Legal Ethics Forum

Revenge is Sour

George Orwell was right about a lot of things, including this essay on revenge.  I thought of it when I read this report, and this one, of Bill Lerach's plea. 

I spent a large part of the 1990s defending securities cases filed by Mr. Lerach.  I once wrote a brief that annoyed him enough to tell the partner I worked for to reprimand me.  As an academic, I thought his pursuit of Dan Fischel way out of bounds, and I agree with the argument that these suits were about investor losses that were offset by other investors' gains (though they no doubt created a useful deterrent effect as well).  In other words, I am not a natural booster.

But much of the reaction to the plea strikes me as unseemly triumphalism.  The plea is said to taint the cases he brought. What nonsense.  Whatever one thinks about that sort of suit, payments to named plaintiffs are unrelated to the merits, and barely related, if related at all, to the amount of class recovery.  Some of those cases had merit; many, in my view, did not. But whether they did depended on what the defendants knew compared to what they said, not on side payments made from counsel's fee award to the named plaintiff. No one involved in those cases thought they were about the named plaintiffs.

That does not make the payments lawful, of course.  The theories of the indictments are perfectly cogent.  But it counts for something that Lerach protected his firm, and thus innocent employees, from the taint of his own acts, and simply confessed guilt.  (His surprisingly good plea deal--kudos to John Keker--no doubt made that easier, of course.) There is a lot to be said for a clean acknowledgment of guilt and acceptance of punishment. It happens less often than one would expect, and it should not be the occasion for gloating.

DM

Studying affirmative action at law schools

This article from American Lawyer Media discusses a request from a group of scholars to access and study data from the California State Bar to see how law school affirmative action works.  The request has been denied -- at least for now.  Concerns were raised about privacy and about the political uses that the study might be put to.  My view, which was quoted in the article, is that the problem in understanding and combating exclusion in the legal profesison is the absence of statistical studies, not the existence of them.  I realize that political winds are swirling and the public's views are up for grabs, but you can't do social policy without knowing what you're doing and what the effects are.  Bring on the empirical studies, now.

Lerach to jail?

As a Silicon Valley lawyer, all I can say is "wow."

UCI's new law school

There's news flashing around the blogosphere that UC-Irvine's Chancellor fired Erwin Chemerinsky, who had just recently been hired as the Dean of UCI's new law school, because of Chemerinsky's politics.  If so, it's way beyond mere bad judgment and consequences will be severe.  No doubt we will learn lots more in the next few weeks. 

I want to address a different point.  News accounts suggest that UCI wants to have a special focus on public interest lawyering.  What is the economic model for that?  Don't we already have a dearth of jobs for students who want to do public interest lawyering?  Haven't we seen how low the pay is for that kind of lawyering?    Just as a thought experiment, I wonder what an economist would say to a bright undergraduate who was considering applying to UCI as a first step toward public interest lawyering?  And will UCI provide those students the information they need to make those decisions, or will UCI supply them "sales talk" and "puffing"?  Obviously, you can color me quite skeptical about all that.

UPDATE: Although this story strays a bit from legal etihcs, I do find it instructive regarding the ethics of making accusations.  As so often happens with fast-moving scandals, we discover that initial impressions didn't tell the whole story.   Early conjecture -- anonymous, second-hand, unburdened by facts -- was that a conservative business was behind the plot.  I laughed out loud when the businessman's press release said that he didn't even know who Chemerinsky was!  That was 100% plausible to me, but apparently had been unthinkable to some accusers.  More recently, after Berkeley's law dean shed light on the UCI Chancellor's decision, some are leaping to the conclusion that Berkeley's dean is defending the decision.  But if you read his quote, he expressly declined to defend it.  For me, the ethical point is not to let myself become scandalized by the scandal.  Easier said than done, sometimes.

DC Addresses Metadata Mining

The opinion is obviously a compromise, and you can find it here.

Jack Goldsmith and the Duty of Confidentiality

There has been a lot of news recently about Jack Goldsmith's book, The Terror Presidency, which describes Goldsmith's tenure as the head of the Office of Legal Counsel (OLC) around the time of the torture memo controversy.  The book appears to reveal conversations that Goldsmith, now a Harvard Law School professor, had with members of the administration in connection with various legal issues that were pending before the OLC.

The question that I have is whether the book in any way breaches the duty of confidentiality.  The answer turns on a number of issues, including who it was that Goldsmith was representing.  It is not always clear who a government lawyer represents, but according to the government's web site, the OLC is the "legal advisor" for the President and the executive branch.  In that case, if Professor Goldsmith's book reveals conversations that he had with members of the executive branch regarding legal issues that the OLC handled, wouldn't those revelations violate the duty of confidentiality? 

Of course, there are a few exceptions to the duty of confidentiality, but I don't think any of them apply here.  For example, the self-protection exception could apply if Goldsmith were facing litigation by his former client or from third parties regarding his conduct.  But I am not aware of any such justification in Goldsmith's case. 

Also, if the President agreed to let him write the book, that might be a different story.  I doubt that is the case, however, given the book's content.

The Restatement of the Law Governing Lawyers says that information is not confidential if it is generally known.  (See Restatement Section 59.)  So perhaps Professor Goldsmith's book is permissible on these grounds.  But from what I understand about his book, he includes information that most people have never heard before, in which case the "generally known" exception would not apply.

There may be other statutes or rules that apply to government lawyers that affect Professor Goldsmith's obligations.  Does anyone have any better insights into this issue?

UPDATE:  As someone notes in the comments, Professor Paulsen has a very thorough discussion of this issue on Balkinization.  It's definitely worth a read.

The guild and the bureaucracy

I'd expect that over time the profession's historic guild-orientation would be slowly eroded by the market and by the government's bureaucracy.  But here's news about a bureaucratic initiative within the federal judiciary to reduce the use of professional law clerks and, presumably, increase the use of clerks straight out of law school.  I can't comment on whether the proposal will save money, but it's definitely a backwards step in terms of rationalizing the production of law.  According to the news story, some federal judges are none too happy about the proposal.

More on Public Defender Resources

Following up on my posts last week about Judge Plough, here is a story about the representation of capital defendants in Georgia that underscores the point about the need for adequate resources to ensure competent representation.

Update:  And here's another story out of Florida on a similar issue.  (Registration is required to read the story.)

Another Update: And yet another story out of Tennessee.

And another out of New Orleans.