Legal Ethics Forum

Gonzalez-Lopez Is Out: Defendant's Right to Particular Counsel Matters

I haven't see the opinion yet, but it's being reported that Scalia joined the liberals to protect a defendant's right to counsel.  See here and here.

The ABA as Law Breaker and Guild Protector

With a nod to Todd Zywicki at Volokh, here's news that the ABA acknowledged that it committed multiple violations of an antitrust consent decree.  On the one hand, it's a jaw dropper to read that the ABA is a law breaker and that law professors and deans were an integral part of the violations.  On the other hand, it's what you'd expect: the ABA and the law professors use the law school accreditation process like any other cartel-seekers would.  They use it to reduce competition, increase uniformity, reduce output and increase price.

I understood that the ten-year consent decree was set to expire this month, and I'm guessing that this news arises out of an end-of-decree review process.  The smart money says that the conset decree will be extended another ten years or so.

Class Counsel and the Presumption of Innocence

Since being indicted, the Milberg firm has had a hard time retaining its status as class counsel in some cases.  (It has also had a hard time with some clients, but that is their call and not really the subject of my point here.) (The WSJ Law Blog reports here and here and the Recorder here.)

I find this fact a bit troubling.  I guess I can see why judges might want to guard against settlements unraveling or other procedural problems that might arise if someone wanted to argue that the indictment rendered the firm suspect as class counsel.  Adequacy of representation matters, and judges have to take seriously their obligation to see to it that class members are well-looked after by class counsel. 

But I don't see a relationship between the indictment and Milberg's abilities.  For one thing, the indictment doesn't prove anything.  Milberg is presumed innocent until proved otherwise, and the indictment is not proof.  Even if that were not the case, the indictment does not allege that Milberg has acted incompetently in representing class members.  (As I noted earlier, so far as I can tell if the alleged kickbacks had not been paid the firm would have kept the money as part of a court-approved fee award, so I don't think the allegations imply that the firm cheated class members.)

I don't think we are better off in a world where everyone flees indicted firms or companies just because they are indicted.  That sort of reaction magnifies the already substantial power of prosecutors.  Flight from the firm could create a solvency problem for it, which would be a valid concern when choosing class counsel, but it shouldn't be brought on by judges treating the indictment as proof. (Clients can do what they want.)

(I suppose one could also argue that the firm would not be adequate class counsel because it would be preoccupied with defending against the indictment.  That would be a fair point, but it is intensely factual and I am not sure that courts have actually adopted this reasoning in the relevant cases.)

Now there is a report that class action firms that compete with Lerach, Coughlin, the West Coast firm created after Milberg split in 2004, are trying to persuade judges not to appoint the firm as class counsel.  They point out that Bill Lerach, the firm's head, has been under investigation in the same investigation that produced the Milberg indictments, and that the two firms were one only a couple of years ago. 

Well, OK.  But so what?  Again, an indictment is not proof, and an investigation isn't either.  I hope we have not got to the point where the suspicion of a prosecutor is enough for judges to presume that people are bad actors who should not be trusted to run the type of case they are widely considered the best at running.   

I think everyone should chill out for a while.  Clients can do what they want.  As to judges, let the Milberg case get tried, or have pleas entered, before treating the Milberg firm as tainted.  The risk of class members successfully attacking the lawyering on some aspect of the case is not very high, and is in any event unrelated to the acts alleged in the indictment.

As to people or firms who have not even been indicted, maybe they should be treated as people and firms who have not even been indicted, and who would be presumed innocent if they were. 

DM

Balance for who?

