Legal Ethics Forum

Adam Liptak (NYT), "Supreme Court Appoints Lawyers for Orphaned Arguments"

News article here, citing a new article, Should the Supreme Court Stop Inviting Amici Curiae to Defend Abandoned Lower Court Decisions?, by Brian Goldman, which has this abstract: 

Forty-two times since 1954 – approximately twice every three Terms – the Supreme Court has granted review in a case in which the party who prevailed in the lower court refused to appear to defend its victory below. Faced with this unusual, non-adversary posture, the Court has tapped an attorney to brief and argue the case as an amicus curiae in support of the judgment below. This practice raises a number of questions: First, at the most basic descriptive level, why has it been necessary? If the respondents themselves do not wish to defend their victories below, then whom are the appointed amici representing? Second, as a matter of doctrine, did these uncontested cases not run afoul of Article III’s limitation of federal jurisdiction to “cases” and “controversies,” or the American tradition of adversarial litigation? And third, even if the invitations were constitutionally permissible, was it prudent for the Court to spend its scarce certiorari grants on them rather than waiting for more traditional cases to present the same issues? In the first academic work to examine the practice in detail, I seek to answer those questions. The first Part assembles a history of the appointed-amicus practice, tracing it to a suggestion made by Justice Frankfurter (a former scholar of federal courts) in an uncontested divorce case in 1954. The second Part creates a detailed taxonomy that identifies four broad categories into which these cases fall, based on the reasons the appointment of an amicus was deemed necessary. Then, the third Part evaluates how well the practice fits with the “case or controversy” requirement and the adversary system. I conclude that, while most amicus appointments were actually justified (for a number of distinct reasons), many represent judicial overreaching. Finally, I suggest that, as a matter of prudence, the Court should adopt a more minimalist approach to these less-than-fully-adversarial proceedings, lest it appear to be reaching out for issues it wishes to address even though they do not arise organically.

Legal Ethics Items (December 14)

• From the WSJ Blog: Good News for 'Heavy Hitters': High Court Sidesteps Lawyer Advertising Dispute  The ABA Journal covers the story here, as does the Washington Post here
• A lawyer who makes house calls
• Tuscaloosa News reports on the tight job market for law grads (H/T The Faculty Lounge)

Scalia dissents from denial of cert in case where death penalty was reversed because of defense counsel's decision not to make a closing argument

Dissent here.  Of course, Justice Scalia's offering only his side of the analysis, but it's interesting to think about the reasons that a criminal defense lawyer might deliberately waive closing argument -- here, apparently because counsel thought it would result in no closing by the prosecution.

Josh King (part 3 of 3): The Costs of Overregulation of Attorney Advertising

Many people I talk to (and, indeed, many of the commentators on my previous posts regarding attorney advertising, acknowledge that there are flaws in the heavy-handed ways that most states regulate attorney advertising, but feel that these warts and overreach are acceptable in order to rein in those attorneys who would otherwise “push the envelope.”  However, this is a line of reasoning that few attorneys would apply to any other regulatory system – particularly one that impinges on constitutional rights.  Would anyone make that argument with respect to restricting the press or expanding the powers of the police? 

There are real costs to the legal profession’s acceptance of overbreadth in attorney speech regulation.  Look at Florida , where most advertising has to reviewed by a panel potentially made up of competitors, and apparently operating by whim – prior to being made public.  This process drives higher costs and less transparency to the legal consumer.  Similar problems occur nationwide, and the FTC has tried on many occasions (here’s one example) to get state bars to understand this consumer harm.  And here’s the final irony: Our acceptance of over-regulation of attorney speech might be somewhat more palatable if there were a massive consumer outcry about the evils created by attorney communication.  But there isn’t.  Despite the constitutional requirement that commercial speech regulation target an “identifiable harm” and mitigate against it in a “direct and effective manner,” I have yet to see a single example of state attorney speech regulation that is based on empirical evidence of consumer harm.   

Why, again, are we so willing to accept these overly-broad restrictions on the profession’s ability to communicate?

 

Criminal subpoena enforced against law firms to obtain documents of foreign, unindicted companies

US v. Grand Jury Subpoena served on White & Case LLP.  In a matter with parallel criminal and civil tracks, the civil plaintiffs had obtained documents from foreign companies and the prosecutors wanted the grand jury to see those documents.  The Ninth Circuit held that the grand jury's needs trumped the civil case's protective order, which is not surprising.  The end result, though, is that the documents from abroad, which the grand jury did not have the power to obtain, will now be presented to the grand jury.  That creates an interesting disincentive for foreign clients to produce documents to US lawyers.

Ninth Circuit reverses Goyal conviction; chides prosecutors

Opinion here.  Judge Kozinski's concurrence lists a number of cases where prosecutors have over-reached, criticizes the prosecution, and even tweaks the trial court judge

Why Legal Ethics?

David Hricik's post encouraged some reminiscing about how this blog got started.  But an equally interesting question is how we all came to study (or practice in the field of) legal ethics in the first place.  For many of us, I suspect that it was serendipitous and that (like so much else in life) it wasn't really planned.  For what it's worth, here is my story... 

