Legal Ethics Forum

Feds Target Plaintiffs Firms?

A fascinating story in yesterday's New York Times says that federal prosecutors are investigating three plaintiffs firms that were instrumental in filing asbestos claims that sent GAF Holdings into bankruptcy.  But the report says that prosecutors are meeting with former employees of the firms and are focusing on witness coaching and supposed pressures that were placed on doctors' diagnoses.  The firms mentioned in the article are Baron & Budd (whose witness preparation memo in an earlier matter was leaked to the press and raised eyebrows); Ness, Motley; and Weitz & Luxenberg.

UPDATE:  I see that Point of Law has posted on this.  It makes me wonder: will an enterprising class of plaintiffs lawyers now go hunting plaintiffs law firms? 

Summer Slowdown

Blogging will be light for a few weeks.

New York Times on Milberg Weiss

NYT has a long article on the criminal investigation of Bill Lerach and his since-reorganized law firm, Milberg Weiss.  The heart of the allegations are that the lawyers paid kickbacks to the named plaintiff, Seymour Lazar.  The case may turn on whether the lawyers paid referral fees or kickbacks:

"MR. BRAFMAN and other Milberg Weiss advocates also say that the payments outlined in the indictment were referral fees paid to law firms representing Mr. Lazar - fees that are common throughout the plaintiff's bar. But legal analysts say that if the fees were paid to the law firms with the unspoken understanding that the money would be given to Mr. Lazar, then that would be improper."

What's Going On (7/14/05)

Judges are bound by the canons of ethics, so isn't it overkill when someone "filed cannon charges" [sic; we hope]  against an Alabama judge?    . . . .    Tomorrow my summer term class in legal ethics will cover law firm life.  I know that Patrick Schiltz's article exploring the downside of large firms is now a classic, but I think you can't beat the so-called Clifford Chance Associates Memorandum, written in New York back in 2002.  (Things have vastly improved in that CC office since then, so the memorandum now stands for the more generic point of how bad large law firm life can get.)  Schiltz sat down to write a devastating piece against law firms, while the Associates Memorandum was an organic expression of associate dissatisfaction.    . . . .    What happens in Vegas may stay in Vegas, but when the intellectual property rights to that phrase are sold for just $1 from a public agency to a private party, it's time to call in the lawyers.    . . . .    One of the UK's largest law firms, Allen & Overy, will be "publishing its set of accounts," which is Brit-speak for opening its books to public inspection.  For some time now, I been seeing law firms act more and more like public companies, and audited annual financial statements are a natural extension of that trend.    . . . .    A Nigerian barrister writes an essay about what his country needs, and has some harsh criticism for the legal profession:

Nigeria (and I say this as a barrister) lacks a justice delivery system that can police good governance and protect the citizenry. It is painfully slow, at times corrupt, manipulated by a legal profession that has forgotten that it was once regarded as a vocation, and by a poorly paid and under-par police force, ill-equipped to investigate or protect. Presently there is no justice.

Race and the Prosecutor's Office

The changing and uneven demographics of the legal profession are always interesting to me.  Workplace diversity has become an issue in the election to become the next District Attorney for Santa Clara County, California.  (That's essentially San Jose, the 10th largest city in the US.  The county is perhaps better known as the heart of "Silicon Valley.")

The DA's office is 77% white, 10% Asian, 6.5% Latino, 4% African-American, and 2% Middle Eastern.  At the PD's office, it's 57.5% white, 24% Latino, 11.5% Asian, and 6% African-American.  (Those stats come from an article in The Recorder, dated July 8, 2005, for which I couldn't find a link.)

One of the local DAs said that minority candidates are often drawn to representation of "underdogs," and hence you have whiter prosecutors offices.  One of my former students explored this issue in a term paper and was able to confirm that that explanation is widely held in the prosecutor and defender communities in the Bay Area.  I don't have any first hand knowledge of this and was wondering if our readers have any.

Randy Cohen, the Politics of Professionalism, and the Print Shop Employee

In today's "The Ethicist" column in the NYT, Randy Cohen's fields a question from a print shop employee who was asked to print a bumper sticker that said, "Defend American Against the Communist / Vote Republican."  The employee found the message "ridiculous," and, wanting to "save [her] energy for helping those who mean well," she didn't want to help the customer correct his grammar.

Cohen's response starts off well: "You should do your job according to the usual professional standards ...."  But, inexplicably, Cohen doesn't follow through on his own suggestion; he doesn't ask, "if the bumper sticker matched your politics, would your 'usual professional standards' prompt you to suggest edits to the customer?"  Instead, Cohen offers the employee an odd mish-mash of say-so pronouncements: you can refuse to print the sticker if your boss consents; given the importance of printers in a free society, you shouldn't refuse to print the bumper sticker except under extreme circumstances; when the bumper sticker is as "loopy," as that one is, you can refuse; you can print it because Cohen and others aesthetically enjoy reading garbled English (like Chinese manufacturers sometimes use); and you shouldn't doubt the customer's sincerity no matter how "foolish[]" and "horrible" his politics.  As is often the case, I'm not convinced by any of Cohen's various and contradictory solutions.

Here's where I'd start.  To what extent is that print shop neutral ground in the agonistic battles of the day and to what extent is it committed to particular positions in those battles?  This raises a difficult issue about professional commitments and personal commitments.  I have no quarrel with a printer who says "we only do [right/left] politics here."  I have little quarrel with a printer who says, "I print what the customer wants."  I myself would be inclined to say, "except at the extremes, I print what the customer wants."  True, that raises the question of what I consider extreme.  But however I define it, I wouldn't call myself "professional" and silently offer two levels of service: one for politics I like and another for politics I don't like.  If I couldn't offer a customer the same service I offer others, I'd decline the job.  To me, the term "professional" requires at least that much.

