Legal Ethics Forum

Authority: What Is It?

I went to a talk by Walter Olson, author most recently of "Schools of Misrule," about the many deficiencies of legal education today (too liberal), and of the blog Overlawyered, which manages to find every example of a complaint seeking a trillion dollars for a hangnail and to use these complaints as evidence of...something terribly wrong in America.

Olson, a very pleasant and well-spoken man, is now at the Cato Institute, and was formerly at the Manhattan Institute. MI sponsored his talk over lunch at the Harvard Club. It was a good-sized crowd but overwhelmingly not, judging by the questions, of the ideological persuasion with which I'm daily surrounded at my liberal law school.

Anyway, the president of MI, who introduced Olson, had a few harsh things to say about legal education, too. One event he mentioned was a talk that Justice Alito gave to MI in which, among other things, the Justice noted that various philosophers are today cited more often in law journals than was true decades earlier.

Here is an excerpt from Justice Alito's talk, which I found on line:

"Here's a little fact that I think may be telling. During the forty years from 1930 to 1970, Immanuel Kant was cited in 123 law review articles. During the forty years from 1970 to 2010, he was cited in more than 6,500 articles, an increase of over 5,000 percent. From 1930 to 1970, Hegel was cited in ninety-one articles. During the following forty years, he was cited in more than 3,000 articles. I think it suffices to say that few federal judges select Kant or Hegel as their favorite bedtime reading."

What exactly is the problem here? Without presuming to read the mind of Justice Alito or the MI president,  I suppose it is that scholars, and by implication the courts, which succumb to their scholarship, have lost their way (a point Olson went on to underscore, citing -- as many still do decades later -- Charles Reich's article "The New Property" and its influence on the Supreme Court's opinion in Goldberg v. Kelly).

The problem, in this view, is that scholars and the overly influenced judges have forgotten that authority in the law comes from...well, the law. Not philosophers. Not foreign courts, certainly.

Olson was especially critical of Harvard and Yale, pausing to mention that Yale had actually hired as a lecturer a man who, as a student member of the Harvard Law Review, wrote a 90 page Note on lookism (i.e., discrimination against people who are not pretty or handsome), and who most recently, served on the New York Times editorial board for a decade. (That would appear to be Adam Cohen, as measured and thoughtful a person as any I know.)

This was meant to be a criticism. In the Q&A, I asked Olson how he responds to the fact that the 5-Justice conservative block on the Court went to Harvard or Yale and emerged with their good sense intact. He said it was because they had rejected the ideology of their law schools.)

Back to Justice Alito and Kant: Of course, Kant and foreign courts are never cited as binding authority, but as sources of ideas. The fact is that the ideas in the law cannot be the only source of the ideas in the law. It's not a closed universe. Law is a social institution.

(There goes any chance I might have had at Senate confirmation. "Wait. I didn't mean it, Senator. You know how you write on blogs without thinking.")

 But what is especially noteworthy is that Justice Alito's example implies a troubling anti-intellectualism, the notion that judges and lawyers have little to learn from the normative reasoning of those outside the law. I say "normative reasoning" because this position could not extend to the empirical learning of scientists and social scientists. The law must be about what the world is about. Or it may be, and the entire Alito talk permits this inference, that judges are simply not trained to call upon the different  knowledge and reasoning of those outside law.) 

Maybe not. Maybe Kant and Hegel are too much of an intellectual reach. They would certainly be so for me. But what a poor judicial system we would have if its values could come only from its members and from what they claim to discern to have been in the minds of the Founders 230 years ago.

100th Anniversary of the Triangle Shirtwaist Fire (which led to Max Steuer's famous cross-examination)

[posted by John Steele]

The horrific fire, which killed over 140 garment workers, led to workplace safety laws and to the rise of unionization. The subsequent trial is sometimes discussed in legal ethics circles, both because of the ethics of defending the owners (who were certainly unpopular and were possibly aiders and abetters of human death) and because of the issue of witness preparation.  The story of the trial was given a spin by Irving Younger's famous speech, "The Ten Commandments of Cross-examination," but in that speech Younger somewhat embellished the story of the actual cross-examination.  (Younger's speech is entertaining and instructive, so I'm certainly not faulting him for being a poor historian.  It's just that I often hear Younger's account retold and thought I'd do a post the actual cross.)

