Legal Ethics Forum

Dissembling vs Deceit (Or, Pretexting is OK, sometimes)

The indispensible Freivogel on conflicts points to this opinion (737) of the New York County Lawyers' Association.  The gist of it is that "dissemblance" is OK in some circumstances, so long as it does not rise to "deceit," (which, in the colloquial sense, is an indispensible part of dissemblance). The opinion has in mind "testers" checking for unlawful housing discrimination, persons posing as buyers of infringing goods, and so on. 

I don't know what the opinion means by saying deceit and fraud can be distinguished from dissemblance by the "degree" of deception, though it is plainly right to distinguish between the purpose of taking money and the purpose of gathering evidence.  Put slightly differently, the sort of dissemblance the opinion has in mind invokes no justifiable reliance interest in the sense that the law does not want the target of "dissemblance" to rely in the manner he or she is relying. 

DM

Should Law Schools Interview Applicants?

Sam Kamin at MoneyLaw got me thinking about this question.  He asks whether law school admissions offices could employ measures other than GPA and LSAT scores to better predict the future success of applicants.

In my opinion, an under-utilized "statistic" in admissions is interpersonal skills.  A lawyer's success certainly turns on analytical skills, writing skills, etc.  But I think that lawyers -- like people in many fields -- end up "performing" better if they have a high emotional intelligence. 

Of course, there are some reasons to be wary of lawyers who care too much about the feelings of other people.  If a lawyer cares too much about being liked, she is probably not going to do a particularly good job.  But emotional intelligence is not about being liked.  It's about being able to "perceive, assess, and manage the emotions of ... others and of groups."  So arguably, a fierce advocate who also has a high emotional intelligence will end up being a better lawyer than a similarly fierce attorney with a low emotional intelligence.  For example, the lawyer with the higher emotional intelligence will have a better read on judges and juries, and she'll be better at prying information out of witnesses.  In the transactional context, she'll be better able to negotiate a deal and get a transaction to completion.  So I think that a high emotional intelligence probably leads to better lawyering. 

So if it's true that a high emotional intelligence can help lawyers get ahead in the law, how can a law school assess whether applicants are emotionally intelligent?  The easy answer is to interview all applicants who have the right GPA/LSAT numbers and assess their interpersonal skills. 

The problem is that interviews are loaded with biases and arbitrary variables, so interviews do not necessarily tell us about emotional intelligence.  But some measure of interpersonal skills would seem to be quite valuable.  The challenge is how it can be measured reliably.  Currently, some emotional IQ tests exist.  Should we add the results of those tests to LSAT scores and GPA?  Would a law school that admits students with an average LSAT of 160, an average GPA of 3.5, and high emotional intelligence scores "outperform" the students of another law school who have the same LSAT/GPA numbers and lower emotional intelligence scores?

International Legal Ethics Conference

I have been asked to post the following notice.  If I might editorialize about this conference, it (pretty obviously) follows the first two international legal ethics conferences, in Exeter, U.K., and Auckland, New Zealand.  Both conferences attracted a wide range of scholars and academics from the around the world, mostly in common-law systems, but also a few civilians.  Next year's conference promises to be another excellent opportunity to discuss legal ethics issues with an international audience, in a particularly attractive setting.  At any rate, here is the notice:

We are pleased to announce the Third International Legal Ethics Conference to be held at the Gold Coast, Queensland, Australia.   This event is being hosted by Griffith University and the University of Queensland.

      Dates:                            Sunday 13 July – 16 July 2008 inclusive.
      Keynote speakers:        Prof. David Luban and Prof. Deborah Rhode

Provisional Themes:
·      Functions and purpose of model rules
·      Ethical decision making in practice
·      Lawyering: business or profession
·      Character, integrity, virtue
·      The legal ethics project in legal education
·      Large law firms: Ethics and managing professional conduct
·      Models of professional regulation
·      Empirical research on lawyering

Please send an email to [email protected] if you wish to register your interest.

Windows Vista Apparently Creates Additional Metadata

I don't own Windoze or Vista. This article reports that Vista apparently creates its own metadata, that the Microsoft Word scrubbers and what-not apparently don't touch.

Remember, you already knew that, though, according to the ABA's opinion! :-)

David Wexler on "Therapeutic Jurisprudence and the Expanding Role of the Criminal Lawyer"

[[Today's post comes from David Wexler, the John D. Lyons Professor of Law and Professor of Psychology at the University of Arizona.  Because the adversarial nature of litigation generates so much of the ethics code, the new notion of Therapeutic Jurisprudence represents a profound challenge to our existing ethical norms.]]

Therapeutic jurisprudence (TJ) , an interdisciplinary perspective that views the law as a potential therapeutic agent, has moved from theory to practice, and has had an impact on judicial practice in the US and internationally.  TJ is also influencing legal practice, both in civil and criminal matters.

