Legal Ethics Forum

California Statewide Ethics Symposium

Saturday, April 16th, at Loyola (LA) Law School, the California State Bar will hold its Ninth Statewide Ethics Symposium (pdf of brochure).  Presenters will include Justice Ignazio Ruvolo of the California Court of Appeal, Professors Geoffrey Hazard, Kevin Mohr, and Arnold Siegel, and a number of California's top practicing ethicists.  The theme will be "Expanding Ethical Responsibilities: Duties to Clients, Former Clients, and Non-Clients."

Some things to know (and applaud?) about legal ethics and the legal profession in California: (1) we have 200,000 active lawyers, which is about 1/6th of all lawyers in the US; (2) although we never adopted the ABA Model Rules, we are undertaking a revision of our rules that should more closely align us with the Model Rules; (3) we have a stricter rule about confidentiality than most jurisdictions and only recently adopted an exception whereby lawyers can reveal a client confidence if that would prevent a criminal act likely to result in death or substantial bodily harm;  (4) we were, and are, leading the national trend toward more requiring written waivers of conflicts; and (5) we have been more client-centric than most US jurisdictions in rejecting arguments to create duties running from lawyers to non-clients.

Ideology and Judging: A Gripe About Legal Journalism

Coverage of the Schaivo case has crystalized for me something that has long been a pet peeve with journalistic coverage of legal proceedings:  I am tired of references in news stories to the partisan affiliation of a state judge or of the president who appointed a federal judge.  To take only one example, this Legal Times story refers to the district judge who denied yet another motion by Schaivo’s parents to intervene as a Clinton appointee, even though the story noted that both conservative and liberal legal commentators believed there was no colorable legal basis for granting relief. 

I would never deny that judges have preexisting political beliefs that may affect the way they decide some cases.  Judges aren’t machines, and it’s a good thing, too.  But one of the fundamental principles of judicial ethics is that judges are duty-bound to decide cases on the merits, impartially and independently, without regard to values and beliefs that are irrelevant to the legal issues in the case.  True, they don’t always fulfill this obligation.  For example, in [insert your favorite bogey decision, such as Bush v. Gore or Roe v. Wade], it is arguable that judges allowed ideology to interfere with an impartial decision.  By and large, though, judges do a pretty good job.  The empirical evidence on ideological influences on judicial decisionmaking is somewhat ambiguous, but several major studies show that ideology plays some role in explaining judicial decisions, but it by no means dominates over other factors.  See, e.g., Cass R. Sunstein, David Schkade & Lisa Michelle Ellman, Ideological Voting on Federal Courts of Appeal, 90 Va. L. Rev. 301 (2004); Frank B. Cross, Decisionmaking in U.S. Circuit Courts of Appeal, 91 Cal. L. Rev. 1457 (2003); Gregory C. Sisk, Michael Heise & Andrew Morriss, Charting the Influences on the Judicial Mind: An Empirical Study of Judicial Reasoning, 73 NYU L. Rev. 1377 (1998).  In particular, the clarity of applicable law is a significant factor, and partisan influences are considerably less apparent where the law is relatively settled.  The residual effect of ideology seems perfectly innocuous where the law is unsettled — there may be a range of reasonable interpretation of analogous cases, statutory language, underlying policies, etc., and judges might naturally tend toward a liberal or conservative interpretation within this range of reasonableness.  In the Schaivo litigation, however, there is no good faith argument that the law is the slightest bit ambiguous; thus, referring to the district judge as a Clinton judge suggests some kind of invidious failure to follow the law.

In general, I would prefer to see journalists refrain from insinuating that judicial decisions are ideologically motivated unless there evidence for this suggestion, and the evidence is explored in the story.  Otherwise, the references tend subtly to support claims about partisan judging that are not borne out by the data. 

Dividing Companies from Officers

Yet another story about the wedge the DOJ is driving between companies and their officers/directors.  This bears close watching over the next few years.  I understand why Enron and WorldCom are prompting new enforcement tactics.  But I don't think we want to reach the point where large numbers of corporate officers in the US think of their companies as fair weather friends.   As I've commented before, we also don't want corporate agents to view corporate attorneys with distrust.

DA Blasts "Stupid" Jury

A reader asks whether it was ethical for District Attorney Steve Cooley to blast the jurors in the Robert Blake case as being "incredibly stupid," and to say that the now-acquitted defendant Robert Blake is a "miserable human being" who is "as guilty as sin."  Longer story here.  (Volokh has also commented.)

Clearly, it's bad form and tends to denigrate the service of the jurors.  Whatever happened to, "we respect the jury process, and abide by the results, be they acquittals or convictions"?  Or even, "the law delights in an acquittal no less than in a conviction, for in either case justice has been done."  (Try telling that to a prosecutor who just lost one.)

