Legal Ethics Forum

Galanter and Henderson on "The Elastic Tournament of Lawyers"

The SSRN paper is here.  Because it follows up on the seminal Galanter/Palay book, this new article is a must read for people interested in private firm pratice in the US.

Rob Vischer on Moral Engagement Without the "Moral Law"

Professor Rob Vischer has a new article with the above title, which can be found here.  I haven't read the article yet, but it appears to tackle some important, foundational questions about role differentiated morality and moral dialogue.  Here's the abstract:

Several years ago in my Professional Responsibility class, I wanted to see how far I could push my students in their embrace of the notion that the moral evaluation of conduct depends on the professional role one occupies. I asked students to imagine that they were medical researchers in Nazi Germany, and that the authorities brought them to a concentration camp, inviting them to experiment on live human subjects. Would they, as scientists, proceed with the experiments? The first three students I called on answered that they would do the experiments if it would advance the research. One explained that morality is constructed by society, and in that particular society, the experiments would not be considered immoral. Another asked, "If those inmates are going to die anyway, why not have them contribute to the greater good?" The third insisted that the job of the researcher is to expand scientific knowledge, and the job of the government is to define the limits of that research. Absent government prohibition, the researcher has no moral reason not to proceed.

These students, I am confident, did not believe what they were saying. They were engaging my question according to the rules of good lawyering, as they perceived them - figuring out a way around any and all obstacles standing between the actor and a given course of conduct. Indeed, much of the blame for their answers belongs with the messages they receive about the values of the legal profession. Much of the law school experience sends the message, subtly but unmistakably, that cleverness is valued over wisdom, and that the law is simply a problem to be solved, rather than an inescapably moral endeavor.

In comparison to the era when the American Bar Association, via the 1908 Canons of Professional Ethics, could confidently instruct lawyers to "impress upon the client and his undertaking exact compliance with the strictest principles of moral law," today we are more skeptical about the existence of any "moral law," much less that it could or should be impressed upon the client. Recognizing the variability of moral convictions and complexity of moral analysis has understandably made lawyers reluctant to judge their clients by moral standards not reflected in positive law. But this reluctance to judge seems also to have brought a reluctance to engage the client on moral terms. The resulting technocratic view of law is evidenced far beyond the walls of my classroom. A refusal to acknowledge the moral dimension of legal practice has contributed to several of the leading lawyer-fueled scandals of recent years, as well as to the broader malaise that has afflicted the profession for some time. Nevertheless, the prospect of putting morality onto the table of legal representation is unsettling to many. This essay looks to reframe our conception of morality's relevance to professionalism, using the Canons' espousal of moral accountability as an insightful point of entry.

What hath Nifong wrought?

The Recorder is carrying the story of a spate of recent California State Bar disciplinary actions against prosecutors.  It's often said that discipline is rarely sought against prosecutors, and so people are naturally asking if this is all a reaction to the Duke lacrosse fiasco masterminded by Michael Nifong.  You should read the whole article but here's a key passage:

Some attorneys who defend lawyers facing discipline believe state bars around the country, including California’s, have begun scrutinizing prosecutors more closely following the North Carolina State Bar’s decision last year to disbar Michael Nifong.

“Lots of prosecutors are getting caught in the crosshairs,” Los Angeles attorney Diane Karpman said, because the public senses some “aren’t playing by the rules.”

But State Bar Supervising Deputy Trial Counsel Donald Steedman,  . . . said that while it’s “fairly rare” to have so many cases against prosecutors under way at once, there really is no rhyme or reason.

Fred Zacharias and Bruce Green have published some good articles about disciplining and regulating prosecutors.

Hricik Asks: Got Claims?

All, I'm in the final stages of preparing the first of two volumes on ethical issues in patent practice: the first is on patent prosecution (co-authored with Drinker Biddle partner Mercedes Meyers, and the second, on litigation, by lil' ol' me).  I think we've about scorched the earth on the types of claims and issues that can arise, but if you've got some unusual ones, please post away.

Thanks -- it's an Oxford University Press project that, the good Lord willing, will be in print late this summer.

