Legal Ethics Forum

Requiring law students to do a question asking exercise

Over at Legal Profession Blog and Prawfsblawg, they're discussing the WSJ's take on the new Carnegie Foundation report on the training of lawyers.  I've ordered, but not yet received, the new report, but that won't stop me from climbing aboard one of my favorite hobby horses.

My proposal: no student shall be awarded a JD, and no person shall be admitted to the practice of law, without having undergone an extensive practical exercise in asking questions.  To graduate, students must (1) interview a client; (2) question a witness about what happened; (3) take a deposition segment; (4) question a witness on the stand, or (5) play judge and ask counsel questions about their arguments. (Perhaps they could even have to (6) ask a fellow student socratic questions about case law.) 

Students must be taught the "form of the question," the appropriate uses of each form, and the sequencing of questions for particular purposes.  Students them must demonstrate minimal competency in asking questions.

That is the ur-skill of the practice of law, because it precedes argument.  (Moreover, in the case of leading and closed questions, asking questions is itself one of the most important modes of making an argument.)  A lawyer can be completely ignorant of Marbury v. Madison and still be a terrific lawyer.  A lawyer who has not mastered the art of asking questions is not much of a lawyer at all, imho.

Credit or Blame for Client Identity

I haven't posted anything on the Cully Stimson controversy, mostly because I didn't have much to add to the excellent discussion on many blogs.  John Steele's post here, David Luban's at Balkinization, and a series of posts (here, here, here and, oh heck, just follow the internal links for more) at Volokh Conspiracy did a great job of setting out the issues.  I have actually read most of the comments that have been posted on the Volokh site, and there is one issue raised in the comments that I don't think has attracted much attention from the professional commentators.  That is, why do lawyers keep saying they have a professional obligation to represent unpopular clients when the really don't?  And if they don't, then isn't it appropriate to criticize or praise lawyers for their choices of clients?

On the first point, for all the rhetoric in the Model Rules about neutrality and the right to representation, the U.S. has no counterpart to the British cab rank rule, which obligates barristers to accept briefs from solicitors in the order they're received (hence the name), rather than on the basis of judgments about merit.  British commentators observe that the rule is widely subverted by barristers' clerks, but it at least remains as an obligation, and evasion is treated as something distasteful, not to be openly celebrated.  In the U.S., all of the provisions of the Rules of Professional Conduct bearing on client selection are aspirational only, with the limited exception of the appointed-counsel rule.  MR 1.2(b) isn't a rule at all, as John Steele points out; MR 1.16(b) permits withdrawal from an existing representation (where the obligation not to judge one's client's projects seems even stronger) if the lawyer considers the client's actions repugnant; the pro bono rule (MR 6.1) says lawyers "should aspire" to fulfill their professional obligation to provide legal representation to those unable to pay, but says nothing about neutrality in client selection; and the court-appointed representation rule (MR 6.2) not only is limited to lawyers who have volunteered to accept appointments, but contains an opt-out provision (subsection (c)) for repugnant clients.

In my contribution to the symposium honoring the work of Monroe Freedman, I argued that there is a cab-rank principle in American law, even if there isn't a bottom-line, enforceable duty to accept representation of any client.  ("Institutional and Individual Justification in Legal Ethics:  The Problem of Client Selection," 34 Hofstra L. Rev. 987.)  Professional detachment and neutrality, and accepting the representation of unpopular clients are undoubtedly central aspects of the normative identity of the American legal profession.  For evidence, look at our professional lore which praises lawyers (e.g. John Adams) for representing unpopular clients (in Adams' case, the British soldiers accused of taking part in the Boston Massacre).  And there is no question that Stimson's comments struck most lawyers, on both sides of the underlying political debates, as utterly inconsistent with professional traditions and aspirations. 

If the profession as a whole takes neutrality and the duty to represent seriously, how come we don't impose obligations on individual lawyers to represent clients?  Why isn't there a cab-rank rule for American lawyers?  The answer, in my view, is that we want to hold on to a plurality of conceptions of good lawyering, within one larger, overarching concept of a legal profession.  This Rawlsian terminology is just meant to point out that we can recognize a fairly general idea of what it would mean to be a professional, with abstract ideals like neutrality, partisanship, and loyalty, while leaving under-specified the more particular duties that would flow from those ideals.  The reason for this is twofold:  (1) We think that good lawyering is a matter of context, and resist a one-size-fits-all approach to defining professional excellence.  (2) We want to preserve some space within the professional role for lawyers to make moral decisions, and define themselves as persons as well as professionals. 

