Legal Ethics Forum

More on San Diego's Financial Troubles

I wrote a while ago about debates in San Diego over the authority of City Attorney Michael Aguirre.  The context for that debate includes disputes over agreements to under-fund the San Diego City Employees Retirement System (SDCERS). 

Yesterday, the grand jury indicted several members of the SDCERS Board of Administration, including SDCERS's general counsel.  The gist of the indictment alleges an that defendants agreed to allow the city to continue under-funding SDCERS in exchange for increased benefits to defendants.  A story (with link to the indictment) is here.

DM

More on the Canine Trend in Lawyer Advertising

While thinking about the Florida anti-advertising case I wrote about a while back, I came across this explanation by a Georgia firm of why a bulldog has become a metaphor for the firm.  Georgia is not Florida, of course, and perhaps Florida would be as unhappy with bulldogs as with pit bulls, but I wonder whether the logic of the Florida ruling implies a distinction between acceptable dog-related ads and unacceptable ones.  If so, we can all debate which dogs uphold the dignity of the profession and which run it down.  Good to know.  It reminds me of the movie "Best in Show": some pets deserve a little more respect than others.

Or maybe it is just that the Florida firm, Pape & Chandler, maintains a slightly unorthodox image.

DM

Update to Rotunda on Vanguard

I previously posted  a link to Professor Rotunda's letter to Senator Specter regarding Judge Alito and Vanguard.  I've posted an update (a response from Ms. Maharaj) that may interest readers interested in her previous letter to me, and in my correction.  The point made in the correction is relevant to the letter.

DM

Top Ten Legal Ethics Stories of 2005

I tried to come up with just 10 stories for a list of the Top Ten Legal Ethics Stories of 2005. I failed.  So I have listed the Top Ten, with 21 honorable mentions.

In my opinion, the top legal ethics themes of the year were (1) judicial independence, which was driven by multiple issues related to the three SCOTUS nominations, political rhetoric directed against judges, the Terri Schiavo case, the tragic murder of Judge Lefkow's family members, and the tragic courtroom shooting in Fulton County; and (2) the rule of law, which was driven by debates over OLC and other legal memos written by John Yoo and others, and by the detainees' suits for access to the legal system.

I'm sure I've missed some obvious ones, but here's the list.

John Steele

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1. Legal advice from government lawyers, including OLC memos by John Yoo and others, on issues such as the Geneva Convention, torture, and intelligence intercepts, prompted widespread debate over the ethical duties of government lawyers.

2. The detainee cases raised issues of access to the legal system and access to a legal defense.

3. All three SCOTUS nominations raised the issue of how far a judge should go in answering the Senate's questions during the nomination hearings.

4. Judicial recusals were once again a hot topic.  Nominee Sam Alito's belated recusal after he had already ruled in the Vanguard case raised debate because he had invested in Vanguard mutal funds. Likewise, the propriety of John Roberts non-recusal in the Hamdan case provoked heated debate.

5.  Criminal defense lawyer Lynn Stewart was convicted for assisting her client, a convicted terrorist, to unlawfully send political messages from jail.

6. For both Roberts and Alito, older memos and briefs raised the issue of whether a lawyer is accountable for the client's views.

7. Scott Wiegand, general counsel of PurchasePro, was acquitted in his criminal fraud trial; Mark Belnick, general counsel of Tyco, was likewise acquitted.

8. The Terri Schiavo case highlighted the role of guardians ad litem and judicial independence.

9. The Jack Abramoff lobbying scandal exploded.

10. Judge Lefkow's husband and her mother murdered, raising concerns about judicial safety and independence. For a time, one suspect was Matthew Hale (who, years earlier, had been denied law license for racist beliefs).

UPDATE: In the comments, Walter Olson suggested that I should have added Judge Janis Graham Jack's ruling which found indications of massive fraud in the silicosis litigation. He's right, so I've added it here.

HONORABLE MENTIONS

11. In the UK, the Clementi Report prompted wide-ranging and fundamental reforms.

12. There were an increasing number of judicial recusals, based on personal conscience, in cases where teens were seeking abortions without parental consent. The recusals highlighted the tension between personal morality and professional morality.

13. Judge Calabresi was admonished by Second Circuit Judicial Panel for inappropriate remarks.

14. The Milberg Weiss investigation continued to simmer.

15. Judge Robert Chatigny threatened disciplinary proceedings agaist a lawyer for a so-called "death row volunteer."

16. Florida State Bar forbade use of ice cream cones and pit bulls in lawyer ads.

17. Ninth Circuit clarified privilege issues regarding a law firm's website communications with potential clients.

18. Massachusetts lawyers were recommended for discipline after tricking a judge's clerk into revealing the judge's in-chambers deliberations.

19. Morgan Stanley and Kirkland & Ellis parted ways, citing conflict, as a $604 million judgment was entered against Morgan Stanley.

