Legal Ethics Forum

SSRN Sends Notice of New Legal Ethics Articles

The most recent SSRN e-bulletin mentions these new articles:

Margareth Etienne of the University of Illinois Urbana-Champaign has written "The Ethics of Cause Lawyering: An Empirical Examination of Criminal Defense Lawyers as Cause Lawyers".

Eric Posner and Adrian Vermuele ask, "Should Coercive Interrogation Be Legal?"

Tanina Rostain, of New York Law School has written on "Sheltering Lawyers: The Organized Tax Bar and the Tax Shelter Industry."

Iowa Supreme Court Orders More Direct Disciplinary Review for County Prosecutors

The Iowa Supreme Court has abolished the procedure whereby ethics complaints against county prosecutors would be heard in the first instance by a board of county prosecutors.  Now, the complaints will go straight to the Attorney Disciplinary Board.

Kenneth Quigley on the Quatman Verdict

[We've devoted considerable coverage to the Quatman affair.  Judge Kevin Murphy recently rejected as unreliable the testimony of Jack Quatman that he had removed Jews and African American women from death penalty juries when he was a prosecutor in Alameda County, and that the late Judge Golde had made similar suggestions to Quatman.  San Francisco criminal defense practitioner Kenneth Quigley sent this letter to The Recorder, and he's permitted me to reprint it here.  Quigley thinks through the implications of Judge Murphy's ruling.]

Perhaps the most important aspect of the Quatman controversy seems to have escaped notice; at least, it has received little public comment.

As I understand the state of things, mostly from reading this publication [The Recorder], a number of Alameda County prosecutors have testified under oath that Mr. Quatman was a nasty, vicious and unethical prosecutor who went so far as to teach his colleagues how to intimidate witnesses by threatening to plant narcotics on them. One after another, they swore that all these things happened while Mr. Quatman was working as a prosecutor. One after another, they described the acts of a foul and unethical man who did not operate within either the law or the ethical rules that govern prosecutors. Their testimony was persuasive: a judge has ruled that the tales against Mr. Quatman are worthy of belief and that he is not.

Quick Hits (4/21/05)

Prosecutors are claiming that Bruce Cutler, formerly counsel for John Gotti, has a conflict of interest in the defense of Louis Eppolito.    . . . .     Susquehanna University's business school students learn from a lawyer-businessman and his wife who both did prison time for crimes and ethical breaches.    . . . .     Who says that tax law practice isn't exciting?  Here's a novel that promises to expose the underside of the tax shelter industry.  The promotion of tax shelters has been heavily investigated in the last few years.    . . . .     An Oregon criminal defense attorney, formerly a prosecutor, is on trial for allegedly bribing witnesses.

Lynne Stewart Interview

A publication called Revolutionary Worker is carrying this interview with convicted lawyer Lynne Stewart.

ABA Announces 2005 Michael Franck Award Recipient

E. Norman Veasley, former Justice of the Delaware Supreme Court and the Chair of the Ethics 2000 Commission, is the 2005 recipient of this award.  Mr. Veasley is currently a senior partner at Weil Gotshal.

Issues Created by Expanded Practice of Interviewing Jurors After the Verdict

The 1983 version of Model Rule 3.5 did not prohibit lawyer interviews with jurors after the verdict, but many courts required that lawyers petition the court for permission.  In 1996, a federal district court in Hawaii invalidated the state version of Rule 3.5 as unconstitutional if applied to post-verdict contact with jurors.  Rapp v. Disciplinary Board, 916 F. Supp. 1525 (D. Hawaii 1996)(Hawaii practice permitted joint counsel interviewing but permitted one lawyer to veto the interview by one side only). 

The 2002 version of Rule 3.5 states that a lawyer should not "communicate with a juror or prospective juror" if: a court order or law prohibits such contact, or the person has informed the lawyer that he or she desires no such communication, or the lawyer's communication involves "misrepresentation, coercion, duress or harassment."  Many judges and lawyers are interpreting this rule to permit interviews of jurors post verdict.

This practice raises several interesting issues:  Do lawyers have a duty to interview jurors to determine if a basis for an appeal exists?  What instructions should judges give to lawyers and jurors post verdict?  Should the judge encourage jurors to stay and talk -- or does such a statement pressure jurors into communications against their will?  Will such a practice lead to a change in the standard for impeaching jury verdicts?  Will this practice lead to jurors who seek celebrity status in cases involving a high levels of publicity?  Will such jurors be honest about what happened in deliberations or will they tell a story that enhances their celebrity status?  Personally, I prefer the old notion that jurors should remain relatively anonymous and silent after the verdict.

Conflicts Checks and Law Clerks -- Rights and Duties of Law Firms

Recently, law students have informed us that their summer law firms are asking the students to provide extensive disclosure about matters on which the students worked at their former law firms.  These disclosure forms ask for all matters in which the student participated personally and substantially and they specifically request client names, opposing parties, the extent of the work, and the case docket numbers.  I open this topic up for discussion.  Is it proper for a firm to ask student law clerks for such information?  Do the conflicts rules require firms to ask for this information or is this permitted under the view that a firm could always be more careful about conflicts than the rules require?  What should a law clerk do when they have signed a confidentiality agreement with the former firm that such information will not be disclosed. 

Model Rule 5.1 and 5.2 require that law firms monitor ethics compliance of lawyers and nonlawyers in the firm.  Student law clerks do not carry with them a taint of imputation under Rule 1.10.  If a firm knew that a clerk had worked in the corporate department of a another law firm in the city, they would have reason to ask whether the student worked on a matter in which the current firm is opposed to the clerk's former firm.  And, the firm could ask law clerks to inform them specifically when they are given an assignment involving a matter in which they had prior work experience so the clerk could be screened off the matter. 

This topic is a serious one with arguments on both sides.  Students have little leverage in this decision.  Many matters are not public so the student who fills out the form and lists the clients could very well be providing the new law firm with confidential information.  Thoughts?

Eliot Spitzer's Conflict of Interest?

The WSJ is running this editorial claiming that New York's Attorney General, Eliot Spitzer, has a conflict of interest and is threatening a corporation (AIG) with criminal charges to induce the company to abandon one of its executives.  (This "abandon your exec's" strategy bears watching over the next few years.) 

Mixing law and politics is tough, especially for a prosecutor running for higher office.  Nod to Instapundit, who found this fact particularly interesting:

Mr. Spitzer's campaign office even paid Google to link a search for "AIG" to a Web site promoting his campaign before it was quickly taken down.

Lawful Rendition?

This piece, by Daniel Bynum, a professor in the Georgetown Foreign Service School, argues that we should not be so quick to condemn the practice of "rendition" — i.e. shipping suspected terrorists off to countries that are not so punctilious about human rights. The U.S. has been rendering detainees since 9/11, as admitted by an unidentified official: "We don’t kick the shit out of [suspected terrorists]. We send them to other countries so that they can kick the shit out of them." Dana Priest & Barton Gellman, U.S. Decries Abuse but Defends Interrogations, Wash. Post (Dec. 26, 2002).