Legal Ethics Forum

Our New Look

Can you tell that we're busy grading?  I'd rather play around with the colors on the blog than grade my exams.  It's cheaper than re-painting my house and more fun than reorganizing my sock drawer.

For Your Summer Reading List

In addition to Steve Lubet's new book, which David McGowan referenced below, you should also take a look at the new AALS PR newsletter, which The Legal Profession blog has posted on its site.  The newsletter highlights recent scholarship and upcoming conferences; it also has a fabulous section written by Hofstra's Roy Simon, which identifies dozens of recent changes to ethics rules in various jurisdictions around the country.  And for something else to add to your summer reading list, have a look at the widely praised book from Michael J. Kelly, entitled Lives of Lawyers Revisited, Transformation and Resilience in the Organizations of Practice.  Here's a summary offered by the author:

Lives of Lawyers Revisited represents a sustained argument that the subject matter of the course in law school variously called legal ethics or professional responsibility or legal profession needs to be expanded to include analysis of the work lives of lawyers. In order to make sense of the work of about a million lawyers, the strategy of the book is to focus on the most important and dynamic development within the legal profession over the last few decades--the organizations of law practice. It first draws the reader into non-fiction stories of five markedly different law practices---illustrating how they function, handle conflict, articulate organizational values and manage their sense of economic realities and necessities. The practice accounts are followed by chapters on the nature of recent change in the legal profession, analytical methods of understanding law practice organizations and finally, the way in which all law practices work within a framework of incommensurate ideas of the meaning of a profession. By placing the spotlight on organizations as settings that deeply affect lawyer behavior and generate their own logic and tensions, Lives of Lawyers Revisited speaks to the experience of most lawyers, as well as the curiosity and expectations of law students. The book surfaces important issues, not typically part of law school curricula, directly relevant to the meaning of "professionalism" in law.

Article about Terry Stewart, who litigated the same sex marriage cases in California

In light of the huge news from California -- declaring unconsitutional the ban on same sex marriage -- you might want to read this great profile of Terry Stewart, who litigated the marriage cases.

Lubet on Honesty

Steve Lubet is always worth reading, so I am looking forward to reading his new book The Importance of Being Honest. I'll post a few comments when I have.

DM

Bombs Don't Kill People, Lawyers For Bombers Kill People

Or so, it seems, the Wall Street Journal opines today.  Apparently Abdullah Salih Al Ajmi, who blew himself up in order to murder others, had been detained at Guantanamo Bay.  A Kuwaiti, Al Ajmi had been represented by Shearman & Sterling, which a group of Kuwaiti families retained to represent the Kuwaitis at Guantanamo Bay. 

The Journal seems annoyed that fancy lawyers, part of its readership and economic target market, are willing to represent detainees.  Its annoyance impairs its logic, and leads it to insult, no doubt unintentionally, the military officials it wants to defend.

Immigration Court Ethics

Judge Posner recently issued a scathing critique of the immigration court system.  He criticized the competence of immigration judges and lamented the dearth of qualified lawyers to handle immigration matters.

For more on these issues, you might want to take a look at this new article by Professor Michele Benedetto on the immigration court system.  It is entitled, "Crisis on the Immigration Bench: An Ethical Perspective."  Here's the abstract:

The troubled status of the immigration court system has garnered much attention from scholars, appellate judges, and even the United States Attorney General. This article suggests a new lens through which to examine the acknowledged crisis in immigration courts: judicial ethics. Because the term judicial ethics encompasses a broad array of principles, the article narrows its focus to bias and incompetence on the part of immigration judges in the courtroom.

Immigration judges operate as a unique judiciary under the Executive Branch of government. An examination of the modern immigration court system, including inadequate disciplinary procedures for immigration judges, reveals that the existing structural crisis has substantial implications for judicial ethics. Evidence of biased and incompetent judicial conduct has been found in statistics showing inconsistent decisions and cases reviewed by circuit courts. Recognizing the breadth and severity of the problem, the Attorney General proposed new ethical Codes of Conduct for immigration judges in June 2007. However, the proposed Codes are weakened by their lack of specificity and enforceability. Accordingly, the article recommends reforms designed to encourage unbiased and competent judicial behavior. Implementation of these reforms will initiate the process of restoring the ethical integrity of the immigration bench.

David Luban's Testimony on the "Torture Memos"

Professor David Luban testified yesterday before the House Judiciary Committee.  You can find his testimony here.

Wrongful Termination and Confidentiality

The San Diego County Bar Association Legal Ethics Committee has posted opinion 2008-01, which discusses what a terminated in-house lawyer may disclose in connection with a wrongful termination claim against a former employer.

New York Times Article on Confidentiality Exceptions

Adam Liptak of the Times has a nice overview of the issues that we have discussed here, here, and here.

Unethical Obedience By Subordinate Attorneys: Lessons from Social Psychology

This article, which I just posted on SSRN, describes in more detail some of the ideas contained in this op-ed.  Here's the abstract:

This Article explores the lessons that we can learn from social psychology regarding a lawyer's willingness to comply with authority figures, such as senior partners or deep-pocketed clients, when they make unlawful or unethical demands. The Article reviews some of the basic literature in social psychology regarding conformity and obedience, much of which emphasizes the importance of context as a primary factor in predicting people's behavior. The Article then contends that lawyers frequently find themselves in the kinds of contexts that produce high levels of conformity and obedience and low levels of resistance to illegal or unethical instructions. The result is that subordinate lawyers will find it difficult to resist a superior's commands in circumstances that should produce forceful dissent. Finally, the Article proposes several changes to existing law in light of these insights, including giving lawyers the benefit of whistleblower protection, strengthening a lawyer's duty to report the misconduct of other lawyers, and enhancing a subordinate lawyer's responsibilities upon receiving arguably unethical instructions from a superior.

I'd welcome feedback, especially in advance of this month's National Conference on Professional Responsibility, where I'll be presenting a portion of the article.