Legal Ethics Forum

Maine to Adopt the Model Rules

As of August 2009, you can cross Maine off of the very short list of jurisdictions that have not adopted the Model Rules.  New York will be off this list in April.  Hey California, what's keeping you?

Some thoughts on electing judges: a lawyer's perspective

What has happened in Texas in the long term, apart from this particular judge cited by Andy below, is fascinating. I do not pretend to have studied it, but lived it.

Back in the mid 1980's, Texas was viewed as a plaintiff's haven. It was, which also made it a great place to practice law on the defense side.  Things were so bad that railroads would pull up tracks into certain counties to avoid venue there.  Federal courts were far better for defendants, and so our goal was to often remove cases. I don't know it for a fact, but I bet you the Fifth Circuit had more removal cases in that time period than other circuits, and I bet it's dropped dramatically in recent years.  But, of course, in federal court, the judge still followed state law, but I often noted that the judges tended to interpret the law more in favor of defendants.  It was something, looking back and having some context.

Things began to change. I think the main group was called something like "citizens for justice" or some meaningless notion. I actually had them as a client, and had input into some of the tort reform efforts that the legislature put into place.  What happened from, oh about the mid- to late-1990's until now is a radical shift toward defense-friendly law.  I'm sure that more cases were overruled, limited, or otherwise cabined by the Texas Supreme Court during, say, 1995 to 2005 than any other time in its history, and probably more than any other time any where else.  Perhaps there have been studies; I just know that the law suddenly became a heck of a lot better for us.  Removal was still nice, but we stopped pushing the boundaries to get out.

Now, from what I have heard, the law has gone so far to the defense side that mid-sized defense firms have shifted practices, and plaintiff's firms are fewer.  (From what I also hear, med mal premiums haven't dropped, as supposedly they would, along with doctors' fees, but that's to the side, a bit.)  I don't know if that's a social good, or not, but...

I suppose I better have a point to this reflection:  when you have elected judges a political agenda can be implemented in ways that are not subject to the kind of scrutiny that accompanies legislative change.  Massive major changes were made, for example, to damages and to the substantive law of torts.  I don't know if they're good, or not, but wonder if the judiciary is the best place for this change to occur?

A "Deformed Ethical Compass"

So says the Houston Chronicle about Judge Sharon Keller in this editorial, which calls for Judge Keller's removal from the bench.  You can find additional links about Judge Keller here.

P.S.  And if anyone needs additional evidence that electing judges is a bad idea, just have a look at the comments that appear after the editorial.

Hricik, Lubet Subject to Discipline?

Talk about timing... below I posted a piece about Judge Kent resigning, and Steven Lubet (go Wildcats!) pointed to his earlier piece in the Greenbag about Judge Kent.

Then I came across this article, reciting instances where lawyers have been disciplined for blogging and saying negative things about judges.  It begins:

In Florida, an attorney faces discipline this spring over a blog entry on a courthouse blog in which he described a judge as an "evil, unfair witch" with an "ugly, condescending attitude" and questioned her mental stability. The Florida Supreme Court refused to hear the lawyer's constitutional argument in October. He will be reprimanded in April and has to pay a $1,200 fine. Florida State Bar v. Conway, No. SC08-326 (Fla.).
In New York, an attorney was recently suspended for five years for committing several ethical violations, including writing an article on a Web site in which he criticized a judge's handling of a divorce and custody proceeding. A New York appeals court said the "overzealous behavior" was disparaging and "constituted conduct prejudicial to the administration of justice." In the Matter of Barry L. Goldstein, No. 2006-10353 (N.Y. App. Div.).

How bad is it for lawyers? CLE on "An Introduction to Carbon Markets for Lawyers"!

In the spirit of Andy's recent post, the title of this CLE caught my eye. I know that times are bad for lawyers, but for goodness sake, we've not been reduced to commodities, have we?

US District Judge Sam Kent Resigns in Plea Deal in Sex Case

I practiced in Houston for many years, and had a few cases in his court, and yet had not heard a thing about this whole ugly mess.  The plea was in connection with obstruction of justice.  He may still keep getting his salary, apparently, unless he is impeached.

My main recollection of him was that he was one of those "iron" judges who had picky rules about everything (the water pitcher on counsel table included, if I recall right).  Anyhow, very sad fall from a high place.

A Real Gas of a Case

This complaint really has nothing to do with legal ethics, but it is too funny not to post.  It involves a trademark dispute between the makers of an iphone application called "ifart," which apparently simulates various types of flatulence, and the makers of a competing software application called "pull my finger."  The complaint is a real gas.

Once IP professors get wind of this case, I'm sure they'll make a big stink out of it.  But don't forget that you got a whiff of it here first.  Some key allegations appear "below the fold."

An Imminent Surge in Legal Malpractice Claims?

So says this law.com story, which suggests that a surge is coming due to the sagging economy.  I know many readers of this blog litigate malpractice claims or serve as experts in them.  Any early signs of an increase?

2009 SALT Salary Survey

Here is the newest law professor salary survey.  Normally, the information appeals to prurient interests (especially the Harvard figures), but these numbers will be worth tracking over the next couple of years to see how the economic chaos affects law schools.  Will law professor salaries get slashed or just not rise as much as in years past?  Will law schools cut other line items before touching law professor salaries?  Next year's figures will be especially telling in this regard.  At that point, I'm sure someone can run an analysis that compares the figures from year to year.  Memo to Bill Henderson....  

Speaking of Elected State Court Judges...

A few hours after I raised concerns about whether elected state court judges can adequately protect the rights of unpopular parties, my colleague, Gabe Teninbaum, sent me this link.  It's a story about judicial misconduct charges against the notoriously pro-execution judge, Sharon Keller, of the Texas Court of Criminal Appeals.  Back in 2007, Judge Keller refused to accept a late filing from a defendant who was about to be executed, even though the United States Supreme Court had just granted certiorari in a case that would have affected the constitutionality of the execution.  An elected Texas state court judge who goes out of her way to ensure that an execution takes place, regardless of the rights at stake?  Shocking!  The New York Times adds its thoughts here.

Judge Keller also did her best to try to ensure the execution of Charles Dean Hood despite well-substantiated claims that the prosecutor in Mr. Hood's case was having an affair with the judge who presided over Mr. Hood's trial.  (Fortunately, Mr. Hood's case is still pending.)  It's fair to say that Judge Keller isn't particularly eager to investigate whether a capital defendant has a legitimate claim to make.

Here's more coverage about Judge Keller and her notoriously pro-execution bias.  So I'll ask again: why are elected judges such a good idea? 

Update: To see the formal charges against Judge Keller, see here.  And for a very telling news story excerpt about the problem with electing judges, see below the fold.