Legal Ethics Forum

Volokh Site Explores Judicial Ethics of Using "Judge" in Amicus Brief

Over at Volokh, there's plenty of discussion about the DC Circuit's 2-1 rejection of an amicus brief filed on behalf of some retired judges.  The majority relied on a straight forward reading of an Advisory Opinion sharply limiting a former federal judge's use of the word "judge" in litigation.  Profs. Gillers and Rotunda, two of our top scholars in the legal ethics field, have opposing views.  According to the NYT, some feelings have been hurt and some tempers have been aroused.  My view: the majority should have simply asked the former judges to edit and resubmit.  No fuss.  Regulating the use of the title "Judge" by former judges is a legitimate focus of judicial ethics, and the Advisory Opinion says what it says.

UPDATE:  Professor Gillers offers a thoughtful argument in the comments and I respond to it.

Nifong Officially Charged with Ethics Violation

According to Drudgereport, North Carolina DA Mike Nifong has been charged with disciplinary offenses.  The complaint can be found here.  Unfortunately, I've had trouble reading past page 9, but up to that point, the complaint seemed to focus entirely on the pretrial publicity rule.  It listed numerous statements Nifong made to the press.  If the complaint does not include the events concerning the DNA report, I suspect that there will be an amended complaint.

UPDATE:  OK, now I've gotten through the whole complaint, which focuses on Nifong's pretrial statements and alleges that they violated 3.6(a), 3.8(f), and 8.4(d).  According to the complaint, Nifong repeatedly offered his personal views on the evidence, heightened public condemnation of the accused, and made extrajudicial statements that had a substantial likelihood of materially prejudicing the trial.

But as to some statements, recounted in paragraphs 114-119, the State Bar alleges dishonesty, fraud, deceit or misrepresentation in violation of 8.4(c).  Those statements concern Nifong's suggestion to media that condoms had been used in the attack, even though Nifong had been informed that the complainant had said that no condoms were used.  Nifong's statements were apparently offered to explain why no DNA from the accused might be found. But, because Nifong had already learned that no condom had been used, the statements were, in the view of the State Bar, dishonest.  That charge may be easier to prove than the charges that will require the State Bar to show there was a likelihood that the trial would have been tainted by Nifong's comments.  Regardless, if an amended complaint comes down, as I expect, Nifong's position will be even harder to defend.

UPDATE 2:  This is a 16 page, 181 paragraph complaint.  My guess is that this was being drafted well before the recent evidence regarding the DNA expert's decision to omit exculpatory facts from the report.  The paragraphs are often short, which may be done to force Nifong to admit the key facts of what he said to whom.  I'm also guessing that the recent evidence about the DNA report forced the North Carolina State Bar to accelerate its internal decisions about what to charge, and when.  Finally, I'm guessing that, as I stated above, there will be at least one amended complaint filed against Nifong before too much time passes.  The circumstances surrounding the DNA report, the statements to the judge that all discovery had been made, the failure to provide discovery, and perhaps even the absurd methodology of the lineup will be included in a subsequent complaint.

Another prediction: this particular set of charges will occasion a lot of discussion about the tension between (1) the defendants' right to a fair trial, and (2) freedom of speech and freedom of the press.  Many of the charges deal with statements made to mainstream press, such as CBS, the New York Times (which has been sympathetic to Nifong and the complaining witness throughout this ordeal), local TV channels, and the local newspapers.  Some of those statements will not appear to the public to be ones that a lawyer should be forbidden to say, such as "it is a case that talks about what the community stands for."  (para. 148)

UPDATE 3:  KC Johnson has thoughts here, which are very similar to mine.  Friends of Duke has a round-up.  Concurring Opinions weighs in here.  I agree with Dave Hoffman that Nifong won't succeed on any First Amendment defenses.  My prediction above concerns the discussion of the issue that will be occasioned.  I've found that a lot of folks believe that except in the case of affimative misstatements, the pretrial publicity rule is overkill, because you can virtually always find an impartial jury.  But I'm a traditionalist on that issue -- that is, I think the rule has continuing importance, and it's pretty clear that Nifong grossly violated it.