Focusing on #2, if professional duties were so particularized that there was little or no room for the exercise of discretion and moral judgment, lawyers might feel so hemmed in by their professional obligations that they started to become alienated from the connections and values that gave meaning to their lives as people.  (This is one of the strongest criticisms of role-differentiated morality, pursued by Postema, Luban, Shaffer, and many others.)  One response to this problem, by the profession, has been to establish some wiggle room within the professional role for the exercise of moral judgment.  In addition to opt-out provisions in the rules, permitting withdrawal where the client's actions are repugnant, the law of lawyering builds in wiggle room for the exercise of moral judgment by not enforcing a strict cab-rank rule.  The profession has reacted by spitting into sub-professions, defined in part by the identity of clients.  Lawyers tend not to identify as lawyers-full-stop, but as "plaintiffs' side PI lawyers," "criminal defense lawyers," "M&A lawyers," or whatever.  There is a great deal of academic literature on the concept of "cause lawyering" -- that is, lawyers who believe that pursuing a particular political agenda is an inextricable aspect of their professional identity.  We don't see lawyers for the ACLU or the ACLJ as simply lawyers -- it's not just "you say po-tay-to, I say po-tah-to" -- we all know that people represent the ACLU or the ACLJ for moral and political reasons.  And that's okay. 

But then the next step in the argument is obvious:  If there is this discretion to choose specialized conceptions of lawyering within the overarching concept of lawyer, then shouldn't lawyers expect to be judged morally based on the clients they represent?  At the very least you can't have it both ways, coming in for praise for representing [insert your favorite "good" client, whether the Sierra Club or the Pacific Legal Foundation] and then seeking to avoid blame for representing [insert your favorite "bad" client, whether cigarette companies or terrorists]. 

The appropriateness of praise or blame does not mean that moral evaluation should be based only on the client's own moral projects.  The inference, "this lawyer represents child molesters, therefore he must be a child molester" is stupid.  A lawyer may represent particular clients not because she shares the commitment to their cause, but because she is committed to a political project that includes safeguarding the rights of unpopular clients.  Big firms doing pro bono work for detainees are not pro-Osama; rather, they are committed to ensuring that the government conducts the war on terror in accordance with constitutional and human rights values that are the very thing we're supposed to be defending in the war on terror.  Corporate America seems to have recognized this when it responded, overwhelmingly, to Stimson by reaffirming its commitment to hiring law firms that represent detainees.  Another much-discussed example is the African-American ACLU lawyer in Texas who represented the Klan in a parade-permit lawsuit.  (David Wilkins has an excellent article about this case.)  Obviously the lawyer is not pro-Klan, but as a civil liberties lawyer he is committed to protecting rights that African-Americans had relied on in their struggle for equality. 

It's not a particular earth-shaking point that a lawyer may be committed to something abstract, like the protection of rights, rather than to her client's projects.  Every criminal defense lawyer has to struggle with this sort of identification problem when representing loathsome clients.  What I think is worth keeping in mind -- which I hope justifies this long post -- is that there is a certain amount of moral discretion in lawyering, and lawyers can't just hide behind some duty that doesn't exist to represent every client who walks in the door. 

[UPDATE:  I meant to say all the provisions of the Model Rules that bear on client selection are aspirational only.  The original post left out the italicized bit, making it sound like there are no enforceable duties in the Rules, which is of course flatly wrong.] 

New Nifong charges cut deep

The new allegations against Nifong, here at pages 16-18, raise the stakes enormously.  Whereas the prior charges dealt with a serious allegation that Nifong's public statements were false and prejudicial to the accuseds' rights, these new allegations claim that Nifong deliberately lied to the court and to the Grievance Committee of the State Bar about the DNA report.

NY backs off of over-regulating ads

There's an article here about how New York is backing off declaring all blogs "advertisements" and other nonsense. 

New rules released for the Military Commissions, including ethics rules for lawyers

I will try to get them posted here as quickly as possible.  Rule 109 spells out which legal ethics rules apply.

The Executive Summary: Download mmc_executive_summary.pdf

The Preamble: Download mmcpreamble_3_2.pdf

Part II (including Rule 109):  Download part_ii_rmcs_final.pdf

Part III (including rules of evidence): Download part_iii_mcres_final.pdf

Part IV (Crimes and Elements):  Download part_iv_crimes_and_elements_final.pdf

More on Stimson and Gitmo

Charles Fried has a wonderful opinion piece, Mr. Stimson and the American Way, in the WSJ($) today.

