Legal Ethics Forum

Supreme Court of Canada decision on lawyer withdrawal from criminal proceedings

The Supreme Court of Canada has issued a significant decision on the question of judicial authority over withdrawal by counsel in scheduled criminal proceedings: R. v. Cunningham 2010 SCC 10 .  In a unanimous decision, the Court overturned the Yukon Territory Court of Appeal judgment that had held that a court has no jurisdiction to ask a lawyer why she is withdrawing, and no jurisdiction to require the lawyer to continue with proceedings.  

The Supreme Court held that both superior (inherent jurisdiction) and statutory courts have jurisdiction to require counsel to continue, that asking counsel about the reasons for withdrawal does not violate privilege, and requiring counsel to continue does not create an improper conflict of interest or interfere with independence of the bar.  The Court held that where counsel seeks to withdraw sufficiently in advance of proceedings such that an adjournment would not be necessary, the court should permit withdrawal without requiring counsel to give reasons.  Where timing is at issue, and counsel states that the withdrawal is for ethical reasons, then “the court must accept counsel’s answer at face value and not enquire further so as to avoid trenching on potential issues of solicitor-client privilege” (para. 48).  “Ethical reasons” include a request by the client that the lawyer violate ethical obligations or refusal of the accused to accept advice of counsel “on an important trial issue” (para. 48).  The Court must grant a request to withdraw for ethical reasons (para. 49).  Where withdrawal is for non-payment of fees, permission to withdraw lies in the court’s discretion; the discretion should take into account the feasibility of self-representation, the availability of alternative representation, the impact of delay, the conduct of counsel and the history of proceedings.  Since none of these factors involve matters specific to the lawyer-client relationship, considering them will not breach privilege.  

This decision is in line with most other provincial appellate court decisions.  What is of note, however, is the court's decision that withdrawal for ethical reasons must be granted, and that the court may not inquire into the nature of those reasons.  My understanding is that practice in many trial courts has been for courts to ask questions, of the lawyer and of the client, as to the reasons for withdrawal even when they are said to be "ethical" in nature.  It will be interesting to see whether practice follows the judgment of the Supreme Court in this respect.  

Also of note - although a sidebar to the main issue - is the decision of the court that information about fees is not privileged in this context.  Two earlier SCC decisions (in the context of law office searches) have held that fee information was privileged.  The Court held here that fee information is only privileged where it is material to the subject matter of the representation.

I have a longer comment on this judgment that will be posted at ABlawg tomorrow.

Court Holds Lawyer's Misadvice Constitutionally Incompetent, but Declines to Decide Issue of Prejudice

The Supreme Court issued an opinion in Padilla v. Kentucky today (see previous posts on this case here and here). 

As background, the petitioner, Jose Padilla, had been a lawful permanent resident of the United States over forty years (and served in the in the U.S. military during the Vietnam War) when he was indicted in 2001 on three drug counts related to the trafficking and possession of marijuana.  He sought advice from his attorney, asking specifically about the consequences of a guilty plea.  His attorney assured him that deportation was not a concern because of the length of time he had been in the country.  But the advice from Padilla's attorney was wrong, and he was subject to deportation.

Justice Stevens delivered the 7-2 majority opinion (with Justice Alito filing a concurring opinion in which Chief Justice Roberts joined).  Justice Scalia authored a dissenting opinion in which Justice Thomas joined.

The majority held that a lawyer is required under the Sixth Amendment to inform a client whether a plea carries a risk of deportation, but declined to find whether Padilla was prejudiced by his attorney's failure to do so in this case. As Justice Stevens explained:

We agree with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation.  Whether he is entitled to relief depends on whether he has been prejudiced, a matter that we do not address.

Mark Cuban strikes back at SEC lawyers

Story at the WSJ blog.  You have to be careful with email chatter -- especially non-privileged email chatter.

The Wisconsin diploma privilege settlement

Christine Hurt breaks it down, at the Conglomerate.

New Jersey weighs in on privilege when using company email account

Legal Profession Blog reports on this issue.  Result: such emails may still be privileged in NJ, so don't read what isn't yours!

New Jersey nixes virtual offices?

