Legal Ethics Forum

Defendant sends bloody letter to court-appointed defense counsel.

At some point, a criminal defendant's abuse of the legal system may deprive him of the right to counsel.  But, according to the high court in Massachusetts, sending a bloody letter to your court appointed defense counsel and threatening to assault him and his family may not be enough to deprive you of counsel.  Story here.

Massachusetts ethics committee OKs screens for deferred biglaw associates working as judicial clerks

News blurb here.  Unilateral screens (i.e., screens that work despite protestations by affected parties and former clients) continue to creep here and there into the profession.  To my knowledge, this is unprecedented.  Deferred biglaw associates, who are still on the law firm payroll, can work in judges chambers -- at least in Massachusetts. 

Fred Zacharias on "The Myth of [the Legal Profession's] Self-Regulation"

His new article is here, in the Minnesota Law Review.  Abstract:

The American legal profession is highly regulated. Lawyers are governed by state-enforced professional codes, supervised by courts, and constrained by civil liability rules, civil and criminal statutes, and administrative standards. Nevertheless, commentators and various actors in the legal system continue to conceptualize law as a “self-regulated profession.” The Preamble to the recently revised ABA Model Rules of Professional Conduct characterizes the Rules as self-regulation despite the fact that they are intended to be administered by state supreme courts.

This Article argues that the persistent emphasis on lawyer self-regulation misleads courts, code drafters, lawyers, and laypersons alike, with serious ramifications for the development of the law governing lawyers and for everyday legal practice. The Article traces the history of lawyer regulation, explaining why the notion of law as a self-regulated industry developed, when it became archaic, and why it continues to be used. The Article then highlights adverse consequences that arise when various actors—including the co-regulators of the bar, lawyers themselves, and the public—cling to the image that lawyers self-regulate through legal ethics codes. The Article ultimately proposes an amendment to the Model Rules that would eliminate all reference to self-regulation and replace it with a more accurate statement reflecting the modern reality of co-regulation.

Civility traffic school: A Loony Idea From A Pointy-Headed Academic

Like the weather, everyone talks about civility but no one does anything about it.  Every year since 1984, when I began following the legal press, I have read a few hand-wringing pieces about the decline of civility in the profession.  As I have researched the 19th Century origins of California's duty of confidentiality, I have noticed that the decline of civility has been a favorite topic since at least the 1850s.  Maybe that should tell us something.

Civility is a topic that needs to be handled with care.   It traces to conceptions of "gentlemanly" conduct, and thus has been made to do duty as a code phrase for ugly biases against outsider groups.  It is my impression, at least, that in the past "he's not a gentleman" often could be translated "Jew." 

Given its checkered history and subjective nature, I sometimes wonder whether it is better to continue the time-honored tradition of worrying aloud about incivility but doing nothing about it.  But however one defines the elusive term "civility," it is my subjective view that screamers and table pounders, and people who won't give you an extension for papers due on December 26 (a real story for me), are tiresome.  And it is my impression that loutish conduct is used tactically to try to intimidate young lawyers, particularly young women.  As it is my job to try to get them launched with comparatively little trauma, I offer a suggestion for actually doing something: Civility traffic school.

Former Jenkins & Gilchrist partners indicted for tax evasion counseling

Story at White Collar Crime Prof Blog.

Sacha Baron Cohen (Borat, Ali G, Bruno) as undisclosed principal

Via Althouse, here's a Telegraph article about the dummy corporations that were created to help hide the truth behind Cohen's latest mockumentary film.  Altman asks "wouldn't you love to do that legal work?"  Of course, I immediately thought of comment [2] to Model Rule 4.1 (emphasis added):

This Rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud. Lawyers should be mindful of their obligations under applicable law to avoid criminal and tortious misrepresentation.

John Yoo's motion to dismiss Jose Padilla's claims is mostly denied.

Via Volokh and Con Law Profs blog, here's the opinion mostly denying John Yoo's motion to dismiss claims by Jose Padilla.  I haven't had a chance to study the opinion in depth, but I'm particularly interested in the court's analysis of causation, which begins at page 31 of the opinion.  When I first read Padilla's complaint, it struck me that establishing causation might be difficult.  

UPDATE: The court ruled that at the pleading stage it will accept Padilla's allegations that Yoo "set in motion" a series of events resulting in deprivation of constitutional rights.  The defense argued that the decisions of Ashcroft and Bush effected the alleged deprivations, but the court's analysis turned on whether Yoo's alleged conduct played a substantial contributing factor.  Suppose that Yoo wants to adduce evidence on that point, that neither Bush nor Ashcroft can be forced to discuss their decision making process, and that Yoo claims his defense has been compromised.  Or suppose that Yoo wants to introduce documents in his defense and that the Obama administration decides not to declassify those particular documents.  (This could be so-called "graymail" but doesn't have to be.)  In those scenarios can Yoo argue that the claim must be dismissed?  Also, what proof would be necessary to survive a Rule 56 motion on the causation issue?

Law Firm Evolution: Brave New World or Business as Usual (March 2010 Conference at Georgetown Center for the Study of the Legal Profession)

Georgetown's Center for the Study of the Legal Profession has issued a call for papers for what should be another terrific conference.  Details available in the download.  Download Call for Papers

One federal agency sues another.

Here's an oddity: one federal agency sues another.  (via Volokh)  Presumably the government lawyers weren't in some kind of structural conflict but rather were able to limit their representation to their own agency.  This kind of lawyering vis-a-vis other agencies and other branches is one reason why it doesn't make sense to say that government lawyers have the public as their client.

Sotomayor and ABA obligations?

The Washington Times has an editorial today (here) which is also noted by Andrew Sullivan (here) suggesting that Sotomayor's membership in the "Belizean Grove" a women only networking organization should preclude her nomination.  They also suggest that it violates ABA provisions preventing a judge from being a member in any group that unfairly discriminates on the basis of gender.