I recently finished drafting a report for the San Diego Lawyers Club Balance Campaign.  Lawyers Club is essentially San Diego's women's bar association, and its Campaign is based on efforts by similar entities in other cities to encourage legal employers to adopt and support workplace policies designed to allow lawyers to balance more successfully their work and outside commitments.  Perhaps the most noteworthy such effort to date has been the San Francisco Bar's No Glass Ceiling initiative, pursuant to which 76 law firms agreed to specific employment targets within a given time frame (e.g., 25% women partners by January 1, 2005).  The San Diego Campaign does not involve such specific targets, but rather asks legal employers to commit to the principle of balanced lives for their lawyers, and to consider a variety of specific policies designed to help to achieve that goal.  The report itself breaks no new ground, but rather summarizes the work of leading writers in this area, including Joan Williams, Cynthia Calvert, Deborah Rhode, and Cynthia Fuchs Epstein.  A version of the report will be published in the Thomas Jefferson Law Review later this summer.

No sooner had I finished patting myself on the back for a service project well done, than I came across a thought provoking and well argued new article by Michael Selmi and Naomi Cahn, Women in the Workplace: Which Women, Which Agenda?, 13 Duke J. Gender L. & Pol'y 7 (2006)) (available on SSRN too).  Selmi and Cahn contend that while too much work and too little time for family may be real problems for professional women such as lawyers, for non-professionals, who make up the vast majority women workers, the problem isn't too much work, but rather too little work, or at least too little income.  The higher incomes earned by professional women give them options to "contract out" or pay for domestic services such as child care or prepared meals, while other women workers lack these options.  For this reason, most women workers are unlikely to be able to benefit much from proposed solutions to work/family conflict that have been endorsed by most writers on the subject (including myself) such as part-time work, flex-time, telecommuting, and job-sharing, all of which involve trading income for less work.  Rather, Selmi and Cahn suggest a number of measures, including longer school days, publicly supported daycare, efforts to reduce domestic violence, and changed attitudes (pursuant to which men will perform a greater share of domestic work) that are much more likely to benefit far greater numbers of women workers than the above-mentioned policies.

In the end, I don't think Selmi and Cahn's arguments suggest that women and men lawyers should abandon efforts to get legal employers to be more accommodating and supportive with regard to balance issues.  They do suggest, however, that when we focus on balance issues in the legal practice setting, we are only looking at a small piece of what is admittedly a much larger issue.

Steve Lubet on "Lawyers' Poker"

David McGowan has kindly invited me to respond to his very thoughtful (and generous) review of my book, Lawyers’ Poker: 52 Lessons That Lawyers Can Learn from Card Players. First, let me say that David’s key insight – that the book is really about rational choice, cognition theory, and law practice – is exactly right. But please don’t let the word spread too far beyond these precincts, as that might foil the marketing plan.

Beyond that, I have only a few points to add:

David notes that a poker strategy based on expected value (play winners, fold losers) will in the long run "prevail over other, more idiosyncratic" approaches, but that is not quite right. A predictable strategy will result in only minimal profits, because other players will quickly learn to recognize a "rock" who only bets on sure winners ("the nuts," in poker slang). Thus, the truly optimal strategy is to appear idiosyncratic yourself, so that opponents can never tell whether you are bluffing or betting for value. In the book, I identify two essential rules for successful poker:

Rule One. Show strength when your cards are weak (so that opponents will fold), and weakness when your cards are strong (so that opponents will build up the pot).

Rule Two. Occasionally violate Rule One in unpredictable ways.

Along that same line, David observes that card players need to do more than "calculate expected gains and losses using Von Neuman-Morganstern utility functions," which is absolutely true. In fact, I have heard it said that Von Neuman was a regular poker player, but a very poor one. I once mentioned this trivium to an appointments candidate (an academic game theorist), and he refused to believe me.

"How could that be?" he said, "since Von Neuman could obviously calculate the correct odds in every situation."

"There’s lots more to it than that," I replied, "because you have to read the other players and anticipate their moves, or better yet, influence their decisions."

"But it’s still just a matter of figuring the odds," he insisted.

Explain as I might, he never got the point (or the job, for that matter, though I don’t think our appointments committee was heavily influenced by his poker naivete).