Basically, I got started in legal ethics because of Brad Wendel.  Brad preceded me by two years as an Associate-in-Law at Columbia Law School and was a gracious host as I was interviewing for the program.  During my visit, Brad told me that he was focusing his scholarship on legal ethics and that he had landed a job at Washington & Lee. 

I hadn't given legal ethics much thought and had originally intended to do some writing on employment discriminiation issues.  But I had taken ethics-related courses in college and found them to be fun and intellectually challenging.  Moreover, I had heard that law schools often looked to hire people to teach legal ethics and that not a lot of people were interested in teaching it.  In other words, legal ethics was both interesting and happened to fit a market need.  Whether the "market need" piece was (or still is) empicially true, I don't know.  But my decision was, at least in part, based on it. 

Fortunately, I've discovered that the field is much more interesting and rewarding than I could have imagined back then, but my entry into the field was truly serendipitous.  So here's a public thanks to Brad Wendel for unknowingly encouraging an aspiring academic to get into this wonderful field, which also happens to be full of so many terrific and supportive people.

How about other readers?  What's your story?

My (Mis)Use of Sharswood

    In Understanding Lawyers’ Ethics, I have two references to Sharswood, which I got from secondary sources.   The first reference is Sharswood’s assertion that “The lawyer, who refuses his professional assistance because in his view the cause is unjust and indefensible, usurps the function of both judge and jury.”  The second is that the lawyer, having taken a case, should not use lawful means that he believes would have unjust consequences.  (I then go on to argue that Sharswood had it backwards – that a lawyer has discretion to refuse the unjust case on moral grounds, but, once having taken it, he must use every lawful means that the client wants.)

    Those references are correct.  But I should not have relied solely upon secondary sources.  Now that I have read Sharswood (in order to criticize Bill Simon for misusing him), I know that Sharswood can be quoted for both sides of important issues of lawyers’ ethics.

    With regard to Sharswood’s quotations that I used, he also said exactly the opposite.  As to the first, Sharswood said at another point of his essay that the lawyer “has an undoubted right to refuse a retainer, and decline to be concerned in any cause, at his discretion.”  As to the second, he said that “when a cause is undertaken, the great duty which counsel owes to his client, is immovable fidelity,” that the lawyer should be “completely identified” with his client, that “All considerations of self should by sunk by the lawyer in his duty to the cause,” and that “he is not morally responsible for the act of the party in maintaining an unjust cause.”

    In short, Sharswood is a reliable but questionable authority for any ethical proposition, and I should not have quoted him without checking the original source.  Also, of course, he cannot be used to demonstrate what the general practice of lawyers was in the mid-19th century.

Legal Ethics Items (December 10, 2010)

• Stanford launches new, major study of the legal profession.  (h/t: ABA Journal)

• Law of Criminal Defense: "Suit argues all defendants deserve counsel from the start"

• Plains Daily (South Dakota): "The South Dakota Supreme Court will hear arguments Jan. 11 on whether state Rep. Lance Russell of Hot Springs should be disciplined for alleged violations of the rules of professional conduct for lawyers."

• Legal Skills Prof Blog: "Notaries Notarizing Documents Not Signed in Their Presence"

• KSAX (Minn): "Kristian Lee Oyen reached a deal with the Office of Lawyers Professional Responsibility (OLPR) where he admitted to several ethical violations including having a sexual relationship with a client. [¶] According to Minnesota supreme court documents filed in October, Lee was suspended for 60 days for having sexual relations with a client, failing to help three clients, and failing to communicate with two clients.  He will also be on probation for two years."

• USA Today takes another look at the federal prosecutors who were involved in botched prosecutions.

Hall v. Kalfayan: no duty ran to prospective beneficiary when lawyer was tardy and client died before executing instrument

Hall v. Kalfayan.  California Court of Appeal.  Key passages:

"In this case, we conclude that a prospective beneficiary of a will cannot maintain a cause of action for legal malpractice against the attorney who drafted the will but did not have it executed before the death of the testator."

"The essence of the claim in the case before this court is that Kalfayan failed to complete the new estate plan for Ms. Turner and have it executed on her behalf by her conservator before her death, thereby depriving Hall of his share of her estate. In the absence of an executed (and in this instance, approved) testamentary document naming Hall as a beneficiary, Hall is only a potential beneficiary. Kalfayan's duty was to the conservatorship on behalf of Ms. Turner; he did not owe Hall a duty of care with respect to the preparation of an estate plan for Ms. Turner."

"This conclusion is particularly appropriate in this case, where Ms. Turner herself had not expressed a desire to have a new will prepared and had only limited conversation with Kalfayan about the disposition of her estate. In addition, there is no certainty that the court would have approved the petition for substituted judgment. We also observe that extending Kalfayan's duty to potential beneficiaries of Ms. Turner's estate would expose him to liability to her niece, whose share of the estate would have been reduced. This is precisely the type of unreasonable burden on an attorney that militates against expanding duty to potential beneficiaries."

"As a matter of law, Hall cannot establish duty, a necessary element for his claim for professional negligence. The trial court properly granted summary judgment on this basis."