Legal Ethics Forum

The briefing begins on inequitable conduct (Therasense)

Patently-O has the details.

California's rules revision leaps forward; Board approves most new rules, calls for public comment on seven rules

News here.

It seems that the Board of Governors did not adopt the mandatory reporting rule.  But the vast majority of the new, ABA-based rules were adopted, and I hope that the Supreme Court of California will soon give its approval of the new rules. 

Indiana - Bloomington announces endowed chair in legal ethics

Indiana University Maurer School of Law Dean Lauren Robel announced today that an entrepreneur with close family ties to Indiana University has endowed a Chair in Legal Ethics at the school in honor of a lawyer through whom he came to understand and appreciate the benefit of "trusted counsel."

Lea Vandervelde, "A Singular Conscience: In Re Summers"

Article.  Abstract:

This article tells the story behind In Re Summers, 325 U.S. 561 (1945) in which Clyde Summers was denied admission to practice law in Illinois based on a finding of unfit character because he elected conscientious objector status and declared that he could not kill another human being. Summers initiated his own appeal and the U.S. Supreme Court upheld the Illinois decision reaffirming that admission to practice law could be denied on these grounds. The story richly illustrates the circumstances of an individual taking a different course because he senses ideas that have not yet become generally understood. Such persons of singular conscience do not fit the categories of logic, law and convention that have gone before, as an analysis of the case demonstrates.

This long neglected decision has never been overturned. The decision permits states to single out principled individuals and disqualify them from occupations. Also at stake is the free exercise of religious conscience.

Secondly, the case invokes an ancient understanding of what it means to be a lawyer, “the lawyer-warrior.” The discursive exchange at the controversy’s heart can be read as marking the emergence of a new, contrasting view, “the lawyer-peacemaker.” The “lawyer-warrior,” a conventional model for attorneys in an adversarial system, had a significant hold on the minds of the Board on Character and Fitness. Although Summers did not prevail, in the process, at an early date, 1943, he articulated a remarkably modern view of the lawyer as problem-solver. 

In 1873, sixty years before Summers, the same state declared Myra Bradwell unfit to practice law because she was a woman, a decision also upheld by the U.S. Supreme Court in Bradwell v. Illinois. The two cases share an interesting connection: the prescribed role for the lawyer-warrior in the adversarial system is quintessentially male. If the test is the willingness of a person to take a human life, Summers justifies excluding women from the bar and many men as well.

Legal Ethics items (July 28, 2010)

• From ALM, "Courts differ about retroactive effect of [Padilla v. Kentucky]."  The majority opinion predicted that there would ultimately be no flood of collateral litigation, but I assume that everyone knew that, at least initially, there would be plenty of incarcerated prisoners who believed that they had not been adequately counseled on the collateral effects of guilty pleas on their immigration status.
• Law Firm Risk Management Blog looks at an amendment to the conflicts rules in England and Wales that permits solicitors to use information barriers to permit them to be adverse to clients in some situations.  I expect that as the law governing lawyers liberalizes conflicts rules, we will see more private bargaining between lawyers and clients as to how conflicts will be handled.
• The State Bar of California's Board of Governors approved a large set of new ethics rules, including, thankfully, the adoption of the MR 1.7 approach in California and a comment [22] that legitimizes advance waivers in many situations.  A few rules were sent out for public comment and will be revisited in November.  Unfortunately I haven't found a good link for documentation on the recent action.
• Main Justice reports that former acting US Attorney (NJ) Ralph Marra, Jr. has been cleared by the OPR of allegations that Marra made public statements to assist in the election bid of Chris Christie to be governor of New Jersey.  (If I haven't already mentioned it, Main Justice does a terrific job reporting on the DOJ.)
• In Young v. Columbia Sussex Corp., while granting a plaintiff's request for attorneys fees, the USDC for the District of Arizona rejected an argument that plaintiff's counsel violated rule 4.2 by communicating with the defendant's employees whose acts the plaintiff was imputing to the defendant as a basis for liability.
• The Daily Mirror carries an editorial about the importance of professionalism in the Sri Lankan legal profession.
• From Japan, this editorial, citing the ABA as an example, calls for pro bono work in a variety of contexts.
• Concurring Opinions carries this report on citations to legal blogs in court opinions and law reviews since 2006.  If I've done my sorting correctly, Legal Ethics Forum is tied for 44th place in terms of frequency.
• Even if you have a heavy workload, you shouldn't forge the judge's signature.  (h/t: Australian Professional Liability Blog)  The only times I've heard of forging a judge's signature involved (1) a lawyer who blew a claim and tried to convince the client that the judge had ruled against the client; and (2) a lawyer who had had a complete breakdown and was concealing the abandonment of his practice.  

Iranian authorities seek to arrest lawyer of woman sentenced to stoning

Story here.  (h/t: The Ethical Lawyer)

Movant lacks standing to disqualify opponents' lawyer (Cal. Ct. App.; Great Lakes Construction, Inc. v. Burman)

A California Court of Appeal decision clarifies and narrows standing doctrine for motions to disqualify.  Key graf:

Attorneys who jointly represent clients in the same action owe a duty of undivided loyalty to each of their clients and are subject to disqualification if an unwaivable conflict exists arising from the joint representation.  We address whether a non-client may enforce this duty of loyalty and move to disqualify opposing counsel.  In this case, the parties seeking disqualification were not present clients, former clients, or prospective clients, and they had no prior confidential relationship with opposing counsel.  They moved to disqualify opposing counsel Graham & Associates, and Bruce N. Graham, a member of the firm (Graham), from jointly representing their adversaries, appellants Jim and Maartje Burman (the Burmans) and Ted Kipers.  The moving parties acknowledge that their motion is not based upon California law, but rather on what they refer to as a minority view in Colyer v. Smith (C.D.Cal. 1999) 50 F.Supp.2d 966, permitting a non-client to move to disqualify opposing counsel.  While the decision of a federal district court is not binding on this Court, we do not read Colyer’s minority rule as dispensing with the standing requirements.  Here, the non-client, moving parties have no legally cognizable interest in Graham’s undivided loyalty to his clients.  Therefore, the moving parties lacked standing to bring this motion to disqualify.  We reverse the disqualification order.