David

Peter Margulies on the Office of Legal Counsel

OLC lawyers have found themselves at the center of a lot of recent commentary.  (See, for example, Brad Wendel's excellent post and the links contained in it here.)  Professor Peter Margulies has a new article out that tackles some of the thorny legal ethics issues involved.  You can find a copy of his article here.  The abstract is below:

Post-September 11 legal events have demonstrated that ideological agendas distort the deliberation required for sound advice about national security. Legal issue entrepreneurs who market a theory without context exalt short-term interests and encourage executive unilateralism. These perils have emerged in a number of recent developments, including the torture memos drafted by the Justice Department's Office of Legal Counsel (OLC) and the destruction of CIA interrogation tapes.

In the post-September 11 legal climate, issue entrepreneurs saw legal constraints as "lawfare" against American interests. The lawfare critics extolled parsimony as a virtue - advancing the lawfare construct to explain as many complex events as possible. However, the lawfare critics failed to recognize that legal constraints can also empower decisionmakers, by checking the executive's tendency to discount reputational and other long-term values.

Unfortunately, existing remedies are not a good fit for the problems caused by issue entrepreneurship. Tort litigation, such as the recent suit by Jose Padilla against John Yoo, risks personalizing the problem and neglecting systemic issues. The informal norms approach suggested by a number of OLC alumni, while offering a number of excellent proposals such as citing and distinguishing adverse authority, has not attracted stakeholders across the political spectrum. A structural reform approach that replaces OLC with an adjudicative entity may produce an inquisitorial tribunal that lacks sharp adversarial inputs and loses influence to more pliable players such as White House counsel.

To transcend these difficulties, lawyers should turn to a model of dialogic equipoise relying on two values: transparency and tailoring. Dialogic equipoise allows the president to take action that is inconsistent with the most accurate reading of sources of authority. However, action must be both interstitial - with a clear exit strategy - and publicly disclosed. To implement the dialogic equipoise model, the Article recommends a blended approach, including a safe harbor for publicly disclosed legal opinions, consideration of institutional consequences, assertion of the least drastic rationale for executive power, and an ex ante role for Inspectors General and OLC in document preservation. This blended regime can reinforce deliberation when exigencies obscure the teachings of prudence.

The Murky Law on Collecting Legal Fees From Criminal Defendants

Here is more on the story involving Ben Kuehne, a highly regarded lawyer in Florida who has been indicted for money laundering in connection with the advice that he gave to well-known criminal defense attorney Roy Black.  Black wanted to know whether he could accept more than five million dollars in legal fees from an alleged drug kingpin of a Colombian drug cartel.  Kuehne investigated the issue by (among other methods) traveling to Colombia to trace the funds, and he concluded that Black could accept the money.

The story makes pretty clear how murky the law is on the subject of a lawyer's acceptance of money that might be the proceeds of criminal activity.  It's worth a read for any criminal defense lawyer.

For other links to this story, see John Steele's post and the comments after it.

Nominations Sought for PR Section Executive Committee Members

Here is an annoucement from Professor Peter Joy regarding executive committee nominations for the Professional Responsibility Section of the AALS:

Nominations are now open to fill six new vacancies on the Professional Responsibility Section Executive Committee.  At the January business meeting of the Section, the Section membership adopted a bylaw amendment expanding the size of the Executive Committee from officers and six members to officers and twelve members.  In order to fill these six openings, Chair Irma Russell has appointed a Nominations Committee consisting of Peter Joy (Chair) ([email protected]), Carol Needham (needhamc@slu,edu), Russell Pearce ([email protected]), and Laurel Terry ([email protected]). 

One reason underlying the expansion of the Executive Committee was to encourage more members to participate and to increase the diversity of the Committee by bringing in newer faculty.  If you are interested in getting more involved in the Section, we encourage you to self-nominate.  The workload is not heavy and should not interfere with your scholarly commitments. 

The Nominations Committee urges you to send your nominations to any member of the committee via e-mail.   Any person who is member of the Professional Responsibility Section is eligible to serve, and persons may suggest themselves as well as others.  The procedure calls for the Nominations Committee to make recommendations to the Section Chair, Irma Russell, who shall appoint members of the Section to fill the vacancies subject to the approval of the Executive Committee.  One new member will be appointed to serve a three-year term, four persons will be appointed to serve a two-year term, and one person will be appointed to serve a one-year term. 

In order to fill these positions expeditiously, a deadline for nominations has been set for the easy to remember deadline of April 15, 2008.  If you know of anyone whom you think would make a good member of the Section Executive Committee, or if you are interested in serving, please send your nominations.

Dennis Ventry on "Cooperative Tax Regulation"

Dennis J. Ventry Jr., of American University, has published "Cooperative Tax Regulation" at SSRN.  Here's an abstract.

