Legal Ethics Forum

Legal eduction and virtual gaming

If you're interested in innovative ways to teach law students and evaluate their skill sets, watch this video.

 

Juries Give Passes to Defendants Who Wear Glasses

Or so say some lawyers as quoted in the Daily News which is quoted by the ABA Journal electronically. If the defendant does not need glasses, if it's all a subliminal ruse, why isn't it 'deceit?'

And what if the defendant is single and childless, can you put a faux spouse and children in the front row of the public section looking worried, tearing up, wringing their hands, waiving to the defendant and if possible giving him or her hugs during breaks?

 

More on the scam lawsuits arising from a scam tow truck operation

Greg Adler has alerted me to this television news story on the matter we blogged about earlier, where a family owned tow truck business brought hundreds of scam law suits as a money making proposition.  Adler spent a lot of his own time taking down the scam and brining the bad guys to justice.  (Franco Tarulli, at the Ethical Lawyer, offers his thoughts on the matter.)

Yet more on Feinberg's affidavit in the Fen-Phen case.

The story has so many twists.  The Louisville Courier-Journal is running this story, about a deposition where Feinberg allegedly puts some distance between himself and his affidavit which was the basis for an appellate court's surprising decision.  But the story only has a snippet of what Feinberg said in his deposition, so it's hard to tell if he really has cast doubt on his earlier affidavit. 

Who Should Decide Whether a Justice Should Recuse?

Sorry if this has been covered (but I haven't seen it lately). I'm getting asked whether there should not be a procedure whereby someone (or ones) other than the individual Justice should decide motions to recuse the Justice. Right now, as we know, the Court leaves it to the subject of the motion though it need not do that. I understand that Rep. Murphy (D.Conn.) is sponsoring a bill that directs the Court to come up with another way to do it.

But what would that be? Reassigning it to another Justice or several is most obvious but (a) it could lead to opportunistic behavior or, more likely, the appearance of same, as in "let's get rid of Breyer on this case;" or (b)the opposite, collegial and self-interested behavior as in "if I vote to recuse Scalia, I could be next" -- or the appearance of same.

So maybe the solutions are worse than the problem.

Oh, I have it. Put it up to a vote on LEF! :-)

Hugo Black's ethics in trial advocacy

Legal History Blog brings news of a review essay of a new book about a spectacular murder trial in which the defense counsel -- future SCOTUS justice Hugo Black -- played hardball.  

Memoir of William T. Coleman, Jr.

Legal History Blog has a post about the new memoir published by William T. Coleman, Jr.  As an aside for ethics types, the book's title is Counsel for the Situation.

Hunton & Williams vs. Wikileaks

Several stories in the mainstream media and progressive blogs have reported on a meeting in which several security firms pitched for the business of Hunton & Williams in connection with the threatened disclosure of Bank of America documents by Wikileaks.  (See the WaPo, NYT, the Guardian, and Salon, and this post on a DailyKos affiliated blog.)  Hunton & Williams represents BoA, and the firms were trying to figure out a way to get out ahead of the disclosures and protect the bank as well as the U.S. Chamber of Commerce.  The proposal involved a strategy of disinformation aimed at discrediting Wilkileaks as well as prominent supporters in the media, including Glenn Greenwald at Salon.  Numerous documents have come to light detailing the proposals to Hunton & Williams, including a PowerPoint presentation in which the three security firms, HBGary Federal, Palantir Technologies, and Berico Technologies proposed to submit faked documents to Wikileaks and subsequently expose them as fakes.  The presentation also suggested threatening the career of Greenwald, as well as reporters at the New York Times and the Guardian. 

In a separate but related series of emails, HBGary also proposed to Hunton & Williams that the U.S. Chamber of Commerce employ its services to attack its union-backed critics, including an organization called ChamberWatch.  According to the NYT story:

The e-mails include what appears to be an exchange on Nov. 9, 2010, between Aaron Barr, HBGary Federal’s chief executive, and John W. Woods, a Hunton & Williams partner who focuses on corporate investigations. Mr. Barr recounted biographical tidbits about the family of a one-time employee of a union-backed group that had challenged the chamber’s opposition to Obama administration initiatives like health care legislation.

