Legal Ethics Forum

Default Judgment for E-Discovery Abuse, Spoliation

There's an article here about Gutman v. Levy, reportedly the first case in the Second Circuit entering default judgment for e-discovery abuse and e-spoliation. If you haven't been involved in e-discovery battles, the case is an eye opening read, both in what it takes to uncover deletions and what-not, but also for the misconduct that effort uncovered here.

Kerfuffle alert: Erwin Chemerinsky, Judge Jacobs, and pro bono work

When I read Erwin Chemerinsky's spirited defense of pro bono work and attack on Chief Judge Jacobs of the Second Circuit, I wondered if the article had correctly captured what Judge Jacobs actually said. Now comes news that perhaps the attack was more appropriately directed at a straw man than at Judge Jacobs.  Pro bono work seems to generate an inordinate number of kerfuffles, mis-steps, and over-the-top reactions.

Our First Guest Blogger, Professor Dennis Ventry

We've signed up our first guest blogger, Dennis Ventry, who is already blogging below about his new article on privilege issues for tax and regulatory work product.  Welcome Dennis!

Privilege Issues for Tax and Regulatory Work Product

Dennis Ventry (UC Davis) has published “Protecting Abusive Tax Avoidance,” which explores the application of privilege (attorney-client, work product, and tax-practitioner/client) in both the tax and regulatory contexts.

The article provides a detailed discussion of the development of the work product doctrine as well as its modern incarnation. In addition, it examines in detail an important recent case, United States v. Textron, in which the district court awarded blanket work product immunity to a corporate taxpayer’s tax planning materials that propped up a series of nine abusive tax shelter transactions. As I argue in the article, the decision “expands the work-product doctrine beyond its historical role of protecting the adversarial process, and it swallows the attorney-client privilege, effectively cloaking from discovery not just all legal advice but all advice pertaining to potential litigation, no matter how unlikely. In addition, the decision protects precisely the kind of abusive tax avoidance that Congress and the Treasury Department have fought to root out and punish.” On appeal in September, the Government relied on the article at several points during oral argument. And more recently, the Government cited the article liberally in its appellate brief in yet another tax work product case, Regions Financial Corp. v. United States (11^th Circuit).

Although I endorse the Government's position in both of the above cases, I acknowledge and explore in the article that a strict application of current work product law can produce harsh results. Indeed, under current law, the taxpayer/regulatee always loses on the threshold question of whether the documents at issue were reasonably prepared in anticipation of litigation (which would justify protection) or, alternatively, were prepared to comply with regulatory requirements (which would justify discovery). As a way to mitigate these harsh results, I offer several alterations to the work product doctrine, including (i) a sliding scale of protection for attorney work product in the regulatory context as well as (ii) a modified form of selective or limited waiver (which could be incorporated into a sliding-scale approach) for documents prepared for regulatory purposes.

Download Ventry_Textron.pdf

Invitation to Guest Blog

We're creating a rotating guest blogger slot for people who are interested in joining us for a short period of time, say a week or a month (whatever suits you).  You can blog about a new article/book, a work in progress, or some legal ethics/legal profession issue that has interested or troubled you.  The content and frequency of posts are entirely up to you.

We'd love to hear from law professors, lawyers who teach legal ethics, lawyers who specialize in professional responsibility issues, bar disciplinary counsel, and anyone else who has an interest in the subject of legal ethics.

If you're interested, shoot me an email with a very brief description of who you are (if it's not obvious from your expansive signature line) and what you'd like to blog about.  If you can't reach me because of the crush of emails that I'm about to receive, please try again.  We hope to hear from you!

Duty to Inform Former Client of Malpractice?

Plenty of authority holds you most notify a current client if you discover you have committed malpractice.  What about a former client?  For example, suppose you err in calculating interest owed on a claim your client won, so your client is shortchanged.  You catch the error only after the representation ends. 

One might say that at this point you owe your former client only a duty not to disclose or use confidences and therefore that you don't have to notify the former client.  (Better tell the carrier, though.)  That seems wrong to me, especially because the client will have suffered harm already and the representation is over, thus knocking out two possible grounds for tolling the SOL. I am not aware of any authority holding that you owe such a duty, however.

Thoughts?

I knew this would happen someday: Patent Conflict Case

Baker Daniels was representing a patentee, and the patent that issued covered another client's product, and then B&D sued the other client, at least according to the allegations in this article (registration required.)  Obviously, suing a current client is adverse, but is prosecuting an application that covers another client's products?  That's a question upon which there is, as yet, no authority. Thoughts?

Pool: Guess the course that predicts biglaw success

Andy Perlman wrote about the new consultant's study on the factors that lead to long-term success at biglaw. The news story had a teaser: success at certain undisclosed course(s) was an accurate predictor of success, according to the consultant. I've already corresponded with two empirically-oriented professors who, like me, are dying to know what those course(s) are. Post your guesses below. I have a very strong intuition myself but won't post it until some others have had a chance to guess.

Innovative Law Firm Hiring

Last year, I complained that large law firms generally do a poor job of predicting which law students have the skills and personality to thrive in a large firm.  The issue is significant because 80% of large law firm associates leave their jobs within five years of being hired.

Part of the problem is that firms put too much weight on grade point averages, the prestige of certain law schools, and law journal participation.  Those factors may offer some insights about an applicant, but getting an "A" in Criminal Law, graduating from Harvard Law School, or being an editor for the Journal of 13th Century Amusement Park Law doesn't say much about whether someone will have the professional and interpersonal skills necessary to succeed and find satisfaction in a large firm. 

This disconnect between traditional hiring criteria and the qualities necessary for success is similar to a fundamental attribution error.  Law firms believe that particular traits -- the potential for good lawyering and the willingness to bill lots of hours -- are correlated to a law student's academic success, but there's little evidence to support any such correlation.

I mentioned some alternatives to the usual hiring criteria in last year's post, but I was particularly intrigued by a recent study conducted by some consultants for a top 25 law firm.  The consultants tried to determine whether lawyers who succeeded in the firm had something in common.  They found that the reputation of the law schools that the lawyers had attended was not nearly as important as other factors, such as whether someone had been an athlete in college, did well in specific law school classes, and enjoyed group hobbies (presumably before joining the firm -- who has time while there?).  Other factors, such as whether someone could speak a foreign language, were negatively correlated with law firm perseverance.

Of course, this is just one study of one law firm, and I have no idea how rigorous it was or how generally applicable the findings might be.  That said, I think that the firm is wise to figure out whether factors other than GPA and law school prestige accurately predict a lawyer's success in a large firm.  If it can come up with the right metrics, the firm could develop a competitive advantage, much like the Oakland A's gained an advantage by developing better metrics for identifying good baseball players. 

Then again, what do I know?  I speak Spanish, jog alone, didn't play any collegiate sports, got the worst grade of my life in tax at Harvard Law School, and left a large firm after only two years.  I'm sure the consultants wouldn't be surprised.

Poll-Watchers Needed

If you are interested in being a poll-watcher, an email address to sign up is:
my.barackobama.com/counselforchange