There are many lessons here for law practice, but one of the basic ones is that every litigation "move" is both an act and a signal. At a deposition, for example, there is a performative aspect to each question and answer – the production of information. But there is also a signaling aspect, in which each player reveals (or disguises) her intentions, in the hope of influencing here adversary’s reactions. Gathering information is good, but influencing the opposition’s settlement posture is better. (David suggests that this sort of maneuvering requires something "other than intelligence," but I think it’s more accurate to describe it as another facet of intelligence – albeit one that is not much appreciated in law schools.)

Finally, I must disclaim David’s fifth rule. He cautions that you should "Never, ever, EVER play cards with Steve Lubet," but in fact, I have to admit that I am not an accomplished card player. I have studied poker in depth for the purpose of applying its principles to law, but that doesn’t give me an advantage at the card table (you wouldn’t expect a Law & Literature scholar to be a great novelist, would you?) So it would be perfectly safe for you to play poker with me; in fact, you would probably take me to the cleaners. Unless I am bluffing . . .

Legal Ethics Book Club: Steve Lubet's "Lawyer's Poker"

I have been working on a couple of articles that try to integrate legal ethics, rational choice theory, and cognitive decision theory (my term for work in social psychology, behavioral and experimental economics, cognitive science, philosophy, and neuroscience that elaborates on and qualifies rational choice theory). The upshot of this work is that affect and reason go together, and rational choice is necessary but not sufficient to talk about judgment.  (Adam Smith said all this in 1759, in The Theory of Moral Sentiments (the first work of behavioral economics), but now we have brain scans to prove it.)

So I’m working hard to integrate all these things in a readable and practical way, when I open my mail and find a review copy of Steve Lubet’s Lawyer’s Poker: 52 Lessons That Lawyers Can Learn From Card Players.  Now, I don’t play cards.  Never have; never will.  I am baffled to the toes by the poker craze of the last few years.  I mean, watching TV is bad enough, but watching people sitting around a table trying to look expressionless?  Good grief.   

But I do know three things about Steve Lubet: (i) He’s smart as a whip; (ii) he writes beautifully (he is the only law professor I know whose writing has been complimented by Larry McMurtry, which is a bit like having George Foreman say you pack one helluva punch); and (iii) he always says something interesting. (Update--you can find some more of his writing on law and poker here.)

So I read the book, and I’m going to throw in my two cents on it (the highest stake I’ll ever play). I’ve asked Steve to post a response, and he’s agreed.

Here’s the short of it: Don’t be fooled by the cards on the cover, the colorful accounts of “Texas Dolly” Bunson and Puggy Pearson, or even the appearance of Legally Blonde and My Cousin Vinnie.  Using poker as a leitmotif, Professor Lubet has written a book about integrating legal practice, rational choice theory, and cognitive decision theory.  He is talking about exactly the things needed to help lawyers and students develop the most important skill they can have: good judgment.  And he does it with a clarity and succinctness that is truly elegant.

More specifically, Professor Lubet’s book is about the most difficult and most important aspect of judgment: how you make choices when dealing with other people who are acting in part based on their perceptions of you and how you will act. Even a non-card player like me can appreciate the strategy of discussing this aspect of judgment in a form many people can appreciate more than the more formal apparatus of game theory. 

Now for the long of it.  The baseline for Professor Lubet’s analysis is rational choice theory.  You maximize expected gains, minimize expected costs, and calculate each based on the information available to you, including both the fixed elements (the cards in the deck and their possible combinations) and the variable ones (other players).  Ignore sunk costs; keep your cool.  The lesson here is that, in the long run, this strategy will prevail over other, more idiosyncratic ones.

In the short run, of course, the most rational player in the world can lose a bundle to the lucky fool.  So a top player needs more than the ability to calculate and implement rational strategies: She needs the wherewithal to withstand losses when she has played perfectly but not had the luck of the draw.  That is a very different quality than is needed to calculate expected gains and losses using von Nuemann-Morganstern utility functions.

