Legal Ethics Forum

Caperton + Citizens United + Justice O'Connor = revitalization of the merit selection movement?

I placed Caperton as the No. 1 legal ethics story of 2009, in part because it is inviting a re-visiting and perhaps overhaul of judicial elections at the state level.  This story describes how the movement toward merit selection has been revitalized and how Justice O'Connor is key to the movement.

Welcome, knitters!

I see that we're getting hundreds of visits from Ravelry, and I wanted to let those visitors know that Nona's life was turned upside down, in a good way, when she took a job teaching mathematics at an all girls school.  She's still knitting, working at a knitting store, supervising the knitting club at school, and will be posting something soon at Nona. I am personally pleased to report that her "queue for mens' projects," which moves much, much slower than her "queue for women's, girls', and babies' projects," did progress enough to net me an amazing Celtic knot cable vest for Christmas.  Photos soon at Nona.

In the meantime, you might find that nothing, not even knitting, is as interesting as legal ethics!  So feel free to browse around.

"Justice Official Clears Bush Lawyers in Torture Memo Probe"? When will we finally see this report?

Newsweek leaks what would be a surprising story: torture memo lawyers cleared but severely criticized?  Supposedly, the report softened an earlier version that said that the lawyers had breached ethical duties.  And, supposedly, there will be the long-awaited evidence on the question of whether John Yoo altered the memo under pressure from others.  We will have to wait and see.

Federal Circuit affirms finding of inequitable conduct in Therasense

Get the whole story at Patently-O.  ("Inequitable conduct" means a lawyer's fraud on the PTO, but, unfortunately, courts sometimes find inequitable conduct when it seems like what they really found was just negligence.  People are waiting for the Federal Circuit to tighten up the standards of proof.)

Ways that lawyers should or shouldn't criticize judges

I'm not weighing in on the president's SOTU address comments about Citizens United or about Justice Alito's response (except to say that I'm glad Alito didn't "go Nino" on the president while cameras were rolling).  

But that incident brought to mind a rule, or comment, or norm that says that because judges have limited means to defend themselves through public media, lawyers should criticize judges only in certain ways. Does that ring a bell with anyone?  I've heard it quoted several times but can't put my finger on it.

Edit: Roy Simon, in the comments, was able to identify the language I was trying to recall:.  

EC 8-6 of the old ABA Model Code. The NY version (which I think is about the same) said, in pertinent part: EC 8-6 ... Adjudicatory officials, not being wholly free to defend themselves, are entitled to receive the support of the bar against unjust criticism. While a lawyer as a citizen has a right to criticize such officials publicly, the lawyer should be certain of the merit of the complaint, use appropriate language, and avoid petty criticisms, for unrestrained and intemperate statements tend to lessen public confidence in our legal system. Criticisms motivated by reasons other than a desire to improve the legal system are not justified.

Biglaw comes out swinging for itself and for clients against Textron en banc decision; seeks SCOTUS review

Eleven briefs urging the US Supreme Court to review and overturn the First Circuit's Textron case.  Via Tax Prof Blog, here is Dennis Ventry's take on the panel ruling and via WSJ law blog, here is Ventry's comments on the en banc ruling.  The issue is whether work product protection extends to documents created by attorneys and shared with accountants, assessing the strength of legal positions taken by the client.

Ethics Quiz

PR teachers used to talk about the David E. Kelley show The Practice, which incorporated many well known legal ethics cases as plotlines.  (As I recall there was even a series of teaching materials in development which used episodes from The Practice -- whatever happened to that?)  A colleague of mine, who's much better informed on pop culture trends than I am, recently informed me that the new go-to source for legal ethics on TV is The Deep End, a story involving associates in a law firm who share an office and, apparently, have a much more exciting life than most junior associates at big firms. 

ABC has posted an ethics quiz about last week's episode.  Am I missing something, or is the defense clearly right?  I didn't watch the show, but from the description of the facts it sounds like the client is clearly the corporation, not the CEO (MR 1.13(a)), and the outgoing CEO's possible diminished capacity does not in any way risk harming the company.  The facts state that keeping silent will allow the new CEO to take the place of the elderly CEO -- what's wrong with that, if the board intends to transfer power to the new CEO anyway?  If the question is whether the lawyer should disclose the CEO's possible diminished capacity to his family or others, then why isn't this clearly a prohibited disclosure?  The confidential information about the outgoing CEO's incapacity belongs to the company, not the individual, and there appears to be no predicate for disclosure under MR 1.6(b).  Again, I haven't seen the episode (maybe I should add it to my TiVo), but it seems pretty straightforward on the facts given. 

[Amended to add:]  My colleague the pop-culture maven, who had the benefit of having seen the episode, clarifies that management wants to make the change, and essentially ram through the successor CEO, and that the board would agree with the change only because the outgoing CEO apparently blessed it.  In fact, the outgoing CEO's blessing was obtained only because of his diminished capacity, and the lawyer had reason to know this.  The change in management is an action taken on behalf of the corporation and affects fundamental corporate interests.  It is a decision that the board is entitled to make as a matter of corporate law.  Thus, the lines of authority within the organization permit (and probably even require) the lawyer to address the matter with the board, notwithstanding the desire of management to ram through the new CEO.  If that is the analysis, I don't think you really need 1.13(b) to give the lawyer permission to talk to the board.  Of course, this doesn't mitigate the dramatic tension of the associate being assigned this case by the managing partner, whose loyalties are presumably with corporate management, not the board.

Quote of the day

I was a bit skeptical of the ABA's amendment of Rule 1.10 to allow the screening of laterals, in part because the timing gave it a whiff of "we're just a cartel protecting out members' interests."  As such, I was struck by the ABA President's candor in this month's ABA Journal, explaining that the amendment "is particularly important for the employment prospects of those whose careers are affected by the recession."  I realize that smart, ethical, well-meaning people can disagree about the amended rule's merits, and that there are non-laughable reasons why the amendment might be good for the efficient allocation of legal resources.  But should the merits of a legal ethics rule ever turn on the employment prospects of lawyers?

San Francisco Chronicle calls upon the State Bar of California to investigate a lawyer who has no California license (Prof. John Yoo)

I realize that mass media cannot be held to the same standards of knowledge and analysis we expect of specialists in the field, but what can we make of a major San Francisco newspaper that asks the State Bar of California to investigate and pass judgment on a lawyer who has no California license?

"Lawyer turns snitch"

I won't comment on this bizarre story and blog post until I can find more details, but since it deals with a lawyer wearing a wire to incriminate others I wanted to post the links.