Legal Ethics Forum

No Privacy in Emails?!

Posted On: March 17, 2010 by Kish & Lietz

Eleventh Circuit Holds No Expectation of Privacy in Delivered Email Messages

Last week in Rehberg v. Paulk, the Eleventh Circuit held that sending “emails to third parties constitute[s] a voluntary relinquishment of the right to privacy in that information.” In this case, the investigators subpoenaed the emails directly from the Internet Service Provider (ISP) through which Rehberg transmitted his messages. The Court held that he did not have a valid expectation of privacy in the email information, so he failed to state a Fourth Amendment violation.

This ruling might be a dangerous precedent, for several reasons. First, the Court of Appeals says that none of us has any privacy in our emails the moment we hit the ‘send’ button. Second, this means that the government can get our otherwise private messages from every ISP we use to connect us with the outside world. This ruling represents one more step towards a lack of privacy, and in favor of the government’s ability to intrude into our lives.

The opinion in Rehberg v. Paulk is here.
A lengthy analysis by Orin Kerr on why the Eleventh Circuit got this wrong is here at the Volokh Conspiracy.

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Posted In: Criminal Justice Issues , Eleventh Circuit Court of Appeals , Federal Criminal Law News , Fourth Amendment

Prosecutors who do or don't seek publicity

Over at Huffington Post, Adam Goldberg and Joshua Draper have a run-down on prosecutors who've been conspicuous for seeking publicity.

Overlawyered at the SEC?

Over at Conglomerate, Gordon Smith comments on this NYT interview with a would-be whistleblower who says that the SEC is overlawyered -- that lawyers lack the technical competence in finance that is essential for sound regulation.  The post ties together two themes you often hear these days: that we over rely upon lawyers to make decisions that ought to be left to technical experts and that the law school of the future is the interdisciplinary school that graduates lawyers with deep knowledge of non-law field.

Paula Schaefer, "Harming Business Clients with Zealous Advocacy: Rethinking the Attorney Advisor's Touchstone.”

In the wake of the OPR report on John Yoo, we discussed whether the counselor/advisor rule (2.1) was too “thin” or if it might be read holistically.  Little did we know that Paula Schaefer had been nearing completion of this article, “Harming Business Clients with Zealous Advocacy: Rethinking the Attorney Advisor's Touchstone.”  Abstract:

Joseph Collins was a successful business lawyer, with a sophisticated practice at Mayer Brown LLP. In January 2010, Collins was sentenced to seven years in prison for his role in a massive fraud that cost investors millions and sent his client Refco, Inc. into bankruptcy. At sentencing, the judge reportedly stated, “I think this is a case of excessive loyalty to his client.” Collins’ own testimony reflects a lawyer who believed he was zealously representing his client's interests. But in reality, Collins’ conduct was not “loyal” to his client. He contributed to his client’s destruction.

With the Collins example and others, I argue that business lawyers act as zealous advocates to their own clients’ peril. I explain that professional conduct rules are central to the problem. The advisor’s duties are relegated to a single rule that provides scant direction about how to advise. In the absence of direction, lawyers fill in the gaps with zealous advocacy. After examining the problems of the zealous advocacy mantra, I suggest that “fiduciary duty” would be a preferable touchstone for attorney-advisors. While it is true lawyers are already fiduciaries, fiduciary duty is not the focus for most lawyers. I argue that it should be. Using fiduciary duty as a framework, I propose professional conduct rules that would provide direction to business lawyers that is more consistent with their clients’ interests. 

Richard Painter: "The John Adams Analogy"

Richard Painter has forwarded this post:

In their rightful condemnation of a thoughtless vilification campaign,
defenders of the DOJ lawyers who previously represented detainees point in
their letter to a famed representation by John Adams “The American
tradition of zealous representation of unpopular clients is at least as old
as John Adams’s representation of the British soldiers charged in the
Boston massacre.”

Nobody could reasonably question John Adams' patriotism because he
represented these clients --Captain Preston and his men -- in what was a
capital case of murder. As I point out in my casebook with Judge Noonan,
however, there were conflicts of interest that compromised the quality of
the representation.

