Legal Ethics Forum

Lawyer's Malpractice Alert Deemed an Ad

In Stern v. Bluestone, a lawyer who represents plaintiffs in legal malpractice suits sent faxes to lawyers with updates on the law. A lawyer didn't like getting a fax every month, and so sued. The court held that the faxes, because they indirectly indicated the lawyer's availability to represent plaintiffs in malpractice cases by including the lawyer's contact info, was an unsolicited fax that violated a federal statute against spam-faxes.

Summary judgment for the lawyer who received the faxes; question is damages.

I'm not sure what impact the case has beyond its narrow confines -- don't fax your newsletters -- but the conclusion that information about the law becomes an indirect offer to do a commercial transaction makes me worried: is that awful close to a solicitation? If it is, then what's this blawg? What is my e-ethics newsletter? Hmmmm.

And one more key point: the court held that putting a fax number in a directory might be "implied permission" to send a fax, but it wasn't "express permission" and that's what the statute requires. Recall the debate about unsolicited e-mail: this case arguably means that by putting an e-mail link up, your firm is giving implied permission for prospective clients to send away...

Hmmmm.

Looking Worse for HP Lawyers

Andy has a helpful post about "pretexting" by investigators employed by Hewlett-Packard, and new reports reveal additional details that raise further legal ethics issues for lawyers involved in the investigation.  Today's NY Times has an article on the investigation, including allegations of electronic espionage ("detectives tried to plant software on at least one journalist's computer that would enable messages to be traced"), obtaining private phone records, and even direct surveillance of journalists.  Zowie.  A couple of interesting tidbits in the article:

1.  Apparently a lawyer associated with the private investigator firm provided a legal opinion that the investigative techniques were legal.  I'm not sure what kind of legal cover this is trying to create.  Reasonable reliance upon the advice of counsel is a defense to certain claims, like willful patent infringement and bad faith denial of insurance coverage, and in a criminal prosecution it may negate the element of criminal intent.  But in order to take advantage of an advice of counsel defense, the party seeking the opinion must have sought and relied upon the advice in good faith.  As the Times article reveals, HP delegated the investigation to an outside firm, which in turn hired another outside firm, which hired another outside firm.  While there may be legitimate reasons for subcontracting out specific tasks, this smells funny -- it looks like HP was trying to contrive ignorance, or rely on "plausible deniability."  That sort of structuring would tend to undercut the claim that HP (or other investigators) relied on the lawyer's opinion in good faith. 

2.  The investigation was supervised by an HP senior counsel who is also the company's director of ethics.  That's great.  Apparently the job of the director of ethics comes with a narrowing construction -- "ethics" is construed as "whatever we can get away with."  Even in legal ethics, where lawyers can plausibly claim (in some contexts) to be permitted to push the boundaries of the law, the law is not understood as "whatever we can bamboozle a court into."  That would be a major jurisprudential mistake, relying on a caricature of legal realism that no one ever believed in.  Outside legal ethics, however, you'd think that an ethics advisor would be concerned with broader issues such as the reputational fallout that might accompany revelations that a companies was spying on dissident directors, or even the ethical issue of whether a company ought to be engaged in this kind of conduct. 

Separately, I hope lawyers involved in providing these opinions are really sharp on the law of lawyering.  The use of deceptive tactics in investigations is a tricky area, as Andy has pointed out.  Cases are all over the place, and you never know when a court might decide to enforce a duty that lawyers had been content to ignore.  Hammad (the 2d Cir. case on confidential informants) is a case in point, as is the Gatti case from Oregon.

The Thompson Memo in Congress

White Collar Crime Profs Blog has this post in which Arlen Specter says he will pursue legislation aimed at the now-infamous Thompson Memo.  The basic idea will be to prevent the DOJ from treating an entity as uncooperative (or less cooperative than it should be) because the entity either refuses to waive privilege or pays attorney's fees for entity constituents.

I think this is half right.  Justice should be allowed to treat an entity as uncooperative if it does things that make it harder to get the facts relevant to some allegation. Privilege waivers will tend to increase the accuracy of fact-finding, so Justice should be allowed to take them into account, and to treat entities that refuse to waive as uncooperative or less cooperative than they should be. 

