Legal Ethics Forum

Fifth Circuit Opinion on the Constitutionality of Louisianna Advertising Rules

The Fifth Circuit's opinon is here and is definitely worth reading for anyone interested in the constitutionality of lawyer advertising rules.  Ultimately, the Court affirmed the constitutionality of several provisions, but struck down as unconstitutional the following Louisianna Rules of Professional Conduct:

Rule 7.2(c)(1)(D), which prohibits "a reference or testimonial to past successes or results obtained, except as allowed in the Rule regulating information about a lawyer’s services provided upon request"

Rule 7.2(c)(1)(J), which prohibits the "portrayal of a judge or a jury, the portrayal of a lawyer by a non-lawyer, the portrayal of a law firm as a fictionalized entity, the use of a fictitious name to refer to lawyers not associated together in a law firm, or otherwise implies that lawyers are associated in a law firm if that is not the case"

and Rule 7.2(c)(10), which provides as follows: "Any words or statements required by these Rules to appear in an advertisement or unsolicited written communication must be clearly legible if written or intelligible if spoken aloud. All disclosures and disclaimers required by these Rules shall be clear and conspicuous. Written disclosures and disclaimers shall use a print size at least as large as the largest print size used in the advertisement or unsolicited written communication, and, if televised or displayed electronically, shall be displayed for a sufficient time to enable the viewer to easily see and read the disclosure or disclaimer. Spoken disclosures and disclaimers shall be plainly audible and spoken at the same or slower rate of speed as the other spoken content of the advertisement. All disclosures and disclaimers used in advertisements that are televised or displayed electronically shall be both spoken aloud and written legibly." 

With regard to the last provision, the plaintiffs only challenged the portion relating to font size, speed of speech, and the requirement that a disclaimer be spoken and written in televised and electronic advertisements.

Supreme Court Update

The Supreme Court's 2010 term opened with five cases involving the law of lawyering on the docket, and we're now up to a total of eleven by my count.  Here are the cases, those decided listed first, then argued but not decided, followed by a list of cases that the Court will hear in the upcoming weeks.

Cases Decided

As I predicted in a post last fall, the Court reversed the Ninth Circuit's finding of ineffective assistance of counsel in Harrington v. Richter, where the defense attorney used vigorous cross-examination and other methods to create reasonable doubt rather than expert testimony and forensic evidence about blood found at the murder scene. (Opinion here.)  On the same day, the Court reversed the Ninth Circuit again and found no ineffective assistance of counsel in Premo v. Moore, where the defense attorney did not move to suppress a coerced confession.  (Opinion here.)  Justice Ginsburg filed a concurring opinion in both cases.  In Harrington, she agreed with the Ninth Circuit that in failing to consult blood experts the defendant's counsel was ineffective, but that the defendant was not prejudiced by this failing.  In Premo, she noted the defendant never declared that, better informed, he would have opted for trial in lieu of taking the plea.  And in yet another reversal of the Ninth Circuit, the Court overturned attorneys' fees awarded  under 42 U.S.C. section 1983 in Los Angeles County v. Humphries.  (Opinion here.)

Cases Argued but Undecided

Connick v. Thompson (Argued October 6) Connick questions the imposition of failure-to-train liability on a district attorney's office.  A jury awarded $14 million to a former death-row inmate who spent 18 years in prison, released after prosecutorial misconduct was revealed.  More details from a previous post here.

Cullen v. Pinholster (Argued November 9) At issue in Cullen is whether defense counsel was ineffective in failing to consult with an additional psychiatrist and more family members to produce sufficient mitigating evidence.

Cases Scheduled for Argument

Ashcroft v. al-Kidd (to be argued 3.2.11) Ashcroft questions the availability of prosecutorial immunity for then-Attorney General Ashcroft's use of the federal material witness warrant as a tool for preventative detention and investigation of terrorist suspects.

Fox v. Vice (to be argued 3.22.11)  Fox involves the award of attorney's fees under a fee-shifting statute in civil rights litigation.  The facts of this case are rather incredible, as the first line from the introduction of the petitioner's brief suggests:  "The plot of this case reads like something out of Grisham.  But the twist is pure Kafka."  Here is the link to the brief, in case you want to read more...

Turner v. Price (to be argued 3.23.11) Turner addresses an indigent defendant's constitutional right to appointed counsel at a civil contempt proceeding that results in his incarceration.  Turner was jailed for failure to pay child support (he had no money to make the payments), and was neither represented by counsel nor advised by the court about his right to counsel.

