Legal Ethics Forum

Clarifying Amendment for Rule 1.10

The ABA/BNA Lawyers' Manual on Professional Conduct (registration required) is reporting that the ABA's House of Delegates will consider a proposal in August that will clarify that the recent screening amendment was intended to apply only to lateral attorneys.  (The problem with the current rule is discussed in more detail here and here.)

Sacrificing the Client to Save the Innocent Man

A few of us are debating the merits of the Alaska and Massachusetts versions of Rule 1.6 over at another blog called Public Square.  Have a look.

Teaching legal ethics: actions speak louder than words, and the ouster of DePaul's dean, Glen Weissenberger

I don't know the facts behind the ouster of the dean of DePaul's law school, Glen Weissenberger, but the public commentary suggests that he may have been terminated because he provided accurate information to the ABA's committee on accreditation.  

For some time now, I've been arguing on this blog that the most powerful form of ethics teaching that occurs in law schools is the open and widespread gaming of numbers and statistics for rankings purposes.  Students are taught that gaming the numbers and then concealing it, fibbing about it, or rationalizing it, is what grown-ups do for a living in the real world.  If it is true that Weissenberger's ouster was caused in part by his act of honesty to the ABA (which, I repeat, seems to be alleged but not conclusively proven), then it teaches an even sadder lesson.  Given the tone and content of the public discussion, DePaul should do an extensive and impartial post-mortem on this event and make the results public.

Is moral deference a problem?

The Northwestern Law Review Colloquy has published an essay by Michael Hatfield titled "Professionalizing Moral Deference."  Hatfield uses the torture memos as evidence of a broader problem: our tendency to professionalize lawyers to view moral deference as a moral good. Here's an excerpt:

From the beginning of law school, a lawyer is idealized as a zealous advocate for her client’s objective.  This biased zealousness is justified by an appeal to the adversarial American legal system.  Each side has a lawyer, and each lawyer is devoted to one side.  The professional role is to further the client’s objective, even if, personally, the lawyer opposes it.  The young lawyer learns to defer to the client’s moral conclusions about the objective.  But the young lawyer also learns to defer to the legal system’s conclusions that this is what lawyers should do.  We are told to suspend our personal moral instincts and to have faith that the legal system accomplishes a greater moral good by our accepting a truncated personal moral role than it could accomplish if we accepted full personal moral responsibility for what we help our clients do.  We are professionalized into believing that we are at no personal moral risk so long as we do a professional job (for which we will be well paid).  We are told to accept the moral good of moral deference—both to our clients and to the system.  We are professionalized to believe that moral deference is simply what lawyers do, as if it were a self-evident, natural principle that pardoned our moral misgivings. 

I've written a response essay titled "Professionalizing Moral Engagement."  Here's the opening:

In Professionalizing Moral Deference, Michael Hatfield argues that the way we form lawyers “begins with moral desensitization,” a technique that teaches future lawyers “to override [their] moral intuition.”  In making his case, Hatfield offers the infamous torture memos as Exhibit A, but they may not be the best vehicle for proving his thesis. As the work of John Yoo shows, some of the most scandalously deficient legal advice may stem (at least in part) from the lawyer’s inability or unwillingness to override his moral intuition.  There is no reason to believe, however, that Yoo’s moral intuition would have led him to reject the conclusions set forth in the memos, and there is some evidence that his moral intuition helped shape his analysis.  Seen in this light, the memos could be construed—in direct opposition to Hatfield’s characterization—as evidence that law schools need to redouble their efforts to train lawyers to override their moral intuition.  But this reaction would miss the partial truth underlying Hatfield’s analysis.  The torture memos do underscore a desensitizing that afflicts many lawyers, though its implications are broader—and perhaps less insurmountable—than Hatfield describes.  Although he is undoubtedly correct that lawyers should “stop telling [one another] that overcoming personal moral squeamishness is the great call of the law,” the law’s call is a bit more nuanced: although lawyers should not ignore their own moral squeamishness, neither should they wallow in it.  The lawyer’s cognizance of her own moral intuition should mark the beginning, not the end, of her inquiry into the moral dimension of the representation.

I'd welcome feedback.  I believe that Brad Wendel's response to Hatfield will be published shortly.

No surprise: Sotomayor quits Belizean Grove

As noted previously, this was inevitable: Sonia Sotomayor has quit the Belizean Grove.   She'll apparently continue to claim that quitting wasn't required by the judicial canons -- but it was.

A Rush From Judgment? The OLC Memoranda and Modern Legal Conservatism

Orwell once referred to defenses of Soviet tactics as presenting a theory of "catastrophic gradualism." In response to criticism of Stalinist brutality, a defender would say "you can't make an omelet without breaking some eggs."  In response to the criticism that no omelet had appeared, the defender would say "you can't expect everything to happen at once."  

Orwell's contrarianism is well known; he was much harder on his political friends than his enemies, and was long celebrated by conservatives whose political philosophy he rejected.  Consensus seemed to worry him, and he styled much of his writing as a needle aimed at the balloons of a parade marching in his general direction.

Or perhaps that is just rationalizing projection on my part.  