In Younger's account, the prosecution's key witness was "Sophie," and on direct examination she told a heart-stopping account of being trapped in the fire with her co-workers.  Defense counsel, Max Steuer, realized that Sophie's testimony had been memorized word-for-word and he exposed that by asking her on cross-examination to tell her story again -- normally a big no-no on cross-exam.  When her re-telling inevitably varied by some small word (e.g., "that" for "which") Steuer pounced and Sophie's response -- to retell that passage using the same word, "which," that she had used the first time -- demonstrated that she had indeed memorized the prosecutor's script.

In reality, the cross-examination was more subtle.  The witness, actually named "Kate," may well have been over-prepared and she did repeatedly use certain cliches like "curtain of fire," and that the manager was running around "like a wildcat."  While her repeated tellings of the story were not word-for-word identical, they were close enough to suggest that  something like a script was being presented.  Steuer exposed the over-preparation, the cliches (which presumably didn't sound authentic from Kate), and the amount of time the witness had spent with the proseuction.

For some reason, I can't find my copy of the cross-examination, but these two sites have reasonably good accounts of the trial.  Doing the actual cross out loud in trial advocacy class is well worth the time.

UPDATE:  In the comments, Steve Lubet was kind enough to offer this link, from Doug Linder's site, which has excerpts of the trial, including much of the cross-examination of Kate Alterman.

Must a lawyer be appointed if a defendant who fails to pay child support faces jail time?

The Supreme Court considered this question yesterday during oral argument for Turner v. Rogers (transcript here).  Adam Liptak summarizes the argument in Justices Grapple With Issue of Right to Lawyers in Child Support Cases.  The ABA filed an amicus brief saying yes, "that poor people should have the right to a lawyer in civil contempt proceedings carrying a threat of jail time."  Professors Ben Barton and Darryl Brown filed an amicus brief arguing no, that pro se reforms are the better alternative for ensuring justice in these types of cases. 

Norman Spaulding, "Independence and Experimentalism in the Department of Justice"

Readers may recall that when the DOJ's Office of Professional Responsibility recommended that John Yoo be referred for discipline, the recommendation was over-ruled.  Norman Spaulding's new article addresses a much broader topic than that, but it does include a detailed analysis of that over-ruling.  The abstract:

This Essay challenges the conventional wisdom that political accountability is sufficient to check abuse of power and lawlessness in the executive branch in the vast areas of executive action that are not regularly subject to judicial review. The Essay studies two examples in the long history of partisan appointment of high-ranking government lawyers (Roger Taney’s work for Andrew Jackson in the dispute over the Second National Bank, and the recruitment and work of agency lawyers in the first wave of the New Deal) to demonstrate that lawyers working in the Bush Administration Department of Justice were unique neither in their attitude toward constitutional constraints on the executive, nor in their identification with and desire to promote the Administration’s agenda. Nearly exclusive reliance on political accountability invites an ideologically charged approach to the provision of legal advice to the President, particularly in times of national crisis when the President’s practical and constitutional powers—his “authority of initiative”—are at their peak. The result is that lawyers charged with exercising independent professional judgment to define and preserve the boundaries of permissible executive branch action often assist the President in moving, manipulating, or simply ignoring these boundaries and hence altering the very framework in which controversial executive action is assessed after the fact. In areas in which transparency ensures the supervision of Congress and the electorate, this “extralegal” approach to law reform is less controversial. But in areas such as national security, where transparency is weak at best, the danger of unchecked lawlessness is acute indeed. The Essay considers structural options to ensure that the Department of Justice provides genuinely independent legal advice.

The Lawyer Who Wore a Wire

Omaha World-Herald (w/ a h/t to ABA Journal): The judge in the case held that the crime-fraud exception applied. Great little fact pattern for PR class.  The feds made the lawyer an offer he couldn't refuse: bring the client a phone and discuss the client's drug running when visiting the client.  The judge was upset by the criminal defendant but not by the prosecutor.

Russell Wheeler, "Regulating Supreme Court Justices' Ethics—Cures Worse Than the Disease?"

Op-ed here, from a fellow at the Brookings Institute.  A small taste:

Whatever the merits of the accusations [that the Supreme Court justices are un-regulated]—about which I express no opinion here—the proposals [to subject the court to binding recusal rules] rest on basic factual misunderstandings about federal judicial ethics regulation, could create a “cure-worse-than-the-disease” situation, and are probably unconstitutional in part.

