Legal Ethics Forum

"Law" within the Bush administration: too little, too much, the wrong kind?

The role of lawyers in the Global War on Terrorism remains the dominant legal ethics issue of our time.  We frequently hear criticism of the Bush administration for abandoning the rule of law.  Here's an interesting post from Mary Dudziak, referencing her new paper (abstract below).  For legal ethics types, I strongly recommend reading the Jack Goldsmith book, which Dudziak cites in her post.  The abstract to Dudziak's article:

The Bush administration has been criticized for departures from the rule of law, but within the administration law was not ignored. Instead it was seen variously as a tool and as a potential threat to the operation of the executive branch. Two narratives compete for attention. In an era when the legality of torture was openly debated, the deployment of law in wartime seemed the most immediate issue. At the same time, however, a decades-long conservative movement to change American law was both significantly furthered and complicated, as Supreme Court appointments moved the Court to the right, but the lack of a common jurisprudence hampered the consolidation of a new conservative constitutional vision. More conservative courts might seem a safe haven for the president, less likely to challenge executive branch actions, but the Bush administration had a complicated relationship with courts. The administration sought out the courts to further aspects of a social policy agenda, such as restricting abortion rights and gun control. But when it came to challenges to the executive branch itself, the Administration used creative means to avoid court jurisdiction, including constitutional theories about executive power. Law was both a sword and a shield: it was a tool used to further some conservative objectives, and it was a shield intended to protect executive autonomy. 

Discovery sanctions affirmed for game playing; lawyer claims duty to be zealous -- "even at peril to myself."

The opinion's here.  It deals with all-too-typical petty game playing during discovery, and the opinion is appropriately dismissive of the behavior of plaintiff's counsel.  (For example, when hit with an interrogatory requesting a statement of "economic damages" -- which is a statutory term of art in California and is, for example, incorporated in the official form interrogatories -- the plaintiff's lawyer responded, essentially (I'm paraphrasing), with, "since you didn't specifically cite the statute defining 'economic damages,' I must assume you have some other unknowable definition in mind.")

What caught my eye was the reported response of the plaintiff's counsel to the appellate opinion that was so dismissive of his behavior.  Unfortunately the whole article is behind a registration wall.  The quote:

"I wasn't sanctioned.  My client was sanctioned.  Nobody has ever suggested that I did anything wrong.  And my job under the rules of ethics is to be my client's zealous advocate -- even at peril to myself."

You could use that quote as a PR exam question and ask the students to critique each sentence! 

ABA strikes back at FTC regulation of lawyers as "creditors"

The ABA has filed for partial summary judgment (brief here) in its lawsuit (complaint here) against the FTC for regulating lawyers as "creditors."  The ABA argues that the FTC exceeded its Congressional mandate on this issue.  This type of federal regulatory encroachment on the legal profession will be increasingly common place -- as was detailed in John Leubsdorf's article.  (nod to AmLaw Daily)

UPDATE: Laurel Terry's recent article, The Future Regulation of the Legal Profession: The Impact of Treating the Legal Profession as Service Providers, is a nice look forward at how the federal government's regulatory agencies (and foreign governments) will view the US legal profession.

Steve Gillers' new book

I just received in the mail, and am looking forward to reading, Steve Gillers' new one-volume treatise, Regulation of the Legal Profession.  It's in the Essentials series published by Aspen.

Corporations as Persons

With regard to an issue raised earlier, the NYTimes says in an editorial today that corporations shouldn't be treated as real persons for all speech purposes because corporations can't vote, run for office, or bear arms.  However, that is true of all associations.  My problem is that the First Amendment protects the right of people freely to assemble and to petition for redress of grievances, which seems to protect the right of people to form associations and to use them for the purpose of speaking freely and petitioning for redress of grievances.  And corporations are associations, or so they seem.  As I said, I'd like to be persuaded that their lobbying activities can nevertheless be limited, but I'm not aware that anyone has suggested a principled way to justify that result.

Does it work to say that the only associations that have speech and petition rights are those that are formed expressly and predominantly for the purpose of speaking and petitioning?  That would exclude business corporations, and, arguably, sub-associations formed by them for the limited purposes of speaking and petitioning.

