Legal Ethics Forum

Unconventional regulation

The imperfections in the market for legal services are significant.  Most notably, clients often lack information about which lawyers are in fact better than others, and can rely on status heuristics to make consumption choices - e.g.., employing the most expensive lawyer they can afford on the grounds that a higher price must indicate a better lawyer.  While some information problems are difficult to overcome in the legal services market - a client may never know whether she achieved a good result in a case because she had a good lawyer, or whethe she won because any doofus could have won a case that straightforward - here's a website that tries to provide some useful information to consumers of legal services: Solicitors From Hell.  Thanks to Kim Economides for the reference.

I am not sure if websites such as this would truly solve the information problem.  But like Rate my Professor, it may provide some feedback that is useful to the consumers who access it. (On student evaluations and market efficiency see this post at one of my all time favourite blogs (full disclosure, this specific post was written by my sister): Worthwhile Canadian Initiative.)

Could a Justice Kagan Write a Letter of Recommendation for Miguel Estrada?

Sen. Sessions asked Elena Kagan if she thought Miguel Estrada was qualified to sit on the circuit court (Bush 1 had nominated him but the nomination died in the Senate). Kagan said he was qualified even for the Supreme Court. Asked if she would write a letter supporting an Estrada nomination, she said yes. Could she? The Code of Conduct for US Judges says:

"A judge should not lend the prestige of the judicial office to advance the private interests of others..."

Could a judge or justice write in support of judicial nominee? For example, could Justice Stevens have written a letter to the Judiciary Committee urging Kagan's confirmation? And if he could, could a different justice write to the committee and urge a no vote?

I realize the Code of Conduct does not literally bind the Justices but the questions are worth asking.

Indigent Defense in Georgia (Again)

Ga. Capital Case Revives Controversy Over State's Public Defender System

Janet L. Conley, Fulton County Daily Report, June 30, 2010

In an opinion that once again raises concerns about the state's shortage of funds for indigent capital defense, a divided Georgia Supreme Court has sent a death penalty case back to the trial court to determine if a systemic breakdown in the state's public defender system deprived the defendant of counsel.

If the lower court finds that there was a systemic breakdown affecting this particular defendant, an indigent Vietnamese immigrant who allegedly killed another Vietnamese man and his 2-year-old son and severely injured the man's wife in execution-style, back-of-the-head shootings, Justice Harold D. Melton wrote for the majority in the 4-3 decision, then that determination must be factored into an analysis of whether the defendant's speedy trial rights were violated.

In a concurrence, Justice David E. Nahmias appeared to suggest a solution.

"The trial court may take aggressive action to safeguard the public interest and preclude a speedy trial violation ... and the District Attorney has the authority to dismiss the death penalty notice, if that will make adequate funding available to the defense and allow for a speedy trial of this case," Nahmias wrote.

Then Nahmias, a former Northern District of Georgia U.S. Attorney, pointed out the alternative, citing U.S. Supreme Court precedent: "Once a constitutional speedy trial violation is found to exist, however, the remedy will be dismissal of the case."

legal ethics odds & ends (June 30, 2010)

In Walker v. Cromartie, the Supreme Court of Georgia rules that it's not unconstitutional for the state to require professional malpractice plaintiffs (even indigent ones) to file expert declarations with the complaint.       . . . . .       Elena Kagan stressed her devotion to impartiality.       . . . . .       A rural judge with a high school education is removed from the bench, and he cites his lack of education for his mistakes.  (h/t: ALM)       . . . . .       Via the Gallagher Blog, here's news of Prof. Maureen Howard's article, Taking the High Road: Why Prosecutors Should Voluntarily Waive Peremptory Challenges, 23 Geo. J. Legal Ethics 369 (2010).       . . . . .       Georgetown, one of the leading law schools in the legal ethics field, has named a new dean, William Treanor.  (Disclaimer: I'm a 3rd generation Hoya Lawya.)       . . . . .       A Democratic state senator in Florida quit his firm after BP hired the firm.       . . . . .       Plaintiff's counsel caused a mistrial but now objects to the costs and rates of defense counsel.  The order detailing the misconduct is here.  (h/t: ALM)       . . . . .       In Schaff v. State, the Court of Appeals of Georgia reversed a disqualification order in a criminal case.  Key passage:

Donald Schaff is charged with various crimes related to his alleged molestation of M. S., who is also his minor daughter. We granted his application for interlocutory appeal to review the trial court's order granting the State's motion to disqualify defense counsel, Kevin Gough, whom the court determined would be a necessary witness with regard to a videotaped recant of the victim. For the following reasons, we reverse the disqualification order. Schaff also enumerates as error the trial court's order preventing him from interviewing the victim prior to trial, but we discern no error with regard to that enumeration.

New York State Bar names public service fund after Steven C. Krane

A fitting tribute.  Details here.

Second State Adopts Uniform Bar Exam

North Dakota is now the second state to adopt the NCBE's Uniform Bar Exam (following Missouri's recent announcement).  Previous coverage about this potentially important trend is here, here, and here.

