Legal Ethics Forum

Much Ado About Nothing: Getting Paid by BP to Give Ethics Advice to Kenneth Feinberg

We previously blogged about the interesting ethics issues associated with Kenneth Feinberg's administration of the BP compensation fund (here and here).  Not surprisingly, Mr. Feinberg sought out legal advice regarding some of these issues and hired NYU Professor (and co-blogger) Stephen Gillers to provide an opinion letter, which was recently released (here).  

The scenario seems entirely uncontroversial, but questions have been raised in an AP story (here) and in a statement by Joanne Doroshow, Executive Director of the Center for Justice & Democracy (here) regarding Stephen's payment.  In essence, the question is whether there is something improper about him getting paid by BP to write the letter. 

Mr. Feinberg's conduct as a lawyer has been questioned by the Louisiana AG and has been criticized in court by class counsel, so it seems reasonable for Mr. Feinberg to seek legal advice on these matters. It is unlikely that he'll get pro bono legal advice, so his lawyer has to be paid. Who should pay the lawyer? The fairest source of payment would be BP itself, which is what is happening.  Moreover, there is no reason to think that the advice that Mr. Feinberg receives would be more independent or candid if he paid for the legal advice himself as opposed to the payment coming from BP.

To be clear, Stephen is getting paid from BP and not from the compensation fund money (as originally reported), so the cost is not coming out of claimants' pockets.  And given the lack of any adversity between BP and Mr. Feinberg and given the task that Stephen was asked to perform, there is nothing problematic about BP paying Stephen to give advice to Mr. Feinberg. So this seems like much ado about nothing.

The statement from Ms. Doroshow suggests that there needs to be transparency regarding how much Stephen is getting paid, but Stephen's hourly rate is expressly mentioned in the news stories.  (The stories indicate that Stephen hasn't even submitted his final bill.)

The statement also questions Stephen's reliance on information that Mr. Feinberg told him, but the news story makes clear that Stephen examined underlying documents, so the implication that Stephen's opinion relied only on what Mr. Feinberg said is incorrect.  Moreover, the statement misunderstands the lawyer's role in this sort of situation; Stephen was hired to provide an opinion letter, not to conduct an independent investigation.

When you mix oil, politics, and ethics, I suppose it's not surprising that there is controversy.  But the controversy is not always justified.

White Collar Crime Prof Blog awards its "Collars" of the Year

It's a fun read.

Washington Post looks at impact of Padilla v. Kentucky

Story here.  (h/t: Indiana Law Blog)  I think that everyone expected the decision to lead to a flurry of immediate appeals from non-citizens in jail, but it will take a while to see how it affects plea bargaining with non-citizens.

Re-elected Judges and Due Process

Bob Vander Plaats, who heads the group Family Leader, led efforts that resulted in the removal of three Supreme Court justices in the November midterm election, for their role in a unanimous decision legalizing same-sex marriage  He said that vote should send a message to the remaining four justices.

The state's Supreme Court justices are appointed by the governor and serve eight-year terms. Voters have the option of retaining them when their terms expire. The November elections, when three justices were up for retention, marked the first time since the retention vote system was implemented in 1962 that voters didn't retain a Supreme Court justice. Those justices will leave their posts at the end of December.

(From Law .com, by Michael J. Crumb)

Firm's Managing Partner Disciplined for Failing to Supervise

You don't see these that often; here is an opinion from the Arizona Supreme Court in In Re Phillips.  The fellow had been the subject of prior investigations and orders, and so it wasn't a first offense, but still it is an interesting rare case from what I see.

 

 

Power and Justice

I am reading with great pleasure Ludwig Lewisohn's sequel to The Merchant of Venice, titled, The Last Days of Shylock.  In it he describes the Doge and his Council, who had recently consigned the Jews to the Ghetto.  The description fits too many judges (and, truth be told, some law professors):  "those who deem that power confers wisdom and is one with justice."

Coincidentally, I had recently read of the trial court judge who had held a prisoner in contempt (that is, as having obstructed justice) and whose ruling had been upheld on appeal.  After the prisoner's conviction and sentence had been entered, and the proceeding had concluded, the prisoner said, "F**k, Y'all."  Only those who deem that power confers wisdom and is one with justice -- and with their own dignity -- could render such judgments.

63 pages of corrections to the client's depo testimony?

Howard Bashman, at How Appealing, has news of an Eleventh Circuit opinion affirming sanctions against an attorney who filed a 63-page sheet of corrections to a deponent's testimony.  Opinion here.

IP Ethics Cases, News or Trends in 2010 and Beyond?

Mercedes Meyer and I have been asked to do a second edition of our book on ethical issues in patent prosecution (available at bookstores everywhere! ;-)).  I'm expanding it tremendously but don't want to overlook any recent trends, cases, etc. If you have suggestions, let me know...

 

Thanks in advance.

Legal Ethics Items (December 29, 2010)

• Olsen v. Harbisen (California): "Litigation privilege barred attorney's claims of fraud and deceit against associated counsel"

• Disciplinary Counsel v. Pullins (Ohio): Suspended on Christmas Eve's Eve.  Ouch.  Conduct included "filing of false and disrespectful statements regarding two judges in affidavits of disqualification, improper use of his notary powers, issuance of subpoenas in a stayed case, accusations that two judges and a prosecutor engaged in ex parte communications about pending cases, and issuance of a subpoena to a judge's wife"

• Louisiana Legal Ethics has a roundup of developments from that state.

• Independent (Ireland) Irish scandal about lawyers who misappropriated client funds.

Whatever happened to the rule of necessity?

At the Lectern has been following the en masse recusal of the Supreme Court of California in a case dealing with the sale of the building in which the court sits.  Seven temporary justices were appointed to handle the matter.