Legal Ethics Forum

Ninth Circuit rules in Ruehle: Ruehle loses; trial court reversed; Irell vindicated; matter remanded.

Decision here.  No doubt, more to come from David, Brad, Steve, and others about this important case.  Upon a lightning-quick skim, it seems that in footnote 7 the court finessed the issue that had us so agitated: whether Bevil and following cases really mean what some of the following cases said about the company's control of privileged communications in dual-representation cases.  Instead, the appellate court focused on the notion that Ruehle knew his comments were to be shared with the accountants -- at which point the privilege analysis was finished.  Story here.  This is one of those fundamental issues that shape the landscape.  Unfortunately for corporate executives and PR profs alike, I think that the Ninth Circuit postponed its decision on the big issue.

Polanski affair: WSJ says that Marcia Clark says that prosecutor says he lied about improper ex parte contacts?

Lurking behind the Polanski affair has been an ethics issue: the notion that a prosecutor may have used improper ex parte contacts to poison the judge's attitude toward Polanski -- causing Polanski to flee the US.  I will let the WSJ Law Blog explain this odd story about how that notion may have gotten started.  (Imho, hearsay on hearsay, especially in cases that garner publicity, is generally unreliable.)  

AmLaw's Global 100 published

Published today.  Eighteen firms, listed below, had revenue over $1 billion (ranging from $2.4 to $1 billion). 

(1) Linklaters 

(2) Freshfields

(3) Clifford Chance

(4) Skadden

(5) Baker

(6) Allen

(7) Latham

(8) Jones Day

(9) Sidley

(10) White & Case

(11) Kirkland

(12) Mayer Brown 

(13) Weil Gotshal Manges

(14) Greenberg 

(15) DLA Piper USA 

(16) Morgan Lewis 

(17) DLA International 

(18) Dewey & LeBoeuf 

Choice of law regarding ethics and liability to non-clients was key to dismissal of suit against Bryan Cave

A New Jersey court was the wrong place for a non-client plaintiff to sue Bryan Cave for its representation of what turned out to be a ponzi scheme, a New Jersey appellate court held.  The forum was inconvenient because the lawyers, the client, and the representation were all in California, and the court would need to decide the extent to which California law permitted non-clients to sue the firm.  

Mary Radford: "Ethical Challenges in Representing Families in Family Limited Partnerships"

This new article by Mary Radford looks at common ethics issues arising in classic "Main Street" practice, where the lawyer may end up representing multiple family members and family businesses.  The artice is quite useful if you teach PR, you don't have much experience in this area of legal ethics, and you want to highlight some of these issues.  Btw, Radford cites the ACTEC commentaries on the Model Rules, which are another great resource.  You often hear the argument that "we can't have separate rules for each legal speciality."  Lawyers doing trusts and estates have had their own gloss, if not their own version of the rules, for many years.

Former in-house lawyer for Toyota gets referred to state bar for revealing client confidences

Unfortunately, the good articles are still behind registration walls, but a Superior Court judge in Los Angeles has referred former Toyota in-house lawyer Dimitrios Biller to the state bar for violating his duty of confidentiality to Toyota, and has issued an injunction barring Biller from making personal use of Toyota's confidences in Biller's consulting business.  Biller has sued Toyota in federal court for wrongful termination and has waged a public campaign against what he claims is Toyota's practice of obstructing discovery in civil lawsuits against it.  The injunction did not affect Biller's lawsuit.  This is a great issue for PR teachers exploring the pros/cons of giving in-house lawyers the right to bring wrongful termination actions.  I will try to update as more becomes available.

ABA 20/20 Commission Listserv

I just returned from the first meeting of the new 20/20 Commission, whose charge, as you may know, is to study how advances in information technology and global trade may require changes in how US lawyers are regulated (and not only in their ethics rules); and if so, what changes. 

Rather daunting.

Anyway, the Commission has a listserv in the interest of transparency. The Commission's website, from which you can join the listserv, is at www.abanet.org/ethics2020. 

The work is expected to take three years. I'm sure there will much of interest on the listserv. There will also be hearings and roundtables and other ways to elicit the view of the bar, the courts, and others. 

One article request

In my section on "government lawyers" I teach the students a little about the torture lawyers.  These are relatively well informed Canadian law students, which means they mostly only have some general knowledge of the issues.  I want to give them one supplemental reading which would, ideally, indicate a) the nature of the legal reasoning engaged in (i.e., that it was dubious); b) the ethical issues around opinions in general; c) the issue of whether this was different because i) it was torture; or ii) they were government lawyers.  Any suggestions?  I have thought of Brad's recent book review and David L's chapter in Legal Ethics and Human Dignity.

No constitutional right to court room slobbery...

An attempt to argue for a constitutional right to wear jeans and a baseball cap in court failed: here

The Assisted Suicide Lottery

    Advising Clients About Law Enforcement Practices

    Tax attorneys debate informing clients about the “audit lottery.”  The Restatement of the LGL, section 94, cmt. (f) suggests that it’s wrong to tell a client that the likelihood is that he won’t be audited if the lawyer is pretty sure that the client intends to violate the law, but the Restatement equivocates.

    In Thursday’s NYT, there’s a story about the assisted suicide lottery in England.  Assisted suicide is a felony punishable by 14 years in prison - no exceptions.  But the Law Lords have ordered the Attorney General to publish guidelines indicating what criteria are followed in deciding not to prosecute certain cases of assisted suicide.  Presumably, therefore, private counsel also can tell clients, “It’s a serious felony, and you are absolutely forbidden to do it, but you almost certainly won’t be prosecuted if you go ahead.”

    I assume that it’s permissible under the Model Rules for a lawyer to say, “It’s clearly unlawful, and therefore I advise you not to do [the illegal act], but if you do, you almost certainly won’t get caught.”