Legal Ethics Forum

Legal Ethics Items (November 23)

• From the WSJ Blog Corruption Currents:  “Whistle Blower Program:  A Question of Legal Ethics”
• “Why do lawyers hate law professors?” asks Bridget Crawford, guest-blogging at The Faculty Lounge
• The First Amendment Law Prof Blog weighs in on the proposed Kentucky Bar Association rule addressing lawyers’ Facebook postings
• Former Michigan Supreme Court Justice Elizabeth Weaver has been sent a letter of public censure by five members of the current Michigan Supreme Court for recording the court's internal deliberations and then releasing transcripts (H/T SBM Blog , links to Detroit Free Press and Detroit News, plus the letter, and Justice Weaver's response)

More on the foreclosure lawyers…

• Over at the Huffington Post, Judge H. Lee Sarokin asks, “Does the defense of foreclosures by lawyers border on the unethical?”

And for attorneys’ fees issues in the news…

• Australian solicitor overbilled millions of dollars by double-billing clients
• Settlement of Novartis sex discrimination case lands lawyers $40M but the female plaintiffs each receive only $16k
• An attorney’s false billing of nearly $500,000 results in the voluntary surrender of his license (essentially disbarment), reports the Legal Profession Blog
• Walmart announces in a press release a new pro bono legal services program

Brennan Center looks at judicial elections: "The New Politics of Judicial Elections, 2000-2009: Decade of Change"

This post at the Brennan Center quotes Justice O'Connor, ""This report, the latest in a series begun in 2000, provides a comprehensive review of the threat posed by money and special interest pressure on fair and impartial courts. . . .  We all have a stake in ensuring that courts remain fair, impartial, and independent. . . . For 10 years, the New Politics reports have played a leading role in documenting the growing threat to the credibility of our courts.  I applaud the authors . . . for working to protect the courts that safeguard our rights."

Report here (120 pages).  From the Executive Summary:

Executive Summary

State judicial elections have been transformed during the past decade. The story of America’s 2000–2009 high court contests—tens of millions of dollars raised by candidates from parties who may appear before them, millions more poured in by interest groups, nasty and misleading ads, and pressure on judges to signal courtroom rulings on the campaign trail—has become the new normal.

For more than a decade, partisans and special interests of all stripes have been growing more organized in their efforts to use elections to tilt the scales of justice their way. Many Americans have come to fear that justice is for sale. Unlike previous editions, which covered only the most recent election cycle, this fifth edition of the “New Politics of Judicial Elections” looks at the 2000–2009 decade as a whole. By tallying the numbers and “connecting the dots” among key players over the last five election cycles, this report offers a broad portrait of a grave and growing challenge to the impartiality of our nation’s courts. These trends include:

➜➜The explosion in judicial campaign spending, much of it poured in by “super spender” organizations seeking to sway the courts;

➜➜ The parallel surge of nasty and costly TV ads as a prerequisite to gaining a state Supreme Court seat;

➜➜ The emergence of secretive state and national campaigns to tilt state Supreme Court elections;

➜➜ Litigation about judicial campaigns, some of which could boost special-interest pressure on judges;

➜➜ Growing public concern about the threat to fair and impartial justice—and support for meaningful reforms.

Legal Ethics Items (November 22, 2010)

• The PR subgroup of an IRS advisory group issues its annual report.

• In the UK context, John Flood takes a strong strand against the notion that law schools are producing too many graduates.

• Australian Professional Liability Blog: "England recognizes new exception to without prejudice privilege."  This appears to be the analogue of the "settlement discussions" privilege.

• In the Philippines, legal academics called out a supreme court justice about alleged plagiarism and now the bench is striking back.

• A Sri Lankan judge looks back.

Legal Ethics Items (November 21, 2010)

• "New rules could change how Hawaii attorneys practice law"  (Pacific Business News)

• "Does India need a legal super-regulator?"  (CNBC-TV18)

• From UDRPCommentaries: Domain name disputes have their own version of MR 3.3 and FRCP 11.

