Legal Ethics Forum

Nice Opinion on Exceptions to the "Actual Innocence" Rule

I have never felt fully comfortable with the rule that a convicted defendant must demonstrate that he or she is actually innocenct of the crime alleged in order to sue a defense attorney for malpractice.  I therefore welcome opinions such as Brooks v. Shemaria (Download b187434.pdf) which holds that the rule does not bar a claim based on a fee agreement (not new news) nor does it bar a claim for negligent failure to seek the return of seized property found unrelated to the crimes of which the defendant had been convicted (new in that it allows a competence-based claim to proceed).  Seems right to me.
DM

Our Judicial Elections in Georgia

I moved here from Texas, where partisan mudslinging in judicial campaigns wasn't, despite what people think, common. Now I'm in Georgia. Read this for flavor of one of the nastiest races we've had.

I'm new to the state, but Hunstein is a good, fair judge, imho.

Wherever you are, and whatever your politics, vote.

Dh

Orrick's Motion to DQ denied

There's an interesting article here about a motion to disqualify brought in a case involving a suit by lawyers who were allegedly improperly denied partnership. It includes a link to the opinion, which found the motion to be "tactical."

DH

Characterizing Prosecutorial (Mis)Conduct

The USCA 9 recently decided Smith v. Baldwin, which presents a problem of how to characterize a prosecutor's conduct.  To radically simplify the case, Smith participated in a burglary in which a homeowner was bludgeoned to death with a tire iron.  Edmonds, the other burglar, cooperated with the prosecution and claimed that Smith was the murderer.   Smith pleaded no contest to robbery and felony murder. 

Many years later, in a sworn affidavit, Edmonds recanted his claim about Smith (though not admitting the logical conclusion, that he, Edmonds, was the murderer).  Prosecutors then inform Edmonds that (i) if he persisted in his claim, it would revoke his guilty plea; and (ii) bring capital murder charges against him; but (iii) would waiver perjury charges if he recants his recantation.  Prosecutors also tell him he needs a lawyer, and arrange for him to have one.  Not surprisingly, after counsel appears, Edmonds clams up.

The majority holds that the threat to bring a capital charge was prosecutorial misconduct because it was obviously designed to shut Edmonds up and deny Smith relief on his habeas petitions.  The majority concludes the point is obvious enough that it refuses to remand to the district court for a hearing on whether the prosecutors acted with bad intent (no finding had been made below). 

The dissent thinks the key is the prosecutor's intent, and that a hearing is required to establish what it was.  The dissent points out that if Edmonds's recantation was false, then he committed perjury in an effort to free (or give a break to) a murderer.  If it was true, then he had lied to prosecutors, pinned the rap on a person not guilty of murder (though possibly guilty of felony murder), and bludgeoned an elderly man to death with a tire iron.  Either way, the dissent reasons, the prosecutor was justified in sending a clear signal that the prosecution took either option to be a serious offense.  The dissent also points out that Edmonds might have had a justified complaint if the prosecutor stayed silent, allowed him to breach his earlier plea deal, and then brought charges against Edmonds for murder.

Both of the dissent's points strike me as quite reasonable, as does the majority's conclusion that talk of the death penalty was so likely to have had a chilling effect that a reasonable prosecutor should have recognized that fact.  But does it follow that the prosecution either (i) must sandbag Edmonds by not mentioning the death penalty and then pursuing it if he breaches his plea agreement or (ii) lose the ability to bring a charge authorized by law for fear of producing a ruling like the majority's? 

It is hard to see how an evidentiary hearing will help much on that dilemma (one suspects the prosecution will not admit to having a malign motive, or at least not to having had no other motive), but it is hard to see any other way to deal with the problem.

Thoughts?

DM

Is 4.2 Worth It?

I am approaching my yearly tour of MR 4.2, which I do not like.  Other than prosecutors, however, I don't know whether others share my skepticism of the rule or, relatedly, whether I am missing some of its virtues.  So here's how I see the CBA--all additions and corrections welcome.

Costs

The rule makes it harder to gather evidence that could make fact-finding more accurate.  This presents costs in the case at hand and some general system-wide cost in diminished accuracy (and thus deterrent effects) of factual findings.  This is a particular problem with entities and entity constituents.

