Legal Ethics Forum

What the Rules Say and What People Do

This report of this opinion got me thinking once again about formalism and pragmatism in the ethics context. The case involves lawyers and deponents behaving badly, in the context of a larger series of disputes that Judge Easterbrook labels "a grudge match."

Here is an exchange from the deposition (assume the questions are irrelevant; the deponent is a lawyer):

Q [by Danner]. Mr. Gerstein, have you ever engaged in homosexual conduct? 
MR. WEBBER: Objection, relevance.
MR. KLAUS: I join. 
MR. WEBBER: I believe it violates Rule 30, and I'm instructing him not to answer the question. 
A. I'm not answering the question.
MR. KLAUS: I join the objection. 
Q. Mr. Gerstein, are you involved in any type of homosexual clique with any other defendants in this action? 
MR. WEBBER: Same objection. Same instruction. 
MR. KLAUS: I join the objection.

According to Judge Easterbrook, the instructions were improper because no they raised no issue of privilege.  The rules required the lawyer and deponent to walk out of the deposition and seek a protective order, instead.

Sure, the rules say that.  But the transaction costs of that approach are much, much higher than refusing to answer and letting the other side move to compel.  Everyone has to draft and respond to the papers, spend time in front of a magistrate arguing the silly thing, and then re-schedule a continuation of the deposition. 

Sure, the questioning attorney will probably bear the costs, because the questions are so far out of line, but it is much faster and cheaper to deny them any satisfaction and try to wrap things up rather than draw them out.  Maybe things have changed in the nine years since I left practice, but unless they have then lawyers will continue to do things in practical inexpensive ways even if strict compliance with the rules would demand another course, and no opinion is going to change that fact. 

DM

Prosecutor creates "ethics guru" role

Unfortunately, this story is behind the subscription wall, but Santa Clara County's District Attorney, Dolores Carr, has created an "ethics guru" position in her office.  It's a great idea, both because prosecutors will have a valuable resource and everyone (public, judges, defendants, etc.) can demand more systematic accountability for prosecutors' ethics.   Does anyone know if other DAs around the country have tried this approach?  Some brief quotes:

The Santa Clara County district attorney's office has a new resource for offering advice to prosecutors on murky ethical questions . . . .     DA Dolores Carr has assigned Deputy DA Kathryn Storton to take the newly created position of ethics adviser . . . . "It's a nonmanagement position," said Carr, explaining she wanted someone who would be available on a daily basis to the staff attorneys, as well as someone they would feel comfortable approaching.

Douglas Litowitz on associates and his book

Douglas Litowitz, author of The Destruction of Young Lawyers, was kind enough to send along this interview about his book, which will have a second edition available on Amazon by March 1st.  Below the fold is a longer piece he wrote on the topic.

Download ChicagoReader.pdf

Marx, Litowitz, and all that.

Marxist analysis of biglaw associates is a hot topic in the blawgosphere.  In support of his recent post at Balkinization, David Luban now links to Douglas Litowitz's book, The Destruction of Young Lawyers which has a chapter making points quite similar to Luban's. Litowitz's short book is a bracing read -- an apocalyptic, sometimes hyperbolic, consistently insightful, often trenchant sprint through a small but prestigious region of the legal profession.  In part, the book offers a radical rejection of the adversarial system and the market.  In part, it offers more modest policy solutions.  Quite often, Litowitz swings wildly at everything that moves.  For example, in the chapter Luban cites, Litowitz suggests that we either severely reduce the number of ABA accredited schools (which, in my view, would exacerbate the problems he complains of) or completely open up the profession.  For all its contradictions, virtues, and flaws, it's one of my recent favorites on the legal profession and I heartily second Luban's recommendation of it.

But, to get back to the phenomenon I noted before, we can't talk about the pyramid shape of the biglaw world without talking about the pyramid shape of US law schools.  Litowitz certainly sees the connection, even if other academic critics don't mention it.  Chapter 2 of his book is a thorough "trashing" of law schools.  Litowitz thereby avoids the all-too-common error of analyzing the structure of private practice as if it stands wholly apart from the structure of legal education.  It's not fun to bite the hand that feeds you, but if we're talking about fundamental structural change in the legal profession we have to discuss the school-firm complex.

A Marxist revolt at biglaw firms?

The always-worth-reading David Luban has this post on the possibility of a Marxist revolt at biglaw firms.   (nod to Legal Profession Blog)  As the commentators point out, the "Marxist analysis" is more than a little shaky.  The associates from top schools offer little in the way of an existing skill base, but they certainly do benefit from the firm's financial capital, legal expertise, job connections, professional reputation, skills training, and client base.  (Compare: what could the newbie lawyers earn if they shunned biglaw, banded together, and opened their own firm?)  In terms of basic fairness, consider that the associates are paid several multiples of the average American household income.  Of course, it may not pay to take the Marxist claim too seriously, as it seems to be offered tongue-in-cheek.

When I read an academic's critique of law firms along those lines , I'm always curious as to how the academic handles the glaring issue: biglaw firms couldn't do what they do without the very active assistance of the US law schools, which themselves feed high on the hog in a protected market.  The ABA accreditation function, together with the hierarchical structure of US law schools, provides the Archimedean point on which the profession leverages much of its exclusion.  So here's a tongue-in-cheek shout-out from a biglaw type to the academic critics: if we really are Marxist exploiters of the toiling masses, we couldn't do it without you guys!

