Legal Ethics Forum

Interdisciplinary studies in non-elite schools

Brian Tamanaha kicked off the debate.  My views are close to Larry Ribstein's.  Self-serving regulation keeps law schools in a straitjacket, to the detriment of students and society and to the benefit of professors and existing lawyers.  Let's re-introduce the bachelor's degree in law!

Stunning Ethics Case in Virginia

The New York Times has the story. 

Basically, a lawyer represented one of two men in the late 1990's who was accused of killing another man during a robbery.  A critical issue in the case was who pulled the trigger, as only that person could be sentenced to death. 

The lawyer and his client met with the prosecutor, and the client started to give a description of the killer that was inconsistent with the other defendant's guilt.  The prosecutor turned off the tape recorder, coached the defendant as to what his statement needed to be, turned the tape back on, and then got the statement that he needed to get a death sentence against the other defendant, a man named Daryl Atkins (who was a party to the well-known Supreme Court case establishing the unconstitutionality of executing the mentally retarded).

The lawyer who witnessed this prosecutorial misconduct never notified the lawyers for Atkins, presumably because his own client got life in prison instead of a death sentence.  Nevertheless, the lawyer's conscience troubled him, and after repeatedly asking the bar authorities in Virginia, he recently received permission to reveal the information to the court. 

For readers of this blog, the interesting question is whether the ethics rules in Virginia permit this disclosure, because according to the article, there is some disagreement about it.  In particular, the report required disclosure of confidential information that might adversely affect the lawyer's previous work for his client (i.e., getting him life instead of death).  Moreover, the lawyer had not put on any false testimony or committed a fraud on the court.  Rather, it was the prosecutor who committed the misconduct, so it's not entirely clear that the lawyer even had discretion to report this information.

Who Should Regulate Lawyers?

Here's a nice article from the National Law Journal, which describes the battle in some states between the legislature and the judiciary regarding who should regulate lawyers.   These state skirmishes mirror recent struggles between the ABA and the federal government (Congress and administrative agencies, such as the SEC) over a variety of issues, including waivers of the attorney-client privilege and the duty to report a corporate client's misconduct. 

Although the article highlights some recent developments on the state level over regulation, the battle over who regulates the bar is longstanding and is unlikely to result in a truce on either the state or federal level in the near future.  If anything, I think the tension between self-regulation and external regulation will become even more pronounced in the face of a number of trends, including globalization.  Any predictions about which direction professional regulation is heading in the long term?

Here's a classic article by Professor David Wilkins that addresses these questions.  (Indeed, I borrowed the title of this post from his article.)

Stoneridge: win for the defense; "scheme liability' rejected

Opinion here.  "Scheme liability" is rejected.  I don't have time to comment but I imagine the blawgosphere will be discussing it.  A big win for defendants -- and for law firms that represent public companies.

David Luban on Padilla v. Yoo

The always-worth-reading David Luban posts his thoughts about Padilla v. Yoo over at Balinization.  I can't respond right away, but can offer a quick couple of thoughts.

1.  Luban emphasizes Yoo's participation not merely in the role of lawyer within the OLC, but also in the so-called "War Council."  I can't tell if that's an informal role or a formal one recognized by law and OLC policy.  Luban also discusses the nature of the OLC lawyer's role.  That's one issue that's always bothered me.  Many of us have an instinct to view OLC lawyers as advisor/counselors governed by Model Rules 1.2 and 2.1, but part of the OLC function, as I understand it, is to definitively resolve legitimate disputes within the Executive Branch and legally bind all EB personnel and departments except the president.  If so, how do we best understand the proper role of OLC lawyers?  (By way of comparison, lawyers undertaking the advisor/counselor role in private practice have no power to bind their clients; they merely advise.  If the OLC lawyers are required to decide between various legal interpretations, does that requirement buy them any extra immunity?  Would that matter here?)

2.  American legal ethics are driven by seminal events: Watergate, the corporate failures following the bubble burst (Enron, WorldCom, etc.), etc.  The role of lawyers in the "Global War on Terrorism" may well trump them all.  Luban's new book, Legal Ethics and Human Dignity, covers that territory.  (I bought it but alas have not been able to crack it yet.)