One set of conflicts arose between Captain Preston and his men, who
arguably should have been represented by separate counsel. Captain Preston
could have defended the case by claiming the men fired without his orders.
This conflict was apparent to the men at the time, and they were worried
that Captain Preston’s defense would leave them hanging -- literally. One
of the men, named Kilroy, petitioned for a joint trial with Captain
Preston. If there had been separate trials and separate counsel, it is true
that the men could have defended the case by claiming that Captain Preston
ordered them to fire, subjecting them to court martial if they did not
obey. It turned out that Adams and Quincy represented both Captain Preston
and his men, precluding either of these lines of argument. The case would
have to proceed on the argument that both Captain Preston and his men were
innocent because the crowd had threatened them.

This, however, was difficult because of another set of conflicts. Adams and
his family were very close to the patriots who had challenged the
soldiers’ presence in Boston and who may have instigated the unruly crowd
that allegedly attacked the soldiers. Adams’ co-counsel in the case,
Josiah Quincy had similar conflicts as his brother Samuel Quincy was
employed by the prosecution. For Adams and Quincy to condemn the actions of
the crowd in order to show they were threatening the soldiers would be
difficult without condemning the townspeople in general. The crowd
allegedly included people who were throwing objects at the soldiers, and
some people in the crowd may have been drunk. John’s cousin Sam – a
figure more familiar to 21st Century law students than John – was a
supplier of beer, and after the shooting Sam was actively urging
prosecution of the soldiers.

We are critical in Chapter 7 of our casebook of the strategy that Adams
used at trial to deal with this conflict. First, he may have held back on
evidence prejudicial to the townspeople in order to avoid putting his
fellow Bostonians in a bad light. As one observer, named Hutchison, pointed
out:

"The employing counsel who were warmly engaged in popular measures caused
some of the evidence to be kept back which would otherwise have been
produced for the prisoners. The counsel for the crown insisted upon
producing evidence to prove the menaces of the soldiers preceding the
action, and the counsel for the prisoners consented to it, provided they
might have the like liberty with respect to the inhabitants. After the
evidence had been given on the part of the crown, and divers witnesses had
been examined to shew the premeditated plan of the inhabitants to drive out
the soldiers, one of the counsel, Mr. John Adams, for the prisoners then
declined proceeding any further, and declared that he would leave the
cause, if such witnesses must be produced as served only to set the town in
a bad light. A stop therefore was put to any further examination of such
witnesses, by which means many facts were not brought to light . . . .."

Second, Adams found a way of condemning the crowd without condemning the
townspeople of Boston, or at least the elements with which his family and
Quincy’s family were associated. He portrayed the crowd as outsiders and
appealed to juror prejudice in his closing argument when he describes the
crowd as "a motley rabble of saucy boys, negroes and mulattoes, Irish
[t]eagues and out landish jack tarrs." Referring to Crispus Attucks, one of
the persons killed, Adams said, "[s]upposing in this case, the Mulatto man
was the person made the assault, suppose he was concerned in the unlawful
assembly, and this party of soldiers endeavoring to defend themselves
against him, happened to kill another person who was innocent...." There
was no evidence in the record that Attucks in particular threatened anyone.
Adams compensated for not "putting the town on trial" by blaming the
incident on a portion of the town, including persons of Irish and African
descent. Then, as now, prejudices run deep in Boston. Adams won his case.
He had managed his conflict of interest by playing the race card.

The lesson to be learned from the Boston Massacre trials is that conflicts
do matter. Although Adams still should have accepted the representation –
he and his co-counsel Quincy may have been the only lawyers in Boston with
the courage to do so – the conflicts of interest were real and some of
those conflicts arose because of Adams’ loyalty to the Patriot cause.
Those conflicts had a genuine impact on the representation. He won
acquittals, but at a cost.