Free Speech for Judges Who Sit Below (What the Judge Calls) "Kangaroo Courts"?

Over at Volokh, Prawfsblawg, and California Appellate Report, they're discussing People v. Zachary, from the California Court of Appeal.  (Note: it's court of "Appeal" not "Appeals.")  The trial court judge referred to the appellate court judges as kangaroos on the kangaroo court.  The appellate court responded with some pointed criticism of the trial judge and said that he had violated the canons of judicial ethics.

There is a perennial debate about the limits of free speech in the context of litigation.  I often find myself arguing for modest restraints on the mode of offering up criticism.  The daily grind of litigation doesn't permit certain forms of aggressive, corrosive rhetoric.  Legislators have similar "rules of engagement" that apply to daily debate.  For that matter, so do referees and sports players.  You're allowed certain forms of criticism, certain expressions, certain amounts of emotion, but not others.  The key to making this work is that the party in power -- the party who gets to blow the whistle -- has to use some restraint in exercising that power.  It seems to me that the California Court of Appeal was a little too sharp in how it responded here.  There's a fine line between condemning abusive rhetoric and adopting abusive rhetoric of one's own.

(By the way, we recently had a case out of, I believe, Indiana, where the appellate lawyer included a footnote stating that the lower court had been result-oriented.  The lawyer attempted to apologize and re-file the brief but was disciplied nonetheless.  Can anyone remember the name of that case?)

Monroe Freedman on Prosecutors and Misconduct

[[ In a previous post regarding the Duke lacrosse prosecutions, I linked to three articles exploring prosecutorial misconduct, including an article by Fred Zacharias.  Our frequent guest blogger, Monroe Freedman, offers this response to Professor Zacharias's article. ]]

My first criticism is that Zacharias disparages previous, pioneering commentators on prosecutors’ ethics for their "traditional lamentations," which are "somewhat overblown," and for engaging in "hand-wringing" as they "bemoan" the failure of disciplinary authorities to deal with prosecutorial misconduct. By contrast, Zacharias claims that he will deal with the subject from an "impartial perspective" and will assess the matter "impartial[ly], "realistically" and "dispassionately." Nevertheless, although he does not say so directly, Zacharias’ research simply confirms the prior conclusions of others.

More important, however, Zacharias says things that could produce complacency about prosecutorial discipline. For example, one of his conclusions is that "the authorities do seem to have targeted particularly serious prosecutorial misconduct." Also, Zacharias claims that his research "put[s] the lie to at least one myth: that prosecutors are never disciplined." Of course, no one has ever stated the "lie" or "myth" that "prosecutors are never disciplined." What a number have said, though, is that prosecutors are far too seldom disciplined * and that conclusion is actually supported, not dispelled, by Zacharias’ research.

Zacharias’ computerized review of all cases involving disciplinary actions against prosecutors produced slightly over 100 cases. However, his cases go back over one hundred years, to 1886. That comes to a single case a year, nationwide, federal and state, and including cases of bribery, extortion, conversion, and embezzlement of state funds.

Obviously, that shows an insignificant number of disciplinary actions, especially in cases of denial of defendants’ constitutional rights. Instead of simply saying that, however, Zacharias characterizes the number of cases as "far from staggering" in comparison to the number of criminal cases.

Zacharias might say that the careful reader of his article will recognize that prosecutorial discipline has been woefully inadequate. But all readers are not careful. Indeed, Professor Zacharias himself announced to an AALS conference that his research revealed a "fair" number of cases of professional discipline against prosecutors. A conclusion that there are already a "fair" number of disciplinary cases is not one that is likely to inspire more vigorous efforts.

In addition, Zacharias suggests that there may be less discipline of prosecutors than of lawyers representing private clients because of the "lesser need ... in order to protect individuals." However, every citizen who is convicted unjustly because of suppressed evidence or false testimony, or deprived of due process, is an individual seriously in need of protection.