“They go to a Jewish church in DC,” Mr. Barr apparently wrote. “They have 2 kids, son and daughter.”

A week later, Mr. Barr submitted a detailed plan to Hunton & Williams for an extensive investigation into U.S. Chamber Watch and other critics of the chamber, including the possible creation of “in-depth target dossiers” and the identification of vulnerabilities in their computer networks that might be exploited.

Another PowerPoint presentation prepared for Hunton & Williams said the research that HBGary Federal and its partners could do for the law firm on behalf of the Chamber of Commerce would “mitigate effect of adversarial groups” like U.S. Chamber Watch. The presentation discussed the alleged criminal record of one leader of an antichamber group, and said the goal of its research would be to “discredit, confuse, shame, combat, infiltrate, fracture” the antichamber organizations.

After the story broke, one of the firms involved apologized to Greenwald and distanced itself from HBGary.  The Chamber of Commerce called the proposal "abhorrent."  Hunton & Williams, however, has remained silent, perhaps hoping the story will go away.  Greenwald has stated that Hunton solicited these proposals.   Whether it invited the proposals or received them unsolicited, it seems clear that Hunton was intimately involved in considering a campaign to attack journalists, fabricate documents, and possibly engage in computer crimes. 

One of my interests as a legal ethics scholar is how lawyers justify to the public the actions they take on behalf of clients.  Here is Greenwald, very explicitly posing an ethical challenge to Hunton:

In exchange for the privileges lawyers receive (including the exclusive right to furnish legal advice, represent others, and act as officers of the court), members of the Bar have particular ethical obligations to the public.  At the very least, the spirit -- if not the letter -- of those obligations is being seriously breached by a lawyer who appears to be at the center of these kinds of pernicious, lawless plots and then refuses to account to the public for what he did.

Thus the question to LEF readers:  Is there any defense, in ethical terms, that the firm can offer?  By the "ethical" analysis here I mean both in terms of the law governing lawyers (what Greenwald calls the letter of lawyers' obligations) and more general normative considerations (the spirit of these obligations).  As far as I can tell, we don't know what the firm did with these pitches.  For all we know the Hunton partner might have reacted by saying, "Holy crap, that's illegal and abhorrent -- we want nothing to do with any of it!"  If that is what happened, it seems reasonable to assume that the firm would have made this case publicly.  (And yes, I know that lawyers have a duty of confidentiality, but there is an exception for responses to allegations of wrongdoing, and as for the attorney-client privilege, the client of Hunton is BoA and the Chamber, not the three firms, so any communications with these firms wouldn't be covered by the privilege.) 

Having not heard from the firm, we don't know for sure what happened.  But the ethical (in the sense of the rules) analysis is pretty clear:  The firm cannot counsel its client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.  MR 1.2(d).  Many of the activities covered in the pitch documents is illegal.  Lawyers are also prohibited from making false statements to others, MR 4.1(a), falsifying evidence, MR 3.4(b), or using means of obtaining evidence that violate the rights of others, MR 4.4(a).  I generally avoid reliance on the catch-all rules, but just for good measure the firm's conduct could be considered conduct prejudicial to the administration of justice, MR 8.4(d), and is certainly conduct involving dishonesty, fraud, deceit, or misrepresentation, MR 8.4(c).  Lawyers are responsible for the conduct of employed non-lawyer agents to the extent they order or ratify the conduct involved.  MR 5.3(c).  The clarity of these rules makes me wonder what the firm was thinking, unless it had already clearly repudiated the pitch of HB Gary. 

