Legal Ethics Forum

David Luban on Stimson, cutting off access to justice, and the power of big business clients

The always-worth-reading David Luban has posted at Balkinization on the Stimson affair, and uses it as grist for a larger discussion on how access to lawyers (and hence access to justice) gets cut off in a variety of ways.  I agree with him that even non-lawyers should be skeptical about attempts by the government or corporate America to call the shots for the legal profession.  At the same time, I don't see where his thesis has any limitations.  In other words, is there nothing legitimate that  clients can do when their lawyers take up positions that offend the client, other than stew quietly and send yet more work to those lawyers?  And, does this question of client influence apply neutrally in both political directions, or does it work only to prevent clients from urging lawyers to adopt politically conservative stances?

Apple Option Backdating: Lawyer Fired

I'm a Mac person, and always have been (since 1984).  This options back-dating scandal at Apple concerns me.  Here's an article about the firing of the lawyer who was responsible for the paperwork that has led to the investigations and publicity.

Is Model Rule 1.2(b) Really a Rule? (Or, "What Should We Think of Lawyers Who Represent Guantanamo Detainees?")

Jonathan Adler, at Volokh and Paul Horwitz at Prawfsblawg are commenting on the news that some within the Bush administration are attacking biglaw firms for representing Guantanamo detainees.  That's a perennial issue, of course. 

Whether the biglaw firm's client is a tobacco company, or a Catholic charity that won't participate in adoptions by gay couples, or death row inmates, or gun manufacturers, or Gitmo detainees, there is no shortage of people from the left or right who condemn the law firms and try to shame them.  I'm appalled to see my tax dollars going for that purpose, but I've gotten over the fact that scolding lawyers for their clients is so popular.  If mentally condemning lawyers is what floats your boat, don't let me stand in your way.  If publicly condemning them is your idea of fun, then by all means flex your free speech muscles.  I think you're acting against your own best, fully enlightened self-interest, but I will cut you some slack since bashing lawyers on this point is a nearly irresistible impulse.  But I wanted to make a few comments about the issue.

1.  While I don't take this issue too seriously when most people engage in it, we ought to take it very seriously when the government does it.  If we believe in checks and balances, a legal profession that is independent of the federal government is an important part of liberal constitutionalism.  Please remember this incident, and other acts by the Ashcroft and Gonzales DOJs, whenever you hear of new initiatives by the federal government to regulate the lawyers.

2.  Likewise, whether you're from the political left, the political right, or somewhere in between, do you really want corporate America calling all the shots for the legal profession?  (Recall that this is the theory behind the current shaming campaign; corporate America is being asked to exert pressure on law firms that represent Gitmo detainees.)  It might be argued (and has been argued by Norman Spaulding and others) that we should all want more distance between lawyers and their powerful clients.

The bar has a long history of taking stands that might be unpopular with some of its powerful clients.  Morrison & Foerster represented the so-called American Taliban, John Walker Lindh (and thereby brought honor on themselves and the bar, in my view).  The Association of the Bar of the City of New York supported civil rights at a time when much of corporate America was opposed to civil rights legislation.  The list could go on.  Aren't we better off if the bar can be a counter-weight to the federal government and corporate America?

And before I go too far in insinuating that corporate counsel within large corporations are all conservative -- which is not true and is not my point -- bear in mind that inhouse counsel have quite publicly pressed for progressive social policies on a number of fronts.  Would they really oppose the notion that Gitmo detainees be represented by competent counsel?  Would they really pull business from their established counsel on that basis?  It's highly unlikely, if only because inhouse lawyers are likely to share the profession's general preference that accuseds get lawyers.

3.  How strong is this notion of lawyer "independence" in the US?  It's probably weaker than in our peer nations, such as the UK and Western Europe.  The concept of professional independence is much stronger over there, probably due to historical battles between the lawyers guilds on the one hand, and the monarch and church on the other.  Geoffrey Hazard and Angelo Dondi's book, Legal Ethics: A Comparative Study, has a nice chapter on it.

4.  If we ultimately decide to permit lawyers to represent a range of clients without recrimination, it's probably because we're committed to creating a widely accepted forum for resolving disputes where reasonable people differ.  Brad Wendel has repeatedly written on that theme.