The last thirty years have witnessed unprecedented tax avoidance. Corporate tax shelters have cost the government hundreds of billions of dollars in lost revenue, and the annual "tax gap" (the difference between what taxpayers should pay and what they pay on a timely basis) exceeds $400 billion. There are many explanations for overaggressive taxpayer behavior. But adversarial ethical standards for tax professionals and equally adversarial command-and-control tax regulation have been especially culpable in creating the perfect tax avoidance storm.

Debased ethical guidelines promulgated by the American Bar Association and the American Institute of Certified Public Accountants, in combination with government efforts to regulate tax practice, produced a competitive rather than a cooperative regulatory environment. Practice standards steeped in adversarial norms fostered tax shelter behavior among tax practitioners. They authorized tax advisors to assert "any colorable claim" in the name of client advocacy, to advise "noncompliance with scienter," and to view the filing of a tax return as a first offer. Combined with audit rates ranging between one and two percent, taxpayers and their advisors confidently played the "audit lottery" and resolved all questionable positions in the taxpayer-client’s favor. Social norms that rewarded clever tax planning and standards of tax practice emphasizing a client-centered ethical structure subordinated professional duty in upholding the nation’s tax laws to unalloyed client advocacy and tax minimization. Meanwhile, the organized bar failed to rein in members participating in overaggressive tax planning. Beginning in the early 1980s, the abject failure of self-regulation prompted the Treasury Department to deputize tax practitioners (largely involuntarily) and to promulgate disciplinary standards to fill the ethical void left by the professional associations. As Treasury and Congress ramped up efforts to curb tax avoidance with top-down regulation, aggressive tax advisors performed an end around the government. Tax shelter transactions grew increasingly complex at the same time the IRS faced serious shortfalls in money, personnel, and expertise. An eviscerated tax agency was left to enforce tax laws with tools that prompted more rather than less avoidance.

This Article describes a new approach to tax regulation based on cooperation, information sharing, and interest convergence. It accepts the findings of general prevention studies in the criminal literature indicating that taxpayers will comply with the law in the presence of effective deterrence and enforcement, but it reconceptualizes traditional notions of deterrence and enforcement. To this end, the Article optimizes the use of penalties as a compliance instrument by, among other things, rewarding compliant taxpayers, engaging taxpayers and their advisors in a participatory process, and utilizing cognitive devices that portray payment of taxes as a bonus rather than nonpayment of taxes as a penalty. Even with optimal penalties, tax officials cannot currently enforce the law effectively due to severe resource and information asymmetries. To overcome these debilitating shortcomings, the government must improve funding, recruiting, training, and retention. It must also partner with taxpayers and practitioners to strengthen detection, enforcement, and prosecution of abusive tax avoidance. If successfully implemented, cooperative tax regulation can accomplish a cultural shift not only in taxpaying, but also in tax advising and tax administration. Ultimately, it can produce a regulatory environment of collaboration rather than adversity, ex ante resolution rather than ex post controversy, and certainty rather than secrecy.

Prosecutorial misconduct alleged in Enron trials; was Skilling nifonged?

Larry Ribstein has the story.  So does Tom Kirkendall.  The allegation is that prosecutors withheld exculpatory evidence -- that they "pulled a Nifong."  The defense brief is here.

UPDATE: Ellen Podgar has thoughts, here.  WR Chambers asks if we'll post the government brief.  I'd like to.  If I miss it, feel free to leave me a comment.

Interesting Hot Potato Case out of Utah

In Flying J Inc v. TA Operating Corp., 2008 WL 648545 (D. Utah March 10, 2008), the court refused to disqualify Gibson Dunn.  It's a fascinating case, where Gibson Dunn tried to get a consent to avoid the "we may develop evidence that can be used against you" disqualification now becoming a real issue, but the client refused, and it involved the striking of an affidavit from ethics expert Thomas D. Morgan, though not due to any defect. 

The court rejected the argument that the conflict had been "thrust upon" Gibson Dunn and so fell within the "thrust upon exception to the hot potato doctrine", emphasizing that the firm had pursued developing claims against its own current client.  Despite that, however, it rejected applying a per se rule of disqualification, and instead adopted a "functional analysis" to a current client disqualification and denied the motion to disqualify, weighing the harm to the movant as well as the harm to the other client. It's an interesting read.