Legal Ethics Forum

Call for Papers: Third International Legal Ethics Conference

The organizers of the Third International Legal Ethics Conference have posted a formal call for papers on the conference website.  The organizers have done an outstanding job, and this is shaping up to be a terrific conference.  The overall conference theme is Integrity in Legal Practice, but there are several sub-topics, which will be used to organize the papers into streams.  Stream topics include Character and Virtue in the Professions, Empirical Research on Lawyering, Ethical Decision-Making in Everyday Practice, and Gender and the Legal Profession.

In addition to academics from all around the world, there will be many practicing lawyers and judges from Australia and elsewhere in attendance.  One of the keynote speakers, for example, is the Honourable Paul de Jersey, AC, the Chief Justice of Queensland.  Other invited speakers include Deborah Rhode (Stanford, U.S.), David Luban (Georgetown, U.S.), Kim Economides (Exeter, U.K.) Julian Webb (Warwick, U.K.), and Allan Hutchinson (Osgoode/York U., Canada).

Maybe someone in attendance will live-blog the conference for LEF, as John Steele did for the Hofstra conference.  I'd volunteer, but I expect I'll be out enjoying the beach at the lovely Sheraton Mirage Resort and Spa.

Law Professor Attire and Classroom Culture

A forthcoming law review article by Professor Erik Jensen suggests, with a humorous flair, that law professors dress too informally.  Professor Jensen urges legal academics to return to the more formal attire of previous generations, and he even proposes a "Uniform Uniform Code" that would require clothing of sufficient formality that it would not "embarrass our mothers."  (I said it was humorous!)  A summary of the article can be found here.

I've actually given this issue some thought, especially recently.  Until this year, I wore a suit and tie to every class.  This year, I have gone increasingly in the direction of a sport coat with no tie.  The move happens to coincide with my having gotten tenure (readers are welcome to insert their jokes here), but I believe my move in the direction of increased informality is actually more consistent with my pedagogical goals.  Let me explain.

I think that law school can be very intimidating.  In my experience, it is hard to transform a classroom of 100 students into a positive, affirming learning environment.  One way to accomplish the task is to create an informal atmosphere, which starts with titles.  For example, I have students indicate on a seating chart how they want to be called, and they always choose to be called by their first names.  And so that's what I do.  I also tell them that they can call me by my first name if they choose, and some of them do so.  My theory is that they will be on a first name basis with most of their superiors and mentors, so why not me? 

I believe that my attire can also contribute to this informal, less intimidating classroom environment.  A person in a suit, in my view, is more intimidating and appears to be more distant than someone in a sport coat. 

Of course, if I dress too informally, that could send the wrong message, too: I don't take the students seriously.  So in my mind, I strike the balance by wearing dress pants, a button down shirt, and a sport coat without a tie. 

Coming back to Professor Jensen's attempt to regulate the attire of law professors, I personally agree that our attire sends students a message and that if we dress too informally, it can send the wrong message.  But because attire has a pedagogical value, it is also something that should not be regulated.  As academics, we value our academic freedom, including the level of formality that we employ in the classroom.  Because our clothing is part of the culture that we create, I say it is not an appropriate subject for academic regulation, absent truly extraordinary circumstances.

What do you all think?  And putting aside the question of whether legal academic attire should be regulated, what do you all think is the ideal attire for a law professor?

KPMG ACR DQ

In the KPMG case the a lawyer has been DQd from what appears to be either (1) a brief and early attorney client relationship with one of the other defendants -- who's now a cooperating witness, or (2) participation in a joint defense agreement.

I certainly understand that the first rationale would support a DQ. Once you have an ACR with a client, you can't be adverse in the same matter (without consent). But perhaps someone with more knowledge of conflicts in criminal cases can explain whether mere participation in a joint defense agreement can be a disqualifying event when one of the participants flips to state's witness. If so, wouldn't that give the flipping defendant far too much power to DQ other lawyers?

(The KPMG case is the one where the govt allegedly cut off some defendants' access to legal fees to which they were entitled. The judge bought the argument and dismissed the charges, and now the govt is appealing that. So the case also raises the issue of whether the federal govt is "taking out the opposition lawyers.)

Here's the blurb from the WSJ law blog: "Last month, the feds asked the judge to explore potential conflicts of interest by Bauer and David Scheper, a lawyer for ex-KPMGer Robert Pfaff, as a result of a joint defense agreement they may have reached with David Amir Makov, who is now a cooperating witness in the case and is expected to testify in the trial. The feds then asked the judge to preclude Bauer from cross-examining Makov based on evidence that he had acted as counsel to Makov in the early stages of the investigation."

Bill Henderson explains the "gaming" of law school transfers

Over at Empirical Legal Studies, Bill Henderson once again sheds light on how the profession really works.  This time: law school transfers. 