Payment of fees, on the other hand, will tend to make for a fairer fight, even if that makes things harder for the Justice Department.  Entities therefore should be allowed to pay the fees of investigated or indicted constituents without suffering any penalty (including the opportunity cost of a good deal that otherwise would have beeen offered) for doing so.

DM

PR As Decision Theory

I've posted "Politics, Office Politics, and Legal Ethics: A Case Study in the Strategy of Judgment,"
an article using a case study to illustrate how PR might be taught as decision theory, by which I mean as an exercise in rational actor analysis (game theory) and its limitations for real people (social psychology).  Here is the abstract:

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This article argues that the core of legal ethics curriculum should be decision theory.  That means that legal ethics courses should integrate rational choice theory (in the form of game theory) and limitations on rational choice (in the form of lessons from social psychology) so that the course becomes a study in the nature of judgment.  The point of the curriculum should be to explain what makes good judgment good, and to illustrate risks that might cause lawyers to make errors in judgment.

     To ground these rather abstract points, the article develops them through a case study of a real lawyer.  Her name is Jesselyn Radack.  A graduate of Brown University and the Yale Law School, Ms. Radack worked in the Professional Responsibility Advisory Office of the Department of Justice (PRAO). Ms. Radack claims the Department forced her out of her job in retaliation for giving the Department advice it did not want to hear about its treatment of John Walker Lindh, the so-called “American Taliban.”  The Department claimed she exercised poor judgment and did a poor job.

    I discuss Ms. Radack’s story in detail (and reach conclusions that differ from accounts of the case published to date.)  I then explain how rational choice theory implies conclusions that differ from those Ms. Radack reached, and offer conjectures grounded in social psychology that might explain how someone in Ms. Radack’s position might reach conclusions that differ from those implied by rational choice theory.   I conclude with recommendations for integrating decision theory into the legal ethics curriculum. 

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DM

Lawyers Involved in the HP Pretexting Scandal?

The Boston Globe is reporting today that there may be a connection between the HP pretexting scandal and a Boston-based law firm that shares office space with a private investigation firm.  (The law firm represents "Fortune 500 corporations faced with allegations of waste of assets, procurement fraud, loss of inventory, and theft of proprietary information.")  If the law firm was involved in conducting the investigation, there are numerous legal and ethical issues that will arise.  Assuming for the sake of argument that pretexting is legal in Massachusetts (might this be why a Massachusetts firm was selected?), the ethics of pretexting is not at all clear. 

As I've mentioned previously,  Rule 4.1 says that lawyers cannot “knowingly make a false statement of material fact or law to a third person.” Moreover, under Rule 5.3, lawyers are responsible for the conduct of the people they employ, including investigators; those people must act in way that “is compatible with the professional obligations of the lawyer.” If you put these two rules together, one could conclude that a lawyer acts unethically by hiring another person to obtain cell phone records through misrepresentation.

On the other hand, there is precedent for allowing lawyers to hire undercover investigators and “testers” as part of a lawyer’s investigation of a case. In those cases, the lawyer’s agents are engaging in a kind of misrepresentation that has frequently been upheld as ethical.

The question, then, is whether the acquisition of cell phone records through misrepresentation crosses the line between ethical investigation and unethical conduct. In my mind, I tentatively think that it does. The lawyers are essentially obtaining private information about individuals from a third party (i.e., cell phone companies), not from the cell phone users themselves. In the typical undercover investigation, there is an attempt to extract information directly from the subject of the investigation. Although I think the case is debatable, an attempt to obtain private information from a third party (like a cell phone company) is more troubling than (for example) what a “tester” does. At the very least, I don’t think we should necessarily conclude that lawyers who employ these techniques are acting ethically.

The Pentagon Papers, The Espionage Act, and Some Practical Lawyering Questions

I recently had occasion to debate the question whether media firms can or should be prosecuted for publishing classified information.  (I was the "pro-speech" side, though this question is too tough for such simple descriptions.)  The issue, which got its most recent start with this piece, is of interest on this blog because of some wonderful issues and examples associated with New York Times v. United States, the "Pentagon Papers" case.  That case decided that the Times and the Washington Post could not be restrained from publication, but it explicitly left open the question whether they could be indicted and prosecuted after the fact.

