Legal Ethics Forum

Odd and Ends about Previous Posts (as reported by the WSJ Law Blog)

Regarding Ben Kuehne, the Miami criminal defense lawyer who was criminally charged for rendering an ethics opinion approving of Roy Black's receipt of legal fees from an alleged drug kingpin: we've heard the extraordinary rumor -- we repeat "rumor" -- reported by the WSJ Law Blog is that DOJ has replaced the prosecutor and is considering dropping the charges.  If that really comes true, someone's career (the person who made the initial decision) should be effectively over.    . . . .    Regarding the motion filed by Enron's Jeff Skilling, alleging that the government's failure to turn over allegedly exculpatory interview notes: WSJ Law Blog reports that the government doesn't think the notes were that exculpatory.    . . . .    Regarding the Second Circuit appellate argument about the trial judge in the KPMG matter dismissing numerous claims because the government interfered with the defendants' ability to secure defense counsel: WSJ Law Blog reports that the government faced a skeptical and hostile panel.    . . . .    Regarding the Milberg Weiss saga, Mel Weiss pled (yes, "pled," not "pleaded") guilty, as reported by the WSJ Law Blog.    . . . .    Finally, here's a WSJ Law Blog story we didn't previously cover: USDC Judge Manual Real, who sits in LA, has been removed from a case on retrial.  I was on a trial team that tried a six-week case in LA before USDC Judge A. Andrew Hauk, so there's nothing Judge Real could do that would shock me.

More on US News

I tried to post this as a comment, but we don't allow html, so this is a follow on to Andy's post, below.

Andy, when I view the "below 101" numbers, there's no "score" and they seem to be alphabetical. If you pay, does it show the score and "ranking" below 100? As you know, the ranking system is, rightly or wrongly, taken by students -- customers -- to be important. Thus, rightly or wrongly (and many, including Brian Leiter think wrongly), it affects what those institutions do: there is a famous story, for example, of Nancy Rapoport's deanship at University of Houston Law Center ending in large part because of UH's "fall" in the rankings.

Mercer, my institution, has hovered between 100 and 90 for the past five years. I obviously think we deserve a better place in the system, but what I have always been bothered by is the critical distortion that the rankings system creates at the 100th place, at least from the way it has been done and appears (at least in the free version) to be done: the top 100 schools are ranked one to one hundred by "score," but after 100... they have been ranked, and I think they still get ranked, in two groups in "tiers" by name only, without a score. So, a school that falls only from 100 to 101 may in appearance fall 50 "places."

So, you know that schools just "below" 100 are doing everything they can to affect their score upward, while those in the 90's are doing everything they can to distort their score, too. No one wants to fall from the top, ranked tier to the bottom, unranked, two tiers.

Anyhow, the whole thing is odd to me, since I don't believe that a school can be distilled down to a number, but the distortion that the system causes -- what US News includes that a school can affect will matter more than it perhaps should to the school -- is particularly amplified by the 1-100 then "two tier" system.

And now we return to your regularly scheduled broadcast...

The Misdirected Message and the Search for Truth

The following illustrates how the misdirected fax or email can aid in the search for truth -- an issue that is consistently ignored or minimized in discussions supporting a requirement that lawyers ignore such messages, send them back, etc.

Misdirected E-Mail Set the Stage for Clear Channel Suits

Posted Mar 27, 2008, 10:00 am CDT
By Debra Cassens Weiss

A misdirected e-mail from Credit Suisse helped set the stage for two lawsuits filed this week by two private equity firms seeking to purchase Clear Channel Communications, the New York Times reports.

The suits accuse Credit Suisse and five other banks of breaching a contract to finance the $19.5 billion sale and interfering with the purchase agreement. The court filings come less than a year after the buyers, Bain Capital and THL Partners, received an unusual e-mail from Credit Suisse. The July e-mail contained confidential documents discussing how the banks planned to renege on terms of the lending agreement, the Times story says.

The suits were filed in state courts in Manhattan and Bexar County, Texas. Late yesterday, the judge in the Texas suit, which seeks $26 billion in damages, issued a temporary restraining order requiring the banks to carry out the deal, the Wall Street Journal reports.

Full U.S. News Law School Rankings Now Posted

You don't have to rely on fuzzy images of early-released copies any longer.  The 2009 rankings are now up on the U.S. News web site. 

Of note this year is that third and fourth tier schools appear to be listed by rank order (at least in the online edition).  In the past, schools outside of the top 100 were simply listed alphabetically within each tier.  With all the attention paid to the top 100 schools, people forget that just shy of half of all accredited law schools fall outside of the top 100, so the new ranking will have greater significance for those schools.  For what it's worth, the third tier rankings start here.

March Madness! (think USN&WR rankings, not basketball)

Well, the rankings are [probably] out.  In a perfect world, law schools would provide data about their students' debt loads, their entering credentials, their bar passage rates by entering credentials and by class rank, their hiring statistics (including starting salary) by entering credentials and class rank, and other data that students would find useful when deciding whether to enrol, when deciding what 2L and 3L courses to take, and when deciding how to enter the profession.  The schools don't want to, and so far nobody can make them.  While the number of (largely irrelevant) ranking schemes continue to proliferate, the grand-daddy of them all, the USN&WR rankings, are [purportedly] now out.  (Bracketed text was subsequently added.)