• Gregory Duhl, Divided Loyalties: The Attorney’s Role in Bankruptcy Reaffirmations.  (h/t: Bankruptcy Prof Blog)

• Morris James's Delaware Bankruptcy Business Report has news of this case in which the application to be creditor's counsel ran aground on ethical issues. 

• Indiana Law Blog, "78 Prosecutors Sued for Seized Funds: Law firm claims counties broke state law by not turning over money to school fund."  Original story here.  So I guess it's not just private practice lawyers who have to be careful with OPM (other people's money) or, I sometimes call it in class, NYM (not your money).

Good luck with those California bar results!

Best of luck to my former students as they await today's release of California bar exam results!  

California's Attorney General (and Governor-elect), Jerry Brown, sues an agency the AG represents (or, "the knotty problems of government lawyering")

Story here; complaint here.  Jerry Brown, our current AG, former Governor, and future Governor, has undertaken a representation of the Insurance Commissioner against a state agency that the Attorney General represents.  

Although it all sounds bizarre, the closer you look at government lawyering in state and municipal settings, the more often you find the lawyers in the middle of some intra-governmental fight with clients or quasi-clients on all sides.  (I'm finalizing a syllabus for the Ethics of Government Lawyers, and if you have any suggestions, I'd welcome them.)

Legal Ethics Items (November 19, 2010)

• "Lawyer Resigns from Practice of Law because of Hit List."  The lawyer apparently smuggled in a list of witnesses to her client, and eventually a reporter was murdered.  The lawyer has resigned from the bar.  I don't know about the subjective intent of the lawyer involved, but I found it interesting that one of the criticisms of the ethics of lawyers for Guantanamo detainees was their alleged revelation to clients of the identities of witnesses (who were US military, etc.)  I imagine that there's a whole line of cases/doctrine/learning about revelations of witness names to criminal accuseds.  How can you effectively represent the client if you can't talk about the witnesses?

• Gazette (W. Va.): "Coal industry lawyer suspended for hiding evidence."

• Carolyn Elefant offers this provocatively titled post, "How the Work Life Balance Advocates Do a Disservice to Women Lawyers," in which she decries excessive focus on biglaw jobs.

• "Miami Creates Legal Corps for Jobless Grads."  There's a lot I like in this effort by Miami to help its unemployed grads -- so much so that I feel bad that my first thought was to question whether the Corps will be reported as "employed," given that the program has stipends.  I should add that Miami's dean has shown admirable leadership in educating law school applicants about thinking about the economics of a law degree.

• Detroit News: The Absurd Over-lawyering of War.

• The Australian: "THE attempt to achieve a compromise settlement over regulation of the legal profession has come to nought."

Dahlia Lithwick, "Running with Gavels: Justice Need Clearer Rules about Partisan Political Activity"

Over at Slate, Dahlia Lithwick offers this recap of the recent ethics issues involving Supreme Court justices.  I had discussed the issues here and here.  For the record, she thinks that SCOTUS justices should decide their conflicts/recusals themselves, but should be cautious about activities that might seem too partisan and should offer some clarifications about where the lines are.  As I've mentioned before, one difficulty with this issue is the specter of unintended consequences and "backfires" if, in the interests of the appearance of propriety, we foster expansive thinking about what constitutes a recusal event.  Lithwick only briefly addresses that issue (in the passage about Justice Brennan's fear about the consequences of public speaking), but doesn't offer any satisfying account of how to balance the competing interests.  

Thomson Reuters acquires major LPO firm

Thomson Reuters has announced its acquisition of Pangea3, a major legal outsourcing firm with offices in New York, Delhi, and Mumbai. While legal offshoring has been a high-growth area for several years already, I suspect this will increase the profile of outsourcing services even more.

EDNY Bankruptcy Court adopts NY State Standards of Civility

Order and rules here.  A lot of them deal with old fashioned common sense and courtesy.