Legal Ethics Forum

Saturday's MPRE test and the revised MR 1.10

I've frequently been asked this question, so I thought I'd post it.  Does this Saturday's MPRE test cover the new version of MR 1.10(a) that was passed this August (and was the subject of an on-again, off-again amendment in the Spring)?  According to page 35 of the MPRE's information booklet, and according to someone at the MPRE with whom I just spoke on the phone, the MPRE test incorporates rule changes no earlier than one year after they are approved.  So, this Saturday they will be testing the version of 1.10(a) that was in place October 2008, which is the version that does not permit unilateral ethical screens when a lawyer moves from private practice to private practice.

The Ethics of Experting

I have only in the last year or two really done much experting (I mostly spent my time counseling firms to avoid problems, when I'm not teaching, writing, speaking, or just hanging).  Frankly, I've seen some people that I respect, or respected, say some things that just are flat wrong, and that they would never say in public.

Perhaps I'm Polly-Anna-ish (sp?), but when it comes to ethics, saying things in an ethics report that are flat wrong -- that you would never say in public -- seems, well, unethical.

Just an observation, but I wonder if the rest of  you have noticed?  I know that sometimes we are blinded by our own views, but I've read some real doozies.

Any thoughts?

Ben Kuehne in the clear?

The Wall Street Journal's Law Blog has the details about good news for criminal defense attorney Ben Kuehne, who was accused of committing a crime by writing an opinion letter about another attorney's receipt of fees from a client.

Elina Tetelbaum: "Is it ethical for a law firm to remove a lawyer from a case because a jury might be prejudiced against that lawyer?"

This student article is based upon the well-known hypothetical -- the Karen Horowitz Dilemma -- penned by our own Stephen Gillers and included in his textbook.  The hypo generates great classroom discussions about the relative importance of winning a case for a client and combating prejudice.  Abstract

Is it ethical for a law firm to remove a lawyer from a case because a jury might be prejudiced against that lawyer? What if considering the attorney’s demographic identity would maximize the client’s chances of litigation success? This Note explores the tension between the duty of zealous advocacy and the anti-discrimination principles within the legal profession. It concludes that current ethical rules governing litigation tactics do not meaningfully guide firms in deciding which principle should triumph in the context of staffing cases. Without guidance from the Model Rules of Professional Conduct or the Model Code of Professional Responsibility, law firms may engage in practices that can severely limit litigation opportunities for attorneys with attributes that have been historically discriminated against. The Note proposes ways that the legal profession might regulate conduct pertaining to attorney’s identity-baggage in litigation.

Moral Freaks: Lawyers' Ethics in Academic Perspective

That's the title of a new article by Columbia's Bill Simon.  This is the abstract:

Much recent academic discussion exaggerates the distance between plausible legal ethics and ordinary morality.  This essay criticizes three prominent strands of discussion: one drawing on the moral philosophy of personal virtue, one drawing on legal philosophy, and a third drawing on utilitarianism of the law-and-economics variety. The discussion uses as a central reference point the “Mistake-of-Law” scenario in which a lawyer must decide whether to rescue an opposing party from the unjust consequences of his own lawyer’s error.  I argue that academic efforts to shore up the professional inclination against rescue are not plausible.  I conclude by recommending an older jurisprudential tradition in which legal ethics is more convergent with ordinary morality.  

You can download the article here.

GAO report on cost of law school: blame USN&WR, not ABA

Report here.  News article here.  One of the key issues is the effect of cost on minority enrollment.  The GAO reports that "most" law schools don't blame the ABA's accreditation standards as having an impact on minority access.

The MPRE

Mercer students tell me that they can spend 3.5 hours (less than the full length of the video) watching the MPRE prep video and pass the test.  The test, to me, seems to be, as a result, somewhat... unnecessary.  I remember when I took it, 30 years ago (sigh), and thinking then that it is a waste of time.  Is there a move away from it, or from reforming the test to provide meaningful insight into the "ethics" of the candidates?  I don't know how a multiple choice test can accomplish that...  Anyone?

South Carolina issues Opinion on Links to Attorney Profiles

The South Carolina bar association addressed a hypothetical website that listed attorneys without their involvement, and allows "clients" and others to "rate" the attorney.  The bar association held that a lawyer could claim his listing in this service, but that all comments made about him were subject to the advertising rules.  "[A]ll content in a claimed listing must conform to" the advertising rules, so held the opinion. It also basically says a lawyer can't solicit improper endorsements, and so on.

Frankly, this one baffles me.  I can understand why you can't ask someone to say something about you that you can't yourself say, because of Rule 8.4, but am I really under an obligation to make sure non-clients comply with the lawyer advertising rules?  Stay tuned, but in the meanwhile, you South Carolina lawyers better go read your various listings, I suppose including Face book!