20. A Los Angeles jury delivered a $6.5 million malpractice verdict against a public defender.

21. The Arthur Andersen conviction, implicating advice of counsel, was overturned by a unanimous US Supreme Court.

22. The Kentucky State Bar considered a lawyer's blog as "advertising."

23. DOJ lawyers claimed that political appointees had sabotaged the tobacco case damages phase.

24. Ethics allegations dogged David Boies.

25. There was increased focus on, and criticism of, law school rankings.

26. San Diego City Attorney Michael Aguirre raised "who's the client" issues.

27. Large law firms continued to grow larger; more firms adopted two-tier or multi-tier structure; and empirical studies probed satisfaction levels and profitability at biglaw firms.

28. After a hearing, a California judge rejected Jack Quatman's allegations that it was routine practice for prosecutors to keep Jews off of Alameda County death penalty juries.

29. A Fulton County judge, a sheriff's deputy and a court reporter were shot and killed by a prisoner.

30. There were criminal indictments arising out of the structured tax avoidance plan scandal. (Hat tip to Tanina Rostain for suggesting this story.)

31. SCOTUS Nominee Harriett Miers was attacked on grounds of her credentials. Her nomination was withdrawn purportedly on need to protect privilege.

An interesting privilege waiver argument

Via SV Media Law Blog.  The Napster litigation spawned secondary liability suits by record labels against the venture firm Hummer, Winblad.  That firm (represented in part by my old law school friends Mike Page and Ragesh Tangri) recently filed a motion asking the district court to review certain attorney-client communications to see if they fall within crime-fraud exception to the privilege.  The Justice Department investigated the record labels for possible antitrust violations and, the motion argues, the labels responded in part with false statements, a violation of 18 U.S.C. 2001, thus providing the predicate for the waiver claim.  It's a clever theory, especially if in discovery in civil litigation a party contradicted a claim made to a government agency.  The motion is here.

DM

An Interesting Document in the Lerach Investigation

White Collar Crime Profs Blog has an interesting post regarding the continuing investigation into the firm formerly known as Milberg Weiss.  The post refers to a Law.com article, which says Best Best & Krieger, counsel to Seymour Lazar, produced to prosecutors an internal firm memorandum describing the arrangements  with the firm, and saying also that Mr. Lazar did not want the arrangments documented.  A memo documenting the request not to document the arrangements recited in the memo is quite a document. 

DM

Judge Alito and the Vanguard Recusal Question: A Correction

In my post regarding Judge Alito and the Vanguard recusal question, I inferred from the events described in the federal opinion (which I reprinted in part to allow readers to make their own assessment) that a state court had ordered that funds in the relevant Vanguard accounts be dispersed to creditors based on a finding that the funds had been placed in the account by plaintiff’s late husband, Mr. Monga, to avoid the claims of those creditors.  In a letter to me (posted here on December 30), Ms. Maharaj states that no such finding was made. 

After receiving her letter, I have looked into the matter further and determined that Ms. Maharaj is right.  My inference, though I believe it was reasonable, was mistaken. 

Here is a brief explanation.  My inference was informed not only by the federal opinion I reprinted, but by other opinions I reviewed to gain perspective on that opinion.  Taken together, the published opinions on this matter state that Massachusetts courts found Mr. Monga commingled and fraudulently transferred assets, that such transfers violated court orders (i.e., an asset freeze order or orders), that these events caused (or occurred in rough proximity to) the appointment of a receiver, who persuaded the court to extend the asset freeze orders to Mr. Monga's Vanguard accounts.  The record also states that, after such extension, the court ordered that the funds in those accounts be paid over to the receiver, and then to creditors, and that the funds were in fact disposed of in this manner.  My inference reflected what I believed was the most probable explanation for this sequence of events.

As Ms. Maharaj states, however, what I saw as the most probable explanation turns out not to have been what happened.  As I now understand the matter, the sequence of events regarding the Vanguard accounts is as follows: (i) litigation between Mr. Monga and a business associate produced a judgment adverse to Mr. Monga; (ii) a Massachusetts court issued an order freezing certain assets in order to satisfy that judgment; (iii) disputes over asset transfers arose; (iv) a receiver was appointed for the businesses involved in the litigation, and charged with collecting assets; (v) the receiver asserted that judgment creditors had a claim to Mr. Monga's Vanguard accounts; (vi) the court extended the asset freeze order to those accounts; (vii) the parties litigated the receiver's claim and, in the course of this litigation, the court found that Mr. Monga violated certain discovery (or discovery-related) orders; (viii) as a sanction for such violations, the court refused to allow Mr. Monga (and/or Ms. Maharaj) to dispute the receiver's assertion that the Vanguard funds rightly belonged to judgment creditors; (ix) the court therefore ordered that the Vanguard funds be paid to the receiver, and then  to creditors, not on the basis of an evidentiary finding that the funds had been fraudulently transferred, but on the basis of a finding that Mr. Monga had lost his right to contest the receiver's assertion that the funds had been fraudulently transferred; (x) Ms. Maharaj believes the receiver's basis for claiming the funds was insubstantial, but she has been prevented from litigating this claim by reason of the orders mentioned above.

As I say, though I believe my inference was reasonable, it was mistaken.  I regret the mistake: My apologies to readers generally, and to Ms. Maharaj. 

DM

Update: 1/10/06: Ms. Maharaj has sent me the following regarding this post: Download jan_8_06_prof_mcgowan_letter.doc