And William Teesdale, a public defender from Portland, who has been assigned to represent detainee ISN 940, Adel Hamad, has posted on YouTube a video arguing for his client's innocence. 

The piece is advocacy, of course, and therefore cannot be accepted uncritically, but it is well worth watching.  Not even the most dedicated Panglossian could believe that every single person detained in Gitmo is a dangerous terrorist who should be there.  Even under perfect conditions, arrest and detention do not work perfectly; and I doubt that the conditions in which the detainees were identified and seized were very close to perfection. 

I don't think we can know whether Mr. Hamad is wrongly imprisoned  on the basis of this video alone, but it certainly serves as a reminder of just how wrong-headed Mr. Stimson's comments were.  We are lucky to have Mr. Teesdale to make his case.

DM

Copyright and Compelled Delivery (Reproduction) of Client Documents

    Suppose a rule governing lawyers requires them to provide clients copies of work product.  (For example, see this proposed COPRAC opinion.)  What if the rule holds even if the client wants to give the work product to new counsel so they can cut-and-paste it into their own work?  How does such a rule relate to copyright law?

    Outside the in-house context, pleadings, deal documents, etc., are unlikely subjects for work-for-hire status, which means lawyers retain the rights in original works they author.  17 U.S.C. 106(1) gives them the exclusive right to reproduce such works, and section 106(2) gives them the exclusive right to create modified works based on an original.  Presumably state laws that alter this allocation of rights, as by giving clients a right to cause reproduction, are pre-empted by   virtue of their conflict with federal law.  Does it follow that such rules are void? 

    My initial reaction is that it depends on context.  Consider three cases.  In the first, a client just wants work product for his or her own purposes.   In the second, the client wants to give the work product to new counsel to use. In the third, a competing firm wants to copy (free-ride) on the work.  (Recall a dispute on this issue involving copying of one of the then-Milberg firm's complaints in the Enron litigation.)

    In the first case, let's assume that counsel has federal rights in a work.  My instinct is that, based on tradition, probable expectations, and a desire to minimize transaction costs, the client has an implied license to reproduce for the client's own use all work product done for the client.  That would include partially completed work, as to which a first publication issue might arise. 

    The questions here are the scope of this implied license (does it include modifying as well as reprroducing?) and whether a firm could disavow the implied license with an express reservation of rights in the retainer agreement.  Would state law govern, in which case the rule in question might void the term, or would that cut too much into the federal allocation of rights?

    The second case is harder.  The client is not actually free-riding on the lawyer's work (at least not if the client has not paid for it), but it is conceivable that firms could develop brief banks (or deal document banks) and sell their works to other firms, in a variation on the recent outsourcing craze.  Thus, such use could cut into the potential market for the work, meaning that the very-important fourth factor of fair use analysis under 17 USC 107 might cut against the client.  (Going the other way, of course, if the argument that there is no public goods problem with regard to legal documents, so there is no neeed to allow rights to be asserted in order to cover the firm's cost of creating the documents.)

    The third case seems relatively easier, though perhaps not a slam dunk.  The lawyers in that case are purely free riding, and they may be copying (as in the Milberg example) to compete with firms that sunk costs into creating the works.  That is the paradigm case of infringement (though, of course, some documents may recieve such thin protection that even the paradigm case is weak: complaints presumably have lots of facts, which are not copyrightable).

    A final consideration is whether a lawyer who cuts and pastes another lawyer's work does anything wrong.  Is this sort of plagiarism a form of misrepresentation or otherwise unethical conduct?

    Reputational concerns will of course keep many firms from asserting such rights against clients; no client wants to have to license their documents.  But such issues can arise when client relationships end for good, and against third parties, so they are worth thinking about. 

    The Patry blog has a good overview of the general issue, including comments suggesting that local rules might vitiate the issue by requiring counsel to waive rights in filed documents (though this does not work for non-litigation work product).  Other thoughts?

DM

What Were They Thinking?

I have been reading At Canaan's Edge, the final volume of Taylor Branch's trilogy of America in the King years.  An anecdote in the book reminded me of a question that seems suitable for today.

Branch recounts litigation over the march from Selma to Montgomery, Alabama, in March of 1965.   After the first attempted march, which ended with Alabama troopers clubbing and gassing the marchers into submission, Judge Frank Johnson enjoined further marches until he could hold hearings.  Branch notes that, at the hearings, lawyers for Alabama refused to use the Rev. King's proper name, in order to evade the court's order that they refer to him as either "Dr. King" or "Mr. King."  (87)

There are many good accounts of the lawyering in support of the civil rights movement.  (An excellent one is here.)  But I have not read any accounts explaining what the lawyers on the other side were thinking.  What went through the mind of lawyers who worked to stop the march (and, more generally, to perpetuate an American form of apartheid), and could not bring themselves even to say "Mr. King?" 