3.  Luban acknowledges that Padilla has an uphill battle, but asserts that Padilla's complaint should not be summarily dismissed.  This week's ruling in Rasul may be a foreshadowing of what will happen in Padilla: a long, dense, citation-heavy opinion saying, essentially, that the defendant is immune despite allegations that sound pretty awful. If so, we will still be left with the larger questions about the proper role of lawyers.

Want to help write my Inn of Court presentation?

I'm drafting a presentation for my Inn of Court, to be delivered next month.  We have judges (appellate and trial; state and federal), practitioners (mostly litigators) and students (Santa Clara, Lincoln, Stanford).  The idea is to present a vignette that will engender group discussion.  We're drafting vignettes where young lawyers reach an ethical fork in the road.  We want to highlight some of the larger ethical choices lawyers face: moral activism vs amoral lawyering; keeping a division between profession and religion vs. seeing your professional life as an aspect of your religious life; and focusing on just the client vs. viewing the client as part of a social system. 

Each choice has been explored in the academic literature (e.g., the Pepper - Luban debate), and we'll provide a bibliography to that literature, but for present purposes we need to write an accessible sketch that gets the conversation going without being too simplistic. 

Beneath the jump is an early draft.  We will have the student members reach a fork in the road where two lawyers will be urging them to take different paths.  We'd love to see any suggestions, re-writes, etc., from readers, so if you are interested please try your hand.  Please bear in mind that all contributions might be used by our Inn (with attribution) and will become part of a widely available library of previous Inn presentations.  Each lawyer urging a student to follow a particular path will probably speak for only 2-3 minutes, so the idea is to get the basic principles out there.

Thanks in advance.

More Fun From Florida

Oh Florida Bar, you make blogging so much fun. 

Here's yet another story from the Sunshine State.  This time, the Bar is trying to stop a lawyer from using the slogan "Don't settle for less than you deserve," even though the bar approved the slogan's use five years ago.  Apparently, the phrase is problematic because it contains "subjective statements that can't be factually substantiated."

Can someone tell me what qualifies as a subjective statement that can't be factually substantiated?  How about Cravath saying that it is "the premier American law firm?"  Or Wachtell's assertion that they offer their "clients an intense and highly individualized focus on their matters?"  Try factually substantiating that.

My point is not that these great law firms are doing anything improper.  It's that most law firms say something about themselves that is difficult or impossible to factually substantiate.  So here's to you, Public Citizen.  Make sure you don't let your client "settle for anything less than he deserves" -- a judgment in his favor.

Will Qualcomm Do What Fisons Didn't?

There's no need to add to David's excellent posts on Qualcomm (below), but I will offer one prediction: Qualcomm will do what Fisons didn't.  There was some discussion about whether Fisons would usher in a new era of "good behavior" in discovery but, alas, it didn't. Qualcomm will.  Mark it.  Bet on it.

Qualcomm will not work that magic alone.  It's aided by the Morgan Stanley - Kirkland case and the new e-discovery rules.  Just as a matter of self-preservation and profit-motive, firms will have an incentive to conduct discovery in a different (and better) way.  (And shouldn't profit be linked to "doing the right thing"?)

We don't yet know how this will shake out, but one of the most promising innovations is to require the opposing parties to sit down and negotiate the document searching protocols. 

Lessons from Qualcomm

    The Qualcomm order offers useful lessons for anyone involved in big-case litigation.  Subject to the important qualification that this list might be different if we knew the privileged information we do not know, here are my candidates:

    1.    Division of labor matters.  As clients rationally demand lower costs for large-scale discovery, it will become more and more common for someone other than an employee of outside counsel to collect documents and review them for production.  That might take the form of sourcing outside both the client and the firm or, as apparently was the case with Qualcomm (given what we know), substantial insourcing or document collection by the client.  Where outside counsel are not directly responsible for discovery, they must take steps to protect themselves.