Gucci, Guess?, Moss

A magistrate judge in Manhattan rejected Gucci's claim of attorney client privilege for communications between company officers and inhouse "lawyer" Jonathan Moss, who is a law graduate (Fordham 1993) and was a member of the CA bar until 1996 or 1997, and then became inactive. The MJ said that  Gucci failed to check his bar status and was therefore unreasonable.

This decision is wrong. Gucci officers acted reasonably. The fact that they COULD easily have discovered his inactive status (stressed in the opinion and by Guess?) doesn't mean they were unreasonable in accepting that he was a lawyer under the facts of the case. And a lawyer can be inactive one place and active elsewhere. 

Moss had originally been referred to Gucci in 2002 as an inhouse hire by an outside firm (Patton Boggs) and had been practicing at Gucci since, rising to vice president and director of legal services. So he acted and sounded like a real lawyer and except for the stupidity of practicing while inactive in the only state where he had been admitted, he could have fooled anyone. 

One wonders: How many law firms would check his status if he had sought to move to a firm? 

A lawyer can let his status lapse anytime. Active today, inactive tomorrow. Is there an ongoing need periodically to check status?

The district judge gets the final say. I hope she rejects the conclusion.  The idea that checking status on these facts is required for reasonable client behavior is wrong IMHO. 

That aside, Moss is in deep yoghurt. He created this risk for his client. What if any future can he possibly have now?

ABA applauds its successful efforts to prevent Congressional legislation from regulating the practice of law

Here's the ABA's statement celebrating the carve-out in the financial reform legislation that might have otherwise regulated the practice of law.  The text:

 The American Bar Association and its nearly 400,000 members—indeed, all practicing lawyers in the United States—are gratified that the House and Senate conferees on the financial markets reform legislation have recognized the importance of maintaining the historic role of state supreme courts’ regulatory authority over the practice of law.

Practicing lawyers are regulated under strict codes of professional conduct that are enforced at the state level, usually by state bar associations that exercise disciplinary authority delegated to them by state supreme courts.  As “officers of the court,” lawyers are required to adhere to extensive regulations governing all aspects of the practice of law, and those who fail to comply are subject to severe penalties.  There is no need for a federal layer of regulatory authority over these lawyers, as was first proposed in this legislation, and the ABA, along with state and local bars and our concerned members, has been diligent in engaging and assisting Congress on this subject.  Our efforts have paid off.

The bill approved by the Conference Committee provides that the new Consumer Financial Protection Bureau “may not exercise any supervisory or enforcement authority with respect to an activity engaged in by an attorney as part of the practice of law under the laws of a State in which the attorney is licensed to practice law.”

The ABA is profoundly grateful to House Judiciary Committee Chairman John Conyers and Rep. Maxine Waters, who strongly advocated for respecting the interests of the state courts and the practicing lawyers licensed by those courts, while at the same time ensuring full protection for consumer interests.  This was accomplished by tying the practice-of-law exclusion to the existence of an attorney-client relationship with the consumer client.  Senate Banking Committee Chairman Chris Dodd and House Financial Services Chairman Barney Frank ultimately agreed with this perspective, we appreciate their sensitivity to retaining the traditional supervisory role of the states in regulating lawyers.

June 29, 2010 (legal ethics items)

Fewer items than usual, as I've been out of town.       . . . . .       A party to an arbitration cannot file a meritless claim against the assigned arbitrator and hope to get the arbitrator recused for a conflict -- at least not in California.       . . . . .       A Michigan judge's race-conscious decision to reject a defendant's peremptory challenge of a potential juror may result in an ethics investigation of the judge.       . . . . . .       Legal humor: The Reasonably Prudent Law Student has some suggestions about t-shirts jurors should not wear to court, in light of this case.  And Kevin Underhill's Lowering the Bar offers a chewy analysis of a jury trial over those inedible Easter candy's -- Peeps.       . . . . .        K&L Gates says that law is a contact sport and it therefore likes "sassy" lawyers.  (h/t: The Careerist, an ALM blog)       . . . . .      If the Republicans win the House or Senate, this story about the DOJ's handling of a voter intimidation matter -- called the "Black Panther matter in some circles -- will be heavily investigated.

legal ethics bits and pieces (June 28, 2010)

A $500 million malpractice suit against Charbourne was tossed out. (h/t: American Lawyer Media)      . . . . .        If it's hard to be accepted at Yale Law School, it's essentially impossible at Princeton Law School.  But you have to applaud the initiative of someone who applied there.      . . . . .       We keep hearing about sanctions in e-discovery matters, but is it possible that the sanctions don't happen often enough?  Jason Krause, writing specially for ALM, explores that possibility.  In a related vein, here is Gibson Dunn's mid-year 2009 update on e-discovery cases.       . . . . .       From Nigeria, here's an article about discrimination against women in the legal profession.       . . . . .         In Sangamon County, there is discussion about whether a judge committed a crime or breached ethics rules by fixing a ticket for a daughter of another judge.  (What would Abe Lincoln think?)  I once asked a new judge what she had learned about judicial ethics at her training, and she said that one of the first things she was told was, "don't fix tickets, don't fix tickets, don't fix tickets."