For several years at Minnesota I began my PR course with one of these examples, not suspecting that it could become a topical as well as an interesting problem.  I'll get to it in a minute, but first a threshold question.  Suppose a client obtains classified information and wants to publish it.  Regardless whether they have a right to have it, they will not have a right to communicate it to those not authorized to see it (see the statutes below).  Suppose the client wants advice on whether the Constitution would trump, in that particular case, provisions of the Espionage Act such as 18 USC 793(d) or (e), or Section 798.  May or should the lawyer examine the documents to render advice? 

The text of these statutes implies that doing so would involve the client in the commission of a felony by communicating classified information to persons not entitled to see it. (Probably there is another statute forbidding people without appropriate clearance from reading classified material; I have not tracked that down.)

The issue is not just hypothetical.  As recounted in David Rudenstine's wonderful history of the case, some lawyers for both the Times and the Post (including for the Times former Attorney General and then senior Lord, Day & Lord partner Herbert Brownell), worried about whether they should even see the documents their clients were planning to plaster on the front page, because they might be committing unlawful acts themselves. 

Possibly one could argue for a penumbral speech right to seek counsel, but it is not at all clear that such an argument would stand up.  And, of course, the deeper a lawyer gets into advising on the issue, the greater the risk of being seen as an aider and abettor of a crime, at the high end of exposure, or simply assisting in unlawful activity in violation of 1.2(d), at the low end.

The Post's lawyers also worried that the injunction that had issued against the New York Times, which, like all injunctions, ran against those acting in concert with the Times, might actually cover the Post if the Post had got the papers from the  same source (Daniel Ellsberg) as the Times.  The lawyers pressed on the issue, and the Post reporters, tired of dealing with obstructionist lawyers, clammed up.  (They eventually told the lawyers to assume that they got the papers from the same source as the Times, which they had.)

The best part of the story, though, and the one with which I used to begin class, concerns how the Post's editor, Ben Bradlee, dealt with what he saw as his obstructionist lawyer problem.  He sent a messenger to a courthouse in Chicago to pull Edward Bennett Williams out of a trial to call him.  Williams called, and Bradlee laid out the facts.  Here is Rudenstine's rendering of Williams's advice: "You just have to publish.  Never mind the law, you just have to publish.  They'll never get you.  They'll go after you, but they'll never get you." (131)  (For a significantly blunter version of the exchange, see Evan Thomas's biography of Williams, "The Man to See" at 265-66)

You know the rest of the story.   (Though it is perhaps not widely known that Williams turned down Bradlee's offer to argue the case for the Post in the Supreme Court because he could not abandon his other client in mid-trial, an admirable show of loyalty.)  And a lot of you also know that the Post now uses Williams & Connolly; it switched firms not long after the Supreme Court decision.

I used to ask students whether Williams' advice was legal advice in any sense, or perhaps even wrongful advice.  Opinions varied. 

I wonder if we will have a story like that for our generation?  Attorney General Gonzalez has dropped hints to that effect with regard to the New York Times story on warantless interception of telephone calls from suspected terrorists, but my guess is that those are shots across the bow of what the administration sees as a hostile media.  However one characterizes it, Williams' advice is probably still good.

DM

 

Pretexting at HP

The news is full of stories about Hewlett-Packard's Chairman, Patricia Dunn, spying on her own directors through the use of investigators who engaged in pretexting.  Pretexting involves pretending to be someone else in order to get that person's cell phone or other telephone records.  Although I haven't seen any stories that implicate the company's lawyers in the pretexting scandal, the legal ethics issues associated with pretexting are certainly interesting and, as I mentioned a few months ago, controversial. 