The rule vests rights in lawyers, who might be disloyal to clients, if only to help out other clients.  This would be a particular risk where counsel represented an entity and an entity constituent and tried to keep the constituent from cutting a personal deal, as happened in U.S. v. Taleo, 222 F.3d 1133 (9th Cir. 2000), or misrepresented the content of some communication in order to steer a client to a course of action the client would not favor if the client had direct communications. Lawyer agency costs count as costs to clients, and the rule would tend to exacerbate the agency cost problem in the (probably rare) case where it was a problem.

Benefits

Some lawyers might lie to clients directly but not to lawyers, and Rule 4.2 keeps the clients from being lied to.

Some lawyers might trick clients into doing things, such as signing releases, they would not do if they had a lawyer filter the communication.

Some lawyers might trick clients into saying inculpatory things (or producing documents, etc.) they would not say if a lawyer served as a cutout for the communication.  Note that this is a private cost to the client who is tricked but might be a net social benefit if it aided in fact-finding.

By ensuring that represented parties will never have to hassle with counsel for the other side, the Rule gives them peace of mind.

For the same reason, the rule increases the value, and presumably the price (income) of lawyers for parties who might be contacted though (more speculatively) it might lower the value (price) of lawyers who otherwise could do the contacting.

Netting

The main costs can be dealt with through prohibitions on deceit, which already exist elsewhere in the rules, and in ordinary tort law.  The only justification for adding 4.2 to the list is to hedge the risk that deceit could not be proved, by making the fact of contact unlawful. 

But that makes little sense.  There is no reason deceit should be especially hard to prove (client testimony is admissible, after all), and one could produce a better-tailored result by allocating to the lawyer the burden of proving the truth of any communication once the client introduces evidence of deceit.  (As to signing releases or the like, deceit would be a defense to contract formation, I would think, and thus to the release.) 

In addition, part of the costs are simply private costs that might count as social benefits; at worst they should be netted and presumed to cancel out in the wash; for ever loser from the tricked inculpatory statement there will be a winner. 

Even if one does not buy these arguments, it would be hard to justify a deliberately over-inclusive rule unless one believed a large fraction of 4.2 violations involved some sort of actionable trickery or lying.  (I here set aside undercover operations, and the like, which amount to lawful trickery.)  I have not done an exhaustive study of the cases to see how often this is the case, but I see no particular reason to presume that most lawyers would lie if allowed to speak at all. And if lawyers are that bad, it is plausible that the agency cost problem, which the rule might exacerbate, is equally bad, so that the netting is indeterminate even on assumptions relatively favorable to the rule.

With regard to entity cases, as a practical matter all the rule does is set up a race where entity counsel tries to represent (or line up lawyers for) former employees, who fall outside the rule, while plaintiff's counsel scramble to get to them.  Relatively formal arguments about the scope of representation can support the distinction between present and former employees (who might have tremendously inculpatory evidence), but the case with respect to practical arguments is much closer

Finally, there is the mis-alignment of the right.  4.2 gives the right against contact to the lawyer, not the client.  This strikes me as hard to justify.  The same client who can waive the right to counsel, the right against self-incrimination, and the right to put the government to its proof--who can, indeed, plead guilty and refuse to contest a capital sentence--cannot make this decision.  That the rule originates in (according to Leubsdorf) 19th-Century lawyerly etiquette explains, but does not justify, this allocation.

DM

Tony LaRussa's Rejection of Zealous Advocacy

Jeff Lipshaw started a great discussion over at the Legal Profession Blog about Tony LaRussa's decision not to require an inspection of Kenny Rogers while Rogers was on the pitching mound during the second game of the World Series. 

Let's assume, as Jeff did, that if the inspection had occurred while Rogers was on the mound, the umpires would have found pine tar on Rogers's hand and that Rogers would have been tossed from the game and suspended for the rest of the Series.  Let's also assume that LaRussa, who happens to be a lawyer, decided not to take advantage of this opportunity, because he "didn't want to win that way" against his good friend, the manager of the Tigers.  (Both assumptions are strongly supported by news stories.)   