    2.    Responsibility should follow authority.  Firms that do not have responsibility for the actual collection and/or selection of documents should not sign discovery responses relating to document production or make representations about the completeness of discovery.  If the client insources, as Qualcomm seems to have done, or outsources to a firm it selects, then it should take responsibility for the completeness of discovery.  To the extent outside counsel can do so, they should insist on that division. 

    If a client demands that a lawyer outsource document production to a cheap third-party provider, the lawyer should either demand that the client select and deal with production or choose a firm it trusts enough to treat as a sub-agent—i.e., one for whom it is responsible.  If neither option is available, it shouldn't outsource.

    3.    If labor is divided, demand an advance privilege waiver for communications relevant to any discovery disputes.  I have a lot of sympathy for the inability of the Day, Casebeer lawyers fully to defend themselves.  If you don't want to be in their position, ask for a waiver up front.  (Off the top of my head I can't recall authority upholding such waivers, but I would uphold them by analogy to advance conflict waivers, so long as the scope was reasonable and set out plainly in advance.)

    4.    Don’t trust standard procedures or formal systems.  (I.e., you have to pull discovery; don't trust employees to push it.)

    I’m guessing here, but suppose something like this happened.  Suppose Qualcomm had a clear policy that said all business-related material had to be backed up to Qualcomm servers, or preserved in some other way under Qualcomm's control.  Under the hypothetical policy, there should never be a situation where an individual employee had Qualcomm-related data on his or her laptop that was not also centrally preserved in a way that the in-house legal department could access it without physically chasing down an employee.  Suppose further that Qualcomm sent reminders to people who might have litigation-relevant data, telling them to back up (or centrally deposit) whatever they have that might be relevant. 

    Such a policy would make a lot of sense.  It would make discovery cheaper and more rational.  I can (almost) see an in-house person believing in it.  But it’s not realistic.  Individual employees do strange things.  They pile up e-mails they have ignored and forget about them.  They forget about back-ups.  They think they have got rid of stuff they have.  They delete reminder e-mails as annoying stuff from paranoid lawyers.  They're human.

    To do discovery properly, you have to (figuratively) grab all the relevant people, walk into their offices, open all their drawers, pick them up, turn them upside down, shake them, and then go after their computers, especially laptops, which often serve hybrid functions mixing personal and business data.  Don't trust, verify. 

    Annoying, expensive, and often pointless?  Yes.  Necessary?  Read the opinion.

    5.  Try to de-bias yourself.  When Day, Casebeer lawyers discovered 20-odd e-mails in the middle of trial, they at first declined to produce them on the ground that they were not relevant.  They missed the point: The fact that the e-mails existed was relevant even if the content was not. 

    I don't think the initial decision to withhold necessarily implies bad faith.  It might be the understandable reaction of people so focused on the merits of the trial that their perspective had narrowed too much.  It might also be a by-product of someone who had spent so much time with their own arguments that they talked themselves into believing them, thus missing the importance a neutral observer might attribute to the document.

    How do you fight natural psychological phenomena?  It's not easy.  One suggestion would be to appoint one member of the team a devil's advocate.  Give them the documents and ask them to write a couple of paragraphs making the most damaging argument they can think of as to why the documents have to be produced. Another is to write a list of conditions that would have to exist for the document to be unresponsive, and then asks if all the necessary conditions do in fact exist. 

    6.     Err in favor of production.  There are four types of documents: irrelevant, relevant and helpful, relevant and neutral, and relevant and harmful.  You don't have to produce type one, but by definition there is no harm to doing so.  (Sure, a document might make the other side think of a new theory, but that is a kind of relevance; people can amend pleadings, remember.)  You want to produce type 2.  You have to produce type three and have no reason not to.  You have to produce type four even though you don't want to.  When you look at the possible choices, in marginal cases it is better to err in favor of production than in favor of withholding. 

    7.  McGowan's inverse plausibility theorem: The longer an explanation is, the less likely it is true.  Application: The more you have to explain a decision to withhold, the less likely a court is to buy it. 

