a complicated successive-relationship case, involving previous representation by Epstein Becker not of the defendant in the raiding lawsuit but of an investment bank conducting due diligence as part of the defendant's IPO.  In the course of the due diligence process, Epstein Becker had access to confidential information on the defendant's competitive strategies, its need to recruit and retain senior employees, and its thoughts about defending raiding actions.  It is well established that even without a formal attorney-client relationship, a firm can acquire implied professional obligations to a party that shared confidential information with the firm.  If these confidences may be used to the advantage of a new client in a subsequent case, the representation of the new client is deemed "substantially related" to the previous matter.  The judge also reacted harshly to Epstein Becker's attempt to screen off the lawyers involved in the IPO from those handling the raiding litigation.  Unfortunately for the firm, courts that have accepted screening to cure imputed conflicts have done so almost exclusively in the context of laterally hired, "migratory" lawyers. 

From the story in the New York Law Journal, it appears that this is the right decision, but rather than suggesting that the firm was disrespectful of the law governing lawyers, let's just admit that the law in this area is highly specialized.  Implied professional obligations and screening create complications in the analysis of successive representation conflicts. 

Each Day Brings New Accusations

Just because someone files an ethics complaint, we shouldn't assume anyone did anything wrong.  Ethics charges get lobbed far more often than they strike home.  As I often say, "sometimes, 'legal ethics' is just a brick they throw at you."  So, these stories illustrate only the kinds of allegations being raised these days.

Here's news that a new ethics complaint alleges that a former justice of the West Virginia Supreme Court of Appeals is doing TV ads in a judicial robe, soliciting clients for a Vioxx class action.  The allegations may eventually cause her chronic pain  . . .   Sometimes a trial attorney is elevated to the bench and watches while her trial conduct is the subject of an appeal.  Here's news of a former prosecutor and current Texas judge who sought to intervene as a witness in a death penalty appeal, apparently to justify her behavior as prosecutor and to deny charges that she withheld informaton from defense counsel.  The judge was caught between a rock and a hard place: the death penalty appeal accused her of bad conduct as prosecutor, and when she stepped forward to clear her name she was accused for stepping forward to clear her name.  . . .   Here's news that a justice of the Rhode Island Supreme Court built his own personal web site and then quickly killed it after ethical questions were raised about whether the site. 

The Living Dead?

"Law schools are needed to bring normalcy to law education and to get rid of the test takers who look like the living dead as they prepare for the state bar."  Sound familiar?  But they're talking about law school reform in Korea.  Does anyone out there have familiarity with the Korean system?

Don't Fix Tickets

A sitting judge once told me that at her initial ethics training, the new judges were told repeatedly, "do not fix any tickets for any reason, for anyone."  It looks like a prosecutor could learn that lesson the hard way.

Another Quick Hit ...

Former partners of the bankrupt Brobeck firm have agreed to pay the bankruptcy trustee $22 million -- although former firm chair Tower Snow reportedly isn't signing the settlment.  Since the collapse of Brobeck, attorneys moving laterally have paid far more attention to law firm debt structure and the laws of recourse.

Quick hits ....

Quick hits from the news wires:  An administrative judge has granted job reinstatement, back-pay, and attorneys fees to a Sarbanes-Oxley whistleblower who had filed one of the 144 whistleblowing claims with the Department of Labor since the law took effect.  . . .   The First Circuit reversed a trial court finding and absolved two biglaw lawyers of charges that they had filed a false affidavit.  . . .   Over in Gambia, judges and the bar opened a two day conference on a code of judicial ethics.  I wish them well on that project   . . .   As John Dzienkowski noted in a post below, we in the US are in the middle of revisions to the ABA Model Code of Judicial Conduct.

Lawyer Advertising: Then and Now

In his 1953 classic, Legal Ethics, Henry Drinker recounted a traditional rule about advertising by hanging a shingle outside your office: to determine whether the shingle is too conspicuous, "the test is whether the sign is intended and calculated to enable persons looking for a laywer, already selected, to find him, or to attract the attention of persons who might be looking for a lawyer, although not for him."  (p. 231)  Anything more conspicuous than that is too much.  An elegant rule for a more civilized age, perhaps.  Compare that with my favorite example of gonzo TV advertising: Jim "The Hammer" Shapiro, whose TV ads promised to "rip out the hearts of [the defendants]" and "hand you their severed heads."   (Unfortunately, the ads take a very long time to download.)

Early Success of Sarbanes-Oxley?

How well are the Sarbanes-Oxley Act reforms doing?  Proponents of the SEC's new legal ethics code have pointed to the Azteca affair as proof that permitting lawyers to reveal client confidences can result in better corporate behavior.  When Azteca's lawyers learned of self-dealing by a director, the lawyers withdrew from the representation and reminded the client of the lawyers' legal right (but not obligation) under the Act to inform the SEC of the problematic transaction.  Shortly after that, the matter become public and the law enforcement moved in.  Last month the SEC published a press release with an update on the entire affair.  As news arises that business interests are now pushing for partial rollback of Sarbanes-Oxley, we need to tally the costs and benefits of the Act -- and the Azteca affair is touted as one of the Act's big wins.

The Boss on Legal Ethics

Widener Law School in Harrisburg, PA, is sponsoring a conference on February 24th entitled The Lawyer as Poet Advocate: Bruce Springsteen and the American Lawyer.

The conference announcement explains the connection:  "In his music, Bruce Springsteen has consistently embraced the lost, the left-out, and the passed-over, and he has never failed to recognize how much of him they are.  A remarkable storyteller with great sensitivity to detail, Mr. Springsteen is able, in the duration of a single song, to draw his listeners into the life of his subject and then to invite those listeners to comprehend and embrace the essential truths contained in that life."  Does this description fit the lawyer’s role as well?  "Like the poet, the American lawyer is called to discern what is real and what matters, certainly for his client, but also in his own life and work.  The American lawyer even can resemble that poet from Bruce Springsteen's Jungleland who reaches "to make an honest stand" haunted by the fear that ultimately he may "wind up wounded, not even dead."  An all-star lineup of lawyers, judges, and law professors will be on hand to discuss lawyers and the gritty streets of Asbury Park.  (Pennsylvania and Delaware lawyers can get 6 hours of CLE credit.)

Judges and Politics

Hofstra Law School, which is well known for its Institute for the Study of Legal Ethics, has devoted the most recent issue of its law review to a conference on judicial ethics.  A number of articles address the issue of judicial elections, particularly in the wake of the Supreme Court’s decision in Republican Party of Minnesota v. White.  In that case the Court held that a candidate for judicial office had a First Amendment right to announce her views on disputed legal or political issues. There seems to be a sense that judicial election campaigns have become more like conventional races for legislative seats and, moreover, that this is a bad thing.

This view reflects a prevailing assumption about judging, namely that a judge’s political beliefs are (or should be) irrelevant to how she decides cases.  But surely we accept that some judges may be "tough on crime," while others are more lenient on criminal defendants; some judges think we go too far to protect the environment, others believe we don’t do enough; some judges tend to be hostile to insurance companies, while others think the tort system is running amok; and so on.  If these ideological differences exist, isn’t it better that voter in judicial elections have adequate information about candidates’ underlying political views?  We can still insist that judges do the best they can to put politics aside, but it seems like a strange kind of regulation by proxy to forbid judges to talk about beliefs they have.  Pretending judges are apolitical doesn’t make it so.