Legal Ethics Forum

Live from the LSA conference

Andy Perlman is at the ABA-CPR conference in Boston, and I'm at the LSA conference in Montreal.  We've had a number of great panels on the legal profession, which were meta-organized by Bill Henderson of IU.  Lots of data and new studies are being presented here.  Plus, I finally met Alan Childress from the Legal Profession Blog.  I'll try to post some info about the panels tomorrow. 

Suggestion for Blog Readers

I had a wonderful dinner last night at the ABA's National Conference on Professional Responsibility with some readers of this blog.  It was nice to chat with some people who stop in to read what we have to say and contribute such great comments after the posts.

One issue that came up is that some people find it to be a hassle to check in on the blog every day to see if there is new content.  I mentioned at dinner that there are a number of great services on the web that can make that process a lot easier.  For example, I use bloglines, a free service that you can sign up for at bloglines.com.  The idea is that you can subscribe to the feeds of a bunch of blogs simultaneously (including Legal Ethics Forum) through bloglines and then simply go to bloglines to see if any of the blogs that you read have new posts.  Bloglines even shows you the titles and summaries of the blog posts of the blogs to which you have subscribed.  I realize a number of people are already aware of these kinds of blog-reader services, but if you don't use one already, I highly recommend it as a way of making your blog reading more efficient.

I hope to see readers again next year in Chicago!

Fortune Magazine on Legal Ethics Experts

You may recall a vigorous exchange last year regarding Professor Bill Simon's scathing critique of several legal ethics experts.  (Here, here, here, and here.)  Fortune Magazine now has a story about the dust up, which you can find here.

A Wrongful Incarceration/Execution Exception to the Duty of Confidentiality

The Northwestern Law Review is publishing this piece by John Marshall's Colin Miller on whether the Model Rules should have a wrongful incarceration/execution exception to the duty of confidentiality.  Professor Miller draws on the Alton Logan case, which we have discussed previously here and here, and concludes that such an exception (which already exists in Massachusetts) is worth adopting.  I tend to agree, but with some caution expressed in the comments to this post.

Another Metadata-related Gaffe

Blacking out text in a word file doesn't erase it. But a plaintiff's firm suing GE in a $500m class action didn't realize that... and put a whole slew of GE confidential information in the public domain as a result. Read about it here.

Interesting Patent Prosecution Malpractice Case Filed

You can read about it here, but essentially the claim is that a Morgan Lewis partner botched a patent application (negligently, apparently), and then intentionally tried to cover up the mistake. The plaintiff claims millions in damages.

i've been watching the growth in claims in this area, and recently saw data indicating that the number of claims in IP area remains constant but the severity -- the amount of damages -- remains high and is increasing. Every patent is worth more today, no doubt, than when I started practicing 20 years ago, but still... some patents are worthless or worth little, but it's interesting to see that trend continue.

AG Mukasey tells BC law grads not to shy away from tough calls (and uses the government lawyers dealing with national security as the context)

Story here.  Text of speech below the fold.  Mukasey makes the distinction between legal advice and policy advice, and suggests that a lawyer sometimes permits clients to do things that the lawyer wishes the client wouldn't do.

An Interesting Wrinkle for Outsourcing

There has been a lot of recent talk about the outsourcing of legal work, especially to India.  I have heard a variety of concerns about the trend, but one that I had not considered is that the United States government is permitted to examine electronic data that leaves the country.  This power raises the possibility that, when a lawyer sends a client's confidential information abroad, the government might view that information and use it against the client in some subsequent proceeding.  A recently filed lawsuit raises this very concern, ultimately seeking

declaratory judgment and equitable relief in order to  gain certainty about whether the electronic transmission of data from the United States to  Acumen India waives Fourth Amendment protection with respect to the data that is  electronically transmitted. It seeks this declaration knowing that foreign nationals who reside overseas lack Fourth Amendment protections.  It seeks this declaration having been informed, through published materials, that the United States Government engages in pervasive surveillance of electronically transmitted data wherein one party to the transmission is a foreign national residing overseas.

More here.

This concern sounds serious, but I'm not sure that the risks from outsourcing are any greater than they are from the many other ways confidential client information can end up in the wrong hands.  Before I could reach any conclusions, I'd need to know more about how great of a risk there really is.  I'd also need to know what the consequences are in the event that the government looks at privileged or confidential information.  For example, if the government reviewed privileged information as it left the country and the information was only relevant to some civil dispute between private parties, I would assume that the privilege would still apply in the civil proceeding.  So is the concern really about criminal proceedings or civil proceedings in which the government is involved?  Or am I missing the potential breadth of the problem?

Thanks to Bill Henderson for the original pointer.

A Government Lawyer Ethics Puzzle

Martha Coakley was once a district attorney in Massachusetts, and her office was inside a state courthouse.  That courthouse apparently had health and safety issues, so Coakley brought a lawsuit against the Commonwealth to force the government to take remedial measures.

Now here's the interesting part.  Coakley was subsequently elected to become Attorney General of Massachusetts while the case against the Commonwealth was pending.  As AG, her office became constitutionally responsible for defending the case in which she was the named plaintiff. 

The question is: what is she ethically required to do?  (A recent Massachusetts Lawyers Weekly story covers the facts in somewhat more detail, but the story is only available to subscribers.  You can find it on Westlaw at 2008 WLNR 9544593.)

It seems pretty obvious to me that Rule 1.9 precludes her from handling the case herself.  But if she screens herself off, can someone else in her office take charge of the case?  Massachusetts does have a screening provision in its version of Rule 1.10, but it applies only if the lawyer who is being screened acquired no confidential information about the matter or had neither substantial involvement nor substantial material information relating to the matter.  Ms. Coakley, as the named plaintiff, almost certainly doesn't fit these descriptions.

Technically, this would mean that the AG's office would have to hire outside counsel to handle the case.  What troubles me about that result is that the AG's Office has a constitutional obligation to defend the Commonwealth, and hiring outside counsel comes at significant taxpayer expense.  Indeed, if nobody in the AG's office could touch the case, who would make the ultimate decision about whether to settle?  The governor?  Outside counsel? 

It seems to me that, although the rules technically prohibit screening here (Rule 1.11 is also not applicable, because AG Coakley was not moving between public and private practice), there is a decent argument that the normal conflicts restrictions should be loosened as a public policy matter in this particular case.  Indeed, my understanding is that in some contexts (e.g., public defender offices), there is authority for the idea that the usual conflicts rules do not apply.  Should there also be an exception for a case like AG Coakley's?

Dinner at the ABA Conference

Because last year's ABA Conference/blog reception went so well, I thought it would be fun to get together again next week at the Conference in Boston. 

I propose meeting for dinner on Thursday, May 29 at 6:30, which is right after a conference reception.  Since I live in the Boston area, I have a few restaurant ideas.  And since I am unlikely to be much of a draw myself, my co-bloggers have agreed to let me raid our google ad sense account to offer a modest subsidy for the event.  Needless to say, the money in that account has been fully earned, and we have maintained the account pursuant to Model Rule 1.15.  (I promise to work on my ethics-related humor in advance of the event.)

Anyway, let me know if you might be interested in going out to dinner in downtown Boston.  Send me an email by early next week, even if you might cancel at the last minute; I'd like to have a rough estimate of attendance so that I can make an appropriate reservation.

And if you don't come out to dinner, be sure to say hello at the Conference!