Using legal ethics as an analogy, I believe that LaRussa made a mistake.  In my mind, the most appropriate legal ethics analogy would be if a lawyer produced discovery but intentionally withheld a smoking gun document.  This lawyer ("the producing lawyer") cheated and didn't play by the rules.  Now let's assume that the recipient of the discovery ("the receiving lawyer") comes to learn of the producing lawyer's rule violation.  Is there any doubt whatsoever that the receiving lawyer should march directly into court and seek severe sanctions against the producing lawyer?  Certainly, the receiving lawyer should not call the producing lawyer and say, "I just learned that you didn't give me some documents that were directly responsive to my document requests.  Would you mind sending me a copy?  Get them to me tomorrow, and we won't need to mention this to the court."  The latter course wouldn't be justified, even if the receiving lawyer was good friends with either the producing lawyer or some partner at the producing lawyer's firm.

Personally, I am not a believer in the zealous advocacy model in its purest form, but I do think zealous advocacy plays an important role in lawyering.  And it seems to me that zeal is particularly appropriate in response to an opponent who engages in rule-breaking behavior in order to gain a tactical advantage in litigation. 

Is my analogy appropriate?  Is there another legal ethics analogy that would actually support LaRussa's decision not to act in his team's best interests?

Randy Cohen's "The Ethicist" on Preparing a Will for a Suicidal Client

In this weekend's NYT Magazine, Randy Cohen, who authors the column The Ethicist, tackled the issue of a trusts and estates lawyer who is asked to prepare a will for a (probably) suicidal client.

As is so often the case, I found Cohen's advice to be rambling and contradictory.  For example, Cohen says you cannot attempt to dissuade the client, but you can urge her to speak to family members and health professionals (presumably for the purpose of dissuading her).  Cohen says that making sophisticated judgments about the client's state of mind are beyond the lawyer's skills and purview, but if the lawyer thinks the client "seems rational" then by all means just assume she's rational and prepare the will -- and yet if you decide that she's a clearly a danger to herself then you must seek help for her.  OK, but which is it: do I make judgments about her state of mind or don't I?  Can any of our readers point us to good discussions of this issue?  (Cohen does mention the ABA rule on confidentiality and an unspecified Connecticut state bar opinion.)

Professional Responsibility - Legal Ethics Texts

I've been compiling a list of principal authors of textbooks for professional responsibility or legal ethics.  This list includes only general texts and not, for example "Legal Ethics in ERISA Pratice."  Some time soon I'm be listing specialized texts and secondary texts as well.  If I've missed any texts below, feel free to add them in the comments.  [UPDATE:  I've added a few more that were forwarded to me by readers.]

Cochran/Collett

Coquillette

Crystal

Devine et al.

Dzienkowski/Burton

Gillers

Hayden

Hazard, et al.

Kaufman/Wilkins

Lerman/Schrag

Martyn/Fox

Moliterno

Morgan/Rotunda

Noonan/Painter

Patterson

Pirsig/Kirwin

Rhode (Pervasive)

Rhode/Luban

Schwartz Wydick et al.

Shaffer

Simon, et al.

Sutton/Dzienkowski

Wydick, Perschbacher et al.

Zitrin/Langford /Tarr

Lipshaw on Truth, Positivism, and All That

Over at the Legal Profession Blog, Jeff Lipshaw considers the relationship of positivism and universal moral truth. He references an example in which Justice Kennedy, while in practice "persuades his client (by having him read King Lear) not to favor a particular child in his estate.  The point is that the law would allow that result, but that result was not right."

The point, I take it, is to distinguish facts about the world--that the will would be enforced as written--with moral propositions such as: It is wrong to favor one child over another in a bequest.  (Query whether that is the lesson of "Lear": competitors (i) Don't be hubristic and high-handed; (ii) you could do it, but the consequence will be bad and you will regret it).  For Prof. Lipshaw this raises the worry (the connection is not quite clear to me) that the "reducto-empiricism" of young lawyers will lead them either to take a purely instrumental view of the law (becoming "red-meat litigators") or to take a constitutive view of the law and become  "law and economics professors" (the horror!).

This distinction seems quite sound--as a good Humean I always worry about is-ought inferences--but I don't see that it entails anything.  As I read the point, it is that Justice Kennedy (i) advised his client based on an ethical or world view that was neither limited to nor constituted by purely legal points;  and (ii) that this is the right way to approach such a situation.  Assuming I read it correctly, what are we to make of this claim?

Not much, I think.  Presumably Justice Kennedy had solid grounds for questioning the omission of the child as heir.  If not, he was just channeling his preferences, which might or might not be worthy of respect in a given situation. 