And, as Professor Lubet shows over and over again, the truly successful player needs one more quality.  He has to make other players believe things he wants them to believe so they act in ways he wants them to act.   

At a general level, this is the most important point in the book.  In poker, as in law and life, you are part of every judgment you make.  Your temperament influences your judgment, a fact you have to be aware of, but you also have to remember that your best choice depends on what some set of other people do.  And what they do depends on what they think you will do, etc., etc.  Professor Lubet’s lesson—that a player’s actions represent to other players a story the player wants his opponents to believe—is as crucial as it is generalizable. 

Poker and law are different, of course.  In poker, deception and cold-bloodedness are unambiguously good.  That is not true in law.  Professor Lubet is scrupulous in drawing just this distinction, however, and even points out a rule of poker—the cards win even if players fail to realize it—that is cleaner and in some ways more honest than litigation.

Poker also presents cleaner probabilities than law.  You know there are 52 cards, and can calculate probabilities based on that fact.  You also know who the other players are.  In law and life you have to figure out for yourself who is in the game, what choices they have and, vitally, what the other players are likely to do given the sort of players they are.  Some of this is obvious, but a lot of it is not, and no one flips a card at the end of the day to tell you whether you were right. 

But this difference reinforces rather than dilutes Professor Lubet’s point.  Perspective, and a feel for affect as well as logic, is especially important when you have to ascribe the payoff structure rather than take it as given. 

In the spirit of academic reviews, I have a couple of quibbles with the book.  It focuses on litigation to the exclusion of transactional work.  Deal-making is arguably more similar to poker than at least civil litigation, with its endless discovery and pre-trial procedure.  The book also tends to focus on interactions between opposing parties.  Its lessons can be applied within firms, though, and they need to be. More than one lawyer has found trouble because the real enemy was the partner she worked for.

(Two other, nonsubstantive, quibbles.  How could a book like this leave out Paul Newman’s unforgettable bluff in Cool Hand Luke, and doesn’t The Princess Bride deserve honorable mention for its “Battle of the Wits” scene, even if it’s not about poker?)

Finally, the book also poses a problem for legal education by rightly implying that there is a lot more than brains to successful lawyering.  In the real world of practice, returns to IQ are initially quite steep but flatten quickly.  Highly successful lawyers have to be very smart, but there are a lot more smart lawyers than highly successful ones.  Some things other than intelligence distinguish the two, and Professor Lubet’s book can be read as an illuminating tour of what those other things might be. 

For me, at least, that poses the question whether we can help our students acquire these other skills, or at least to determine that they do not have them, so they can avoid career paths that ultimately will not suit them.  Perhaps we can’t do anything about it, but it does seem to me worth thinking about.

My quibbles call for extending the book rather than altering it, so consider this an advance order for the second edition. In the meantime, I am glad to add Professor Lubet’s cleverly disguised poker treatise to the shelves I devote to rational choice theory and the cognitive decision theory that goes beyond it.  You can find it there—with the following rules inked on the inside cover.  Call them McGowan’s variations on a theme by Lubet:

1. Never play a game you are not temperamentally suited to play.
2. Always remember that people read and react to you just as you read and react to them.
3. Never confuse luck for skill.
4. Never marry a professional card player.
5. Never, ever, EVER play cards with Steve Lubet.

DM

Monroe Freedman on Henry Lord Brougham

[Monroe Freedman, the Lichtenstein Distinguished Professor of Legal Ethics at Hofstra Law School and the former Dean of that school, describes his recent work on Henry Lord Brougham and zeal.]

Professors Fred Zacharias and Bruce Green recently wrote an article on "reconceptualizing" advocacy ethics. In the course of rejecting the ethic of zealous representation, they erroneously stated that Henry Lord Brougham repudiated his famous statement on zeal in Queen Caroline’s case.