It's not online yet, but presumably shortly will be here.  If you want a copy, email me at [email protected]

Kevin Michels: "Internal Corporate Investigations and the Truth"

Kevin Michel's new paper is here.  Abstract:

In 2008, nearly half of all United States public companies commissioned outside counsel to conduct at least one internal investigation. The corporation, government officials, courts, shareholders and the public rely on investigative reports in assessing matters of unquestioned importance – allegations of material wrongdoing against the corporation. This article asks whether the internal-investigation entails a special commitment to the truth. There is reason for concern. While the American legal system has long presumed that the clash of adversaries is the best guarantor of truth, the investigator stands alone, implicitly asking us to accept her unilateral efforts as trustworthy. The investigator, however, is retained and compensated by the corporation that is the subject of the allegations – raising troubling questions about loyalty, accountability and conflicting objectives. 

The article begins by asking which internal investigations pose special concerns about truth and reliability. From the attorney-ethics rules, corporation law and statutory obligations, it develops two categories of investigations that warrant the imposition of special truth standards: the reliance investigation – an investigation delivered to a third party; and a duty investigation – an investigation undertaken to satisfy a corporate duty of inquiry. 

The article next identifies the core commitment of reliance and duty investigations: to provide as nearly as practicable an accurate account of the facts, the legal standards and their application. This, in turn, raises the question of what it means to be accurate in a legal inquiry, given the interpretative range of most legal matters. The article looks to philosophy, jurisprudence and historiography – disciplines that have struggled with questions about truth and objectivity – to explain and refine the accuracy standard. Accuracy, the article contends, is not only a viable standard to guide the investigation, it warrants commitment to a series of procedural truth standards proposed herein that substantially enhance the prospects of an accurate account – independence, sufficient inquiry, evidentiary reliability, and professional judgment. Despite the emphasis of lawmakers and courts, independence alone is not enough; it is only one of the procedural truth standards that serve the core substantive standard – accuracy. 

The truth standards require attention to: conflicts relating to investigator's role, client commitments that blur truth seeking and client protection, the scope and depth of the investigation, the reliability of the evidence gathered, questions of emphasis in developing a narrative account, adherence to professional standards of interpretation in forming legal conclusions, and client-imposed constraints on the reporting of investigation results. The standards also have important implications for the degree of certainty claimed by the report, the obligations of investigators when they cannot satisfy the truth standards, and the tort obligations of investigative counsel. Even more important, a deeper understanding of the investigative role will increase the prospects that those who receive and rely on investigative reports – the corporation, courts, shareholders, the government and the public – will have the benefit of an accurate account.

Criminal defense lawyer reveals confidences of executed client?

Dave Hoffman at Concurring Opinions posted this, about an interview with David, Martin, the criminal defense counsel for the since-executed Cameron Todd Willingham.  Since the execution, arson experts have argued that the original arson report relied upon theories that were discredited just before (or about the same time) as the trial.  The matter has received a lot of attention recently, and is often presented as a case where an innocent man was executed.  I don't want to get into the innocence question, but rather want to ask whether the defense counsel violated any ethical rules in the interview.  Texas's confidentiality rule is here.

The lawyer is presumably motivated at least in part to rebut the implicit allegation that he should have knocked out the arson report against his client and should have saved his client's life.  But there's no malpractice or discipline claim against the lawyer, so I can't conclude that he is justified by (c)(5) or (6).  (Under the ABA approach to that exception, the comments provide that a lawyer can defend herself even before formal claims or charges are filed, but Texas doesn't have similar comments.  And my intuition -- unburdened by research at this point -- is that the public embarrassment of the recent media coverage is not enough to trigger the ABA's preventative disclosure anyway.)  

Even if we apply the broad duty of confidentiality, some of what the lawyer said is common place following a noteworthy trial; he said, for example, that the prosecutor introduced this evidence or that evidence against my client.  He suggested that the arson report wasn't the only evidence that was introduced.

The lawyer repeatedly emphasizes that he conducted tests that inculpated his client.  I can't think of why the lawyer would be entitled to reveal that to the world.  It relates to the representation and is detrimental to the client.

But much of the interview consists of the lawyer attacking the validity of a new report and arguing that the report was biased and based upon distant, second-hand knowledge of the case.  That part of the lawyer's comments don't fit easily into a breach of confidentiality, do they?  

The dynamic is the one that sometimes occurs when a capital defendant asserts ineffective assistance of counsel and the lawyer defends herself.  I assume that there is case law and secondary literature on that issue.  Here, of course, the lawyer can't say that he has been accused by his client of ineffectiveness.

What do you all think?  (One of my thoughts is that Anderson Cooper needed to be better prepared.)