Legal Ethics Forum

Ernest Lidge, "Client Interests and a Lawyer's Duty to Expedite Litigation: Does Model Rule 3.2 Impose Any Independent Obligations?"

Article here.  Abstract:

Rule 3.2 of the American Bar Association's Model Rules of Professional Conduct ("Model Rules") requires lawyers to "make reasonable efforts to expedite litigation consistent with the interests of the client," while other rules impose complementary obligations. How far does this duty to expedite litigation extend? Is the client's interest an absolute defense to the charge of failing to expedite litigation, or are there some client interests that do not justify a lawyer's use of delaying tactics?

Deborah Rhode on leadership for lawyers

Her thoughts -- and criticism of the profession for failing to teach leadership skills -- are here.

More posts about Holder v. Humanitarian Law Project

Renee's post was here, and since then we've seen some skeptical posts at Volokh, Lawyers, Guns & Money, and Opinio Juris.

The state of Louisiana's inability to offer contingency fees to private lawyers concerning the BP spill

[Edit: This post was by John Steele.  Apologies for the posting error.]

Interesting post on this topic -- Louisiana is a state where the government cannot offer private practice lawyers contingency fees -- at California Attorney's Fees Blog.  Plus, a funny video.

legal ethics in the news (June 27, 2010)

In Kidwell v. Sybaritic, the Supreme Court of Minnesota rejected a suit by an in-house lawyer who claimed to be a whistle-blower.  The court declared:

The court of appeals reversed, holding that Kidwell did not engage in conduct protected by the whistleblower statute because he was fulfilling the responsibilities of his position of employment when he reported a suspected violation of the law. Kidwell v. Sybaritic, Inc., 749 N.W.2d 855, 866-67 (Minn. App. 2008). Because we conclude that Kidwell did not offer evidence from which a reasonable jury could conclude that he engaged in protected conduct, we affirm.

  . . . . . .       In San Francisco, the DA has filed a motion to recuse the judge -- who's married to a criminal defense lawyer -- in a long-running battle over a disgraced crime lab.       . . . . .       NY State Bar created a task force to look at changes to the profession.  (h/t: ALM)       . . . . .       A graduating law student from Berkeley offers applicants some advice: go top 10 or go as cheaply as you can.   (h/t: Nuts & Boalts)      . . . . .       Stats of our times: a West Palm Beach law firm received 1,200 resumes for 5 summer slots.       . . . . .       Here's some more info on Judge Feldman's stock ownership interests.       . . . . .       The UK's new legal profession ombudsman will open up shop in October 2010.       . . . . .       Legal ethics prof and PR  textbook author, Ron Rotunda, will be called by the Republicans at the upcoming hearings on the Kagan nomination.  I assume he will speak to jurisprudence and constitutional law rather than ethics, but we will see.

"Honest services" theories of fraud are trimmed back

Lots of coverage at the Conglomerate, White Collar Crime Prof Blog, and elsewhere, about the US Supreme Court's cases trimming back the "honest services" theory of fraud.  Over the years, the theory was sometimes the focus of claims that prosecutors were over-reaching.

Blaming the lawyers doesn't help convicted CEO

ALM is carrying this article about Brocade's former CEO, Gregory Reyes, who was convicted in a backdating scandal.  At the sentencing, the strategy of blaming the lawyers for bad advice didn't work.

Robert F. Cochran, Jr., "Collaborative Practice’s Radical Possibilities for the Legal Profession: '[Two Lawyers and Two Clients] for the Situation"

Article here. Abstract:

Collaborative Practice (CP) significantly changes the way that legal disputes are resolved from beginning to end. CP is a dramatic shift from the way law is generally practiced today in the United States and it has the potential to transform that practice. Cochran considers the two dramatic changes that CP brings to law practice: a change in the mental attitude of lawyers and clients toward the conflict and a change in lawyers’ counseling techniques. Part Two of the article defines CP and compares it to traditional negotiation-pending-litigation (NPL). Part Three considers the change in attorney and client mental attitudes wrought by CP, where both lawyers and clients take responsibility for identifying a resolution that will meet the needs of all of the parties. Part Four considers the type of client-counseling that is often generated by CP - lawyers in CP may strongly encourage clients to find a resolution that meets the needs of all of the parties. Cochran concludes with a consideration of the possible future of CP.

SCOTUS Curtails F-cubed Securities Litigation

The Supreme Court ruled today that foreign plaintiffs cannot sue a foreign defendant for securities fraud under 1934 Act Section 10(b) over securities purchased outside the United States (so called f-cubed securities litigation).

This holding does not directly pertain to legal ethics, but has a lot to do with how the U.S. legal profession is viewed by the rest of the world.  It is one thing for U.S. lawyers to earn a living handling disputes between persons in this country or involving securities purchased in this country.  Our litigation system may be too expensive, or our lawyers' fees too high, but that is our business.  It is another matter for the U.S. to set itself up at the forum for securities claims from around the world and therby impose our system on others.

I was the principal author of a law professors' amicus brief in support of NAB in this case. Twenty-one law professors signed the brief.  Douglas Dunham of Skadden Arps in New York was counsel of record for the law professors who signed the brief.  We urged the bright line rule that the Court adopted in its holding today --   "Amici respectfully submit that the Court should affirm the result reached by the Second Circuit and establish a bright line rule limiting the application of rule 10(b) to securities bought or sold in the United States."  Brief at 31.

The Court affirmed the Second Circuit ruling 8-0, but a majority of the Court did so on considerably broader grounds than the Second Circuit opinion.  Justice Scalia's opinion for the Court holds that Section 10(b) applies only to "transactions in securities on domestic exchanges, and domestic transactions in other securities," slip op. at 18 -- and not to transactions outside the United States. The opinion is on the Supreme Court web site:  

http://www.supremecourt.gov/opinions/09pdf/08-1191.pdf

The law professors' amicus brief is here:

Download Law Professors' Brief

Bankruptcy conflict: global firm represents largest creditor and may not represent debtor

Bankruptcy conflicts raise some complicated issues, as where GE, the largest creditor, was represented by the global firm, DLA Piper, that wanted to represent the debtor.  The court found the conflict insurmountable.