The types of conflicts that would have been more pertinent to the current
controversy over DOJ lawyers apparently did not occur. They would have
occurred if Adams had represented Captain Preston against the government
and then joined the government's prosecution of the men who took or were
supposed to take orders from Captain Preston. It would not matter if
Captain Preston and his men were detained in separate jails or tried in
separate trials. Adams’ subsequent representation of the government would
have been wrong. An arguably more remote – but still genuine -- conflict
would have arisen if another group of soldiers under the same command as
Captain Preston – and acting on similar instructions from British
military superiors -- had shot and killed some colonists somewhere else. It
would still have been improper for Adams to be employed by the prosecution.
He could, for example, have learned from Captain Preston some details about
what precisely the orders from British military superiors were that
soldiers in these situations were acting upon and the extent to which
soldiers who fired upon crowds were acting without authorization. Based on
information he learned from his prior client, he could have penetrated deep
into a subsequent defense case built upon at least this premise and
probably others as well.
   

Richard Painter's Curious Letter to the NYT

In a letter to the New York Times today, Richard Painter, my friend and co-author on a law review article, argues that lawyers in the Justice Department who had represented accused terrorists in private life should not work on terrorism matters - apparently at all - at Justice. They "should work on other matters."

Why? Because the "government has stated that most of these people are acting in concert, and that information obtained from interrogating one detainee has led to the apprehension of others." In effect, having worked for one, a lawyer will have worked for all because the terrorists act in concert.

It may be that Richard means only that the lawyers cannot represent the U.S. "in its effort to detain, interrogate, or try"  any alleged terrorists. That would not exclude policy work that is not specific to any investigation, trial, ec. But the last line - "they should work on other matters" - suggests Richard is saying they may not even work on terrorism-related  policies apart from specific matters.

Richard is identified as a law professor at Minnesota and chief White House ethics lawyer 2005-2007, bolstering his credibility on these issues.

I think Richard is wrong in so far as he is saying that because terrorists are all "acting in concert," we should treat all terrorists as if they were one client for conflict purposes, without further inquiry into the relationship in fact between cases.

 And I believe he is certainly wrong in then concluding, as I read him to say, that the Justice Department lawyers may not now have any role whatsoever in terrorism policy or matters at Justice.

If Richard means only that this is what the Department's policy "should be," not what it must be and not what the conflict rules require, then his letter has a very different focus and is much weaker. But I don't read it that way.

[CO-EDITOR's UPDATE: In the comments below, Richard Painter was kind enough to respond to Steve Gillers's post.]

NY Lawyer Advertising Restrictions Invalidated

Noeleen G. Walder, Media Watch, 03-15-2010

In rejecting the bulk of New York's content-based restrictions on attorney advertising, the U.S. Court of Appeals for the Second Circuit today held that a ban on the use of nicknames like "Heavy Hitters" or client testimonials about pending cases violates the First Amendment.

The circuit also held that preventing lawyers from employing special effects or portraying a judge in an ad did not "materially advance" the state's interest in prohibiting misleading speech.

"The speech that Defendants' content-based restrictions seeks to regulate—that which is irrelevant, unverifiable, and non-informational—is not inherently false, deceptive, or misleading. Defendants' own press release described its proposed rules as protecting consumers against 'potentially misleading ads,'" the panel wrote in Alexander v. Cahill, 07-3677-cv, 07-3900- cv.

The ruling primarily affirms the July 2007 decision by Northern District Judge Frederick J. Scullin (NYLJ, July 24, 2007) 

The appellate panel disagreed with Judge Scullin in finding that one provision of the rules, which bars ads from portraying a "fictitious law firm" or "the use of a fictitious name to refer to lawyers not associated together in a law firm" was "actually misleading" and not entitled to First Amendment protection.

The panel also upheld a portion of the rules requiring attorneys to wait 30 days after accidents before targeting advertising to solicit personal injury clients.

The rules, which went into effect on Feb. 1, 2007, and are codified in New York's Code of Professional Responsibility at 22 NYCRR §1200, were adopted by the four state Appellate Divisions and challenged by Alexander & Catalano, a Syracuse-based personal injury firm, as well as Public Citizen Inc.

The circuit opinion was written by Judge Guido Calabresi and joined by Judge John M. Walker Jr. Judge Sonia Sotomayor was the third member of the panel before being elevated to the U.S. Supreme Court last year.

A lawyer provides bad advice and it works.