Harvard Law Review note on "Government Counsel and their Obligations"

Pdf here.  (nod to Concurring Opinions)

UPDATE:  Having read the piece, I find it to be an interesting but flawed thought experiment.  The thesis is that we adapt the corporate lawyer's gatekeeping function to the world of Executive Branch (EB) lawyers and conceive of the EB lawyer as having primary, secondary, and tertiary clients -- a kind of tripartite client depending on the facts of the situation.  The first client is the president; the secondary client is the presidency; the third client is the public (whose agent is the Congress).  To make this scheme work, the Attorney General would be required to report to Congress the substance of opinions that the AG has rendered to the President, and individaul EB lawyers would have discretion to "report out" to Congress in extreme cases.

What I like about the proposal is that it emphasizes (i) the need to define the client and (ii) the need to "report up" when the organizational client is going astray.  But for anyone who's actually handled legal ethics matters, the idea of tripartite clients cries out for a more thorough explanation than the Note provides.   Moreover, it treats the President as subordinate to Congress when it requires "reporting out" to Congress.  We shouldn't create professional duties that would conflict with the balance of powers.

It seems to me that we are still moving down the learning curve on how to define the professional duties of lawyers in the federal government.  My intuition suggests that (i) we shouldn't adopt multi-client models but rather use the pre-exising model of the organizational client that has fiduciary duties to other persons and that is bound to follow the law; and (ii) we will need to look more closely at the particular roles of the various government lawyers.   That is, we'll need to ask about how the work of each EB lawyer plugs into larger social systems, how it relates to the balance of powers, and how it relates to the traditional sub-roles of advocate, negotiator, evaluator, and counselor.  I'd expect that this process of sorting out the ethical duties will be slow and event-driven, and that over time we'll recognize quite different duties for the various EB lawyers.  (And notice that we haven't yet discussed lawyers employed by Congress or the judiciary.) 

Ethical Infrastructures in Australian Firms

Here's an article about building a more formal ethics infrastructure in Australian firms.  The article acknowledges the help of, among others, Elizabeth Chambliss, Susan Fortney, and Kimberly Kirkland, who have all written good pieces about ethics and structural issues in US firms.

Posts about non-lawyers in court

The first one, viaMike Frisch at Legal Profession Blog, says that "the Montana Supreme Court has adopted rules that permit non-lawyers to act as counsel before the Montana Water Court."  The second, via Erica Hashimoto of Concurring Opinions, discusses tomorrow's Supreme Court hearing in Indiana v. Edwards, which deals with the right of self-representation.   

Lawyer's demand letter as criminal extortion?

Sometimes, it's extortion.  News from Simple Justice.

Wearing a Wireless Microphone to Court

That's what a Massachusetts lawyer did during a murder trial in order to take part in a television documentary.  The client was convicted and appealed on the grounds that the lawyer's microphone-wearing resulted in ineffective assistance of counsel.  (Thanks to my colleague, Diane Juliar, for alerting me to the story.)

The Massachusetts Supreme Judicial Court ruled last week that the lawyer's conduct resulted in a conflict of interest.  But the Court affirmed the conviction, holding that the client consented to the conflict.

I certainly agree that the microphone created a conflict of interest.  The Court explained it this way:

On the one hand, counsel had a duty to give undivided loyalty to and zealous representation of his client. On the other hand, counsel assumed the obligation of wearing a wireless microphone and giving third parties seemingly unfettered access to his confidential relationship with the defendant. These competing responsibilities created an actual conflict of interest for counsel. 

Notably, in Massachusetts (unlike many jurisdictions), a defendant does not have to show that the conflict had an adverse effect on the lawyer's performance.  A mere showing of a conflict is sufficient to result in a reversal. 

The Court, however, said that the defendant consented to the conflict, because his lawyer described the dangers of the microphone with sufficient detail so as to get a knowing and intelligent waiver.  I wonder, however, whether consent would satisfy Rule 1.7, which states that a conflict isn't consentable unless the lawyer reasonably believes that he/she can represent the client effectively.  Although the microphone apparently could have been turned off at will by the attorney, it's at least arguable that no reasonable attorney could have represented her client effectively under these circumstances.  I'm not sure I necessarily disagree with the Court's ultimate conclusion on this point, but I do think this case is a tougher call than the SJC opinion suggests.

The defendant also contended that the trial court should have engaged in a colloquy with him to ensure that he fully understood the conflict and his waiver of it.  Indeed, the SJC explained that some conflicts are so severe, such as when a defense lawyer represents multiple co-defendants, that a trial judge should engage in a colloquy before permitting consent.  The SJC, however, thought that the conflict in this case was not so serious as to warrant a colloquy.  Personally, I agree that the microphone doesn't rise to the same level as representing multiple co-defendants, but where exactly is the line between conflicts that require a colloquy and those that don't?  The answer is not entirely clear to me, so I'm not sure where this microphone-wearing conflict should fall.

As my analysis reveals, I'm not that familiar with the law on colloquies or consent in the criminal context, so if anyone has deeper insights, please post them in the comments.  Was the case correctly decided?