Legal Ethics Forum

Wroblewska v. Holder (7th Cir)(attorney referred to state bar for inadequate argumentation)

Opinion.  In yet another case arising from Operation Durango (a government-run sting that lured hopeful immigrants into "bribing" brokers), the court had sympathy for the applicant who fell for the sting operation, but the court faulted the lawyer's inadequate development of legal theories to challenge the sting and referred the matter to the state bar.

In re Taylor (3d Cir)(sanctions affirmed for overreliance on computerized processes in a high-volume practice)

Opinon here, arising from high volune foreclosure work where there isn't much room for hand-crafted lawyering -- or for checking the accuracy of the databases that spit out the information that gets presented to the court. Only some of the sanctions against some of the lawyers were affirmed. Some excerpts:

This case is an unfortunate example of the ways in which overreliance on computerized processes in a high-volume practice, as well as a failure on the part of clients and lawyers alike to take responsibility for accurate knowledge of a case, can lead to attorney misconduct before a court.

In October 2007, HSBC filed such a proof of claim with respect to the Taylors‟ mortgage. To do so, it used the law firm Moss Codilis.2 Moss retrieved the information on which the claim was based from HSBC‟s computerized mortgage servicing database. No employee of HSBC reviewed the claim before filing.

This proof of claim contained several errors: the amount of the Taylors‟ monthly payment was incorrectly stated, the wrong mortgage note was attached, and the value of the home was understated by about $100,000. It is not clear whether the errors originated in HSBC‟s database or whether they were introduced in Moss Codilis‟s filing.

ABA asks SCOTUS to recognize ethical Brady duties broader than the constitutional duties

ABA Journal: What will the US Supreme Court do with the ABA's request that the court acknowledge that the ethical duties relating to Brady materials exceed the constitutional duties?  The ABA's amicus brief -- filed in yet another case by a Louisiana convict alleging the improper withholding of exculpatory materials -- can be found here.

Should the ABA Standards on Prosecution and Defense facilitate progressive reform?

Ellen Podgor's article raises that interesting question, focusing on the drafters' decision not to include sexual orientation as an improper grounds for striking potential jurors.  (Ellen blogs at the White Collar Crime Prof Blog.) Abstract:

This Essay examines the role of the ABA Criminal Justice Standards: The Prosecution and Defense Function Standards, looking at language when initially drafted to language being considered in the proposed fourth edition. It focuses on the preliminary sections of the Standards that outline the intended role of the Standards and considers how courts have used these Standards in court decisions. It also notes how the Standards serve a hortatory role, providing internal guidance to prosecutors and defense counsel. An overriding question is whether these Standards serve a legitimate function in the criminal justice process?

Placing the question of the role of the Standards in a specific context, this Essay examines the drafters’ approach to jury selection and specifically to peremptory strikes based on sexual orientation. The drafters’ failure to explicitly include “sexual orientation” as an impermissible category for peremptory strikes of jurors, leaves the Standards merely endorsing existing constitutional criteria, which raises the question of whether the Standards have any purpose. This Essay advocates against the approach taken by the drafters, as it offers little advancement in the law and perpetuates existing bias. As hortatory standards, it is unnecessary to limit the rules to existing law. More importantly, by failing to expand the category of impermissible peremptory challenges, it is a missed opportunity to offer progressive legal reform.

"Don't be shy about lawyering up."

Fins Finance comments on the market's reaction to Lloyd Blankfein's decision to hire his own personal lawyer: "Don't be shy about lawyering up."

I agree, and assume that all reasonably informed people agree. I'm surprised that the market didn't assume that Blankfein's decision was a no-brainer. I made similar comments when President Obama complained that BP was getting "lawyered up."

In a similar vein, I just finished reading James Stewart's Tangled Webs, which recounted the perjury accusations agasint Martha Stewart, Barry Bonds, Scooter Libby, and Bernie Madoff. In an era where you can be convicted for allegedly misleading answers to federal investigators about conduct that wasn't even criminal to begin with, by all means, "don't be shy about lawyering up" if the feds want to talk to you.

(Micro-book-review about Tangled Webs for purposes of teaching PR: The chapters about Martha Stewart illustrate the pressure that bosses can bring to bear on lower level employees to lie, but because the lower level employee wasn't a lawyer, that issue will only be tangential to law practice. The discussion of the federal prosecutors' efforts to shore up -- and perhaps shape -- the employee's testimony were of some use to a PR class. The chapters on Scooter Libby were interesting for a class on the ethics/competence of criminal defense lawyers.  The chapters on Bernie Madoff were interesting in terms of the limitations of relying upon even the best intentioned of federal agency lawyers for detecting fraud on the market. The Barry Bonds saga was interesting because the person who leaked the grand jury testimony was a defense lawyer. Stewart's concluding chapters, where he tried to make some larger points, were weak. The usefulness of the book is in the factual-journalistic chapters.)