Suppose the omitted child had been roped into some cult that would just take the money, for example.  What should a lawyer do?  As a matter of ethics, two options seem equally valid to me: (i) counsel the client against this move on the ground of equal treatment and respect for life choices of autonomous persons; (ii) write the will the way the client wants on the ground that the child has gone off the deep end and the money would go to waste.  (One could also suggest (iii) adding a provision to the will instructing or encouraging the favored child to give money to the omitted child if s/he ever leaves the cult.)

If you don't buy that, consider the advice of a hypothetical lawyer who advises a client to leave more to his sons than to his daughters, on the grounds that the sons must do credit to the family name and provide for families, while the daughters will marry and be cared for by husbands.  On what basis (other than pragmatic concerns about the probability that the premises were true, etc.) would Kennedy's advice be ethically sounder, and in what sense would that basis be some sort of universal truth? 

More generally, it is relevant that this is part of what Liphsaw calls an "age old" debate.  That phrase rightly implies that the debate has produced no real progress, except that which requires that assertions be re-cast in terms relevant to a particular time, and that inconvenient (read: unpopular) aspects of that truth be added or dropped as needs be.  Thus, for example, a modern Kantian would do well to steer clear of Kant's views on adultery, masturbation, and homosexuality.  Not because those assertions have been falsified--they are exactly as true now as they ever were--but because they don't sell very well and will tend to drag down whatever point Kant is invoked to make.  For the same reason, originalists take well to Michael McConnell's originalist defense of Brown v. Board--they are tired of getting hammered with Brown as an example, and thus have a rhetorical need (not a substantive analytical one) to embrace it.

Nor is there any reason to believe that universality would or should be a condition for a moral code.  Suppose someone could demonstrate to your satisfaction that your deeply felt beliefs were just contingent views that could be different without being less universally true.  So what?  If you had thought them through and they are good enough for you, why would that fact alter your behavior one whit?  If universality was a crutch substituting for analysis, of course, your views might be shaken, and you might have to re-think some things. 

But that would be all to the good. With no possibility for demonstrating to the general satisfaction of any heterogeneous society that one norm or another (beyond some very basic adaptive points--like "don't kill so many of your society that its existence is threatened") is some sort of universal moral truth, in reality one has to be prepared to defend one's views on the ground of one's own judgment.  That implies a lot more personal accountability for the gains and losses any moral system entails--you cannot lay it off on some universal you have no choice but to follow--but an ethic of personal accountability for ethics seems to me highly desirable on pragmatic grounds. 

(Which, I think, implies a defense of moral theorizing on grounds other than the probability of establishing truth: It helps discipline one's thinking about practical problems one must face, in roughly the way that weightlifting might help police officers, firefighters or soldiers do their jobs.  On its own, however, it leads either to powerlifting or bodybuilding.  Each has value as entertainment or aesthetics, perhaps, but no more.  Put differently, returns to moral theorizing might be positive early on, for some basic propositions, but decline sharply (and possibly turn negative) past that point.)

So one might rightly be glad for reducto-empiricism.  As between that and dressing up one's biases as universal truth, reducto-empiricism has the virtues of adaptability and a bit of modesty (especially in the face of evidence) regarding first principles.  As Hand said, the spirit of liberty is the spirit which is not too sure that it is right.  Add to that the core notion of accountability  (here I'll borrow for ethics a phrase I have heard attributed to Joe Flom when a summer associate asked him what would happen to the Skadden firm when he retired: "that's up to you"), and you've got a pretty good framework for getting by in the real world, where universals are appealed to far more often than they are found.  I'd much rather have new lawyers take that line than believe they have the inside track on universal truth regarding a client's will.

Jeff has called this approach pragmatic defeatism, but I think that is slightly off: It can't be defeatism if there is no victory to be won.

DM

"Canonical" Works in PR Scholarship

Today's installment of the PrawfsBlawg research canons series is legal ethics and professional responsibility.  The idea behind this project is to create resources for new scholars starting work in particular fields, who need to get a lay of the land in the area.  As the inaugural post on Prawfs put it, there are some works of sufficient importance that, if an entry-level candidate isn't familiar with them, a committee at the Meat Market would wonder about the candidate's competence. 

I posted the list I gave last week in the comments to Andy's post on SSRN.  It is pretty much limited to theoretical scholarship, since that's where my research is concentrated.  Anyone who disagrees with my picks, or who would like to add a list of important works in doctrinal, sociological, or specialized (criminal, corporate, etc.) areas should add comments on Prawfs.