In any event I thought of catastrophic gradualism while thinking about the OLC memoranda and some correspondence I have had about them. The phrase that came to my mind as characterizing an important strand of the critique was "outrageous mundanity." By that I mean the idea that the memoranda were outrageously indefensible as--a duty of care violation.  (There are of course some charges of subjective bad faith floating around, but as yet I have not seen good evidence to support that inference.)

Taken seriously, this critique raises a simple factual point (not the subject of empirical investigation yet, so far as I know) about what the average lawyer in such a case does.  Insofar as the duty of care is concerned, if it could be shown that most lawyers in fact do the sorts of things reflected in the memoranda then there would be nothing wrong with them.  (Actually, it is worse than that--technically the burden goes the other way, so a failure to show that the average lawyer would do something else justifies the memoranda, on this account.) 

I disagree with this implication and, therefore, with the outrageous mundanity thesis.  Even if it could be shown that 4 of 5 lawyers would have written the memoranda the same way they were written, there is still an important reason to criticize them and to draw from them some useful lessons about legal interpretation.  It is not a lesson that implies discipline or, much less, prosecution, but I think it is a useful lesson nonetheless. 

In general, the memoranda are apples dropped from the tree of high textualism.  Calling the apples bad misses the point.  What is needed is an axe.

I want to call the tree "modern legal conservatism."  (Thesis below the fold.)   

Update on Judge Keller's Case

Several of us joined in a Declaration in support of the proceeding to remove Judge Keller from the bench.  One response was an effort by the Judge's lawyer to bring legal action against Bob Cummins, his five law students, and me, beginning with an effort to depose Bob.  The legal action has been dismissed by the Texas court.

West Virginia on Metadata

Last week, the West Virginia Bar added its two cents to the increasingly populated world of legal ethics metadata opinions.  The opinion addresses the obligations of both the sender and the recipient of electronic documents.
 
With regard to the sending lawyer, the opinion concludes that a lawyer must take reasonable precautions when handling and transmitting electronic documents to avoid the inadvertent disclosure of protected metadata.  The opinion offers some suggestions in this regard, including the use of metadata scrubbers.

The opinion then goes on to describe the recipient's obligations, explaining that "if a lawyer has received electronic documents and has actual knowledge that metadata was inadvertently sent, the lawyer should not review the metadata before consulting with the sending lawyer to determine whether the metadata includes work-product or confidences." (citing the New York State Bar opinion on the issue).  If, however, the recipient is not sure whether the disclosure was inadvertent, the lawyer is encouraged (though apparently not required) to seek clarification from the sender before reviewing the metadata.

So here's the updated score card.  Alabama, Arizona, Florida, Maine, New Hampshire, the New York State Bar, the New York County Bar, and West Virginia have concluded that lawyers typically shouldn't be allowed to look at metadata (absent consent or other authorization).  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.

Last week, the West Virginia Bar added its two cents to the increasingly populated world of legal ethics metadata opinions.  The opinion addresses the obligations of both the sender and the recipient of electronic documents.
 
With regard to the sending lawyer, the opinion concludes that a lawyer must take reasonable precautions when handling and transmitting electronic documents to avoid the inadvertent disclosure of protected metadata.  The opinion offers some suggestions in this regard, including the use of metadata scrubbers.

The opinion then goes on to describe the recipient's obligations, explaining that "if a lawyer has received electronic documents and has actual knowledge that metadata was inadvertently sent, the lawyer should not review the metadata before consulting with the sending lawyer to determine whether the metadata includes work-product or confidences." (citing the New York State Bar opinion on the issue).  If, however, the recipient is not sure whether the disclosure was inadvertent, the lawyer is encouraged (though apparently not required) to seek clarification from the sender before reviewing the metadata.

So here's the updated score card.  Alabama, Arizona, Florida, Maine, New Hampshire, the New York State Bar, the New York County Bar, and West Virginia have concluded that lawyers typically shouldn't be allowed to look at metadata (absent consent or other authorization).  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 updated score card.  Alabama, Arizona, Florida, Maine, New Hampshire, the New York State Bar, the New York County Bar, and West Virginia have concluded that lawyers typically shouldn't be allowed to look at metadata (absent consent or other authorization).  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.

Sonia Sotomayor's membership in the Belizean Grove

Alice commented on this before, and now the WSJ Law Blog and NYT are hot on the trail. Somewhat to my surprise, it appears that Judge Sotomayor may not resign from the Belizean Grove -- at least not yet (see my speculation below).

No doubt, this issue will have to reach some type of definitive resolution.  The NYT article might hint at how to break the impasse.  Judge Sotomayor is quoted as saying that to the best of her knowledge no man has ever sought membership.  What are the odds that a man will step up to seek membership, which will give Sotomayor the opportunity to watch what the Grove does, and if the man is excluded, she can then step down?  (IIRC, a judge can remain a member of a discriminatory club for long enough to test the club's intentions or seek an end to discriminatory conduct.)

Kim Economides, former head of the Legal Ethics journal, to head New Zealand center on legal system

Formerly a professor in legal ethics at the University of Exeter and formerly the editor of Legal Ethics, Economides has moved to the University of Otago to head a center that studies the legal system.  It appears that the center has a broader mandate than just legal ethics.