Is a congressional witness entitled to attorney-client privilege?

As the Times story today signals, a House committee is prepared to require Bank of America to reveal information it has withheld from the SEC and AG Cuomo on grounds of privilege. The privilege doesn't apply in Congress, says the chairman. Numerous members of Congress have said the same over the years. If the assertion is allowed, it is a matter of grace, not right, they say.

 In the 1988 Columbia Law Review, a student note argued that the common law privilege (not FRE 501) applies in Congress. This Note gets a lot of citations and may be the only journal effort to address the issue, at least in the last half century. 

So far as I know, no court has ruled on the question. (Do you know of one?) In an unusual case, I suppose, assertion of privilege may be based

Salon on the Hood Case

Salon.com has posted an excellent story (here) about the recent developments in the Charles Hood case.

Correction: As originally posted, I had mistakenly said that the story was on slate.com. 

Inaugural Symposium of Akron Law School's Miller-Becker Institute

Akron Law School's Miller-Becker Institute for Professional Responsibility is holding a symposium on October 8th and 9th.  The themes include “Lawyers Beyond Borders” and “Practicing Law in the Electronic Age.”  More details are here.

Berkeley Conference on Social Networks -- Legal and Ethical Issues

Panels here; description of conference here.  I'll be on this panel:

Can Lawyers “Tweet” About Their Work? Confidentiality & Legal Professionalism in the Age of Social Media
Lawyers’ uses of social media tools and networks raise distinct challenges to the legal profession and the duty to maintain confidentiality. How will lawyers operate in an age of unprecedented transparency and permanent online records of everyday transactions? Where is the line between appropriately guarded comments and breaching attorney-client privilege? Can use of social media or networking ever be in a client’s best interest?

Renee Knake on the Supreme Court's docket of law of lawyering cases

Renee Knake sends along this post:

Thanks both to John Steele, who recently featured my article on the Supreme Court’s increased attention to the law of lawyering during the upcoming term, and to Andrew Perlman for presenting me with the opportunity to guest blog about this topic.  As John’s previous post notes, to date, the Court has agreed to hear six cases involving issues related to the ethical duties and legal obligations of attorneys.  This number of cases struck me as unusual, and worthy of some investigation.  Indeed, by my count, the most such cases the Court has considered during any term over the past decade is three, and at times the number is as few as one or two, if any. 

My article suggests that this increased number of cases may signal a newfound prioritization of professional responsibility issues.  I’d welcome any thoughts on whether others think that this occurrence is mere coincidence, or perhaps something more.

I plan to blog about the cases as the Court hears the oral arguments this fall.  The first case that the Court will take up is Mohawk Industries v. Carpenter, scheduled for October 5.  In the meantime, here is a list of the cases and the legal ethics questions raised:

(1) Do provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act regulating attorneys’ advice to clients and mandating certain advertisement disclosures violate the First Amendment?  Milavetz, Gallop & Milavetz, P.A., et al. v. United States, 541 F.3d 785 (8^th Cir. 2008)   

(2) Is an attorney’s faulty advice grounds for setting aside a criminal defendant’s guilty plea? Padilla v. Commonwealth of Kentucky, 253 S.W.3d 482 (Ky. 2008)

(3) When, if ever, does a novice attorney’s inexperience constitute ineffective assistance of counsel? Wood v. Allen, 542 F.3d 1281 (11^th Cir. 2008)

(4) Should a court’s order compelling production of privileged materials be immediately appealable? Mohawk Industries, Inc. v. Carpenter, 541 F.3d 1048 (11^th Cir. 2008)

 

(5) Can quality of performance and results obtained justify an enhancement to an attorney’s fee award under a federal fee-shifting statute? Perdue v. Kenny A., 532 F.3d 1209 (11^th Cir. 2008)

(6) May a prosecutor be liable for civil damages for procuring false testimony and introducing that evidence against a criminal defendant at trial? Pottawattamie County v. McGhee, 547 F.3d 922 (8^th Cir. 2008)