Moving beyond the rules (or building on the idea of conduct prejudicial to the administration of justice), Greenwald's question is whether as a general normative matter we should tolerate professionals using clandestine methods to undermine the credibility of individuals or groups critical of a client.  Lawyers seem to have a fondness for cloak and dagger stuff.  Maybe it's because the job of lawyer is mostly pretty routine and unexciting, but there seems to be a recurring pattern of lawyers getting themselves mixed up in deceptive and often illegal surveillance activities.  Remember the HP pretexting scandal?  Andy Perlman wrote a post here about the involvement of lawyers in the efforts of their client to obtain cell phone records through misrepresentation.  This is the sort of thing that lawyers should avoid any involvement with, not only because it likely violates various disciplinary rules, but because it is inherently lawless.  The role of lawyer is differentiated from other social roles (e.g. that of cyber-security consultant or private eye) by its foundation in the law.  Lawyers are a special kind of agent, with powerful prerogatives which extend only as far as the client and lawyer have legal rights.  Anything not permitted by law is prohibited to lawyers as a matter of the ethics of their role. 

I'm interested in what others think here, and I'd really like to see a public statement from Hunton, but something tells me it'll be 90 degrees in February in Ithaca before I see that.

Happy Valentine's Day

 If you missed the ABA Journal Magazine cover story this month, today is a good day to check it out:  Why I Love Being a Lawyer (Seriously)

Lincoln the Lawyer

Happy Lincoln's Birthday to you all.  We've recently had two great books on what had been a long neglected part of Lincoln's life: his legal career.  You might check out Lincoln the Lawyer and An Honest Calling.  The books were made possible by a project to collect any and all legal papers related to his law practice and reproduce them on DVDs.  

Here's a link to various people reciting the Gettysburg Address (h/t to George Conk).  And below is Lincoln's Notes for a Law Lecture -- which we're not sure he ever gave as a speech but which nonetheless are well worth reading.

 

I am not an accomplished lawyer. I find quite as much material for a lecture in those points wherein I have failed, as in those wherein I have been moderately successful. The leading rule for the lawyer, as for the man of every other calling, is diligence. Leave nothing for to-morrow which can be done to-day. Never let your correspondence fall behind. Whatever piece of business you have in hand, before stopping, do all the labor pertaining to it which can then be done. When you bring a common-law suit, if you have the facts for doing so, write the declaration at once. If a law point be involved, examine the books, and note the authority you rely on upon the declaration itself, where you are sure to find it when wanted. The same of defenses and pleas. In business not likely to be litigated, -- ordinary collection cases, foreclosures, partitions, and the like, -- make all examinations of titles, and note them, and even draft orders and decrees in advance. This course has a triple advantage; it avoids omissions and neglect, saves your labor when once done, performs the labor out of court when you have leisure, rather than in court when you have not.

Extemporaneous speaking should be practised and cultivated. It is the lawyer's avenue to the public. However able and faithful he may be in other respects, people are slow to bring him business if he cannot make a speech. And yet there is not a more fatal error to young lawyers than relying too much on speech-making. If any one, upon his rare powers of speaking, shall claim an exemption from the drudgery of the law, his case is a failure in advance.

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.

Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it.

The matter of fees is important, far beyond the mere question of bread and butter involved. Properly attended to, fuller justice is done to both lawyer and client. An exorbitant fee should never be claimed. As a general rule never take your whole fee in advance, nor any more than a small retainer. When fully paid beforehand, you are more than a common mortal if you can feel the same interest in the case, as if something was still in prospect for you, as well as for your client. And when you lack interest in the case the job will very likely lack skill and diligence in the performance. Settle the amount of fee and take a note in advance. Then you will feel that you are working for something, and you are sure to do your work faithfully and well. Never sell a fee note -- at least not before the consideration service is performed. It leads to negligence and dishonesty -- negligence by losing interest in the case, and dishonesty in refusing to refund when you have allowed the consideration to fail. 

There is a vague popular belief that lawyers are necessarily dishonest. I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal. Let no young man choosing the law for a calling for a moment yield to the popular belief -- resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.