5.  In a more technical vein, what is the purpose of Model Rule 1.2(b)?  Is it really a rule in the normal sense?  First, here's the rule subparagraph and the pertinent comments:

1.2(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.

[Comment 5] Legal representation should not be denied to people who are unable to afford legal services, or whose cause is controversial or the subject of popular disapproval. By the same token, representing a client does not constitute approval of the client's views or activities.

We probably should also take note of the traditional lawyer's oath, which came to us via centuries-old Swiss and French lawyers guild oaths, which were translated almost word for word into the Field Code, and from there into the 1909 ABA Canons, and from there into various ethics codes and statutes:

I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed.

So, what's the function of rule 1.2(b)?  Notice it's a rule that can't really be broken.  There's no fact pattern under which we could say, "given that act, that lawyer should be disciplined for breaking rule 1.2(b)."  I read the rule simply as a rhetorical shield that formally protects lawyers from criticism that is inevitable, perennial, and often ideological.

Innovative law firm structure

Dreier, Stein & Kahan has a simple capital structure: Marc Dreier owns the firm.  All the others, including big-book litigators who surely fit the mold of "partner," negotiate three year compensation contracts.  After salaries and expenses are paid, Dreier keeps the rest.  Unfortunately, the story is subscription required.  Anyone aware of other firms like that?  Any thoughts about how well it would work or not?  Some brief quotes from the article:

The latest player to emerge on the L.A. legal scene is a rare kind of partnership, if you can call it that at all: It has just one equity partner.   . . . .    Everyone — except Dreier — negotiates a fixed contract every three years. They can get more income based on business they work on or generate.

With Judges Like These, Who Needs Lawyers?

We've seen the Federal Circuit writing amicus brief opinions recently, but they have no monopoly on acting as lawyers while judging.  Justice Scalia (for Arizona) squares off with Justices Souter, Stevens, and Breyer (for respondent) in Schriro v. Landrigan, an interesting case involving claims of ineffective assistance relating to a waiver of the right to present mitigating evidence at the penalty phase of a capital trial. 

The issue is not easy.  As best I can tell from the transcript, the gist of the claim is that counsel was ineffective for not tracking down mitigating evidence (the facts of Strickland itself) and, because the evidence had not been gathered, the defendant's waiver was ineffective because he did not know what evidence he was giving up.  If you avoid the poles of holding that waivers can always or never be challenged based on after-acquired evidence, things get complex.

Which is probably why the justices take over.  The transcript is here (Download 05-1575.pdf ); see especially pages 7-11 (Scalia v. Souter), 25-26 (Scalia v. Stevens) and 48-51 (Scalia v. Breyer). [Update: A nice summary of the case is here.]

The 9th Circuit will be reversed, by the way.  No one defended its holding, though the respondent defended its remedy.

DM

Credentialism on the upswing?

This article (sub. req'd) from the Legal Times explores a growing trend: more federal judges are insisting that the candidates for clerking slots have some work experience, typically at elite biglaw firms.  It's perfectly understandable that judges would prefer clerks who have acquired some job skills by working 2,000 hours writing and researching. 

But notice how the elite positions within the US legal profession are getting harder and harder to obtain.  Law firms have moved to longer partnership tracks, with various levels of non-equity status.  Tenure track teaching jobs increasingly include some time as a visiting assistant professor, and we're seeing a larger share of those jobs going to graduates of just six top law schools.  Law schools have focused more intensely on metrics that affect their USN&WR rankings -- including, of course, the mother of all ranking metrics, the LSAT.  Average law school debt continues to climb. 

Is it just me, or are we seeing an across-the-board ratcheting up of credentialism in our profession?  If so, how will this affect the demographics of the profession and access to elite positions?

New York Advertising Rules Effective February 1st?

See here.  There's lots of speculation about whether someone will sue in federal court to enjoin an arguable infringement of free speech rights.  Why would a state like New York lurch backwards on speech regulation? 

Unbundling of Legal Services

Lawyers are hearing more these days about the unbundling of legal services.  Essentially, unbundling means that a lawyer agrees to handle only a small part of a particular legal matter (e.g., drafting a brief) while the client handles the rest (e.g., appearing in court).  From the consumer's perspective, unbundling helps to reduce the cost of legal services, but the practice raises some tricky ethical issues. 