Thanks to Neil Wilson at The Court for highlighting this issue.

 Last week the Supreme Court of Canada issued a decision holding that the government of the Northwest Territories was not negligent when it failed to close down a mine in the midst of a long and violent strike involving the use of replacement workers. A striker had ultimately entered the mine and planted a bomb, which detonated, killing 9 miners.  The Court held (2010 SCC 5) that while the Government owed a duty of care, and had had the legal authority to shut down the mine given the known and clear safety issues that had arisen, it was not negligent in failing to do so because it had relied on a legal opinion that it lacked that legal authority.  The fact that the legal advice was wrong - and it appears badly wrong - was not relevant.  The Court said:

But in the context of allegations of negligence against those responsible for regulating mine safety, the fact that this advice was received and acted on cannot be dismissed, as the trial judge did, as being of "no consequence” (para. 834). This advice goes precisely to the issue of whether the government took reasonable care in deciding not to close the mine. It will rarely be negligent for officials to refrain from taking discretionary actions that they have been advised by counsel, whose competence and good faith in giving the advice they have no reason to doubt, are beyond their statutory authority: see, e.g., Dunlop v. Woollahra Municipal Council, [1981] 1 All E.R. 1202 (P.C.), at p. 1209; Stafford v. British Columbia, [1996] B.C.J. No. 1010 (QL) (S.C.), at paras. 78‑81.  In the context of this case, the opposite view leads to alarming results, as the trial judge's holding here demonstrates. The effect of the trial judge's holding is that officials may be found to have acted negligently by refraining from taking action that they believed in good faith and on the basis of reputable, professional legal advice, to be unlawful.  In other words, the law of negligence would require the inspectors to take action which they believed abused their powers.  This cannot be the law. There is no argument advanced on behalf of the appellants that it was unreasonable for officials to rely on the advice received or that they did not seek or rely on it in good faith.

The issue this raises for me is as to the impact this has, if any, on the lawyer's ethical obligations in the circumstances.   I can consider this two ways.  First, I think it is clear that the lawyer has an ethical duty not to provide incompetent legal advice, even if nothing bad will happen to the lawyer (or even the client) if the lawyer does so.  Given the facts, and the analysis elsewhere in the Supreme Court's judgment, this advice seems to have been bad, if not actually incompetent.   And of course it had horrible consequences, in the form of 9 dead miners and increased political turmoil.  I think it is reasonable to conclude that the lawyer owed an ethical obligation to give better advice than he did.  Second - and this is the sticking point - can the lawyer in that situation be properly subject to disciplinary consequences?  I am as confident as I can be that the lawyer will not face any such consequences.  

But if the lawyer does not, then what regulatory mechanism exists to prevent the giving of this sort of advice?  Not only is the advice not injurious to the client, it actively benefits the client.  This creates at minimum an incentive for the advice to be given, or at least for little attention to be paid to its quality.  Some might even argue that a lawyer truly seeking to achieve the best legal outcome for the client is ethically obligated to give the advice, no matter how bad.  

The window left in the judgment is the idea that it must be reasonable for the government official to rely on the advice received, that the advice must be given by a "reputable, professional" advisor and that it must have been sought in good faith.  If the advice was bad enough - "not even wrong", to quote the physicist Wolfgang Pauli's description of a colleague's paper - it may not provide the defence for which it was sought.  In my view this, in the end, is far more likely to achieve the regulatory result of incenting lawyers to give good advice than is disciplining lawyers.  It is unfortunate that the Court framed that window so narrowly.

Susan Saab Fortney, "Leaks, Lies, and the Moonlight: Fiduciary Duties of Associates to Their Law Firms"

Article here.  Abstract:

This symposium article examines the fiduciary duties of law firm associates. After applying agency principles to the firm-associate relationship, the article analyzes specific duties and discusses cases involving alleged breaches of fiduciary duties by associates. It explores associate duties in the current legal, organizational, and socio-technological environment in which associates practice. The article closes with observations on the importance of firm principals considering the effect of firm culture on associate attitudes and conduct.

Should NJ relax the rule against contingency fees in criminal and quasi-criminal matters?

George Conk takes a look at the issue.