Legal Ethics Forum

In re Charlisse C: Walls sometimes suffice in non-profit public law setting

Decision here.  This important case has a nice summary of basic conflicts law, and goes on to hold that non-profit, public law firm can sometimes use walls to cure successive representation conflicts.  Unfortunately, it repeats the old insinuation that private practice lawyers are less trustworthy.  But, rationale aside, the holding is a sound one, in my opinion.

Hadfield on Self-Regulation and Stagnation

Gillian Hadfield has posted her essay, Legal Barriers to Innovation.  (HT: Solum)  Here's the abstract:

The American Bar Association and its state-level brethren control and regulate the legal profession, determining who can provide legal services, how those providers are trained, and what business forms those providers can use. This professional regulation limits what may be offered as a legal product or service, homogenizes the pool of potential innovators in terms of training and risk-orientation, prohibits the corporate practice of law, severely restricts the available financing for large-scale legal ventures, and constrains the capacity to exploit economies of scope and scale in developing better methods of producing what business clients ultimately need. This article examines this problem and encourages states to adopt a different regulatory structure that encourages innovation that benefits legal clients.

In the essay itself, she refers to the "cost of stagnation" that stems from self-regulation.  This essay is a shorter version of Prof. Hadfield's earlier article in the Stanford Law Review.

Thelen to close

Plans announced here.

Burn your law school diploma!

It's probably not the first step I would take on my path toward a simpler life, but who am I to second guess the effectiveness of someone else's public catharsis?

Guantanamo detainee and his appointed lawyer boycott proceeding

Story here.  "I will be joining Mr. Al-Bahlul's boycott, sitting silently at the table," the military lawyer said.

Pro Bono and the Hair Shirt

Do lawyers slip the surly bonds of self interest when they work for free?  Does the logic of agency and agency cost evaporate?  Chief Judge Jacobs of the Court of Appeals for the Second Circuit thinks not. (Download 20081023_DJProBonoSpeech.pdf). 

Dean Irwin Chemerinsky of the UCI School of Law disagrees. He thinks Jacobs's claims "a slap in the face from a person of enormous power and influence." Presumably he will issue a challenge and we may repair to Weehawken to sort this out.

Judge Jacobs makes some good points it would be better to acknowledge than to disparage as an insult.  Dean Chemerinsky's reply makes some good points of its own that qualify Jacobs's thesis in important ways.  Scorecard beneath the fold.

Welcome to Our Newest Guest Blogger, Professor Tanina Rostain

Professor Tanina Rostain has joined us as our newest guest blogger.  Her first post appears below.  Welcome Tanina!

An American Law School in China

A short while back, I had the opportunity to hear Jeff Lehman, former dean of Michigan Law School and president of Cornell University, describe his current project: an American-style law school under the aegis of Peking University in Shenzhen, China. The school, in its first year of operation, offers a curriculum modeled on the American JD. American-trained faculty teach in English – students must be fluent to be admitted – and use the case method. Lehman hopes to apply for accreditation from the AALS in a few years. For Chinese students, the advantages of the school are obvious. Students with Chinese law degrees are not employable as full-fledged associates by law firms with offices in China because they don’t have American law degrees. Peking University School of Transnational Law allows them to pursue an American JD degree at less than half the price of an American LLM and lets them stay close to home while doing it.

What are we to make of an American law school in China? The cynical view holds that the purpose of the law school is to act as a feeder to law firms eager to break into the corporate legal services market in China. (Several corporate firms have donated start-up money to the school.) China is going through its own ramped up version of the industrial revolution, with a large dollop of high tech revolution mixed in, and American global firms want to grab as big a piece of the action as they can. (Think: birth of U.S. corporate law firms circa turn of the 20th Century.) What could serve better than a cadre of very smart, highly motivated, native Mandarin-speaking, American law-trained associates able to navigate the clashing cultures of China and the West?

Other American style law schools are cropping up in countries with rapidly expanding economies – one is in the planning stages in India -- but Peking Law School presents a complicated case. China, after all, is not the poster child for fledgling democracies around the world. By most accounts, the Chinese Communist Party is committed to expanding economic freedoms without permitting a parallel expansion of political liberties. So how does an American style law school, rooted in an university tradition traditionally aligned with liberal democratic values, legitimate its presence in China?

The best case for the law school, as something other than a producer of corporate tools, is that it will encourage the spread of liberal political values. Exposed to a steady diet of American constitutional law, torts, evidence and criminal law, Chinese students – turned law firm associates -- will begin to spread foundational ideas about Western political processes and legal institutions, and slowly (very slowly) democratic freedoms will take hold.

Well, if I were working to spread democratic values in China, I am not sure I would pick an American-style law school as the most promising venue. Despite the stories we law professors tell ourselves, our institutions are not especially good at socializing students to become public interest lawyers. (Studies suggest that those who pursue this path start out with strong prior commitments and have to resist powerful forces pushing them onto the corporate law track.)

Nor are corporate firms, which is where it seems virtually all Peking Transnational Law grads wil land, obvious incubators of fragile yearnings towards freedom -- despite the stories that firms like to tell themselves. As Bob Gordon’s recent work on American rule of law projects suggests, lawyers who depend on powerful clients for business are more prone to resist efforts at democratization and the spread of rights consciousness than support it, and have, as often as not, played a politically conservative role. American lawyers’ very mixed track record doesn’t provide much ground for optimism. But maybe this experiment will turn out differently?

Your favorite PR text, and why?

John Flood has posted a query at Legal Profession Blog, asking for opinions about PR texts.  If you have a view, you might want to comment there.  Below the fold I will repeat my earlier list of generalized PR texts.  (I excluded texts, like the Regan/Bauman text on ethics in corporate practice, that are devoted to a single topic.  If I've missed any texts, please let me know.)

WSJ: "Tribunal Supervisor Investigated for Abuse of Power at Gitmo"

Story here.