Legal Ethics Forum

US Supreme Court tosses suit by detainee against John Ashcroft

Story here.  Opinion here.  An allegedly improper motive for obtaining a valid arrest warrant is not grounds for suing the prosecutor.  If I recall correctly, Jose Padilla's suit against John Yoo is still pending.

"The Wrongful Conviction as a Way of Life"

Jeff Rosen's book review of Brandon Garrett's Convicting the Innocent: Where Criminal Convictions Go Wrong.  (h/t: Instapundit)  Read the whole article, but here's the last graf:

Garrett ends by reviewing the most promising bipartisan reforms that seek to increase the accuracy and reliability of criminal convictions, like North Carolina’s Actual Innocence Commission, which has required the recording of homicide interrogations, expanded the procedures for preserving evidence and increased defendants’ access to DNA testing. But it’s the stories in his book that stick in the memory. One can only hope that they will mobilize a broad range of citizens, liberal and conservative, to demand legislative and judicial reforms ensuring that the innocent go free whether or not the constable has blundered. “What makes the trials of exonerees so frightening is that they show how the case against an innocent person may not seem weak,” Garrett writes. “The case may seem uncannily strong.”

Thomas Jefferson invokes the ABA as cover. (What will the ABA think of that?)

In response to the class action suit against Thomas Jefferson for allegedly using misleading statistics about employment outcomes, the school is being quoted as saying, "We've always been accurate in what we report, and we've always followed the system given to us by the ABA."  Hmm.  I assume that people within the ABA leadership have read the complaint and I wonder what they think about being cited as cover for what's being alleged.  I wouldn't want to be cited as an affirmative defense in that suit.

The school also said, "This lawsuit is very much about a larger debate. This is part of the debate about whether it's practical to pursue a graduate degree in these difficult economic times."  I agree with that, and if you've read the complaint you'll realize that the plaintifffs lawyers have been doing their research about the larger debate. 

Breyer sold Wal-Mart stock in preparation for hearing in Dukes case

Bloomberg has the story.

Cf. Cornyn on Filibusters

This 2003 article in the Harvard Journal of Law and Public Policy is the best I have read on the topic of filibusters.  The author, Senator John Cornyn (R TX), discusses the history of filibusters, the weak justifications senators give for filibusters and the need for reform.  

 http://www.committeeforjustice.org/pdf/cornyn.pdf

Cornyn concludes:

“Instead of fixing the problem [with the judicial confirmation process], we nurse old grudges, debate mind-numbing statistics, and argue about who hurt whom first, the most, and when.  It is time to end the blame game, fix the problem, and move on.  Wasteful and unnecessary delay in the process of selecting judges hurts our justice system and harms all Americans. It is intolerable no matter who occupies the White House and no matter which party is the majority party in the Senate. Unnecessary delay has for too long plagued the Senate’s judicial confirmation process. And filibusters are by far the most virulent form of delay imaginable.”

Many law review articles have a short shelf life, but the arguments in Cornyn's article are as relevant today as they were then.  The article is a must read for anyone interested in an informed and principled discussion of the topic.  I am not sure how many of the senators read it last week, but they should have. 

Class action lawsuit filed against Thomas Jefferson Law School (Alaburda v. TJLS)

Story at Law School Transparency.  The possibility of this sort of suit has been has been discussed for several years and it'll be interesting.  The heart of the allegations are the school's alleged use of misleading statistics about employment outcomes.  The complaint is below.

UPDATE 1: I hadn't noticed that our blog is running an ad for Thomas Jefferson right now, but thanks to the alert reader who noticed it.  Yes, fwiw, I do think that misleading stats  should be actionable for law schools to the same degree they are for commerical businesses.

Download Alaburda_v_TJSL-Complaint

Ed Whelan on Vaughn Walker (and me)

Ed Whelan is an articulate commentator on legal ethics over at National Review Online. Unlike many commentators, conservatives and liberals, who throw darts without careful (or sometimes any) analysis, Whelan does closely parse the issues and understands the doctrines. He seems to understand that the rules should be respected and are not there to be manipulated in order to achieve a desired answer. In other words, the answers the doctrines indicate should be the same whatever the issue. 

 In a recent NRO post critical of my views on the effort retroactively to recuse former Judge Vaughn Walker in the Prop. 8 case, he makes the following two points. I invite response here, especially to the second:

1. My position has been that Walker had no interest in the outcome in the Prop. 8 case unless he wanted to marry his partner and to do so in California. He can always marry elsewhere. Whelan disagrees. A marriage elsewhere would not be recognized in California and Walker should be seen to have an interest in home state recognition. He writes:

"Among other things, the continued existence of Prop 8 should mean that California would not recognize a same-sex marriage performed today in another state."

And he adds as a second Walker interest:

"Further, a reasonable person would understand that there are plenty of reasons why someone who has made California his permanent residence might want to marry only in California."

Of course, this response has traction only if Walker wished to marry at all. If he has no interest in marrying anywhere, the two disqualifying interests Whelan cites would be gone.

But the question remains: Assuming (though we have no basis to do so) that Walker wants to marry at all, is the interest in California's recognition of the marriage a basis for recusal? And are there "plenty of reasons why someone who has made California his permanent residence might want to marry only in California?" And even if there are "plenty of reasons," are those reasons sufficient to warrant disqualification? 

 2. Whelan and others say that if Walker's ability to marry elsewhere eliminates the interest in the case that would be a basis to disqualify him, then it is also true that the plaintiffs' ability to marry elsewhere eliminates the interest they need to have standing to bring the case.

This is a clever argument. Of course, these are two distinct doctrines -- judicial disqualification and standing -- and an interest analysis under the former doctrine (disqualification) tells us little or nothing about the interest analysis under the second (standing) doctrine. Still, the argument requires a response, though from the Art III standing experts, which I'm not.

Goodwin Liu withdraws from nomination process

We've had a few posts on Goodwin Liu's nomination, so here's news about his withdrawal from consideration.

Do you have any lesson plan suggestions regarding the King & Spalding - DOMA matter?

Beth Haas (Drexel) was wondering if anyone planned to use the King & Spalding - DOMA matter in their lesson plans for next semester, because "there are so many possible places to include it (general conflicts, taking on unpopular clients/causes, dropping clients under pressure from other clients, lawyer mobility conflicts, withdrawal, etc.)"

Feel free to post any suggestions in the comments.  I often use hot button hypos on the first day to provoke discussions about whether the students see any difference between their personal ethics and their professional ethics, and I suppose that the K&S matter serve that function.  (I sometimes use a hypo based upon a Wall Street firm's defense of insurance companies that hadn't pay death benefits after the Holocaust.  The K&S matter will probably seem more current to the students.)

I do recommend thinking about using the Alton Logan video on the first day.  This semester we usefully returned to that fact pattern during the week on confidentiality and again during the week on criminal prosecution and defense.  Each time, the conversation was more nuanced. 

Fair v. Bakhtiari (California Court of Appeal): Denies Quantum Meruit Recovery for Failure to Follow the Rule on Doing Business with a Client

When doing business with the client, follow the rule on disclosures!  The opinion can be found here for 120 days.  (h/t: California Attorneys Fees Blog)

"In this case, we consider whether an attorney who entered into very successful business transactions with his clients, but did not provide them the written disclosures required under rule 3-300, was properly denied leave to amend his complaint to state a cause of action for the reasonable value of his services.  We shall conclude the trial court did not err in concluding that the attorney’s fiduciary breach precluded such recovery."