    8.  McGowan's inverse incentive theorem:  The more you don't want to produce a document, the more important it is to produce it.

    9.    Be prepared to walk away.  That is one of the five rules of survival I teach in PR.  Note 10 of the opinion goes to this point.  A relevant part: 

"If Leung was unable to get Qualcomm to conduct the type of search he deemed necessary to verify the adequacy of the document search and production, then he should have obtained the assistance of supervising or senior attorneys. If Mammen and Batchelder were unable to get Qualcomm to conduct a competent and thorough document search, they should have withdrawn from the case or taken other action to ensure production of the evidence. See The State Bar of California, Rules of Professional Conduct , Rule 5-220 (a lawyer shall not suppress evidence that the lawyer or the lawyer’s client has a legal obligation to reveal); Rule 3-700 (a lawyer shall withdraw from employment if the lawyer knows or should know that continued employment will result in a violation of these rules or the client insists that the lawyer pursue a course of conduct prohibited under these rules)."

    10.  Associates: You have to look out for yourselves. I know this is totally unrealistic advice given large firm structures, but there are two associates in the sanctioned group, one of whom, Bier, did very little and tried to kick the problem to a senior lawyer.  If you feel strongly about production, fight for it.  If you don't, and you wind up in an opinion like this, at least you'll have the cold comfort of knowing it was your own decision and not passive acquiescence in somebody else's call.

    11.   If you mess up, fess up.  Qualcomm defended its document review even after it became clear that it had failed to find and produce documents the court thought were not only relevant, but vitally important.  In hindsight, that defense made Qualcomm appear churlish at best and corrupt at worst.  It was the sort of defense that makes a judge think the lawyer or client just doesn't get it, and needs a corrective 2 x 4 across the brow.  Or close to $9 million in a fee award.  People make mistakes.  It happens.  When it does, it's better to admit it, apologize, and try to make it right.  (Funny how things your mother told you work so well in discovery.)

DM

The Qualcomm Order

Judge Major wrote a very impressive 48-page opinion sanctioning six attorneys and Qualcomm itself for what the court saw as massive discovery misconduct.  It is not a surprise to anyone attending the hearing.  I think the court essentially had to defend its ability to rely on the discovery process, which implied a firm stance with respect to counsel and Qualcomm itself. 

But though I think the court's opinion reasonable, I personally am not persuaded that the sanctioned attorneys--Batchelder, Bier (especially), Leung, Mammen, Patch, or Young--acted maliciously or recklessly.  I think it more likely that their client was  excessively confident about its own discovery procedures, and that the division of labor on discovery worked poorly for outside counsel.  (Though that opinion might change either way if Qualcomm waived the privilege and we had more facts.)

Did the lawyers act negligently?  Maybe, but second-guessing is too easy for me to be fully comfortable with that call, especially when counsel for the lawyers flatly represented that they had exculpatory information the privilege prevented them from presenting.  It is hard to return to the world as they saw it, before the relevant documents were found.  (And there is no evidence that they were found and willfully suppressed.)  Hindsight bias is real.  Probably a lot of lawyers would have made the decisions they made, especially in dealing with a client they had represented for years and knew well.  (I acknowledge that a cynic would add: a client that accounted for a lot of revenue.) 

Perhaps I am naive, but in my view the case is not about corrupt lawyers but instead about the changing economics of discovery, possible client overconfidence in its own discovery processes, and plain old bad luck that could have happened to a large fraction of the people in their position.  The case is an important wake-up call precisely because there is no evidence of deliberate misconduct, which no one needs a wake-up call to guard against.  If you're not careful, it could happen to you. (See related post on lessons learned for more along this line.)

Having said all that, the order is useful as a wake-up call, and it would not be if the lawyers walked away.  As I said, I can well understand the court's reaction to the discovery failure, and the need to signal to the bar that such failures are unacceptable.  Judge Major's order makes sensible distinctions and makes sense under the circumstances.  From her perspective, I think she had little if any other choice. 

Be careful out there.

DM