In a series of recent articles, I explore the importance of TJ in expanding the role of the criminal defense lawyer. One piece discusses the various components and competencies of a TJ criminal lawyer, another outlines how TJ can add to a lawyer’s considerations at various stages of the legal proceedings, and still another essay looks at the lawyer’s role even when the client faces likely incarceration. In my most recent essay, I demonstrate how TJ criminal lawyering is more than just "good lawyering", and show its consistency with traditional notions of zealous advocacy and client autonomy.  Indeed, I think it is time for TJ to be included in the law school curriculum, including the clinical curriculum.

I encourage interested persons to keep abreast of developments in TJ by visiting regularly the website of the International Network on Therapeutic Jurisprudence (a resource that includes a comprehensive bibliography, notice of upcoming activities, and much more) and, even more, to join the full-fledged (but non-burdensome) TJ Listserv or, at the least, the TJ Mailing List. This is an evolving area that very much depends on the thoughtful input of practitioners and academics in criminal law and in legal ethics.

Myspace Lawyer Ads

Trying to do anything except finish my new book on civil procedure (440 pages done, about 5 to go) I saw this article on law.com, and then went to the actual myspace page of the attorney.  Lots of issues popped out.  I also wonder how many young lawyers in large firms are freelancing advertising in this way?

Texas Appellate Court Rejects Former Client Presumptions in Malpractice Case

In Capital City Church of Christ v. Novak, 2007 WL 1501095 (Tex. App. -- Austin May 23, 2007, no pet. h.), the court joined other courts in recognizing that the presumptions that can be used to disqualify a lawyer -- e.g., that if there is a substantial relationship between two matters, it is presumed that the lawyer acquired confidential information that could be used against the client in the subsequent matter -- had no place in a malpractice suit.

I've been an expert in cases where the plaintiffs' expert will rely on presumptions in the malpractice context, and I've been surprised that some jurisdictions (unthinkingly, usually) allow them to be used outside the confines of disqualification. This Texas case does a good job of explaining why that's wrong.

One more reason I'm proud to have been a Texan!

David Hricik
Mercer Law School
(Georgia, which is near Texas)

Yagman on trial

The tax fraud trial of the civil rights lawyer Stephen Yagman has begun in LA.  Legal ethics speclialists may recall Standing Committee on Discipline in the United States District Court for the Central District of California v. Yagman, 55 F.3d 1430 (9th Cir. 1995), which dealt with Yagman's public criticism (to put it mildly) of a judge.

UPDATE:  Perhaps it's fitting that on the day we carry news about Stephen Yagman, we get news of a biglaw litigator who suggested that the judge was "a few french fries short of a Happy Meal."  (nod: Althouse, by way of Above the Law)  An order to show cause has issued, and the lawyer may want to be prepared to answer this likely question, "Counsel, is there any reason your contempt fine should not be super-sized?"

Who can represent children against the school board?

A new US Supreme Court case, Winkelman v.Parma School District, deals with the boundaries of the profession.  It holds that parents can represent their own interests in litigation dealing with their disable children -- for most practical purposes, letting parents represent their own interests permits them to represent their child's interests.  The court declined to decide whether parents could represent their children directly.   For an interesting look at this issue of who will represent disable children in fights with school boards, you  might want to read Arons v. New Jersey State Bd. Of Educ., 842 F.2d 58 (1988), which denied a lay advisor the right to advocate in similar settings.  The Arons case is discussed in Rhode & Luban, Legal Ethics: Law Stories (Chapter 9: The Plight of the "Unrich in Obtaining Legal Services) (Foundation Press 2006).

From a distance, the boundaries of the US legal profession might appear firm.  But there are any number of small exceptions that make this an interesting topic to me.  There are lay advisors, patent agents, citizen representatives, and other odd exceptions at the margin.  Quite often, we see more permeability in administrative hearings that private practice lawyers wouldn't find remunerative.

Blogger Meet and Greet in Chicago

A few of us here at Legal Ethics Forum will be attending the ABA's National Conference on Professional Responsibility in Chicago next week, and we thought it might be fun to set up a time and place to get together for a drink and meet other people who read or contribute to the blog.  So Monroe Freedman, David Hricik, Brad Wendel, and I plan to be at the Aria Bar in the Fairmont Hotel between 6:15 and 7:15 p.m. next Thursday, May 31.  (There's a formal reception that starts at 5:15, so the time was chosen to allow people to attend the reception and still show up for drinks with us, if they wish.)

This event is informal, so just look for a bunch of folks near the bar who look like legal ethics professors.  But don't expect any free drinks.  You don't see any ads on our site, do you? 

Hope to see you in Chicago!