Legal Ethics Forum

Wow

$72m malpractice verdict based on an inequitable conduct theory.  Be careful out there.
DM

The Evolving Law on Metadata

There are two new ethics opinions on metadata, one from New Hampshire (New Hampshire Bar Ass'n Ethics Comm., Op. 2008-2009/4, 4/16/09) and another from Pennsylvania (Pennsylvania Bar Ass'n Comm. on Legal Ethics and Professional Responsibility, Formal Op. 2009-100).

Unfortunately, both bar associations restrict access to their opinions.  The New Hampshire Bar used to publish its opinions on its web site, but for reasons that escape me, the Bar now restricts access to members.  Can someone from either bar association explain why you would want to make it more difficult for lawyers to engage in conduct that you believe is ethical?  We've blogged about this problem before (here), and I don't think we've ever received a very good answer, except that it's just the way that it has always been done.

In any event, New Hampshire concluded that lawyers should not look at metadata, equating it to eavesdropping.  Pennsylvania, by contrast, concluded that reviewing metadata is generally permissible, and in some cases, may even be required.  The Pennsylvania opinion follows up on earlier opinion that did not offer detailed guidance about how to handle the receipt of metadata.  (The May 13, 2009 edition of the ABA/BNA Lawyers' Manual on Professional Conduct offers a description of both opinions.)

The opinions also address the ethical obligations of attorneys who disseminate electronic documents, stressing that lawyers need to take reasonable precautions to ensure that they do not inadvertently disclose metadata containing privileged information.

So here's the current score card.  Alabama, Florida, Maine, New Hampshire, the New York State Bar, the New York County Bar, and Arizona have concluded that lawyers typically shouldn't be allowed to look at metadata.  In contrast, Maryland, the D.C. Bar, Colorado, Pennsylvania, and the ABA have concluded that it is usually permissible for a lawyer to review metadata.

So here's the current score card.  Alabama, Florida, Maine, New Hampshire, the New York State Bar, the New York County Bar, and Arizona have concluded that lawyers typically shouldn't be allowed to look at metadata.  In contrast, Maryland, the D.C. Bar, Colorado, Pennsylvania, and the ABA have concluded that it is usually permissible for a lawyer to review metadata.

Bill Henderson: larger firms lurching toward new equilibrium?

Bill Henderson's latest piece -- on market readjustments by biglaw -- is cross-posted here and here.  

Eat and Drink with Legal Ethics Professors

Here is the invitation from Professor Alberto Bernabe-Riefkohl:

On behalf of the Professional Responsibility section of the AALS and The John Marshall Law School, I'm delighted to invite you to an informal dinner at this month's National Conference on Professional Responsibility in Chicago.  The dinner will be on Friday, May 29 at 7:45 at The Cantina section of the Italian Village Restaurant located at 71 W. Monroe, Chicago (312.332.7005).  If you are interested in attending, please RSVP directly to Alberto Bernabe.  (Significant others are also welcome to attend.)  Space is limited, so please RSVP as soon as possible.  

Expose'! ABA Covers Up Lincoln's Zealous Representation!

A few months ago, the ABA Journal had a cover issue about Abraham Lincoln that included a number of anecdotes about Lincoln as a lawyer.  I submitted the following letter, which was not published:

    To judge by the highly acclaimed biography, Lincoln, by Harvard Professor David Herbert Donald, Abraham Lincoln would not be sympathetic with today’s effort to replace zealous representation with “professionalism.”

    Lincoln was deferential to the court – unless, that is, Rambo tactics were in the interest of his client.  In a murder case, for example, Lincoln tried to show that his client’s victim had previously said to other people that he would beat up the defendant.  However, the judge excluded the evidence on the ground that there was nothing to show that the defendant had ever known about the threats before he stabbed the victim to death.

    Lincoln’s zealous, or overzealous, response to the court’s ruling would have offended today’s proponents of civility.  He “angrily” protested the exclusion of the evidence, telling the judge that he “had never heard of such law,” and he inaccurately denounced the court’s ruling as “absurd” and “without precedent in the broad world.”  According to his partner, William Herndon, Lincoln spoke “fiercely” and “contemptuously” to the judge.  Cowed by Lincoln’s “withering attack,” the judge backed down and admitted the evidence. 

    As a result of Lincoln’s successful Rambo tactics in response to that critical ruling, and another important adverse ruling by the judge, the jury acquitted the defendant, and a killer walked free.  (Donald at 150)

The Silliest Legal Ethics Rule?

Now taking nominations.  

Near the top of my list is the rule that malpractice claims are not assignable, a rule recently affirmed by the Kentucky Court of Appeals in a case showing how unsound the rule is (2009 WL 367219)

Important development from Texas trial court judge in Charles Hood death penalty case

There's been an encouraging development about the death penalty imposed on Charles Hood by the state of Texas.  (Nod to Clare Pastore, who teaches legal ethics at USC.)