This article from the National Law Journal does a nice job of summarizing some of the issues and the recent trend in favor of allowing unbundling: http://www.law.com/jsp/article.jsp?id=1167818525221  Given the enormous cost of legal services and the number of people who cannot afford to hire an attorney, this trend sounds like a very positive one.  If anyone has links to some recent scholarship on unbundling, I'm happy to post links here.

Metadata on Take Home Exams?

We've had our share of discussion about the legal ethics of examining the opposing party's metadata.  Here's an an interesting post from Nuts & Boalts about whether uploaded take-home exams go out to professors with searchable metadata.  What will David Hricik and others say about poking around for that kind of metadata?  Plainly improper if the exam is supposed to be anonymous, right?

Professionalism and Silly Formalism

Amicus briefs filed for retired judges are an unlikely subject for a story by the NYT's exceptionally fine reporter Adam Liptak, who normally pursues more substantive fare.  They are also an unlikely subject for a debate on judicial etiquette, which is how I read both the story and the comments on it from John and (here and on Volokh) Steve Gillers and (Volokh only) Steve Lubet (scroll down on Volokh). 

But the story raises an interesting conceptual point about the relationship between normative disagreement and professional criticism.  I will argue the point with one descriptive claim and one normative one. 

(First, though, I should mention that in 1990-91 I worked as a law clerk for Judge Randolph, one of the judges in the majority that denied the motion to file the brief in question; give that fact what weight you will in evaluating the following.)

Here is my descriptive claim: Standards of professionalism, or professional etiquette, presume consensus on various normative issues, particularly jurisprudential ones.  In fact, what is "good lawyering" or "good judging" rests on nothing more than the agreement of people working from various orientations--formalist, realist, legal process, etc.--that  a given action is good or bad.

Within that consensus, standards of professionalism appear to be autonomous and self-sustaining principles of craft.  They are not.  They are merely the product of the consensus, which itself reflects a shared judgment that some ways of doing things are useful (or harmful) relative to normative commitments, and approaches those commitments imply, held by a large fraction of practitioners and judges.  The standards are parasitic on the approaches, and shift with them. 

As people of different orientations begin to reject a standard, which they do when it conflicts with their normative commitments, consensus erodes and any given judgment will have to rely more on an individual's normative views than on a shared notion of "professionalism" or the like. 

At the limit, an expression of professional disapproval may well be nothing more than an expression of a particular normative position.  For example, the oft-heard conservative critique that judges who hand down decisions like Lawrence v. Texas are not "really" judging, a claim that has everything to do with methodological commitments and very little to do with judicial craft as such.

At that point, it seems to me, there is nothing particularly ethical or professional at stake.  At most there may be ethical or professional rhetoric hanging on a substantive jurisprudential skeleton that in fact provides the shape of the argument.

Thus my normative claim, which is that when a judgment is explained more by normative disagreement than by an identifiable consensus, it is better to forgo the ethical rhetoric and talk about normative disagreement.  Discussion will be clearer, and, because arguments about ethics and professionalism tend to get personal quickly, it will have a better ratio of light to heat than if the heavy guns of ethics are deployed.

All this is apropos of Steve Gillers' comment that the D.C. Circuit's reading of the relevant advisory opinion might reflect "silly formalism."  As I read the comment, "silly" here seems to serve two functions.  First, it tacitly acknowledges that formalism is a good approach in some cases, but asserts that motions to file amicus briefs are not such cases. 

The general point that formalism is sometimes good and sometimes bad seems right to me.  Formalism may dominate other modes of judging depending on the issue; limitations periods call for formalism, for example, and free speech does not. 

But that sort of assertion means little without identifying some criterion for distinguishing silly from sensible applications of the approach. (My own view rests on utilitarianism, which is highly debatable, to say the least.)  Why is the use of the honorific "judge," outside the set of cases in which formalism dominates?