Legal Ethics Items (March 22)

• The Supreme Court granted cert to Maples v. Thomas and Rehberg v. Paulk yesterday.  Maples involves a death row appeal handled initially by lawyers at Sullivan and Cromwell who left the firm, so never received copies of a critical ruling in the case.  (Apparently the mailing was returned unopened to the court, and a clerk put the envelop in a file without doing anything more.)  Adam Liptak offers a summary in today's NYT here.  Rehberg questions "whether a government official who acts as a 'complaining witness' by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a Section 1983 claim for civil damages."  Alberto Bernabe offers his thoughts here on the Court's interest in prosecutorial misconduct cases over the past two terms.
• The results are in from the first All India Bar Exam, with a pass rate of just over 71%.
• Peter Henning speculates on whether John Edwards will be indicted.
• Over at The Faculty Lounge, Bridget Crawford has started an interesting conversation on the ethics of a CV that is weird, vague or misleading.
• From the Lexington Herald-Leader:  "A First Amendment lawsuit to be decided soon in U.S. District Court in Frankfort might establish whether a respected lawyer broke an ethics rule — risking his law license — by criticizing the state's Legislative Ethics Commission."

An Important Lawyer Standing Case from the 2nd Cir. Today

It seems like it was argued a decade ago but it was only last spring. As quoted in Tuesday's issue of the NY Law Journal:

"Attorneys, journalists and human rights organizations have standing to challenge amendments to the Foreign Intelligence Surveillance Act they claim gives the executive branch unbridled authority to monitor their communications with people overseas, the U.S. Court of Appeals for the Second Circuit ruled yesterday."

The appeal was heard by Judges Calabrese, Lynch and Sack. Judge Lynch wrote the opinion. The ACLU  took the position that the government's broad powers would ethically prevent lawyers from having electronic communications of substance with their overseas clients, severely limiting their ability to represent them. In turn, the ACLU lawyers argued that this was enough to confer standing (injury in fact). 

Here are a few more fair comment paragraphs from the Journal. 

"Reversing a lower court, the Second Circuit said the groups have standing to sue over §702 of the act, which was added to FISA, 50 U.S.C. §1881a, by the FISA Amendments Act (FAA) of 2008 to create new procedures for authorizing electronic surveillance against non-U.S. individuals outside the United States.

"The reason, the court said in the case of Amnesty International USA v. Clapper, 09-4112-cv, was that attorneys, journalists, human rights groups have alleged a 'reasonable fear of future injury and costs incurred to avoid that injury.'"

I haven't yet had a chance to read the whole opinion but the gist of the report tells me it will be important to this narrow but critical area of law. 

 

What it feels like to Think You Might Have a Duty To Report.

For the first time in my life, I had to consult a lawyer about legal ethics.  Boiled down, I learned that a fraud may have been committed in connection with something I had had nothing to do with. There was no smoking gun, but I knew enough to know that someone could later argue I "knew" (see Rule 1.0 for a definition).  If I failed to report, then if things went south, so possibly did I.

This was a horrible place to be, as it would be for any lawyer.  The feeling of being put between a rock and a hard place was overwhelming -- if I reported, I clearly met the duty if it existed. If I didn't, there was risk to me.  But, as is probably often the case when reporting issues crop up, reporting would create problems for people I knew, and likely cost me time and emotional capital in dealing with the whole thing.  

Recognizing that erring on the side of caution was not the easy option is something that I had not felt as an advisor and teacher.  It is a powerful feeling -- you want to do what is right, but you want to do it only if you absolutely have to, because it could hurt people you know.  That lies at the core of reporting.

Worse are understandable internal rationalizations you go through. You pit theoretical "maybe this will never come to light" versus actual "if I report, this gets brought into the daylight." It is a very difficult place to be.

As you can imagine, given what I do for a living (teach ethics and consult with lawyers about ethics!) my angst was not calmed that greatly by the fact that the person withdrew the arguably tainted document.  I felt that this probably eliminated any duty to report (which I had grave questions existed anyway), but I wanted to be sure.  Even though I would have felt comfortable advising another lawyer in somewhat similar circumstances (well, if it had involved patents, and this did not), I needed to be sure, and so I later consulted with a lawyer... and there, of course, that part of the story necessarily ends.

The point of my story?  To share it.

Odds and ends (March 21, 2011)

• Miami Herald: " Pentagon defense lawyers are protesting a 26-page document that regulates their work at Guantánamo in a similar fashion to the civilian lawyers who are suing on behalf of the captives."  (h/t: Law of Criminal Defense)

• The Ethical Quandary (Hinshaw): Law firm's internal discussions about potential malpractice may be privileged.

• Via Tax Prof Blog: ABA to change the reporting of employment data.

• SF Gate: a preview of the Barry Bonds trial.