You may recall that the original trial judge -- the one who imposed the jury's death penalty -- was later accused of having a romantic relationship with the prosecutor.  The defense's post-verdict efforts were largely focused on that issue.

When the original judge and prosecutor were finally placed on oath, they admitted the relationship but testified that it had ended the year before the death penalty was fixed.  Texas appellate courts sent the matter back down to a new trial level judge in Plano to find facts and decide whether the criminal defense counsel had waited too long to raise the issue.  The news article suggests that the appellate court wanted a ruling from the newly assigned judge that defense counsel had waived the issue by waiting too long.

Indeed, the post-trial declarations by defense counsel revealed that they had heard rumors about the affair way back at the time of the trial, but didn't formally raise the issue until much later.  Many observers (including myself) wondered why defense counsel hadn't done more to raise the issue at the time of the trial.

The Plano trial judge recently assigned to consider the issue has apparently ruled that the situation is not to be blamed on defense counsel but rather on the judge.  Having read this article, the new ruling makes sense to me.

Can you imagine being tried under the death penalty when the judge and prosecutor had an intimate relationship, either ongoing or recently ended?  Let's hope that the appellate courts in Texas do the right thing.

 

Daniel Markovits Responds to Alice Woolley

Alice Woolley recently offered a critique of Daniel Markovits's new book in two posts (here and here).  Daniel Markovits has sent along this response:

I am of course delighted and grateful that Alice Woolley is paying attention to A Modern Legal Ethics:  Adversary Advocacy in a Democratic Age, and in particular to the book’s interpretive engagement with the law governing lawyers.  It is, as she says, a “central question” what immanent norms and ideals organize this important body of law.  Perhaps more surprisingly, I find myself agreeing with much of what she says, at least in her first post, although I draw conclusions that are quite different, and indeed opposed, to hers.

Blown statute of limitations for possible discipline of Professor Yoo?

Wow.  (Nod to Volokh)

Perhaps the Pennsylvania bar will lack the ability to investigate and/or discipline Professor Yoo for his role in drafting the torture memos, because they have a four year statute of limitations.  (Yoo is licensed in Pennsylvania.)  But, because he practiced within the District of Columbia, he may have submitted himself to discipline there.  I'm still tracking that down, and looking for a statute of limitations in DC.

But, if the Pennsylvania and DC bars do lack power to impose discipline, it's yet another reason why the OPR at DOJ shouldn't draw any faux conclusions and why we should pass a statute to give DOJ continuing authority to impose discipline for acts conducted while at DOJ.

UPDATE:  In correspondence on a listserv and privately, It's been suggested that even if DC retained authority to discipline John Yoo, DC would likely use the substantive law of Pennsylvania -- possibly including the statute of limitations from Pennsylvania.  If so, amazing result.

It's also been suggested -- somewhat speculatively in my view -- that the DOJ's OPR slowed the report until the Bush administration was on the way out the door, because the authors wanted a more favorable climate internally before acting (i.e., an Obama administration).  If so, then the DOJ internally blew the statute for political reasons.  As I say, there's no firm proof of that.  

Part of that leak, from an article by Andrew McCarthy, suggests that former Attorney General Mukasey took the OPR to task for including extraneous materials and facts in their report.  If true, that would be an example of why I feel it's a bad idea to have a discipline authority write a report that they themselves wouldn't have to prosecute in an adversarial setting.  That's the "moral hazard" I mentioned in an earlier posting.

Would Anyone Favor Excluding This?

From a story by Zusha Elinson of The Recorder:

It was just eight years ago that then-Marvell general counsel Matthew Gloss, patent attorney Eric Janofsky and VP of engineering Kaushik Banerjee rang up Virginia Wei, an in-house lawyer for rival Jasmine Networks. Wei didn't pick up, so Gloss left a message. And then he hung up. Or so he thought. Due to the complexities of speakerphone technology, the trio kept talking, and Wei's voice mail continued to do the thing it does best: record.

Unfortunately for Gloss and Co., they didn't talk about what they were allegedly going to eat that day for lunch. Instead, as the 6th District Court of Appeal later put it, the three "openly discussed theft of Jasmine's trade secrets and the unlawful hiring of the engineering group as well as the potential consequence of jail for the conduct." Key soundbite: "If we took that IP on the pretense of just evaluating it, and put it in our product ...," Marvell IP lawyer Janofsky says at one point, according to the court.

When Jasmine sued Marvell for trade secret theft in September 2001, lawyers for Marvell tried their damnedest to get the damning voice mail excluded from evidence. A Santa Clara County Superior Court judge granted the request, holding it was protected by attorney-client privilege. But the 6th District reversed, holding that the privilege had been waived because of, among other things, the pesky little crime-fraud exception. Last year, the state Supreme Court agreed.