Another justification he gives for the failure of disciplinary committees to discipline prosecutors more frequently is that prosecutors who engage in unethical and unconstitutional conduct are "typically ... driven by an excess of zeal in pursuing the public good" rather than by career advancement or political aspirations. Thus, disciplinary authorities "justifiably avoid cases involving well-intended" prosecutorial misconduct. How Zacharias knows what "typically" motivates such conduct is not clear. One might question, though, how "impartial" and "dispassionate" a commentator is who presumes a pro bono motive for suppressing evidence or using false testimony and who, on that ground, justifies seriously inadequate discipline.

Lipshaw on Agreements over the Scope of Truthfulness

Jeff Lipshaw, of Legal Profession Blog, has this post about business agreements that regulate the duty of truthfulness in the negotiation of the agreement itself.

Exam Questions in Legal Ethics

Here's the exam questions from my recent legal ethics class.

Essay Question No. 1

Advice Needed

            You have passed the bar and you specialize in legal ethics.  One of your long-standing clients, a criminal law practitioner, calls you for help and leaves this voicemail message:

Hey, it’s me, Lynn.  I’m calling at 2:00 pm Friday afternoon.  I’ve got a problem so call me right back.  I have a trial starting this Monday.  It’s an armed robbery case where all the prosecutor has is a pretty weak witness identification.  My client told me how he did the crime and we focused on how to discredit the identification.  Anyway, this morning around 11:00 am, my client suddenly tells me he has an alibi story and that he didn’t even do the crime in the first place.  He said that at the time the crime was committed he was walking by himself in the park by the lake, far from the crime.  He said that he originally told me that he did the crime because he didn’t think I would believe in his innocence.  I just stared at him for a few minutes.  Then I started asking him questions like a prosecutor would and not surprisingly I shredded his story to pieces.  So he gets real mad at me and asks me whose side I’m on.  I said that, although I want to get him acquitted, as a licensed lawyer I can’t put on any perjury. So he says, “don’t worry about that, because I’ve got a new lawyer.  You are fired.  You are not my lawyer.  I am not your client.”  And he hands me a piece of paper with the name and phone number of Susan Marking, who’s been doing criminal defense in town for years.  I’ve worked with her before.  She’s good.  I trust her.  So I called Marking and she said she entered into an attorney client relationship with my client this morning around 9:00 am.  I didn’t say anything else or ask her anything else.  She didn’t saying anything else either.  I’m sure you understand.  But I am still listed as the counsel of record on this matter and after Marking tried to file a substitution of counsel around noon today the judge’s clerk called me and Marking jointly and told us both to show up on Monday because the trial will definitely start that morning and the judge wants to keep things under control and decide about the supposed switch in counsel.  Anyway, I’ve spent this afternoon reading Model Rule 3.3 over and over and now it’s just becoming a blur.  I don’t want to hurt my client—if he even is my client at this point.  But I don’t want to kill my career either.  Can you get me some advice in writing about how to handle this situation?

*          *          *          *          *

Give the lawyer advice.  In this unusual jurisdiction, the only governing law is the text and comments of Rule 3.3 of the ABA Model Rules and the text and comments of any rule expressly mentioned in Rule 3.3.  Case law, lecture notes, outlines, course materials, articles in the legal media, etc., are deemed useless and are not permitted to be cited in your answer.  You can cite common sense and make any prudential suggestions you want, but the only "law" is the text and comments of Rule 3.3 and the text and comments of any other rule referenced in that rule.

