Legal Ethics Forum

ABA Blawg 100

We're delighted that we've been named to the ABA Magazine's list of the top 100 law-related blogs.  That's our third year in a row, which I am told is an all-time record.  (Yeah, I know.  The list has been around for only three years, but who's counting?) 

The Magazine's authors have made a special note of John Steele's perennial top 10 list of legal ethics stories.  Indeed, it's about that time of year.  I'm looking forward to reading the list myself, John!

Somehow, we were put into the legal theory category.  I guess that's because we have a bunch of law professors who contribute to the blog.  Unfortunately, we're in the same category as the Volokh blog, so we have no chance of being named the top blog in our category.  Nevertheless, vote for us here.  We still hope to defeat our rivals at the Legal Profession Blog.  [Link to the Legal Profession Blog omitted intentionally.]

This year, you'll have to register or be an ABA member in order to vote.  I suspect that's because, last year, the ABA saw too many votes from my mother's IP address.  Sorry, mom.  (Please don't tell her that we lost anyway.)

In all seriousness, congratulations to my fellow bloggers.  And thanks to the ABA Magazine for the acknowledgement and to all of you -- our readers -- who make blogging so enjoyable and rewarding!

Review of Markovits Book

Abbe Smith and I will be publishing a review of Daniel Markovits's A Modern Legal Ethics in the Michigan Law Review.  Here is an abstract of the review, which is titled, Misunderstanding Lawyers' Ethics:

 

The authors argue that Daniel Markovits's recently published book, A Modern Legal Ethics, fundamentally misunderstands what lawyers do on behalf of clients in an adversary system, and how lawyers feel about it.  Freedman and Smith argue that not only is Markovits mistaken about the widespread unhappiness of lawyers, he is also misguided in pointing to “lying” and “cheating” as the source of unhappiness and “guilt.”  Moreover, the authors argue that Markovits’s proposed “ethic” for rescuing the legal profession is superficial wordplay—ironically derivative of the adversarial advocacy he condemns.

Disciplinary Complaint Against Torture Memo Lawyers

WASHINGTON, Nov. 30 /PRNewswire-USNewswire/ -- On Friday, November 27, 2009, Disbar Torture Lawyers, www.disbartorturelawyers.com, a group of NGOs representing over a million members, filed complaints with the Washington, D.C. Board of Professional Responsibility requesting disbarment of Bush Administration attorneys John Yoo, Michael Haynes, and Alberto Gonzales. The detailed complaints and supporting documents set forth the illegal and unethical conduct of the attorneys with regard to the issue of torture against detainees held by the United States. All of the legal advice and written opinions of the three attorneys have been rejected and rescinded by the Department of Justice.

The three complaints were filed in the District of Columbia because the attorneys were practicing in Washington at the time of their illegal conduct. Jurisdiction for the filings is based on the McDade Amendment, 28 U.S.C. Section 530B, which states in relevant part, "(a) An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney's duties, to the same extent and in the same manner as other attorneys in that State."

"The evidence is overwhelming that Yoo, Haynes, and Gonzales violated their oath by advocating and allowing torture against U.S. detainees," said attorney and group spokesman Kevin Zeese. "Just as a lawyer cannot ethically advise a police officer to torture a criminal defendant, a government lawyer cannot ethically advise a government employee to torture a detainee. In both cases, the lawyers would be in violation of the law, and would be subject to disbarment. We strongly urge the Department of Justice to release its own OPR investigation into the conduct of these and other attorneys who provided cover for the wholesale use of torture by our government. We are hopeful that the investigation supports our call for disbarment."

Disbar Torture Lawyers has filed bar complaints against 15 lawyers involved in the Bush torture program. These complaints and the three new complaints and supporting documents are posted at www.disbartorturelawyers.com.

SOURCE www.DisbarTortureLawyers.com

New articles on absolute judicial immunity and the "Civil Gideon" movement

Article here about the Civil Gideon movement, by Paul Marvy and Laura Abel.  Abstract:

Around the country, state and local bar associations, access to justice commissions, and local advocacy groups are working to expand the right to counsel in their jurisdictions. The passage of three statutes in the past three years is tangible evidence of their efforts. Many civil right to counsel advocates take as their mandate a resolution passed unanimously by the American Bar Association’s House of Delegates two years ago, calling on the government to provide counsel in cases in which “basic human needs are at stake.” This Article describes efforts underway in eleven states to expand the right to counsel, as well as national efforts, and concludes that these efforts promise to result in increased access to the courts for low-income people.