Legal ethics and the representation of the kidnapping astronaut, Lisa Nowak

Can a lawyer ethically argue at her bail hearing that the astronaut is not a flight risk?

(Apologies for the pun, and a nod to Jerome Fishkin, one the great guys in the legal profession.)

Revisiting Went For It? Go For It!

Thanks to David McGowan for pointing out the lawsuit that Public Citizen and a New York law firm recently filed that challenges various aspects of the advertising rules that New York has just adopted.

The complaint, which you can find here, contains a number of claims.  I was especially interested, however, in the following allegation, because I have written a little bit about Florida Bar v. Went For It, 515 U.S. 618 (1985), and teach the case nearly every semester:

Sections 1200.8(g) and 1200.41-a prohibit advertisements and solicitations regarding incidents involving potential claims for personal injury or wrongful death for a thirty day period after the incident. These rules prohibit not only in-person, telephone, and direct mail solicitations, but also advertisements on radio, television, and the Internet that do not intrude on the privacy of consumers. As a result, New York members of Public Citizen will be blocked from receiving information about their rights relating to the incident, even if they actively seek this information on the Internet.

The complaint also alleges that “[n]one of the amendments is supported by studies, factual findings, or other evidence demonstrating a public need or a state interest in adopting the amendments. The amendments appear to be motivated solely by a general distaste for certain forms of lawyer advertising and by discrimination against a certain class of attorneys who assist injured consumers.” 

Although these allegations did not appear near each other in the complaint, they are important when taken together.  In Florida Bar v. Went for It, the Court seemed to put a great deal of emphasis on the Florida Bar’s empirical evidence that the 30 day blackout rule furthered the important government interest of improving the public’s image of the bar.  As many people have pointed out, the empirical evidence in that case was thin and has been contradicted by more careful studies.  (See pages 1007 and 1008 of this article, where I summarize some of the criticisms.)  Nevertheless, the Court seemed to think that the empirical support was important, so if New York hasn’t offered any empirical evidence in support of its 30 day restriction, the New York rule might be distinguishable from the Rule that the Court upheld in Went for It.

The New York Rule is also potentially distinguishable for another reason.  As the complaint notes, “These rules prohibit not only in-person, telephone, and direct mail solicitations, but also advertisements on radio, television, and the Internet that do not intrude on the privacy of consumers.”  If true, the New York rule seems far more restrictive than the Rule at issue in Went for It, which prohibited “a written communication to a prospective client for the purpose of obtaining professional employment if . . . the written communication concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication is addressed or a relative of that person, unless the accident or disaster occurred more than 30 days prior to the mailing of the communication.”

The only problem with the allegation is that it is not entirely clear (at least upon a rather cursory review of the Rules on my part) that the New York provision is as restrictive as the complaint suggests.  1200.41-a does limit “unsolicited communications” in this context, but the meaning of “unsolicited communications” is not obvious. In contrast, 1200.8(g) limits “solicitations” within the 30 day window, and 1200.8(b) defines “solicitations” in such a way as to make it very similar to the Rule at issue in the Florida case.  If 1200.41-a were interpreted more broadly than 1200.8(g), as the plain language of 1200.41-a suggests that it could be, the provision would indeed be quite a bit more problematic than the Florida Rule was.  It’s not obvious to me, though, why 1200.41 should have a broader reach than 1200.8(g).  Is this just loose drafting?  Or is there a reason to believe that 1200.41 was intended to apply to a broader range of communications?  Does anybody know?

Either way, I am happy to see another Went For It-type challenge.  In my view, Went For It ranks as among the Court’s worst decisions in the area of legal ethics, so here’s my advice to would-be challengers of 30 day blackout rules for written solicitations: Go for it!

This Day and Train Only

This is interesting, and disturbing.  The SEC and criminal investigators (FBI/DOJ) are thinking about indicting corporate executives, in this case in connection with backdated options.  The investigators interview employees under an immunity grant good only for the day of the interview.  The DOJ then indicts the executives. 

The executives' lawyers want to depose the witnesses.  The witnesses refuse, asserting their 5th Am. right, which  they can do because their immunity grant was good only for the day of testimony.  So the government gets to examine them and, by limiting the immunity grant, to deny their testimony to the defense.  (No lawyer for a witness will advise testimony without some sort of assurance from the government).

Sure there is Jencks and Brady, but this strikes me as just wrong.  Why would the government do this?  The argument of one of the defendant's lawyers--that the government doesn't want its witnesses to contradict themselves in sworn testimony, thus creating impeachment material that would lower their value at trial--seems plausible to me.  Perhaps there is some other explanation, but it is hard to see how this one-day-only immunity makes it more likely that these proceedings will get at the truth.

DM

NY Anti-Advertising Rules Challenged

Story (and a link to the complaint) here.  The FTC criticizes the ads as anti-competitive here.  The FTC criticisms are sound. 

With any luck, this challenge may lead to rulings applying to lawyer advertising the same rules that apply to other forms of advertising, and to lawyer speech that does more than propose a commercial transaction the same rules that apply to similarly situated speech.  There is no sound basis for the Court's willingness to treat the preservation of the stature of the profession as a valid state interest.

DM

Stimson Resigns

This speaks well of him.  I had not heard that the Bar Association of SF wants the bar to investigate Stimson, but I agree with Steve Lubet's take on it, posted in comments on Volokh.

DM