Legal Ethics Forum

Do economists need an ethics code? (the comments have been interesting; Patrick O'Donnell as law blog commenter of the year?)

I posted about this issue mostly as a cross-comparison to lawyers, but wouldn't you know it, Patrick O'Donnell once again brought depth to the discussion and in the comments has been engaging Mark White on the ethics of the market.  As you know the legal profession has traditionally tried to keep the market at bay and retain a guild-like structure, but the traditional approach has been abrogated in so many ways.  Tomorrow I will post two articles that take slightly different stances on the rise of market-orienations in our profession but in the meantime you might want to check out what Mark and Patrick have been saying.

Btw, do legal blogs get together and award "Top Commenter of the Year" awards?  If so, it's my guess that a dozen or so law blogs would nominate Patrick for such an award.

Ethics of Teaching: Walk out if students text, etc?

There's an interesting (notice I didn't say fascinating, though 'tis) article here.  At Mercer, we provide a laptop to each student as part of tuition, but we have no uniform policy on their use.  Anyone who has watched a class being taught know students text, shop, and so on.  I used to daydream and doodle; it's part of the human condition, I suppose, no matter the subject matter and law sometimes ain't exactly the series finale of Lost. (Which is probably a good thing, but I digress.)

But laptops are different, because of the impact of the screen on those behind it.  I remember watching, for evaluation purposes, a professor from the back of the room and noticed a student playing solitaire, and when he won, 10 (or more) heads turned to watch the cards cascade as they magically do when you win.  I even think laptops are poor note-taking devices, but that may be a generational thing -- may work for the young ones.

But what do you think of the approach of walking out of class, making the test harder, and so on for violations?

Legal Ethics Items (November 30)

• New Jersey legislators debate new law requiring lawyers and other professionals to wait 30 days before soliciting defendants and accident victims.
• Legal Ethics of Pot Advice Hazy, notes the Arizona Daily Sun
• From the ABA Journal, Lower Billable Averages Suggest More Staff Layoffs Ahead
• Another law school?  The Washington Post speculates here
• And a holiday gift for the lawyer in your life, the newly released CD "Yule Hear from our Lawyers"

Jonathon Molot, "Litigation Finance: A Market Solution to a Procedural Problem"

Liberalizing the rules on litigation financing may lead to settlements that reflect the merits rather than reflect the bargaining strength of the parties, suggests Jonathan Molot.

Marvell wins defense verdict in famous "GC forgot to hang up and left inculpatory comments" case

All along, Marvell's defenders had been urging people not to assume too much about the infamous voicemail that Marvell's GC left on Jasmine's system after forgetting to hang up.  (We had discussed it here.)   A jury sided with Marvell in the misappropriation case.

Arbitrating malpractice claims: Yea or Nay?

I remember back in the day drafting arbitration clauses for firms to be sure they covered malpractice, gave full disclosure, avoided being "prospective limitations on liability," and so on.  As an expert, I see them in some retainer letters today (when lawyers use retainer letters, which is an entirely different issue).  There's a concise pro/con of them here.

I've now been an expert in some arbitrations, some cases that required mediation before litigation, and some that went straight to litigation. My own anecdotal view -- based on a really small sample and so that's why I'm posting -- is that arbitration doesn't save any money in terms of cost to either side and in fact can be far more expensive (if you get arbitrators who are unable to make decisions such as partial summary judgment or limiting the scope of discovery), and I'm not sure the outcome is any more predictable and/or "better" in any sense.

Thoughts?

And, sadly Leslie Nielsen passed away today.  "I am serious. And don't call me 'Shirley.'"

Josh King, of Avvo, asks "Why do the bars insist on regulating attorney advertising? (Part 1 of 3 in my Attorney Advertising series)"

We deal with a lot of questions about attorney advertising rules here at Avvo. Over the past three years, I’ve explored the ins and outs of these rules in nearly every state, but there’s a nagging question that hangs in the air whenever I think too much about this topic:  Why on earth do we still have these rules?  
 
