Legal Ethics Forum

Justified regulation of civility?

While I have not been a great fan of civility movements in professional discipline, even I have to acknowledge the legitimacy of professional discipline for the Toronto lawyer, Julia Ranieri who, after a verbal disagreement with a client who wished to change lawyers, punched her client in the nose, breaking it.  The lawyer was charged with assault, and then instigated a private prosecution against the client.  Both ultimately did not proceed to trial, with the lawyer agreeing to pay the legal fees of the client in relation to the private prosecution.  After a disciplinary hearing before the law society, Ms. Ranieri was suspended from practice for 10 months; she had a history of other disciplinary issues.

I would argue though that the problem is not that the lawyer was uncivil, but rather that she breached her fiduciary obligations in a fairly dramatic way.  The rules may not specify "and putting the interests of the client first includes not physically assaulting him or her when she wishes to change lawyers" but that seems a legitimate inclusion.  And I think would apply whether or not there was a basis for Ms. Ranieri's pursuit of the private prosecution.  

Fraud in trademark prosecution not satisfied by finding of "should have known better"

Patently O has the story.  Opinion here.  Appellant's counsel was Chuck Hieken, a true gentleman and consummate IP lawyer.

Odds and ends (August 31, 2009)

On Wednesday, the California Supreme Court will hear argument in Costco Wholesale v. Superior Court, perhaps the most important case on attorney client privilege in California in decades.  Costco's lawyers had written a lengthy and dense opinion letter to Costco, and the trial court went through it line by line to decide what is privileged and what is not -- ultimately ordering that a partially redacted version of the letter be produced to plaintiffs.  Principally, any factual statements in the letter and any quotations of non-privileged statements by others were ordered to be produced.  The Court of Appeal approved of that procedure.  The business community has appeared in force before the California Supreme Court, seeking more robust protection of such letters.    . . . .    Briefs are available at this site.

The State Bar of California is deciding whether to permit victim impact statements in its disciplinary proceedings.    . . . .    

The United States District Court in Delaware permitted a non-consensual, or "unilateral" ethical screen to cure a conflict that fell across international boundaries.    . . . .    

Cookies on LEF

I just logged onto LEF (for some extremely interesting discussion), and then found that my computer had accumulated four cookies that I don't want.  Anyone concerned about potential adware and spyware might want to check under tools, options, and security/privacy for intrusive cookies. 

The Hedgehog, the Fox, and the Law Schools

In his column today surveying Edward Kennedy's Senate career in 900 words, David Brooks contrasts the visionary and (to Brooks) radical agenda Kennedy articulated at the 1980 Democratic convention with his pragmatism (and therefore successes) in the ensuing decades. Brooks writes: "There is a craft to governance, which depends less on academic intelligence than on a contextual awareness of how to bring people together."

Brooks has in other columns emphasized pragmatism, incrementalism,and compromise (small ideas, not grand ones)  as the path to change -- certainly nonviolent change. Michael Ignatieff, now a leader of the Liberal Party in Canada, formerly a politics professor at Harvard, expressed a related notion in a NY Times Magazine article (August 2007) in which he explains how he came to get Iraq wrong (supported the war as an academic, now opposes it as a politician). I quote a pargraph in chapter one of my casebook and set out that paragraph and two more after the jump below. Ignatieff relies on Isaiah Berlin, who famously said (relying in turn on Archilochus) that "the fox knows many things but the hedgehog knows one big thing." I am myself a fox. It's ingrained. It's not a choice. 

Living in FL, Practice in MD and DC, $100M p/a for 30 minutes per day

Yes, you read that correctly. The ABA Journal is featuring "legal rebels" both on its web site and in the September issue. One such is Richard Granat, who now lives in Florida (age 69). He is profiled as a man who generates innovative ideas like Starbuck's does coffee flavors. Here's one:

"His various webpages cater to their anticipated needs. One site,MDFamilyLawyer.com, offers family law forms bundled at a fixed price with legal advice to res idents in Maryland and Washington, D.C., where Granat is licensed. Users answer a set of questions—how many children they have, their separation date, whether they own property—generating a form for court filings. Contested cases are referred elsewhere.

"Granat spends about 30 minutes daily with that site, and it earns him about $100,000 a year. The site focuses on simple matters; he estimates that only about 10 percent of the users require forms with customized language."

Is the SEC targeting a biglaw partner in a securities fraud case?

The WSJ law blog is carrying the story.  You may recall that the lawyer, a partner at Proskauer, attended an SEC interview with an officer of his client and gave what I consider to be an ambiguous answer when asked if represented the officer personally.  If the WSJ blog is correct, he will have much bigger things to worry about: the SEC accepted a plea bargain that suggests that it believes the lawyer made material falsehoods to the SEC.  No doubt there will be more news on this story.

Microsoft lawyer's appellate brief addresses $40 million enhancement (partially) for litigation conduct

Starts at p. 73.  Overall the brief firmly asserts error below.  I find its tone to be well within ethical limits, but it doesn't pull punches -- especially pages 1-5.

Anita Bernstein -- Pitfalls Ahead: A Manifesto for the Training of Lawyers

SSRN page here.  Abstract:

 Entrants joining the legal profession are entitled to fair warning about what they are getting into. Accounts of lawyers' heroism, triumph, and reformist energy continue to inspire young people to pursue this profession, and they should. But before they represent a client, newcomers need to be informed about pitfalls, the complement to power: how lawyers lose their licenses, face liability for malpractice and breach of fiduciary duty, see their work performance deemed not competent or not "effective" under the Sixth Amendment, struggle against judges, become disqualified from representing particular clients, and forfeit some freedoms of speech and association. Learning about pitfalls enables lawyers not only to protect themselves should they encounter danger, but also to advance what is good for their clients and the public.

This Essay examines lawyers' pitfalls with an eye to their vocational and theoretical interest, gives examples of pitfalls-related teaching and learning strategies already present (but not always visible) in the American legal curriculum, and integrates this perspective with other approaches to lawyers' professional responsibility.

California adopts insurance disclosure rule, effective January 2010

Here's the order and the new rule 3-410, which was hotly debated.  Congrats to many, including Jim Towery, who worked on this issue for many years.

Download 3410