Legal Ethics Forum

Jonathan Adler (at Volokh): "How Long a Nap Is Ineffective Assistance of Counsel?"

It's a good question, so if you have thoughts you might comment over at Volokh, where Adler discusses a new case on that issue -- one where the defense counsel fell asleep during the cross-examination of the defendant. 

In every trial I've had that lasted over one week, someone fell asleep at least once, usually in mid-afternoon well into the trial.  The strangest occasion was during a bench trial when the judge fell asleep.  The opposing lawyer and I made eye contact, wondering what to do.  IIRC, the other lawyer made an unusually loud throat clearing noise and the judge perked up.

[edited slightly]

Noonan and Painter Casebook, third edition now available

Professional and Personal Responsibilities of the Lawyer, Third Edition (2011)

by The Hon. John T. Noonan, Jr. and Richard W. Painter 

From Foundation Press:

http://www.westacademic.com/Professors/ProductDetails.aspx?productid=155372&tab=1

 

Major changes reflected in the 2011 3rd edition include:

• Four 2009-2010 cases by the US Supreme Court on competence of counsel in criminal trials
• Federal regulation of securities lawyers under Section 307 of the Sarbanes-Oxley Act and Securities and Exchange Commission (SEC) rules promulgated thereunder.
• Revisions to ABA Model Rules 1.6 (client confidences) and 1.13 (organization as client) to address issues arising in the Enron and Worldcom bankruptcies.
• Controversies that have arisen with government lawyers since the last edition of this casebook, including political influences on hiring and firing of US attorneys, interrogation and trial of detainees in the war on terror.
• Campaign contributions and other grounds for recusal of judges
• Changes in the ABA Model Rules that allow lawyers to provide limited assistance to pro se litigants.
• Growth of the legal forms industry (LegalZoom, etc.)
• Recent changes in the Federal Rules of Evidence on inadvertent disclosure of privileged communications by a party or by a party’s lawyers
• A new casebook chapter on lawyer liability, including liability of prosecutors for misconduct and the in pari delicto defense to corporate malpractice claims
• A new casebook chapter on lawyers and the First Amendment
• The role of lawyers and judges in deportation proceedings
• Advance waiver of client conflicts and conflicts in representation of corporate parents and subsidiaries

And more . . . .

Congressmen and staff who trade in securities markets before the debt crisis is resolved: go directly to jail

Anyone who trades on inside information from Congress or from any other part of the government about the present federal debt crisis will have the federal securities laws to contend with.  I discuss trading on inside government information in Chapter 7 of my book, Getting the Government America Deserves (Oxford 2009), but Donna Nagy discusses the problem with considerably more detail and analysis of federal insider trading law in an important article that should be read by any government official -- or tippee of a government official -- who might be tempted:

Insider Trading, Congressional Officials, and Duties of Entrustment, 91 B.U. L. Rev. 1105
(2011).

http://ssrn.com/abstract=1750308

A very good case can be made that the present crisis is so serious that information about its resolution is material to an investment in just about any security -- not just U.S. government debt.  This means that any trading in or out of the securities markets while in possession of inside information about the crisis could be a violation.

1789 was the last time there was a serious question about whether the United States would make good on its debts.  While Congress debated Treasury Secretary Alexander Hamilton's plan to pay off federal and state notes at 100% of face value, speculators including Members of Congress and their allies bought up the notes for as little as 20% of face value.  Stage coaches were sent around the south and west to buy up the supposedly worthless notes from farmers and Revolutionary War veterans.  Then Congress passed Hamilton's plan and it was time to cash in.  Senator William Maclay, Democrat of Pennsylvania, was rightly furious at this corruption.  See Chapter 7 of Getting the Government America Deserves quoting the Diary of William Maclay 1789-1791.  

The Country once again stands on the brink of an economic crisis while Congress fiddles around.  The politicians who created this crisis had better not push their luck.

Efforts to bring back retro-Rule-11 not expected to pass?

I wasn't aware that this was afoot, but according to Overlawyered, an effort to restore the older, tougher version of Rule 11 has fared well in the House but looks doubtful in the Senate.  More at Mass Tort Litigation Blog and here. My recollection was that the older, tougher version of the rule led to an increase in collateral litigation over Rule 11 -- and in one case over whether the Rule 11 motion was itself a Rule 11 violation.  My sense was that the newer version was more effective in combatting frivolous litigation.  Is anyone aware of any good studies on that issue?

Capital Punishment as a Moral Duty

Thane Rosenbaum, the author of an awful book, The Myth of Moral Justice, has returned with the threat of a new book, on vengeance, and an op-ed in today's NYT.  He suggests that capital punishment is morally appropriate, that killing in revenge is a moral duty. and that the state's failure to avenge (because of "procedural errors" and reasonable doubt) is a breach of the social contract, justifying vigilantism.  There is nothing in the op-ed about the conviction of innocents, racial disparities in sentencing, or the immorality of cold-blooded killing by the state.

Gemma Smyth, "Interviewing Adult Clients in Child Protection Matters: Advice for New Lawyers"

Article, from a Canadian perspective.  Abstract:

Client interviewing is a cornerstone of lawyer-client relationships, particularly in often high-conflict child protection matters. This practical article focuses on the initial interview of adult clients involved in child protection matters. Part I sets out the social context of interviewing caregivers. Part II describes the theories of client-centred and engaged client-centred lawyering employed throughout the paper. Given the context and theory, Part III sets out four key stages of interviewing that may prove difficult for new lawyers: rapport-building, fact gathering, reality checking and concluding.

Geir Lippestad, lawyer for Norwegian mass murderer/terrorist

Shortly after being arrested for mass murder and terrorism, Anders Breivik asked to be represented by Geir Lippestad.  Information on Lippestad here, here, and here.  For the PR profs out there, it might be interesting in a month or so to ask your fall semester students if they'd be willing to assist Lippestad in the preparation of a defense of imperfect necessity or insanity.

UPDATE: Patrick O'Donnell has thoughts here and Bridget Crawford has thoughts at The Faculty Lounge, with a link to a BBC interview with Lippestad.

Goodwin Liu to California Supreme Court

His nomination is an excellent choice by Governor Brown and will be subject to a far less politicized confirmation process.  For all of the reasons I have explained here before, Liu is obviously qualified.  The nation's loss is California's gain.  Meanwhile our federal confirmation process -- like our budget process -- is still broken.

Cliches compounded

I know I have oy-veyed against cliches, but y' gotta love it when you repeatedly hear:

"We have to put all the sacred cows on the table."

Or:

"It can't be 'my way or the highway.  We all have to go the extra mile."  (On the highway?)

Forbes: "Non-Lawyers Find It Hard Avoid Breaking Bar’s Vague Rules"

Article about UPL is here.  (h/t: Legal Profession Blog)