*          *          *          *          *

Essay Question 2

Issue Spotting

Azadeh Ruhani left a job as a municipal lawyer for the San Clarita County and began working at a legal services job doing mostly representations of domestic violence victims.  At 9:00 A.M., on her first day at the new job, Ruhani listened to this voicemail from her supervisor, Robin LaPlante:

Hey, Azadeh, sorry I couldn’t be there this morning, but I’m at the hospital in Elmwood.  Jeanne Fisher, a former colleague of our clinic, who’s a solo practitioner in town, had a massive stroke over the weekend.  Very sad.  Anyway, there’s some things you need to do.  First, Mary O’Connor, a former client, doesn’t want to pay our fees and so threatened us with a malpractice suit.  We’ve reached an agreement with her to write off the fees in exchange for her releasing any claims against us.  See my secretary Michael, who will show you the correct form, which is pretty straight forward, but ask Michael if you have any questions.  Second, around noon grab the file with our public speeches and head down to the Chinese-American Women’s Club for lunch and deliver our speech “How A Lawyer Can Protect You from Domestic Violence.”  After the speech, hang around and see if you can’t drum up some prospective clients.  If they are worried about the costs, assure them they won’t have to pay a dime if we take their case.  We’ll front all the costs, including medical exams and whatever.  Third, in our case for Maria Costas, her mom is paying us the legal fees but she’s fallen behind.  Call her to get another payment.  She’ll want to know what’s going on in the case, but we keep telling her that nothing is really happening yet.  If you need to, make up something about how the court’s backlogged.  Whatever.  Or, if you prefer, just have Michael call Maria’s mom.  I’ll catch up with you after work.  We can grab dinner and drinks at Happy Jack’s.

*          *          *          *          *

Only the ABA Model Rules of Professional Conduct apply.  Spot issues arising in this fact pattern, identify the governing rules and/or comment paragraphs, and analyze the issues to the extent the time limits permit. 

*          *          *          *          *

Surpassing strange: Nifong admits critical ethical lapse.

According to the New York Times, DA Mike Nifong openly acknowledged an ethical lapse of massive proportions and inexplicable causes: he knew the DNA tests were negative as to the three defendants before the indictments, and he knew so before he represented to the court, as a minister of justice and an officer of the court, that the “the state is not aware of any additional material or information which may be exculpatory in nature.”  Full quote here:

On Thursday, Mr. Nifong acknowledged knowing about those test results before any players were indicted last spring. He also acknowledged that the results were relevant and “potentially exculpatory,” and he said he should have given the results to the defense before May 18, the day he signed a filing that said “the state is not aware of any additional material or information which may be exculpatory in nature.”

His proffered defense for that failure to disclose and for his false representation to the court is impossible to credit:

But Mr. Nifong denied the defense team’s contention that he had deliberately tried to hide the results or delay their release. Mr. Nifong, who is personally overseeing this case, said that given the volume of evidence he had not realized that he had failed to turn over those specific DNA test results. “That wasn’t something I was concentrating on,” he said.

This wasn't some incidental detail he failed to disclose, some arcane detail that was easily overlooked.  This was a piece of evidence -- the results of DNA testing -- that most people would credit over fingerprints, over videotape, even over witness IDs or confessions.

As this rapidly evolving story careens wildly forward, the question at the margin is not whether the remaining charges will proceed, but whether Nifong's eventual discipline, after a complete defense victory, will be admonishment, probation, suspension, or disbarment.

"Almost All Leakers Are Lawyers," part 2

We quoted former New York Times editor Howell Raines as saying so, here.  And now comes word that the suspected leaker of grand jury testimony in the Barry Bonds case is . . .  a defense lawyer.

Email: the "Green Eggs and Ham Test"

Over at White Collar Crime Blog, there's a  post about another defendant accepting a deal and "turning state's evidence" in the KPMG tax shelter matter.  The incriminating email is almost beyond belief -- except that we've seen so many insanely incriminating emails over the years that we've come to expect more of them. 

My former law partner, Mark Ostrau, gave presentations on good email habits and devised what he called the "Green Eggs and Ham Test."   Even good, honest people write emails that are begging to be twisted out of context.  The point was to think about whether you'd like your emails to wind up in the hand of your competitor (call them Brand X), the press, administrative agencies, or plaintiff's lawyers.  So before sending emails, one asks:

Would you like this in the press?

Would you like this at Brand X?

Like to read it on the stand?

Like it in the government's hand?

News Reports: Duke lacrosse rape prosecutions dropped; other charges remain

Media reports here.