Legal Ethics Forum

Does disclosure solve the conflicts problem?

This 2003 paper, The Dirt on Coming Clean: Perverse Effects of Disclosing Conflicts of Interest, was just posted on SSRN (and picked up by Solum).  The authors' conclusions, if accurate, have significant implications for our understanding of conflicts of interest.  Here's the abstract:

Conflicts of interest can lead experts to give biased and corrupt advice. Although disclosure is often proposed as a potential solution to these problems, we show that it can have perverse effects. First, people generally do not discount advice from biased advisors as much as they should, even when advisors' conflicts of interest are honestly disclosed. Second, disclosure can increase the bias in advice because it leads advisors to feel morally licensed and strategically encouraged to exaggerate their advice even further. This means that while disclosure may [insufficiently] warn an audience to discount an expert-opinion, disclosure might also lead the expert to alter the opinion offered and alter it in such a way as to overcompensate for any discounting that might occur. As a result, disclosure may fail to solve the problems created by conflicts of interest and it may sometimes even make matters worse.

This might be old news that I've just missed, but have these insights been applied (or refuted) within the legal ethics literature?

Prof. Ackerman and Judge Bybee

In an article on Slate Bruce Ackerman calls for the impeachment of Jay Bybee on the ground that Judge Bybee is a suspected war criminal and performed incompetently with regard to certain memoranda as head of the OLC.  

The memos have been debated enough, it seems to me.  But I was interested in Prof. Ackerman's view on a question of privilege.  At his confirmation hearing Judge Bybee apparently declined to answer questions regarding the memoranda on the ground that his advice to executive branch officials was privileged.  

Prof. Ackerman disagrees, saying "Bybee wasn't a presidential confidant. He was the head of a division of the Justice Department that gives authoritative legal guidance to the entire bureaucracy. It goes too far to suggest that the opinions he issued in this role are privileged."  

Simply as a matter of doctrine, this seems to me too strong.  Unless the President or the AG (depending on your view of the branch or the department as the client) authorized action inconsistent with confidentiality then the privilege claim seems correct.  And distribution to persons to whom the advice was relevant does not seem to me to be such action.

DM

Some Joke

This report on political hiring for nonpolitical positions in the OCR is appalling. 

The attorney in question refers to his own statements ("as long as I’m here, adherents of Mao’s Little Red Book need not apply") as jokes the report takes out of context.  No doubt why (the report finds) 63 of 65 of his hires were of the same ideological cloth.

Odious.

Words to the Wise

Law.com reports a San Jose defense attorney (and former deputy DA) has been arrested on charges of money laundering.  The story recounts allegations that a client signed over to her a large check and then received from her a series of smaller payments (though for a smaller amount than the original check).

Presumably there will be a question whether the attorney knew the funds were tainted. On that point Hastings Prof. Rory Little advises: ""If somebody walks in, says here's $80,000 in cash, and what I want is to retain you for a parking ticket, and then you give back $72,000, that's a problem"

Yep. 

Comment on Billing and Screening

Billing by the itemized hour was introduced as a reform of the prior practice of sending the client an invoice reading simply:
“For Professional Services      $xxx,xxx.00.”

As noted in a comment regarding screening, it’s only if we think that lawyers are dishonest that we need to be concerned about billing practices.  (And dishonest lawyers will find a way to overcharge regardless of the mode of billing.)

Come to think of it, we don’t need codified rules of lawyers’ ethics at all unless we think that lawyers are dishonest, incompetent, and/or overreaching.

So why do we bother with billing practices, screening, or anything else?

When will Lynne Stewart's appeal be decided?

I'm not familiar with Second Circuit practice, but isn't a year from oral argument a long wait?  What could the court possibly be waiting for?

Legal ethics quiz from "Owen's Law Quizzer"

At the Palo Alto library's used book sale, I picked up the 4th edition of "Owens Law Quizzer," which was "designed especially for the use of law students in review work and in preparation for examination for degrees in law colleges or for admission to the bar."  One of the 27 topics is legal ethics, so try to imagine yourself about 100 years ago, answering this question.  (Suggested answer below the fold.)

Q: "Should a lawyer attempt to secure an alteration in the Civil Code for the benefit of a client?"

California Supremes hear oral argument about conflicts for administrative agency lawyers who serve dual roles

Unfortunately, the story is behind a registration wall here.  The key graf:

"Somach, a partner with Somach Simmons & Dunn, had come to the San Francisco court to argue that staff attorneys for administrative law agencies shouldn't simultaneously serve as prosecutors in one matter while acting as advisers to the same agency in an unrelated case. Doing so, he said, violates the due process rights of parties that appear before the agencies."

By all accounts, the court didn't see that dual roles presented any real conflict, and so the court may strike down a precedent from an intermediate appellate court, Quintero v. City of Santa Ana , 114 Cal.App.4th 810 (2003).

"Kill the Billable Hour"

Evan Chesler, presiding partner at Cravath, has called for the end of the billable hour.

CA Legislature: Please Fix This Problem

The CA Supreme Court has rejected the argument that Fresno County's policy of paying a flat fee, including expenses, for criminal representation in a capital case creates a conflict of interest for purposes of Strickland analysis.  

I want to reserve judgment on the Strickland analysis until I can study the opinion more, but as a policy matter I agree with my colleague Shaun Martin: "Someone's life is at stake. Can we please, at a minimum, devise a system that doesn't create obvious incentive problems? That doesn't seem too much to ask."

I agree with the majority (and would amend Shaun's observation slightly) that all compensation systems have incentive problems.  But if the lawyer gets a flat fee and expenses for experts and investigators come out of that sum the risk that counsel will skimp is simply too great.  (See, e.g., United States v. Stitt, 441 F.3d 297 (4th Cir. 2006) (vacated on jurisdictional grounds but a perfect example of the problem.)  

At a minimum the legislature should require that expenses be funded separately from attorney's fees. Justice Kennard points out that California Commission on the Fair Administration of Justice favors such a policy.  I hope the legislature acts on that recommendation.