George Conk reports on an advisory opinion from New Jersey that appears to shut down the "virtual office" option.  I had a strong negative reaction to the opinion, although I agree that lawyers ought to be "find-able" by courts, clients, opponents, etc. Your thoughts? 

Legal vs. Political Action by the President

My reading list is getting longer!  At the New Republic book reviews website, Eric Posner has a review of a new book by Benjamin Kleinerman, The Discretionary President:  The Promise and Peril of Executive Power.  Kleinerman argues that the President has extra-constitutional (that is, extra-legal) power to violate the law during emergencies.  If the emergency is perceived as genuine and severe by the public, the President's decision will be ratified after the fact, but if the President overstepped his political (not legal) authority, he is subject to impeachment.  This combination of (1) the distinction between legal and political authority, and (2) the power of the electorate to impeach (and I would add, simply to vote against) the President, is what prevents the President's extra-constitutional power from becoming dictatorial or monarchical.  Thus, when Lincoln issued the Emancipation Proclamation, his extra-constitutional act was legitimated by its ex post acceptance by the public. 

This book is important to those of us who think about the legal ethics issues involved in advising officials in the executve branch of government.  As I have been arguing, there was a dangerous tendency within the Bush Justice Department (and maybe this is common to all executive branch lawyers during times of perceived national emergencies) to conflate the scope of lawful power with "that which is necessary to protect American lives."  While of course I concede that protecting citizens is one of the essential roles of government, I also think it is important to resist the inference that anything that effectively protects citizens is, for that reason, lawful. 

Center-left legal critics of the Bush administration, including well known commentators like David Luban, Scott Horton, and Marty Lederman, face what I would call the "Jackson problem."  The Jackson problem is posed effectively by Jack Goldsmith in his book, The Terror Presidency, and it is basically this:  If we criticize John Yoo and Jay Bybee for distorting and manipulating the law to purportedly authorize conduct like torture, extraordinary rendition, indefinite detention, and warrantless wiretapping, then what do we think about Attorney General Robert Jackson's legal advice to FDR, permitting the transfer of destroyers to Britain, in violation of then-existing neutrality laws?  Goldsmith, who wants to distinguish Yoo's advice from Jackson's, has a set of procedural criteria for legitimate extra-legal action.  He notes that FDR went to the American public to educate them about the importance of the transaction, consulted widely with Congress (including with political opponents in Congress), and sought a narrowly tailored power that would not create a precedent for future extra-legal action.  (Terror Presidency, pp. 198-99.)  He contrasts the Bush administration's go-it-alone approach, its lack of concern with public credibility, and its "open chest-thumping about the importance of maintaining and expanding executive power" (p. 210). 

But does Goldsmith claim that the destroyers deal was lawful?  I'm not certain, but I think maybe not.  He writes:  "Because the law is not always designed for or up to the task of the crisis, successful leadership sometimes requires bending or breaking the law" (p. 203).  If that's his position, I agree with it.  FDR's decision may have been politically legitimate, but that does not make it legal.  Although he doesn't make this explicit, Goldsmith's position would seem to entail that Jackson acted unethically by providing the advice that the destroyer deal was legal.  Kleinerman's book seems to be saying something similar, which makes it worth checking out.  More generally for legal ethics, it is worth taking seriously the idea that one's clients in the executive branch may have permissions and even obligations to act extra-legally, but that one's duty as a lawyer is still to give advice with reference to the law. 

articles on Caperton, the OLC, and aggregate litigation

James Sample, "Caperton: Correct Today; Compelling Tomorrow."  Abstract:

 This symposium article asserts that Caperton v. A.T. Massey Coal Co. is correct in result; correct in its narrowness; and correct in calling on courts to be more rigorous in recusal than due process requires. The article argues that Caperton is a model of judicial restraint and that, paradoxically for a decision overturning a state justice‟s non-recusal, the majority‟s approach is a model of cooperative federalism. These characteristics are particularly exemplified by the degree to which the opinion tracks the counsel offered by the Conference of Chief Justices, both as to what the opinion decides, and as to what it does not decide. Second, the article asserts that the breadth of support for the petitioners in Caperton, combined with state-level developments in the decision‟s aftermath, support the proposition that the decision‟s greatest impact will be not as dispositive precedent in itself, but in spurring greater vigilance in recusal, both systemically and among individual jurists.