Missouri v. Frye and Lafler v. Cooper (unscheduled) These cases involve separate appeals but are linked together because they address the same issue:  whether bad advice from a lawyer during plea negotiations may impact a subsequent guilty verdict.  Frye's attorney neglected to inform him about two deals offered by prosecutors before he pled guilty.  Cooper was advised against taking a plea deal by his attorney only to be found guilty. 

US v. Jicarilla Apache Nation (unscheduled) Here the federal government is claiming attorney-client privilege in an effort to withhold information from the Jicarilla Apache Nation Indian tribe about property the government holds in trust on the tribe's behalf. 

Unauthorized Practice of Law

I have never done any work on the issue of unauthorized practice, unlike Steve Gillers, who said that he has “research[ed] the rules in 6 jurisdictions and read the class action filings and various (and some lengthy) documents surrounding the creation and operation of GCCF.”  Nevertheless, I was surprised at Steve’s assertion in his opinion letter (with no citation) that it doesn’t matter that “GCCF is not a law firm and not authorized to practice law, because “a nonlawyer could act as administrator of the GCCF without engaging in the unauthorized practice of law as routinely defined.”

However, according to the Louisiana Rules of Professional Conduct R. 5.5, practice of law includes “negotiating or transacting any matter for or on behalf of a client with third parties.”

Also, under La. Rev. Stat. Ann. § 37:212, the practice of law is defined in part as: “For a consideration ... or pecuniary benefit, ... the advising or counseling of another as to secular law;” or “on behalf of another, the drawing or procuring, or the assisting in the drawing or procuring of a paper, document, or instrument affecting or relating to secular rights;” or “the doing of any act, in behalf of another, tending to obtain or secure for the other the prevention or the redress of a wrong or the enforcement or establishment of a right.”

The appeal and the danger of social media

The February issue of the ABA Journal magazine features a story on the appeal and danger of social media for lawyers--Seduced:  For Lawyers, the Appeal of Social Media is Obvious. It's Also Dangerous (link here).  You can read about the thoughts from a number of us here at LEF on the topic, as the article quotes Stephen Gillers, David Hricik, Andy Perlman, and me.  The article is especially timely for my seminar this semester, The First Amendment and Regulation of Lawyers' Speech, because we're covering the topic of social media next week...

Office of Special Counsel Releases Report on White House Political Activity

The Office of Special Counsel (OSC), the agency charged with interpreting and enforcing the Hatch Act, this past Monday released a report on political activity by the White House Office of Political Affairs (OPA) on behalf of Republicans in the 2006 election cycle: 

http://www.osc.gov/documents/hatchact/STF%20Report%20Final.pdf

Congressman Darrell Issa, Chairman of the House Government Oversight Committee, has written to OSC requesting an investigation of OPA political activity on behalf of Democrats in the 2010 election cycle, including alleged Hatch Act violations in the Sestak-Romanoff controversy.  

A few days before release of this Report, the President shut down OPA and moved its operations out of the government to his political headquarters Chicago.

A few observations:

*In text accompanying footnote 66 of this Report, OSC adopts a narrow interpretation of § 7324(b), a provision which allows some White House staff members and senior political appointees in the Executive Branch agencies to conduct partisan political activity in government buildings and during normal working hours. OSC uses sick leave regulations by analogy to determine who is and is not eligible for the exception.  I never liked this exception – and I believe it should be abolished – so the more narrowly construed it is the better.

*OSCs interpretation of the § 7324(b) exception is contrary to the way OPA has functioned over the past several administrations, including Clinton, Bush II and probably the first two years of Obama (I will provide some details in the comment area for this post).  Indeed, OSC’s interpretation is sufficiently narrow that it allows only the most senior officials to conduct political activity inside the White House, and denies them the middle level and support staff they need for an effective political operation.  For reasons I have already explained in previous posts here, this is as it should be, because these political operations do not belong in the White House to begin with.

*Under OSC’s interpretation of the Hatch Act, President Obama had no choice but to move OPA out of the White House and to Chicago.  Had the OPA remained at the White House or anywhere else in the government it would have been ineffective or would have violated the Hatch Act.