Anyway, the Model Rules have two rules that touch on comments by prosecutors.  Rule 3.6 governs comments that may materially prejudice an adjudicative proceeding, but since the trial is over, that rule probably has no application here.  Remember, though, that California has its own ethics rules.  In this case, California's Rule 5-120 is essentially the same as the ABA rule.

Rule 3.8 might touch on this.  It forbids the prosecutor from "making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused."  It doesn't say that the rule applies post-trial.  Anyone know if that's true?  Regardless, California does not have a similar rule, so I can't see invoking it against Cooley.

Standard 3-5.10 of the ABA Standards Relating to the Administration of Criminal Justice seems to be directly on point: "The prosecutor should not make public comments critical of a verdict, whether rendered by judge or jury."  However, those rules are not, to my knowledge, strictly binding anywhere and certainly not in California.

So far, I'm tempted to conclude that Cooley's comment do not create disciplinary liability, but are obviously in horrible taste, erode faith in the system, and ought not have been made.  Any other opinions out there?  Defamation may be a different issue, but I can't see Blake wanting to bring a claim like that.

UPDATE:  OK, this is better.  Today's San Francisco Daily Journal (sorry, no link, since that newspaper treats its articles like state secrets) has a Letter to the Editor from Steve Cooley, showing that he knows the right way to respond to a difficult verdict.  He wrote:

Your [Daily Journal] article on the outcome of the much-publicized trial of Robert Blake casts the criminal justice process as simply a strategic game in which a verdict of acquittal my be seen as a "stinging setback" or a "major loss" for the prosecution.

A prosecutor's goal is not merely to obtain convictions, but to present the evidence in support of the charges in an evenhanded fashion, leaving the ultimate judgment of the relative convincing force of that evidence to the members of the jury.  That juries will sometimes find guilt and sometimes entertain a reasonable doubt, as in the Blake case, does not transform the system into a score-keeping game of winners and losers.

Cooley then praised Shellie Samuels, the deputy district attorney, for her expertise and professionalism and said that she "is typical of the hundreds of dedicated professionals in my office who do not shrink from tough cases on behalf of our client, the people of the state of California."  Cooley finished by saying, "The Los Angeles County district attorney's office will continue to stand and fight for victims who can no longer stand and fight for themselves."  I am glad to see that Cooley does know the right way to publicly address a tough loss.

A second Letter to the Editor, from Andrew Stein, quotes Joseph Buch, LA's former DA, as saying something similar to the quote I suggested above.  Buch said, "the LA District Attorney never loses a case; when a guilty verdict comes in, justice was done!  And when a not-guilty verdict comes in, justice was done!"

Quick Hits (3/24)

This article says that a federal court in North Dakota has struck down the judicial code of conduct barring certain campaign speeches by judges.  The US Supreme Court ruled in favor of judicial free speech in Republican Party of Minnesota v. White, and many of us have been worried about the long term effects of judicial partisan electioneering on the public's faith in the judiciary.     . . .     When you search the news for references to "ethics" you get a lot of local news about what kinds of gifts, if any, local government officials can accept.  Those disputes can create a lot of disagreement, like whether the list price of a Boston Red Sox playoff ticket is less than the ticket's real value (my intuition says "yes"), and whether "gift" is the German word for poison (my intuition says "no comment").    . . .     Sometimes, "ethics" is just a brick they throw at you.  Here's a story about a lawyer who faithfully represented a town for 16 years, but nearly lost that job because someone cried "conflict."  Upon fuller reflection, everyone realized that there really wasn't a conflict after all.    . . .     Lawyers are seeing an uptick in client requests for living wills, health care proxies, and the like after the Terry Schiavo case rose to such prominence.  Perhaps that tragic scenario will result in fewer such cases in the future.    . . .     The Southern California town of South Gate is suing law firms that represented town's treasurer, Albert Robles, when he was criminally indicted.  One major law firm that reportedly settled with the city by paying $2 million arising from alleged over-billing says that one set of politicians hired the firm and were pleased with the work and then another set of politicians simply didn't want to pay.  The town had rung up $11 million in legal fees in just two years while its normal budget for annual legal fees was $700,000.

Practitioners' Corner

Law.com is reporting (sub. reqd) that an appellate court has revived claims against noted civil rights advocate John Burris for supposedly recommending that a client hire another lawyer who then allegedly stole the client's money.    . . .     The former partners of Brobeck have agreed to pay $23 million to the estate and release $36 million in claims they had against their firm.  In related news, the Brobeck estate has once again accepted $500,000 in legal fees from former client Tickets.com.  The fee agreement between Brobeck and Tickets, negotiated during the representation itself, had all sorts of "kickers" and "multipliers" that would increase Brobeck's fee under certain conditions, and Brobeck figured that it was owed far in excess of $500,000.  The firm and the client began to litigate over the fees owed.  Legal ethics expert Richard Zitrin, testifying for Tickets, described the fee agreement as the worst one he'd ever seen.  A judge found the fee agreement unconscionable, which coupled with Tickets apparently poor financial position, prompted the initial $500,000 settlement.  Then the trustee heard that the financial fortunes of Tickets.com had improved, and the trustee tried to re-open the settlement and get more cash.  After a hearing on the matter, US Bankruptcy Judge Dennis Montali urged the trustee to accept the previous settlement, which he did.  The papers filed on behalf of Tickets.com recounted a supposed statement from the firm that "Brobeck had Tickets by the balls."  You don't often see that kind of language in federal court filings.  Unfortunately, the interesting article in the San Francisco Daily Journal isn't available on internet.    . . .    