"Until Proven Innocent" & a lawyer for the situation

On the flight back from the Hofstra conference, I got about 200 pages into Until Proven Innocent, by Stuart Taylor, Jr. and KC Johnson.  It's a jaw-dropper page after page.  You could teach an entire seminar about legal ethics with just this text.  At pages 46-49, you see a classic example of a lawyer trying to be a "lawyer for the situation," in the Brandeisian sense.  It was a lawyer who helped Duke make problems go away and who tried to be ""unofficial legal advisor to everyone [i.e., to all the Duke lacrosse players]."

Our Bloggers on the Podium

Two of our bloggers, John Steele and Andrew Perlman, gave individual presentations at the conference.  They were both superb, both in substance and in presentation.  If anyone ever needs a guaranteed excellent speaker who can hold and inspire an audience on the subject of Lawyers' Ethics, you need look no further.  Roy Simon and I are deeply grateful to both of them.

Lynne Stewart at Hofstra Ethics Conference "Lawyering at the Edge"

[[I will recap later tonight.  Short version: Stewart evaded the key facts.  Law students did a terrific job with their questions.  Hofstra must be proud of them, and I'm glad she spoke to them.  There was no spoon-feeding, cheerleading, or indoctrination.  There were lots of good, tough questions -- most of which were from law students.]]

Beginning in five minutes. [My comments will be in brackets. Comments by Lynne Stewart (LS) will not have brackets  I will be paraphrasing and using her actual words when possible.]

[Professor Roy Simon introducing LS by reading what the sentencing judge wrote about her background.  Per the judge, she repped poor, unpopular, disadvanaged; performed a public service to clients and the nation in doing so.  However, she aided terrorists.  She has been disbarred.  Conference organizers care about education of students.  LS speaking should be unique opportunity to learn.]

LS thanks Hofstra for standing up for free speech.  Some universities don't do that.  Ward Chuchill has been deserted by his university.

LS paused when she read that she was invited as a cautionary lesson.  That gave me pause.  But the govt has already sent the bigger cautionary lesson. When a brave lawyer like Ron Kuby won't take certain criminal defense cases, you have to wonder.  Are we preventing criminal lawyers from operating?

Talking privately to clients is primal to the attorney client relationship.  But now we have an exception to that relationship.  We cannot simply accept the govt's definition of what a criminal lawyer is.

When I was sentenced, 1,000 letters came in, from bigwigs and from prisoners alike.  Judge Koetel read each letter.  That's what led to the statement the judge made, that Professor Roy Simon quoted.

I can also say we've filed 350 page brief on appeal.  Govt filed 500 page brief.  Many issues are raised.  Govt basically reworked their summation but didn't answer the main problem: the huge weight of evidence that applied only to the co-defendants and not as to LS.  It was prejudicial.  It included huge images of Osama Bin Laden.

"Lawyering on the edge"  You don't always ask yourself that about what you do.  You more wrestle about what you didn't do.  [Note: Professor Simon will return to this comment in his concluding remarks.]  I urge the law students and lawyers as well to remember your personal statement on your law school app.  You didn't say you went to law school just to make money. Remember also criminal defense is the only part of profession that deals with your clients being locked up in cages.

I didn't like all my clients.  But you still do your best for them.

Sometimes you want to convince your client to take a deal.  But when the courts get too anxious for pleas, some judges want to push cases too fast.  But don't let them prevent you from providing effective assistance.   You might have to say "I haven't had a chance to provide effective assistance."  If you say that, the judge will be mad at you.  But we need to do more of that.

The lawyers in Gitmo are very constrained in their representation right now.  Lawyers can't discuss personal issues with the client now, by reg.  When that is happening, it's time to say "no more."

Josh Dretel represented David Hicks at Gitmo, and refused to proceed, because his representation had been so restricted.  Dretel did stand up.

In the final analysis my case deals with client-centered lawyering. [?!]  We are vulnerable as to what we can do now.  My client, Sheikh Omar, who was passed to me by Ron Kuby [Kuby yells: sorry!  Laughter]

We have an Islamo-fascist view, perpetuated by the press, but to sit down with him, . .   . .  Rahman has been diminished.  SAMs are for singled-out convicts.  He was singled out.  The SAMs were not court orders.  They were regs.  We three lawyers [Clark, Jabara, Stewart] were given "leeway" to do some lawyering.

[She suggests that Clark wasn't prosecuted because of his class advantages.]

I should have been more aware that the government will get you. Yes, I was client centered, and I'd do it again but do it differently.  This was no secret clandestine thing.  It [what she did for Rahman] was done openly.  [??]  The tapes showed we weren't surreptitiously.  Guards were listening in to the conversation.  That happens often.  So you do insulate the client from the prisoners.

Most lawyers don't see constitutional issues.  I say that about ethical considerations.   Be alert for them.  Make your decisions.  Stand by your decisions.  The line is there.  The govt can move that line.  They allowed me to go back in and waited for 2+ years to arrest me. 