Lance Armstrong complains about grand jury leaks and about DOJ's sealed filing regarding the leaks

Main Justice: Armstrong, using John Keker of Keker & Van Nest, complains about leaks and DOJ's sealed filings about the leaks.

The Justice Gap and Reforming ABA Model Rule 5.4

Today's NYT editorial page features this headline "Addressing the Justice Gap:  The poor need representation and thousands of law school graduates need work."  The editorial  advocates a number of solutions, such as increased funding for the Legal Services Corporation, required reporting of pro bono work, permitting nonlawyers to handle routine legal services, and an expansion of loan forgiveness programs.  In my mind, another important solution is notably absent:  permitting corporations and other nonlawyer sources to own and invest in law practices.  This sort of external funding has the potential to increase more accessible and affordable legal services in response to the very need identified by the NYT piece:

In civil proceedings like divorces, child support cases, home foreclosures, bankruptcies and landlord-tenant disputes, the number of people representing themselves in court has soared since the economy soured. Experts estimate that four-fifths of low-income people have no access to a lawyer when they need one. Research shows that litigants representing themselves often fare less well than those with lawyers. This “justice gap” falls heavily on the poor, particularly in overburdened state courts.

While the American Bar Association historically has opposed nonlawyer ownership and investment, the Ethics 20/20 Commission recently approved the drafting of a proposed change to ABA Model Rule 5.4 that would allow law firms to include nonlaywers in minority ownership roles (see here).  This is an important first step, and one that should be explored as we look at ways to narrow the justice gap in this country.

 

Erwin Chemerinsky, "The Ideal Law School for the 21st Century"

Article. Abstract:

In this article, Dean Erwin Chemerinsky describes the two key aspects to the vision for UCI Law School: being a top 20 law school, by every measure, from the outset and preparing students for the practice of law at the highest levels of the profession. He describes the early history of the law school and the many choices that have been made to realize these goals.

Laurel Terry, "Understanding the Economic Rationale for Legal Services Regulation: The Importance of Interdisciplinary Dialogue"

Article. Abstract:

This short essay offers the author’s reflections on a paper commissioned by the U.K. Legal Services Board. The paper is Christopher Decker & George Yarrow, Understanding the Economic Rationale for Legal Services Regulation (Oct. 31, 2010); this author’s commentary is entitled Understanding the Economic Rationale for Legal Services Regulation: The Importance of Interdisciplinary Dialogue.

The 2007 UK Legal Services Act radically changed the regulation of the legal professions in England and Wales. The Legal Services Board is the entity that is now vested with oversight authority for lawyer regulation. It monitors the work of the so-called “front-line regulators” including the Solicitors’ Regulation Authority and the Bar Standards Board.

In the past few years, the Legal Services Board has sought input on a wide range of issues. It has issued consultations on many issues and has commissioned a number of studies. Since the Legal Services Board is anticipating the launch of alternative business structures (ABS) in the UK, it has been particularly interested in exploring issues related to the nature of regulation. The Decker-Yarrow Report is one of the studies it has commissioned to help it better understand regulatory issues.

This author’s short essay (which was constrained by space limitations) identifies three aspects of the Decker-Yarrow paper she found admirable and three points on which she wished it had been more fully developed. the latter three points included: 1) a desire for more consistency in reminding the reader that legitimacy and quality concerns may require one to look beyond the impact of regulation on a specific client; 2) a suggestion that the paper would have been stronger if it had developed in greater detail the 'assessment framework' idea it introduced; and 3) an observation that the paper’s treatment of the concept of 'self-regulation' failed to unpack the concept adequately because it implicitly used a definition of self-regulation that is similar to the UK’s prior model of self-regulation by a 'representational' body.

Summary of recent Bivens cases for national securitiy excesses

At Justia, David Kemp has a nice summary about the pending cases asserting Bivens claims agasint members of the Bush administration for alleged excesses in the national security arena. The main focus in on the Seventh Circuit's recent decision that the case against Donald Rumsfeld may proceed to the merits, but there is mention of the case against John Yoo now pending before the Ninth Circuit.