Update on Quatman, Judge Golde and the Alleged Exclusion of Jews from Death Penalty Juries in Alameda County

Updates here, here, and here.  Pretty amazing testimony about how juries get picked, and about a former prosecutor who had significant "issues" in the workplace.  It's shaping up to be a credibility dispute, with a death penalty hanging in the balance.

UPDATE:  Today's testimony hit back hard at Quatman.  One prosecutor testified that Quatman said that he would intimidate witnesses by suggesting that if they didn't cooperate, Quatman would have cocaine planted on them.  Judge Kevin Murphy has the difficult task of determining what really happened back in 1987.

Should Corporate Executives Keep Bonuses Based upon Erroneously Computed Profits?

A NYTimes article raises a very interesting business and legal ethics question.  Should a corporate executive keep a bonus paid, but subsequently determined to be based upon erroneously calculated profits?  Is this similar to the accounting error at the cash register when the clerk gives you change based upon an assumption that you gave the clerk a $50 bill even though you gave the clerk a $10 bill?  In 2001, the El Paso Corporation reported a $93 million profit and its CEO received close to $10 million in bonuses for his performance.  In 2003, the CEO was ousted and a review of the 2001 year showed that aggressive acccounting methods yeilded a profit when the year should have shown a $447 million loss. 

The article reports that few corporations ask executives to return bonuses based upon erroneous information.  In some cases, the litigation costs may exceed the exective bonus.  In other cases, the corporation wishes to avoid negative publicity.  Or an employment contract may cover the question of returning sums that have been paid in the past.  But even when these questions do not exist, corporate boards rarely seek to reclaim the improperly paid bonus.  Sarbanes-Oxley may change this practice if the SEC were to issue a signal through an investigation of one or two corporations as to why they did not pursue the erroneously paid bonus.   Reporting obligations and the duty to shareholders could form the basis of such an investigation.  Economic analysis could support imposing an incentive on executives to use more conservative or accurate methods of accounting.  Otherwise, why not inflate the books for a large bonus if there is no chance that the executive will need to repay it.

Legal Ethics around the World (3/23)

This interview gives an interesting look at lawyering in Gambia.    . . .     This article at the Human Rights Watch site discusses the need for the rule of law and an independent judiciary in parts of Pakistan, in light of the system's failure to redress an alleged gang rape.  The author complains, "These judges are meant to dispense justice without any training in judicial ethics and conduct, interpretation and application of the law, or even the basics of judgement writing. And they lack the staple of a proper judiciary: independence from the executive."    . . .     Big, structural changes are afoot in for the Law Society of England and Wales.  As part of the reforms, the Society is separating its roles in regulating and promoting the profession, as was recommended by a government task force.  To add independence to the regulatory process, the Society is seeking a broad base for its oversight boards. 

"The Consumer Complaints Board will oversee the handling of complaints about solicitors.  It will have a non-solicitor chair and eleven other members, the majority of whom will be non-solicitors. The Regulation Board will govern the Society’s other regulatory activities including rule making, legal education and investigations into suspected misconduct.  It will have sixteen members with a solicitor chair, eight other solicitor and seven lay members."    . . .   

At the same time, the Society is urging the government to crack down on "unregulated, rogue legal advisors."  The expected reforms will permit a proliferation of legal service providers, including public ownership and corporate ownership of legal providers.  This seems predictable if we view the profession as negotiating with the state for a "regulatory bargain" that will protect the profession's income and social standing.  It was apparently necessary as a political matter for the Society to loosen its grip on the regulatory function, and now that the reforms are opening up legal services, the existing professionals are insisting on regulation aimed at quality control for the new providers of legal services, but which also could have the effect of reducing competition and shoring up price.  It appears that the UK legal profession is losing a significant degree of "social closure."

UPDATE:  Law.com is carrying this article on the reforms, which will open up the profession more than I realized.  It might make for a great laboratory for structural changes in the US.  If citizens in the UK start getting fleeced -- or if they start getting affordable legal services -- we might draw different conclusions in the US about whether or not the reforms should move across the Atlantic.  The ethicalesq. (David Giacalone) has been covering these reforms at his blog.

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