Brougham is a hero of mine, not only because of his zeal in threatening George IV with graymail on behalf of Queen Caroline, but also because his zeal extended to a leading role in emancipating slaves, ending flogging in the British Navy, reforming the Poor Laws, extending education for the poor, achieving political emancipation for the Jews in England, fighting for equal rights of Catholics in Ireland, defending freedom of the press, and reforming the courts.

Because of my regard for Brougham, as well as for his statement on zealous representation, I have written two articles refuting the erroneous claim that Brougham ever repudiated his famous statement. One is Henry Lord Brougham – Written by Himself, 19 GJLE 1213 (2006); the other is Brougham and Zeal.  Both are available on SSRN.

Don Burnett on "Mandatory Reporting of Pro Bono: Premises beneath the Controversy"

[[Don Burnett, Dean and Foundation Professor of Law at the University of Idaho College of Law, evaluates the competing thoughts about why lawyers should (must?) do pro bono work.]]

As noted elsewhere in this Forum, Illinois has joined Florida, Maryland, Mississippi, and Nevada in requiring that lawyers file reports on the extent of their pro bono service. The rule adopted by the Illinois Supreme Court on June 14, 2006, can be found here.

According to the ABA Standing Committee on Pro Bono and Public Service, eight states have considered but (thus far) rejected mandatory reporting systems, while eleven other states have adopted voluntary reporting systems. A running scorecard appears here.

Differing views about mandatory reporting appear to reflect three competing major premises in the debate over pro bono service itself:

Premise A is that pro bono service is a professional obligation. Those who subscribe to the "obligation" premise find it entirely appropriate for the profession to obtain information (while protecting confidentiality) on the extent to which pro bono service actually is being rendered. Although the exponents of Premise A probably would deem it preferable to obtain this information through a mandatory reporting system, I think they would acknowledge that even a voluntary reporting system can provide useful information. (Incidentally, with pro bono service as with other ethical issues, the lack of a mandatory self-reporting system, or even the lack of any reporting system, does not necessarily imply the absence of an underlying obligation.)

Premise B is that pro bono service is an act of charity, undertaken solely as a matter of private, individual choice. For those who subscribe to the "charity" premise, the profession's efforts to obtain information on pro bono service may appear to demean the voluntary nature of the service or to put collective pressure on individual philanthropy. From this point of view, mandatory reporting systems are considered both inapposite and inappropriate; indeed, even voluntary reporting systems could be suspect (depending on how the information is used).

Premise C -- a "positive" variation on these "normative" premises -- is that regardless of whether pro bono service ought to be a professional obligation, it is in fact merely an aspiration because the profession has not (yet) clearly undertaken to impose it as a requirement. Those who subscribe to this "aspiration" premise would seem to have a less obvious conceptual basis for objecting to the collection of data on pro bono service. After all, why can't the profession gather information on fulfillment of a stated "aspiration"? The objections seem instead to be an array of concerns about waste of time, hollow public relations, annoying peer pressure, etc.

In my view, Premise A best reflects the full scope of the American lawyer's responsibilities identified in the Model Rules of Professional Conduct: representative of clients, officer of the legal system, and public citizen having special responsibility for the quality of justice. Moreover, in many states, including mine (Idaho), newly admitted lawyers take "the attorney's oath" before the state supreme court, vowing, among other things, "never to reject, for any consideration personal to myself, the cause of the defenseless or the oppressed." (When I speak to lawyers and law students, I occasionally ask, "If that isn't a pro bono obligation, what is it?" If someone responds, in effect, "Oh, come on, it's a tradition, it's what you have to say in order to get your license," I reply, "Yes, exactly.")