For lawyers who are inclined to silently offer two levels of service, I suggest renting Cape Fear, either the Robert DeNiro version or (for purists) the Robert Mitchum original.

Weekend Roundup (7/9/05)

Peter Henning, at White Collar Crime Prof Blog, discusses a new case where the application of the "crime-fraud exception" to the attorney client privilege in case of joint representations resulted in a rare order barring a lawyer from discussing some issues with his client.  (When a communication with a lawyer is for the purpose of furthering a crime or fraud, there is no attorney-client privilege.)    . . . .    Gordon Smith, at Conglomerate, reports on the concession of Sarbanes-Oxley's co-author Michael Oxley, that the S-Ox Act went too far and deprived small and mid-sized companies of flexibility.  The Act generated a lot of attorneys fees, but I don't think that was Congress's purpose.    . . . .    Here's a story about a judge tossing out what's characterized as a lawyer's claim that she should have been warned that lying under oath is perjury.  (Somehow I doubt that she phrased it like that.)  I am aware of lawyers and other targets giving statements in civil cases and then being surprised to see the civil matter become a criminal matter.  The simple solution: speak the truth or don't speak at all.    . . . .    In the UK, some corporations are taking the decision about hiring outside counsel away from the GC and giving it to the normal procurement department and other corporations are asking law firms to submit paperless bills.

A Day in the Life of a PD's Investigator

Prosecutors and PDs always have great stories to tell and strong views to share -- and the PD's investigators do too, replete with some salty terminology not found in the Penal Code.  If you want a glimpse of what motivates some on the defense side, check it out.

Tax Lawyer Email Disclaimers

After I posted about those puzzling new email disclaimers from tax lawyers, Eric Goldman and Bill Freivogel were kind enough to enlighten me.  In a nutshell, in the new IRS regs ("Circular 230") governing the rendering of tax advice, all written advice is treated the same, whether the advice is a formal opinion with all the bells and whistles or just a quick email from a Blackberry.  The only way to avoid compliance with the full regs is to have that disclaimer we're now seeing.  Here's how the disclaimer affects the taxpayer: if the taxpayer's position is rejected, the taxpayer cannot raise the "reliance on tax advisor" defense to penalties if the reliance was based upon a communication bearing the disclaimer.  If the taxpayer wants an opinion to rely on, a tax lawyer will provide one without the disclaimer, but given the higher stakes the lawyer will presumably be more thorough and charge more.

This brings to mind an issue a litigator had years ago, when a client wanted some advice on how to avoid the status of "franchisor."  The client had asked a franchise law specialist for an opinion and was quoted a significant fee.  Surely the litigator (who had frequently litigated "franchisor" status) could give that advice much more cheaply, the client suggested.  The litigator had to advise the client that "you get what you pay for."  If the client wanted a good looking opinion letter that would impress a regulator, judge, or jury, it would take some real investigation and prep time.  If the client wanted some quick advice on how to reduce the odds of being declared a franchisor, the litigator would  be glad to look over the contracts and offer suggestions -- but that sort of advice wasn't likely to impress anyone if the client ever wanted to raise the affirmative defense of good faith reliance on counsel's advice.  The lawyer and the client then turned to a discussion of the pros and cons of the expensive route and the cheap route.

If the tax lawyer email disclaimers promote that kind of communication between lawyers and clients, then perhaps the benefits will outweigh the costs of "disclaimer overkill."

Discussion at Volokh about Whether Lawyer's Work for Client Represents the Lawyer's View

When a lawyer writes a brief for a client, urging a controversial stance, is it fair to impute that stance to the lawyer?  There's interesting commentary over at Volokh in the context of possible SCOTUS nominee John Roberts, who as deputy solicitor general wrote a brief stating the administration's position that Roe v. Wade should be overturned.  On the level of lawyer discipline, the answer is obvious and non-controversial: Model Rule 1.2(b) provides that a "lawyer's representation of a client ... does not constitute an endorsement of the client's political, economic, social or moral views or activities." 

But, of course, anyone can sit in private moral judgment when a lawyer presents a client's argument with which he/she disagrees.  I myself don't engage in that criticism.  Others do.  Some people morally condemn plaintiff's lawyers; others morally condemn corporate lawyers.  If that kind of private moral judgment is your cup of tea, by all means indulge yourself. As a formal matter, however, the lawyer is not legally responsible for the client's argument (assuming the argument is not frivolous, not based on perjury, etc.).  To hold lawyers formally to account for their client's position would be to turn the law on itself, so that the process of orderly resolving disputes would itself become a battlefield.  That way chaos lies.  And as a factual matter, one cannot conclude that "if the lawyer made the argument the lawyer must like the argument."

Which leaves one final question.  If John Roberts isn't legally accountable for a non-frivolous argument he presented, and if we're all free to render private moral judgments (pro or con) on Roberts for presenting the argument, should he be politically responsible for presenting the argument?  I'd say no, but just as I'd like to see some deference to the lawyer's role in presenting arguments, I'm inclined to let the senators play out their role as they see fit -- with the caveats that "what goes around comes around" and that punishing the legitimate presentation of a client's arguments serves to erode the benefits of the legal system.