*While I commend OSC for addressing this problem now, one must ask why this issue was not addressed before.  Everyone has known about extensive political operations inside the White House going back to the days of Jimmy Carter, and that these operations became even more salient in the 1990’s and early 2000’s.  Lawyers in the White House Counsel’s office furthermore over the past several administrations have been in regular contact with OSC about White House political operations and in many cases discussed with OSC specifically what OPA was doing or what OPA proposed to do.  White House Counsel’s Office lawyers consult OSC because they need clear legal guidance from OSC, and then decisive support from OSC. OSC’s construction of the § 7324(b) exception in this Report is one example of Hatch Act guidance that would have helped White House lawyers keep OPA political operations in check.  Simply saying “it doesn’t feel right” or “it violates the spirit of the Hatch Act” will get a lawyer nowhere when giving guidance to one of the most powerful offices in the White House.  In sum, where has OSC been on this all of these years?

*This Report can become yet one more excuse for partisan accusations, as Democrats point to violations described in the Report, and Republicans wait for the OSC investigation of the Obama White House requested by Congressman Issa, hoping to use it in November 2012.  Alternatively, leaders of both political parties can acknowledge that, as described in this Report, OPA has for many years violated the spirit if not the letter of the Hatch Act and has no business being in the White House.  We are fortunate that at least for the time being the President has deicided to move his political people to Chicago. 

Ben Barton, "The Lawyer-Judge Bias in the American Legal System"

Ben Barton's new book is available.  I'll be on a SEALS panel this summer addressing the book. Here's the product description:

Virtually all American judges are former lawyers. This book argues that these lawyer-judges instinctively favor the legal profession in their decisions and that this bias has far-reaching and deleterious effects on American law. There are many reasons for this bias, some obvious and some subtle. Fundamentally, it occurs because - regardless of political affiliation, race, or gender - every American judge shares a single characteristic: a career as a lawyer. This shared background results in the lawyer-judge bias. The book begins with a theoretical explanation of why judges naturally favor the interests of the legal profession and follows with case law examples from diverse areas, including legal ethics, criminal procedure, constitutional law, torts, evidence, and the business of law. The book closes with a case study of the Enron fiasco, an argument that the lawyer-judge bias has contributed to the overweening complexity of American law, and suggests some possible solutions.

Kevin Michels, "Lawyer Independence: From Ideal to Viable Legal Standard"

When I first starting poking around on the topic of comparative legal ethics, I was surprised to see how central the concept of independence is in some systems, whereas in the US approach the concept is always present but never really at the core.  Kevin Michels looks at independence in this article.  Abstract:

When, if ever, does a lawyer have an obligation to exercise independent judgment? While the question drives at the deepest commitments of the profession, it has been left largely unexplored in our leading treatises on legal ethics and lawyering. Lawyers, scholars, and judges have waxed eloquent on the ideal of independence, and have despaired of its prospects of renewal in a competitive, market-driven profession. The courts, however, have offered limited guidance on the question of lawyer independence. Indeed, the impression that one might gain from a review of the case law and treatises is that lawyer independence - whatever its virtues - is more a lost ideal than a legal requirement.

In fact, however, Rule 2.1 of the Model Rules of Professional Conduct (adopted by nearly every state) requires that lawyers “exercise independent professional judgment” in “representing a client.” This demand raises a host of questions about the lawyer’s role. What is lawyer independence? If lawyers are “agents” who seek to carry out client objectives, how can lawyer independence be squared with the notion of the client as decisionmaker and principal? Is lawyer independence enforceable, or does the paucity of cases construing the requirement suggest that it can never be more than an aspiration? Can we frame a standard that is sufficiently precise for lawyers to understand when they may not defer to client directives?

This Article seeks to answer those questions. In so doing, it seeks to develop a viable legal standard of lawyer independence grounded in Model Rule 2.1. The Article considers the purpose of lawyer independence, when it applies and when it does not, and what it requires of counsel. It contends that the law of lawyer independence, once understood, will require attorneys to revisit core assumptions about their role and will substantially reduce the incidence of wrongdoing in corporate transactions. The Article invites states to breathe life into a rule that has lain dormant on their books for too long.

What Should We Do About Ethics and Conflicts at the Supreme Court?

As we know, the Code of Conduct for U.S. Judges does not apply to the Justices. They are the only judges in the nation not governed by ethical rules.

The disqualification statute does apply. But a motion to disqualify is made by the Justice whose disqualification is sought and will not be reviewed by other Justices (although it could be, nothing stops them except perhaps their preference not to have their own decisions reviewed). 

Recusal motions at the Supreme Court are rare. When they are made, they will often lack merit on their face. But sometimes not. Justice Scalia's opinion rejecting the motion to recuse himself in what has come to be known as the Cheney Duck Hunting Case is an example of a strong motion. Scalia's opinion rejecting it is weak (and in my view quite wrong), but there was no one there to say why or point out the gaps in his reasoning.