Article here about absolute judicial immunity, by Matthew Myer, focusing in part on the Pennsylvania "cash for kids" scandal.  Abstract:

In numerous cases following Randall v. Brigham in 1868 and Bradley v. Fisher in 1871, the United States Supreme Court has granted judges broad absolute immunity for all acts they have taken within their jurisdiction. The breadth of absolute judicial immunity is justified by numerous public policies. The policy arguments supporting judicial immunity are so strong that there are only two recognized exceptions to the doctrine.

Two cases pending before the United States District Court for the Middle District of Pennsylvania, however, demonstrate the need for Congress to act to provide a third exception. The conspiracy at the center of these criminal and civil cases is alleged to be the largest instance of judicial corruption in American history. This Note argues that the policy justifications behind absolute judicial immunity do not apply to racketeering acts a judge performs within his or her jurisdiction as part of his or her judicial function.

The Note proposes that Congress amend the Civil RICO statute, 18 U.S.C. § 1964, to establish a third exception to judicial immunity. The Note includes the text of the amendment it proposes and argues that if Congress would enact the amendment before the conclusion of the civil case now pending in Pennsylvania, and if Congress would make clear its intent for the amendment to have retroactive effect, the amendment, when triggered, would remove immunity protection from the judges’ non-administrative acts.

Rachel Lee: "Ex Parte Blogging: The Legal Ethics of Supreme Court Advocacy in the Internet Era"

This student article examines the pretrial publicity rule and the ex parte communication rule in the context of blogging and other internet communications pertaining to pending Supreme Court cases.  Although I'm not persuaded that we need new ethics regulation on this point, the article is a nice introduction to how collateral advocacy via the internet is done these days.  (Nod to Eugene Fidell at Balkinization)  

Criminal charges against criminal defense lawyer Ben Kuehne are dropped

Story here.  Some of the background is available in this 11th Circuit opinion, discussed here, affirming the trial court's dismissal of one of the charges against Kuehne.  Kuehne had been hired by legendary defense lawyer Roy Black to provide an opinion on whether Black could accept legal fees from an alleged drug kingpin.

David Post: "Are Judges Really Immune when Taking Kickbacks?"

Perhaps you recall the recent case of the Pennsylvania judges who were paid cash rewards for sending teens to a juvenile detention center.   David Post comments on the prospect that the judges will be absolutely immune from civil suits for that conduct.

Michigan Supreme Court Adopts New Judicial Disqualification Rule

The Michigan Supreme Court issued an order adopting a new rule for judicial disqualification earlier this week (late afternoon on Thanksgiving eve, as one dissenting justice notes).  The rule explicitly incorporates the recent U.S. Supreme Court decision Caperton v. Massey, and it establishes a process for the justices to disqualify each other.  If you have the time, the concurring and dissenting opinions in the order are spirited and well worth the read.  Or you can catch the highlights from the press coverage: "Divisions easy to read in new Mich. court rule" and "New Michigan Supreme Court rule will let judges toss one of their own." 

Judge Bybee sets up legal defense fund

Judge Jay S. Bybee, who wrote "torture memos" while at the Office of Legal Counsel and who now sits on the Ninth Circuit, has created a legal defense fund.  Here is a letter to Judge Bybee from the Committee on Codes of Conduct of the Judicial Conference, opining on the legality of his expense fund.  

Confirmation of debt disqualification

The disqualification of an applicant for admission to the NY bar based on his level of debt and his dealings with lenders was confirmed by the Court today.  See story here.  I had commented on this story earlier (here).  My concern with excluding applicants on the basis of assessments of character is not lessened by this story.  I would note in particular that this applicant was viewed so differently by the initial panel (who strongly recommended admission) and the judicial panel (who denied it).  Exclusion of applicants on the basis of character requires (at least) two things to be true: a) that character is in some way probative of future conduct as an attorney; and b) that character in the relevant sense is capable of being identified by a panel of lawyers or judges.  I have questioned the truth of both of these propositions in my writing on this topic.  My observation here is simply that it complicates the easy assertion that character can be measured to have the character of one person viewed so differently by two different panels of people charged with assessing it - unless one body can claim that it has expertise that the other lacks.  That seems empirically implausible where one is talking about a panel of lawyers on the one hand and judges on the other - neither seems especially more qualified than the other in this respect.