Every other category of goods and services is subject to federal and state regulation around deceptive advertising, but attorneys are saddled with cumbersome self-regulation.  Rules that tell you the size of type to use on envelopes.  Rules that specify specific disclaimer language.  Rules that prohibit forms of advertising commonly used, well, pretty much everywhere else.  And lots of silly rules, too.  And now the ABA is in the process of looking into new Model Rules  to address online lawyer marketing and use of social media.  Something tells me the end result of that isn’t going to be a rule simply saying:  “No deceptive advertising. ”  
 
But why not?  Other than some of the pre-Bates rules relating to solicitation, is there any value in the bars regulating attorney advertising?  Is there something different about the law that requires such extensive regulation?  Or it all just the accumulation of a self-regulatory enterprise run amok?  Thoughts from you ethics experts welcome.

*****

Josh King is VP of Business Development and General Counsel at Avvo, a website for rating doctors and lawyers.  He's worked at Clearwater, AT&T Wireless and Cellular One, and is an alum of Hastings.

Legal Ethics Items (November 29, 2010)

• This item from Legalethics.com will get attention in law firms: The Louisiana Supreme Court held a member of a firm's management committee responsible for misleading advertising created by a non-lawyer to whom the firm had delegated the content of the firm's website.  Decision here.

• Washington Post: Patton Boggs' acquisition of a high-powered lobbying group has led to a conflicts battle as Patton steps into the plaintiff's side of the Ecuadorian toxic tort case.

• City of Rockport v. City of Malvern: Arkansas Supreme Court affirms judge's decision not to recuse, where judge had previously represented litigant.  "Even though the circuit judge served as city attorney for Malvern before taking the bench, he did not represent Malvern in the instant, or a prior, annexation suit. While the judge did represent private landowners in a similar annexation suit against Rockport before taking the bench, that prior litigation concerned the issue of whether Malvern's initial annexation was valid. The circuit judge did not represent the current landowners nor did he represent other landowners in the instant suit regarding whether Malvern had complied with the statutory requirements imposed after an annexation occurs. Thus, where there was no allegation of actual bias, nor any demonstration by Rockport of prejudice, we cannot say that the circuit court abused its discretion in denying the motion to recuse."

• LA Times: Lack of Lawyers Slows Death Sentence Appeals in California.

• March 2011 Conference at Creighton: Ethics in War, Terrorism and Military Law.  (h/t: Legal Scholarship Blog)

• Straight.com: British Columbia's Chief Justice recommends licensing more lawyers and leaving lawyer regulation to the lawyers.

• The Age (Australia): The new chief justice for Victoria (the first woman to hold that post) thinks that the court needs to explain itself better to the public.  Justice Warren is quoted as saying, " "The media drives a very simplistic message mostly revolving around sentencing or satisfaction or dissatisfaction with sentences imposed. Sentencing is only one component of the law. The community, I would hope, through the opening, would come to have a better understanding that the law is their great protector."

New York Times comments again on SCOTUS ethics, using example of Pennsylvania judge

This issue of US Supreme Court ethics has been a very high priority for the New York Times lately.  In this latest editorial, the paper looks at Pennsylvania's unusual rule on the judicial ethics of receiving gifts and concludes that it's time for the US Supremes to do things differently.  The paper cites a "growing consensus" that SCOTUS recusals must be handled differently.  Just curious, but do our readers agree that a consensus is growing on that point?

UPDATE: At Mirror of Justice, Marc DeGirolami has a post worth reading.  I share all his concerns, not just about the way the NYT slides from one issue to another and announces its "growing consensus," but also about the dangers of ethics becoming politicized and leading to less respect for the courts.

Short film on depression among lawyers

ABA Journal carries news of a short documentary about lawyers and depression.  The producers hope that students will view it in law school.  That makes me wonder about teaching substance abuse and mental health in the PR course.  I cover it each semester, usually through Larry Dubin's old but terrific film, "What Went Wrong?"