Requiring recusal motions to be decided by another Justice may be a solution, though perhaps at the expense of collegiality on occasion. And wouldn't the other Justice have an interest in the question, too, because how it's decided could determine the outcome of the appeal. 

Imposing the Code of Conduct on the Supreme Court is a further solution. Maybe Congress could do that, unless it would violate separation of powers, but why would it? The recusal statute does not. Allowing retired Justices to fill a vacancy occasioned by recusal avoids the risk of a 4-4 split.

What else can we do? Or should we do nothing? Sometimes nothing is the best of a set of imperfect solutions.

Bill Simon asks, "Does the lawyer have to tell the client when she helps out the other side?"

Columbia's Bill Simon has sent in the post below in response to an earlier post by Monroe Freedman:

In a recent article in the Georgetown Journal of Legal Ethics, I argued that lawyers sometimes have a duty to disclose adverse information about legal authority to an opposing party even when the disclosure would disadvantage the client.  In a December post that I just saw Monroe Freedman considers it an objection to my argument (among many) that it implies that the lawyer should make the disclosure without telling the client.  Since several other people, including Steve Pepper and Kate Kruse, have echoed this concern, I want to respond to it.

I think their concern is basically this: If the lawyer does not tell the client about the disclosure, then she is violating her duty to keep the client informed of material information.  If she does tell the client, the client may object and then respond by discharging the lawyer and finding a more zealous replacement.

Suppose you’re representing a client in high-stakes litigation and you learn that the judge is open to bribery.  Your client is the only party who could afford a sufficient bribe, and the judge is about to make a decision on a matter that is likely to be decisive.  Presumably, everyone agrees you have a duty not to facilitate the bribe.  Do you have a duty to tell the client that he has this opportunity but that you are not going to help him take it? 

I suppose if the client is expecting you to bribe the lawyer, you should disillusion him on this point.  But what if the opportunity has never occurred to the client?  Let’s suppose that there are lawyers in town who would pay the bribe.  Should you tell the client about your position so that he can discharge you and go to these more accommodating lawyers?

I doubt if it’s controversial to say there’s no duty to inform the client about this opportunity.  The matter is simply not open to decision by the client.  Most clients wouldn’t be interested in the opportunity.  And with respect to those who would, telling them would amount to counseling or assisting unlawful activity.

I assume Freedman et al. agree about the bribery example but would insist the Mistake-of-Law example is different because the lawyer has no duty to disclose there.  But the main theme of my argument in the article was that the lawyer does have a duty to disclose there.  If I am correct about that, the objection about client disclosure is wrong.  There’s no duty for the lawyer to disclose where the client has no right to make a decision on the matter and where he could not make any legitimate use of the information. 

It’s possible that Pepper and Kruse have a somewhat different objection.  If the lawyer discloses to the client where the client can see that assisting the adverse party is a duty, the client is likely to authorize the lawyer to do the right thing, and that’s good.  So not disclosing deprives the client of an opportunity to do the right thing.  First, I don’t think law-respecting clients need or want their virtue to be tested in this manner.  Second, even if they do, depriving them of whatever satisfaction they get from resisting temptation is the price we have to pay for not encouraging bad behavior by the others.

Of course, the critics don’t agree that the law is disrespected by failure to disclose to the adverse party.  Fine; they should explain why not.  But the client disclosure argument is a red herring.

Legal Ethics Items (January 24, 2011)

• Is a "civil Gideon" program the answer to unemployed lawyers and the mortgage foreclosure crisis?

• Jonathan Turley discusses the price of Justice Scalia's political stardom:  "At best, Scalia's appearance [at an event for new conservative members of the House of Representatives] can be viewed as a pep talk. At worst, it smacks of a political alliance."

• On the US Supreme Court and female lawyers:  "While the high court now has three women on its nine-member bench — the most ever — the justices are still more than five times more likely to hear an argument from a male attorney than from a woman, an Associated Press review shows."

• Katherine Kruse recently posted on SSRN her forthcoming Arizona Law Review article, The Jurisprudential Turn in Legal Ethics.  I recommend it.

• And a quote for the day, from Gretchen Rubin's The Happiness Project:  "The days are long but the years are short."  (See her video take on this quote here.)  Her quote resonates with me especially today, as my first-born turns six.  Hardly seems possible...