Legal Ethics Forum

Prosecutors Subpoena Students' Grades in Innocence Project

At Northwestern University, the Innocence Project has submitted evidence, including videotapes of witnesses’ testimony, exonerating Anthony McKinney, who has been in prison since his conviction in 1978.  This evidence was obtained by various students in the Innocence Project over a three-year period.  The issue of McKinney’s innocence is being considered by a judge.

We know that investigators can affect evidence, including witness testimony, in subtle and not-so-subtle ways.  On that theory, the prosecutors have subpoenaed the students’ investigative memoranda, e-mail messages, notes of interviews with witnesses, and the students’ class grades.  The prosecutors’ suspect that the students received better grades for obtaining exonerating information, and that the students therefore had an incentive to skew the evidence.  Accordingly, the information that the prosecutors seek should be made available to the court.

I’m inclined to think that the prosecutors have a point.  They know, better than most people, how arrest quotas, clearance rates, and convictions can affect the careers of police and prosecutors, providing an incentive to influence evidence supporting convictions.  A decision supporting the subpoenas in this case, therefore, could be an important precedent on behalf of defendants in criminal cases.

Prosecutor Disbelieves Alleged Victim, So Offers Plea Deal

The NYT reports today on the recantation of charges of rape and torture by a woman in W.Va.  Six people pleaded guilty and are serving long sentences.

The prosecutor explained that he offered the plea agreements because he was skeptical of the alleged victim’s testimony.  Her story “grew and changed,” he said, and “we stopped relying on anything she said.”

When the prosecutor disbelieves the testimony of the alleged victim, who is his only eye witness, isn’t the proper course to dismiss the charges rather than to offer a plea?

Revocation of Kerik's Bail

I’m no fan of Bernard Kerik, but I’m wondering about the propriety of the revocation of his bail, and his imprisonment, on the judge’s finding that he had leaked information to the public that the judge had ordered sealed.  It seems clear from the report in the NYT that the judge didn’t revoke Kerik’s bail because he is a flight risk.  Rather, it looks like a punishment for contempt of court for conduct outside the courtroom.  If so, did the judge charge Kerik with contempt, and was there a hearing to establish contempt?

Thinking about loyalty

I just returned home from the just finished and entirely fantastic Hofstra Law conference organized by co-blogger Roy Simon, "Power, Politics and Public Service: The Legal Ethics of Lawyers in Government".  On the last day of the conference Robert Mundheim presented a paper  "A Treasury of General Counsel Experience: The (First) Chrysler Bail-Out, the (First) Iranian Hostage Negotiations, and Some 'Salomonic' Wisdom".  In his talk he discussed the difficulty for organizational lawyers in determining who is the client, and whose interests can legitimately be pursued in the provision of legal advice.

This paper caused me to reflect on the nature of loyalty as a lawyerly obligation.  Because (thought I) loyalty in the context of legal ethics (and ethics generally) is asserted as a moral principle, as something that one owes to one's client as a matter of obligation (the lawyer's) and right (the client's).  Yet loyalty is also something that a person feels, it is an emotional response to people, places and things with whom one has a relationship.  I feel loyalty to a sports team, for example, although it is difficult to see any modern sports franchise as being the proper subject of obligation or right (especially the dreadful teams I've always supported - go Canucks!).

And I wonder if part of the reason lawyers run into ethical problems is when either their moral obligation of loyalty and their emotional experience of loyalty end up in tension, or when their moral obligation of loyalty and their emotional experience of loyalty end up too closely intertwined.  So that an organizational lawyer runs into problems when he feels loyalty to one set of people or interests, but his actual moral obligation is to another set of people or interests, but a family law lawyer may run into problems when his emotional loyalty heightens his moral obligation of loyalty to the point where it blinds him to counter-vailing moral obligations such as respect for legality.

Which in turn makes me wonder whether some of the problems for organizational lawyers could be assisted by helping to enhance the emotional connection between those lawyers and the interests they are properly supposed to represent.  I am thinking of, e.g., ensuring that in-house counsel have contact with the board of directors from time to time, even socially.  I am less sure how one could disrupt the emotional loyalty where it tends to create excessive zeal, except through the conflict rule (here at least) which directs the lawyer not to act if excessive personal commitment impairs her judgment.

Anyone else have any thoughts?

Texas Supreme Court puts out New Rules for Comment

I've only had a chance to glance at them, but they are still remarkably distinct from the Model Rules in some respects.  And, from what I saw on first glance at least, they appear to have eliminated Texas's infamous "you can sue a current client in an unrelated matter" rule.  The text is here.

The Ethics of Corporate Investigations

I was recently a panelist at the Association of Corporate Counsel's annual conference, and someone in the audience posed an interesting hypothetical. 

Imagine that in-house counsel is conducting an internal investigation and speaks with an employee whose conduct may have been unlawful.  The employee does not have her own counsel, so the in-house lawyer makes clear to the employee that the lawyer represents the company and not the employee herself. So far, so good. 

But now let's imagine that the employee is reluctant to speak with the lawyer.  The lawyer then says to the employee, "You are subject to the company's employment policies, which require you to speak with me about this matter." 

Several audience members were convinced that such a statement was both commonplace and ethically permissible.  It was my position that such a statement, which appears to be giving legal advice to an unrepresented (and potentially adverse) party regarding her obligations under the employment policy, could be unethical under Rule 4.3.    What do you think? 

Prosecutorial Misconduct (and Gall)

In the prosecution of Rod Blagojevich, federal prosecutors have complained to the judge that the former governor is tainting the jury pool with pretrial publicity, and have asked for a gag order.  (NYT, 10/2009).

What gall!  Almost a year ago, U.S. Attorney Patrick Fitzgerald held a news conference that succeeded in convicting Blagojevich without due process.  (The same Fitzgerald was commendably scrupulous in avoiding pretrial publicity in the Scooter Libbey case.)  Fitzgerald announced on television that Blagojevich was guilty of a "staggering" level of corruption, and that he had engaged in a “political corruption crime spree.”  Since then, Blagojevich has exercised his First Amendment right to try to defend himself against the criminal conviction that has already taken place, at least in the news media and in the minds of the public.

As belatedly recognized in Model Rule 3.8, in language adopted from the American Lawyers Code of Conduct (1980), Fitzgerald’s conduct was unethical.  – Any bets on the likelihood of disciplinary action against Fitzgerald?

DOJ and the proposed rules on providing discovery

In the wake of the botched prosecution of Senator Ted Stevens, the DOJ is revising policy regarding discovery -- although some question whether the DOJ is going far enough.

Bill Henderson and Andrew Morriss: What [law school] rankings don't say about costly choices

Inaccurate perceptions by law school applicants and law students, especially concerning the odds of getting a lucrative biglaw job, lead them to make dumb choices.

Qualcomm rehearing date? (Is it January 13-15, 2010?)

I've been getting lots of questions about the status of the Qualcomm v. Broadcom matter, and in particular about when the long-awaited rehearing will be held.  I've been told it's set for January 13-15, 2010, but cannot confirm it.  Does anyone out there know?