The second function "silly" seems to serve here is to support the question that ends the sentence-- "or is there another explanation for the Sentelle-Randolph refusal to consider the arguments in the brief?"  (Incidentally, not accepting the brief does not entail a refusal to consider the arguments.  Many such briefs simply elaborate on points made in the merits brief.  I don't know if that is the case here; my point is only that the claim that the majority refuses to consider the arguments in the brief is not established solely by the refusal to accept the brief for filing.)

As I read it, the logic here is that because this application of formalism is silly it is plausible to entertain competing explanations for the ruling, such as the concern for public opinion that Prof. Gillers hypothesizes.  This function of "silly" nudges the debate toward questioning the motives of the judges in the majority (though not, to be sure, to the extent Judge Mikva did). 

Each of these points reflects, I think, an essentially pragmatic view: The briefs are not such a big deal, no one has to read or care about them if they seem unhelpful, the advisory opinion does not have to be read that way, so why bother when you gain nothing and just end up insulting people? Why not politely ignore the briefs?

Pragmatism is a notoriously elastic concept, however.  For one thing, sometimes formalism and pragmatism converge.  One would like to hear more about why this is not one of those times.  More precisely, it would be interesting to hear why it is unethical or bad form for a judge to eschew pragmatism for a more formal approach.  The point is not obvious.

I don't want to criticize Prof. Gillers for not writing an essay in a blog comment, of all things.  That would be silly, and unfair.  I do want to point out that this is a case where normative jurisprudential commitments (not, I should add, political commitments in the sense of the ad hominem attacks by some commenters on Volokh) seem to me to be doing a lot of work. 

For example, though I would agree with Professor Gillers that it is possible to call this reading of the advisory opinion "formalism," it is also possible to read it as interpretation in which intentions count only insofar as the text gives them voice.  In other words, to paraphrase the best statement of interpretive theory I know of, from Henry Friendly, perhaps this is no more than asking not what the drafters meant, but what they meant by what they said. 

Even if one reads this decision as formal, however, it is also possible to believe that bright-line, formal interpretation should be used when deciding when and how retired judges can trade on the word "judge."  Why, exactly, is that not within the set of cases where formalism dominates?  John's response to Prof. Gillers' comment deals with this question quite well, and this particular case is not my real interest, so I will leave that point there.

In this case and more generally, I propose a rule of inference: a logically defensible application of a defensible jurisprudential methodology is not even prima facie evidence of bad faith or bad form.  If such inferences are to be drawn, they should rest on additional evidence.  Otherwise their prejudicial effects are likely to outweigh their probative value.

Relative to this case, I would also say it is at least defensible for a judge to treat the language of the relevant advisory opinion as binding, and to follow it to the letter, for no other reason than that that is what the language says.  There is no standard of professionalism or etiquette (which is to say, there is no meaningful consensus) that says it is more important to be nice to ex judges than to follow the language of an advisory ethics opinion. 

Nor, to be clear, is there any standard that says the opposite approach would be improper. I agree with Steve Lubet's implication that the advisory committee opinion is probably routinely ignored, and that does not imply that the judges who ignore it do wrong.  (I probably would not have bothered to reject the brief on the ground that it wasn't worth bothering about.)  But that does not mean that following the opinion--by the lights of any credible jurisprudential approach--violates any professional norm.  Presumably these opinions are written with the view that it is good practice to follow the advice they give.

So,where a disagreement is actually about interpretive methodology, or some other jurisprudential commitment, I think debate should be about the relevant commitments.  (It should be "look what silly results misplaced formalism leads to" rather than  "no one could seriously believe that; there must be something else going on.")  To use the rhetoric of ethics or of etiquette masks they real source of disagreement, and tends to nudge debate in the direction of questioning motives, a move that in my experience tends to produce more noise than signal. 

As to why I might be wrong, I concede that the word "defensible" is doing a fair bit of work in my proposed rule of inference.  Ultimately that is a subjective determination.  I do think this is an easy case, however, for the reasons John states in his comment.  More generally, if one errs on the side of more charitable readings error costs will probably be lower in the aggregate than if the default pointed the other way. 

And perhaps I am wrong to think that this issue exemplifies the relationship between normative commitments and professional criticism.  Perhaps there is some basis other than normative disagreement for making claims or raising questions about motives in this case.  I do not think the decision itself provides such a basis, however.

DM