Erichson & Zipursky, on aggregate litigation, "Consent versus Closure."  Abstract:

Claimants, defendants, courts, and counsel are understandably frustrated by the difficulty of resolving mass tort cases. Defendants demand closure, but class certification has proved elusive and non-class settlements require individual consent. Lawyers and scholars have been drawn to strategies that solve the problem by empowering plaintiffs’ counsel to negotiate package deals that effectively sidestep individual consent. In the massive Vioxx settlement, the parties achieved closure by including terms that made it unrealistic for any claimant to decline. The American Law Institute’s Principles of the Law of Aggregate Litigation offers another path to closure: it proposes to permit clients to consent in advance to be bound by a settlement with a supermajority vote. This article argues that, despite their appeal, both of these strategies must be rejected. Lawyer empowerment strategies render settlements illegitimate when they rely on inauthentic consent or place lawyers in the untenable position of allocating funds among bound clients. Consent, not closure, is the touchstone of legitimacy in mass tort settlements.

Bradley Lipton, "A Call for Institutional Reform of the Office of Legal Counsel."  Abstract:

The Office of Legal Counsel (OLC) is extraordinarily powerful, standing as the legal arbiter of what the executive branch can and cannot do. Yet during the administration of George W. Bush, the office sanctioned legally unsound policies. This Essay explains what went wrong in the Office of Legal Counsel during the Bush Administration and suggests institutional reform to prevent such problems in the future. I begin by showing how OLC’s conduct violated widely held norms within the legal community. Though many observers have focused on OLC’s actions authorizing torture, this Essay contends that the office’s role permitting warrantless wiretapping within the United States was a unique violation of lawyerly values. The Essay then analyzes the source of the problems within OLC. I argue that the structure of OLC has lent itself to being particularly political. To remedy the situation, OLC should be restructured to attract a corps of less partisan attorneys who remain at the office for a longer period of time.

what's going on (March 29, 2010)

The ABA Journal, on cloud computing. And here's a report from MacLawyer on the ABA Tech Show 2010.     .  .  .  .  .     Letting outside investors take ownership interests will lead to money-launderers and drug barons running firms?  Really?     .  .  .  .  .     A story of two Vietnamese women who took to the law to make social change.     .  .  .  .  .     In my searches for foreign websites about the profession, I've run across Advocatus, which aggregates news about the Portuguese profession.     .  .  .  .  .  

Outside the Box v. Travel Caddy

In this Federal Circuit decision (2/1/2010):

A lawyer for King & Spaulding had been an expert witness for plaintiff in the trial court in connection with an application for counsel fees form defendant. Counsel fees were denied.

 On appeal of that issue, K&S lawyers first appeared to represent the defendant and plaintiff moved to disqualify the firm because of the trial court affidavit of a K&S lawyer as its expert.

The parties argued over whether the expert had an attorney-client relationship with the plaintiff. The court thought not. I agree.

However, it also concluded that the firm (as defendant's counsel) would now be in a position of having to challenge the credibility of its own lawyer's expert opinion, warranting disqualification absent waiver by defendant which was not shown.

Three interesting things here: First, plaintiff moved to disqualify the firm but the court did not find any violation of a duty to it, only to the defendant. The defendant resisted the disqualification. Why would the court opt to "protect" the defendant on plaintiff's motion?

Second, why didn't the court cite the advocate witness rule, which will sometimes impute a an advocate/witness conflict throughout a firm? Perhaps the answer is that imputation of an advocate/witness conflict depends on Rule 1.7 which the court did cite. 

But it's still curious that the plaintiff was able to win disqualification because of the firm's conflict with the defendant, who did not protest. Can the defendant now file a waiver? Apparently not because the court ordered the defendant to return with new counsel.

Third, and most curious, once the motion to disqualify was filed, why didn't the defendant (or K&S) anticipate the court's eventual line of reasoning and submit an informed consent from the defendant?  While the court's basis may not have been part of the plaintiff's motion, it was foreseeable that the court might pursue this line (whether it should have done so is another matter). The issue could have been addressed and a waiver offered.