History is written by the winners, but it would be instructive to learn how the lawyers on the losing side of these battles saw things.  (If anyone knows of such a study, please reference it in comments.)  If nothing else, their example might serve as an effective caution against accepting uncritically the prevailing practices and sentiments of one's time and, in that case, class.

Branch also relates, by the way, an ex parte contact between Attorney General Katzenbach and Judge Johnson, in which the judge stated that he would not issue his order until assured that President Johnson (not merely the attorney general) promised to enforce it.  An extraordinary step, perhaps, but one suited to the case.

DM

Bill Responding to HP Scandal Signed into Law

President Bush signed into law a bill that makes it a federal crime to use false statements to obtain phone records.  There's an article here.  On the same note, a guilty plea was entered by a low-level undercover investigator, and you can read about that here.

One of These Things Is Not Like the Other

One of the nice things about being a small-government person (a weak-kneed libertarian, to be precise) is that it is easy to annoy everyone on all sides of an issue.  You have to work harder to do that if your only issue is what part of people's lives the government should run. 

You also see some distinctions that are not apparent from other perspectives.  All this came to mind when I followed John's reference to David Luban's post on the anti-lawyer gutter-sniping from the DOD's  Cully Stimson.  Luban's post links Stimson's low-rent demagoguery to "business as usual for conservative activists, who for years have used the strategy of trying to de-fund lawyers on the left."

From a small-government point of view, this equation does not hold up.  One can oppose the Bush administration's genuinely awful positions regarding treatment of detainees (note to administration: you can't credibly claim they are all terrorists unless you can prove it, and if you can prove it the world will not end if someone makes you)* without embracing the notion that what the world needs now is more lawyers on a mission.

The difference is between lawyers who want to rein in government power and safeguard the rights of individuals, on the one hand, and lawyers who want to use government power to get the results they want, on the other.  Detainee lawyers are of the first sort; many (not all, but many) "public interest" lawyers are of the second. (As, for that matter, is Stimson.)

Lawyers are reasonably well suited to putting the government to its proof in individual cases.  They are much less well suited to running the economy.  Should rent-to-own stores be banned under usury laws?  Should cross-collateralization clauses in consumer credit contracts go unenforced under unconscionability rules?  Should farm labor unionize and try to keep immigrants down (and poorer) in Mexico?**

Unless one is either a really rock-ribbed neoclassical economists (which, to be honest, I pretty much am) or a really parentalistic do-gooder, these are not easy questions.  There are lots of uncertainties and lots of trade-offs.  But it should be plain enough that they are not particularly legal questions. 

Indeed, consider the thesis behind the funding of government anti-poverty lawyers, stated (as I recall) by Earl Johnson, Jr., the second head of the OEO LSP: that lawyers could, through lawyering, raise the average annual income of poor people.  Is there any reason to think that history has borne that thesis out?  Perhaps that is why there seems to be general support for "casework" and a sharp division of opinion over "law reform" efforts by government-funded lawyers. 

So although Professor Luban is right to say that de-funding leftish lawyers has been a conservative cause for some time, I do not agree with the implied equation between law-reform lawyers and the lawyers working for detainees.  From a small-government point of view, they are different. 

DM

* Richard Epstein gets it right.

** I'm not making that last one up.  Consider the following summary of how some of the tax dollars funneled into California Rural Legal Assistance were spent:

"In 1966, shortly after California Rural Legal Assistance was funded by the office of Economic Opportunity (OEO), its founder and first director [the author, James Lorenz] made an agreement with Cesar Chavez whereby CRLA agreed not to handle any domestic relations cases, so that more attorney time might be freed up to file lawsuits against growers which would be of help to the farm worker's union. In return, Cesar agreed to support CRLA. A corollary to the agreement was that CRLA would not file any lawsuits against the union."  17 St. Louis Univ. Pub. Law Rev. 295 (1998)

In other words, CRLA decided it would be better to help the UFW unionize than to help immigrant laborers with issues such as divorce, spousal abuse, custody, or visitation.  Plausible?  Maybe.  Subject to democratic processes, or other forms of accountability?  No.  Anti-poverty?  Well, it depends on whether you care more about poor laborers who have made it into the country or about even poorer immigrants.  (See Diaz v. Kay-Dix Ranch for an example.)]