Russ Pearce on His DVD

Steve -- Many thanks for the post.  Frankly, the Stein Center is footing the not insignificant bill for producing and distributing the DVD free for law school classes and cle’s because it has proven a tremendously successful vehicle for encouraging spirited discussion of professionalism, the role of the lawyer, and the state of the legal profession today.  Although the film essay definitely has a point of view, the primary goal is pedagogical.  That is why we include a Teacher’s Guide that invites students to disagree with the ideas expressed in the DVD.  Much credit for the success of the DVD goes to the Director Brian Danitz, the cinematographer for Bowling for Columbine, a Sundance featured documentary director, and a recent Fordham Law graduate who is now an associate at Wilson, Sonsini.  On our web site, http://law.fordham.edu/lawyersrock, you can find free downloads of the Movie Poster with brief reviews from Bill Simon (Columbia), Steve Wizner (Yale), David Thomas (Harvard Business School), and Janie Hendrix (sister of Jimi),  http://law.fordham.edu/documents/lr-poster.pdf, and the Teacher’s Guide, as well as directions for ordering a free copy of the DVD, while supplies last.  I’d love to get into further conversation regarding Steve’s disagreements with the substantive content of the film essay, whether on this blog or in other venues.  Feel free to email me with your thoughts.  --Russ Pearce

Can Lawyers Learn from Rock Music?

Like me, many of you may have recently received a copy of the DVD entitled "Revitalizing the Lawyer-Poet: What Lawyers Can Learn from Rock and Roll."  The DVD is based on the scholarship of Fordham Law Professor Russell Pearce, and he appears as narrator throughout the DVD.  The Widener Law Journal published a footnoted version of the text of the DVD last year, which is available on SSRN.  I am a big admirer of Pearce’s scholarship, even though I disagree with many, if not most of his conclusions.  It is provocative, in the best sense that academic scholarship should be, and the DVD represents an innovative, accessible, and fun way of bringing the important issues Pearce addresses to law students and lawyers.  If you don’t have a copy of the DVD you can obtain one by e-mailing [email protected], with a cc to [email protected], while supplies last.  Show it to your students (as I did earlier this week), use it in MCLE programs, and watch the fireworks fly.

The DVD essentially does two things.  First, it lays out Pearce’s diagnosis and prescription regarding the “crisis of professionalism" currently afflicting lawyers.  Second, it contends that rock ‘n roll music can show lawyers the way (does anyone remember Peter Frampton?) out of the current crisis.

The starting point for the DVD’s first task is Pearce’s 1995 article (70 N.Y.U. L. Rev. 1229)  in which he applies Thomas Kuhn’s paradigm theory to legal ethics, to argue that as a descriptive matter, the “professional paradigm” for legal ethics is being replaced by a “business paradigm” and that as a normative matter this is a good thing.  I briefly discuss some of my disagreements with Pearce’s article in a forthcoming West Virginia Law Review essay, which I will post on SSRN when the proofs are avaialbe.  For those who want to engage this discussion more deeply, I recommend Jeffrey Stempel’s 1999 critique of Pearce’s article (27 Fla. St. U. L. Rev. 25), and Pearce’s subsequent articles in which he defends and refines his views.

What is new in the DVD is Pearce's turn to rock and roll music as a potential beacon for lawyers.  While I again applaud Pearce for thinking outside the box (a phrase he uses in the DVD), I believe he both misunderstands the music and misapplies its teachings for lawyers in significant respects.  (Disclosure - while I clearly owe some deference to Pearce due to his accomplishments in the legal ethics field, I am willing to concede no ground in terms of my self-proclaimed accomplishments as an amatuer rock musicologist.)  I had hoped to provide some explanation as to why here, but I fear I've already pushed the boundaries of appropriate blog length.  Thus, as my colleague Marjorie Cohn, a prolific editorialist, might say - "I feel a review essay coming on."  Stay tuned.  In the meantime, check out the DVD.

Steve Berenson

"Service Writing"?

I heard someone the other day note the benefits of "service learning," in programs where, for example, our students learn by representing death row inmates: they learn, and serve at the same time.

It struck a chord with me.  I think law professors ought to engage in "service writing," that (loosely, broadly, and I think for the first time defined here) means writing that performs a service.  It doesn't exclude a whole lot, perhaps, but I think it would exclude purely academic writing.  Not saying we shouldn't do that -- but we should also be sure that we do service writing, to help lawyers, judges, legislators, clients.... anyone but ourselves.

Just a musing on this day.

Hricik