Stand up.  We need people to stand up.  It's a time to stand up.  It may not be the underground railroad but we are under attack.  Please stand up.

[Question from Monroe Freedman: I referred to you as a cautionary warning.  You were apparently interviewing your client along with the interpreter.  The interpreter might have involved instructions to be given to a terrorist group that might kill.  You put on a show to make it seem you were asking questions.  In fact, you were taped.  You were taped as saying "I should get award for this performance."  One of my questions is that video taping a client conversation intrudes on Bill of Rights protections. The problem is that in the future, the govt will cite your behavior in defense of the intrusions.  You have done disservice to criminal defense to 5th Am and 6th Am -- illustrated by Kuby's prior statment that he won't take certain cases anymore.]

There was little time, so we had the interpreter talk directly to the client.  There was nothing untoward that was said between Yousry and Rahman.  [??]  I knew what would be said in advance, but didn't want guards to think it was improper [so I pretended to be involved in the conversation].  My remarks were unfortunate wisecracks.  It appears to be one thing [ie, what govt claimed].  My defense was full of "might have been's".  No violence happened.  I said to judge I had done disservice to the profession by allowing the govt to come in -- but I tell you that the reality it didn't happen [as Monroe described it].

Live blogging the presenters before the Lynne Stewart presentation

UPDATE: I will start a new posting devoted just to Stewart, up above.

Internet connectively permitting, I will be live blogging the Lynne Stewart presentation at the Hofstra "Lawyering at the Edge" conference.  Her talk is scheduled for 4:05 pm, ET.

Update: By coincidence, Richard Mauro, the current speaker, has flashed up on the screen his own booking photo.  He was interviewing witnesses in a capital defense case when the local prosecutor decided to have him arrested for "witness tampering."  The police report of his accuser unambiguously impeached the accusation to a degree like I've never seen before.  Mauro was very impressive.  It takes nerve to do capital defense and although that's not my calling I'm glad that guys like Mauro step forward.  It appears to be a severe case of the government trying to "take out the opposition" rather than litigate on the merits.

UPDATE 2: Ron Kuby is up now.  He starts with two hypos: one where you would have to lie to get yourself acquitted from a false accusation, and another where that would be true for your client.  Kuby says that thinking about that helps you realize how desparate criminal clients are.  You recognize the "spark of humanity" in that person.

Kuby says that if you decide to put on the lies, you have crossed the line.  So, he says, you need to cross the line, if at all, intelligently and knowingly.  To do that, you need to know what the lines are.

If you get a letter from the DA saying, "the witness doesn't want to talk to you," you should ignore the letter (and not bring it to the judge), because the DA doesn't rep the witness, and hence you don't know that you'd be violating the no-contact rule.

If your client proposes to structure paying you cash in several small payments, each of which is just below the limit for financial reporting. Answer: don't rep that client!

If you as a lawyer decide that an act is forbidden, don't decide whether to do it or not based upon some assessment of the probable consequences.  [I think he meant "of the chance that the government will view your conduct in the future in the same way they tend to view that conduct today."]

You must understand how the government will view you; don't assume your self-vision will govern how you will be treated by the legal system.

The government rarely if ever frames a lawyer.  "They" will misconstrue, misinterpret, etc., to get lawyers but Kuby hasn't seen pure fabrication of an entire claim against a lawyer.

"I'm not telling you that you should not break the law."

Moral people occasionally face the question of when to disobey immoral laws.  If you reach that point, make your decisions knowingly and intelligently.

The fight for decency is perennial.

Said he personally won't lawyer under the new SAMs.  Others will.

[My note: Kuby answered questions in a straight-up way.  Very candid.]

Federal Circuit Concludes Patent Malpractice Claims "Arise Under" Federal Law

In Air Measurement Tech., Inc. v. Akin Gump, __ F.3d __ (Fed. CIr. 2007), the court held that district courts had subject matter jurisdiction over patent malpractice claims between nondiverse parties.  The defendants had removed the case from state to federal court, contending that the suit "necessarily depends on a resolution of a substantial question of federal patent law" because the plaintiff, an aggrieved patentee had to establish that the claims were valid, infringed, and that but for the defendant's negligence, certain defenses under patent law would not have been available to accused infringers.

I've dealt with this issue in various contexts, and the answer deserves clarification from the Supreme Court. (Why, for example, did this appeal go to the CAFC?  There's an interesting question there, alone!  Do other appeals have to?)  I'm hoping the Supremes take this one up, as it's an interesting question and one in need of a definitive answer.

Law: 40% less depressing than selling fast food

A new study suggests that while the legal profession may be somewhat depressing, it's not nearly the worst.  (How's that for a left-handed compliment?)  At least we aren't required to ask our clients, "Would you like your legal fees super-sized?"