Legal Ethics Forum

Judge tosses another federal criminal prosecution -- Blackwater

Post at Volokh.  Opinion here.  Is it just me, or have we seen an extraordinary number of tossed federal criminal prosecutions this year?

Second Circuit rejects suit by detainees' lawyers to obtain records of intercepted phone calls

Opinion here.  Story here.  The lawyers wanted to know if the federal government had intercepted privileged phone calls.

The ABA and outcome assessments, including in ethics

The ABA has a draft of it "outcomes assessment" standards.  (The existing standards are here.)  In general, I'm a big fan of the concept, but who knows how the ABA and the schools will implement it.   Ethics are prominently discussed at standard 302(b)(3).  Readers, how would you measure outcomes in the area of legal ethics?  (nod to Paul Caron's Tax Prof Blog).

By the way, the proposed standards seem to go a long way toward fixing the faults noted by the Carnegie Report and the much-older complaints by Judge Edwards.  Are law schools really equipped to teach legal practice?

[Edit: I should have noted that this post complements Andy's post below.]

New Jersey imposes CLE requirement, including ethics CLE

Story here.  I'd be curious to know what approach NJ is taking.  From my experience, states that require CLE vary widely in their focus on the needs of lawyers, the needs of bureaucrats, and the needs of the local state bar to earn cash.

Law School 2040

If water coolers exist in 2040, one of them might be a backdrop for this conversation:

Junior Faculty 1: Did you hear that Perlman is retiring?

JF2:  I heard.  Too bad.  He’s a nice guy.

JF1:  Yeah, he’s nice.  But he’s part of that old guard who really don’t do much to move the school forward.

JF2:  What do you mean?  I thought he’s still pretty productive?

JF1:  It’s not that he’s unengaged; it’s just that he focuses on all of the wrong things.  He’s one of those people hired in the late 20^th century and the early part of this century.

JF2: I’m not sure what you’re driving at.

JF1:  Obviously, you don’t know your history. 

JF2:  Educate me.

JF1: Well, there was a legal education boom in the latter part of the last century.  The legal profession was growing quickly, and there were a lot of high paying jobs at stand alone law firms. It was before the rise of all of these mega companies, like PriceWaterhouseSkadden.  I think there was some change in some ethics rules that caused the shift.  Something about multidisciplinary practices or some such thing.  Anyway, law schools back then were cash cows for universities, primarily because of how law students were taught and the jobs they could get.

JF2:  I don’t follow.

JF1: For a long time, most schools relied heavily on large student-faculty ratios, with large classes that were taught using the Socratic method.  There was relatively little practical training, so law schools could collect a lot of tuition and pay for fancy buildings and high professor salaries and then send lots of students off to high paying jobs.  Haven’t you seen all of those beautiful law school buildings that were built between 1990 and 2010?

JF2: Now that you mention it, you’re right.  So what happened?

JF1:  Here’s the other wrinkle.  There was this magazine.  I think it was called U.S. Report and News, or some such thing.  I can’t remember; it’s not around anymore.  It had an annual ranking of law schools that was really important, so law schools tried to do a lot of things to affect their rankings, including how they hired faculty members.

JF2:  You’re making that up.  You’re saying that a magazine influenced what kind of people law schools hired?

JF1:  Yes.

Choi, Johnson-Skinner, Pritchard: "The Price of Pay to Play in Securities Class Actions"

Article here.  (nod to Legal Theory Blog)  Abstract:

This paper studies the effect of campaign contributions to lead plaintiffs — “pay to play’’ — on the level of attorneys’ fees in securities class actions. We find that state pension funds generally pay lower attorneys’ fees when they serve as lead plaintiffs in securities class actions than do individual investors serving in that capacity. This differential disappears, however, when we control for campaign contributions made to officials with influence over state pension funds. Thus, pay to play appears to increase agency costs borne by shareholders in securities class actions.

How many cases in the US per year?

According to this NYT article, New York state courts handled 4.7 million cases this year.  That whets my appetite for stats on cases per each state, and federal cases, per year.  Does anyone know where that data might be?

Which Ethics Rules Apply to Lawyer-Experts?

Imagine that you (a lawyer) are hired as an ethics expert in a legal malpractice case.  You ask for and are given a retainer as an advance on your fees.  Do you have to deposit the retainer into a client trust account and draw on it only as you have earned your fees?  Or can you deposit the full amount into your personal account and simply refund any money that you do not subsequently earn?

One ethics expert has given me the latter answer, on the theory that ethics experts are not retained for their legal services and are thus not subject to the usual rules regarding retainers.  The answer seems plausible to me, but it raises the larger question of which of the ethics rules (if any) apply to a lawyer who is serving as an expert.  I suspect that this issue has been addressed by some authority, article, or treatise (or all of the above).  Can anyone offer citations that address the retainer issue or the broader question of which ethics rules apply to lawyer-experts?

elsewhere in the blawgosphere

Kevin O'Keefe, at Real Lawyers Have Blogs, explains how the new Florida rules affect legal bloggers.    . . . .    Lexoterica lists some of the top Philippine court decisions on legal ethics.    . . . .    Top Ten Expert Witness Rulings of 2009.    . . . .    Should law firms move to computing in the cloud?  (nod to Ellyn Rosen of the 20/20 Commission)    . . . .    Ellen Podgor, at White Collar Crime Blog, gives her annual wrap-up of "collar" awards for 2009.

Person and party in MR 4.2

I imagine that I'm the only one who doesn't know what the situation is with regard to "person" and "party" in MR 4.2.  I had understood that the Cornell website correctly states the history of 4.2.  It says:  Rule 4.2 was amended in August 1995 to make clear that the rule applies to contacts with represented persons whether or not they are, in a formal sense, actual or prospective "parties" to a proceeding or transaction. "Person" was substituted for "party" in the title and text of the rule.

Also, the ABA website gives MR 4.2 as follows:

Rule 4.2 Communication With Person Represented By Counsel

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

However, I just noticed that in my 2009 edition of the Model Rules, sent out by the ABA/CPR, the text uses the word "party" instead of "person."  (However, the heading and the comments to 4.2 consistently use "person.')

Have I missed an important amendment, or is there just a typographical error in the text of 4.2 in the 2009 edition that I'm the last one to know about?