Blagojevich closing argument has begun

Sam Adam, Jr., the attorney for Rod Blagojevich had a heated argument with the trial judge about whether Adam could argue in closing that the witnesses not called by the prosecution would have supported Blagojevich's defense.  The judge threatened Adam with contempt if he violated the court's ruling that the defense could not argue about the "witnesses not called."  Today the judge smoothed any ruffled feathers by emphasizing that the judge never used the word "jail" during the hearing.  "Jail" was the word that Adam used.

Regardless, this story suggests that while Adam may have been upset because the judge's ruling shut down an important theme for the defense, it's possible that Adam was just stalling for time so that his closing wouldn't be broken into two pieces across two days.  Gee, would a trial lawyer ever use smoke and mirrors to buy time to set up a better closing?

In my trials, in civil practice, the "witness not called" was a standard jury instruction, but of course the judge has enormous discretion over the trial and, for all I know, criminal trials differ from civil trials on that point.  Even when you could make an argument on that point, you couldn't tell the jury what the witness would have said; you could just mention, for example, that the plaintiff corporation never called the Senior VP who was present at the key meeting, or something like that.  The Huffington Post has a nice article on the issue.

[edit]  Talk Left has a nice discussion of the "missing witness" instruction in criminal cases and it does appear that the instruction is disfavored and largely left to the judge's discretion.

The irony, of course, is that the real "witness not called" is Blagojevich himself -- and for that matter the defense didn't call any witnesses at all.  In fact, Adam had promised jurors in the opening statement that Blagojevich would take the stand.  I am not denigrating the Fifth Amendment or the fact that the burden rests entirely on the prosecutor.  (And, of course, in closing arguments prosecutors cannot overtly call attention to the fact that the defendant didn't take the stand.)  But when a criminal defense counsel makes a "witness not called" argument, there is always a concern about what thoughts that might trigger in the jury's mind, especially when the defense didn't call any witnesses.

In his closing, here's how Adams is dealing with his promise that Blagojevich would take the stand: "I promised each and every single one of you that Rod was going to get up there and take the stand," Adam says. And at opening statement I gave you my word and I meant every word of it," he says. "I had no idea no idea that in two months of trial (the government) would prove nothing."

Legal Ethics Roundup (July 27, 2010)

• Holland and Knight survives a DQ motion in the USDC for the S.D. Fla. because, "1) Defendants fail to meet their burden of establishing that an attorney-client relationship existed; 2) Defendants fail to offer any proof in support of their Motion; and 3) Defendants waived their right to seek disqualification. The Court agrees with Plaintiff on all arguments, and each will be discussed in turn."  I'd say those three grounds pretty much cover the field.
• John Flood likes Anthony Davis's call for a national overseer for the US legal profession.  Unfortunately, Anthony's article is still behind a paywall.
• At M&A Law Prof Blog, Brian JM Quinn points us to a new book on "Scoundrels in Law," referring specifically to the legendary firm of Howe & Hummel.
• From the Virginia IP Law Blog: In DQ'ing Steptoe from a patent case, the court gets to showcase how the Fourth Circuit rigorously applies conflicts law rather than engage in hair-splitting.
• Gary Johnson, at the Utah State Bar site, translates Harry Truman's guidelines for life into the language of the ethics rules.
• Litigation and Trial asks if it's malpractice not to find a hearsay exception for key emails (in the case involving the retired NFL players).  New complaint here.

California Supremes: county can hire contingency lawyers in lead paint public nuisance suit

Story here; opinion here in Santa Clara County v. Superior Court (Atlantic Richfield).

The case is a public nuisance action related to lead paint. A group of cities and counties banded together and used their employee-lawyers and contingency fee lawyers from private practice to prosecute the matter.  The trial court barred plaintiffs from paying the contingency fees, citing People ex rel. Clancy v. Superior Court, 39, Cal.3d 740 (1985), which held that government lawyers should not have personal financial interests in a litigation matter.  The intermediate appellate court reversed, holding that contingency fee private practice lawyers could be used if they work with and under the supervision of the government lawyers.  The Supreme Court of California has now held that the use of contingency fee lawyers is not forbidden per se, but cannot be done in a manner that compromises "either the integrity of the prosecution or the public's faith in the judicial process."

Critical decisions about the litigation must be made by "neutral" government attorneys.  "Such control of the litigation by neutral attorneys provides a safeguard against the possibility that private attorneys unilaterally will engage in inappropriate prosecutorial strategy and tactics geared to maximize their monetary reward."  (27)

Of course, a key practical issue is funding.  The counties maintain that they need to use private practice plaintiffs firms to "level the playing field" against big corporations.  Huge tort cases can be very expensive and from the point of view of budget-strapped counties, the cheapest funding is to give talented plaintiffs lawyers a piece of the action.  From the other point of view, the use of private plaintiff's bar to step into the government's shoes threatens to blur the roles between private mercenary lawyers and public lawyers (who have a higher duty), to make the public wonder if government entities are pursuing revenue enhancement rather than vindicating public rights, to stack the deck against out of state corporations who already were facing county governments in county court houses, and to violate the old principle that no government lawyer should have a personal monetary stake in a litigation matter.  What do our readers think?  

UPDATE: An earlier article by John Sullivan is here; Point of Law posts today.