Exponents of Premise B, and especially of Premise C, are swimming upstream against the trilogy of lawyer responsibilities and the covenant contained in "the attorney's oath." Perhaps for this reason, the literature against a pro bono obligation commonly turns to Model Rule 6.1 and its perceived ambiguity. By using the phrase “perceived ambiguity” I may be swimming upstream myself, in this instance against the conventional wisdom that Rule 6.1 is full of contradictions. Concededly, Rule 6.1 addresses an evolving, complex subject, and is the product of what must have been a formidable drafting challenge. But these circumstances do not equate to ambiguity. In fact, the black-letter language of the Rule is very straightforward. It declares that "[e]very lawyer has a professional responsibility to provide legal services to those unable to pay" (and Comment 1 underscores this declaration). The familiar phrase "should aspire" appears in the next sentence relating to a specific quantity of pro bono time (50 hours per year), and the word "should" later appears again in connection with allocations of time and categories of service in "fulfilling this responsibility." The black-letter language delivers a core message that is clear. The message is that although lawyers are not mandated to provide pro bono service in the same amount or in the same way, every lawyer is obliged to do something.

If there is a mixing of messages in Rule 6.1, it seems to come, not from the black-letter language, but primarily from the title and two of the comments. The title uses the term “voluntary” but this term does not appear in the black letter language, except in the last sentence where the word "voluntarily" is used regarding financial contributions to legal services organizations "in addition" to the lawyer's pro bono service. Comment 9, while reiterating that pro bono service is "the ethical commitment of each lawyer," acknowledges that "there may be times when it is not feasible for a lawyer to engage in pro bono services" and it suggests that the lawyer contribute to legal services organizations "[a]t such times ...." Comment 12 states that "[t]he responsibility set forth in this Rule is not intended to be enforced through disciplinary process."

These comments, especially Comment 12, have been widely regarded as a signal that pro bono service is not (yet) truly a fixture in our system of ethical obligations. But is it not possible to view these comments as practical measures that allow some "play in the joints" of a mandatory system reaching across a wide variety of practices and circumstances? Comment 9 provides flexibility at those times when it is needed. Comment 12 avoids the use of the disciplinary process -- with its attendant rigidities, burdens and frictions -- as the method by which the states seek to assure that each lawyer is finding a way to fulfill his or her “responsibility”.

There are methods other than discipline that state bars can use to obtain fulfillment of the pro bono obligation. Nothing in Rule 6.1 or any of its comments would seem inconsistent with efforts by state bars to gather information about pro bono service and to use that information for recognizing lawyers who fulfill their responsibility as well as for stimulating similar behavior by others. Such efforts may well include mandatory reporting of pro bono service. Those who quarrel with these efforts are, I think, really disputing the core message of Rule 6.1 and the other foundations of Premise A.

The Ethics of Flopping

It may sound funny to hear a lawyer complain about people who pretend to be grievously hurt so that the neutral referee will penalize the opponent.  But, good lord, do I hate flopping in soccer.  ("Flopping" is the act of greatly exaggerating one's pain, usually while writhing on the ground, after being lightly touched by the opponent.  Note: flopping is not done solely by the Italian national team, but they are considered experts.)  For a funny article on the World Cup and flopping, read this essay by David Eggar.

Is flopping ethical or is it cheating?  It's a deceitful practice that is formally banned but widely practiced and part of the game's customs.  So it could make for an interesting essay.  Regardless, it's cheating to me.  What offends me the most is the mimicry of human agony.  It's one thing to pretend that you caught a ball when you really trapped it off the ground.  But the deceitful appeal to the observer's natural sympathy for a fellow human in pain is too calculated for me.

Business Ethics Courses & The Law of Unintended Effects

What if you gave a business ethics class and the students became less ethical?  Even worse, what if the students told the prof, in so many words, "you taught us how to engage in misconduct."  This story recounts how business ethics profs are working to fashion the right kind of course.

At least once when teaching ethics, I've used a hypo with a clever -- too clever -- lawyer and a student has responded with something like, "that is a cool technique."  Sheesh.