Legal Ethics Forum

Guardianship of HC (California Court of Appeal: no due process right to counsel in guardianship proceedings)

Case opinion here, under "Guardianship of HC," holding that mother did not have due process right to appointed counsel in guardianship case. Excerpts:

L.B. requested a continuance “because I need an attorney. And obviously my rights as a mother are being intervened with. And I need to have an attorney here because I‟m going to have to apply for some sort of financial aid.” The court denied L.B.‟s request and explained that, although she could hire an attorney, she was not entitled to appointed counsel.

Multiple Choice Question: People v. DSK

By the end of this month (unless extended) D.A. Vance will decide whether to proceed with People v. Strauss-Kahn. He should

a. dismiss unless he personally believes DSK is guilty and the proof shows guilt beyond a reasonable doubt; 

b. same as a. but only if the proof is strong and a conviction highly likely; 

c. prosecute the case even if he does not believe beyond a reasonable doubt that DSK is guilty if the proof is sufficient to  persuade a jury of the defendant's guilt beyond a reasonable doubt;

d. same as c. but only if the proof is strong and a conviction highly likely;

e. defer to the consensus in his office and either dismiss or, if the proof can support a conviction beyond a reasonable doubt, prosecute.

f. something else (what?)

Apology and Remorse in the Bar Application Process (Mitchell Simon, guest blogging)

[Mitchell Simon, of New Hampshire, is guest blogging on the role of apology and remorse in the bar application process.]

If you are the “ethics person” at your law school or have represented applicants before your state’s Character and Fitness Committee, you have no doubt pondered how this somewhat mysterious admission process works. Based on the lack of available guidance, students with past indiscretions become very nervous, if not panicked, when they first learn of the character and fitness evaluation.

Most of us would like, when asked for advice, to be able to tell a young student with, for example, a high school DUI, a college arrest for public urination and some credit card debt whether he or she  is at risk of an admission denial or delay. I found that providing this type of advice was more difficult than I expected, since character and fitness cases are rarely published. Those that are published, at least on youthful offenses, offer little help since they fail to identify any type of consistent methodology on the impact of various underlying offenses.

This conundrum led me to my first article on the topic, What’s Remorse Got to Do, Got to Do With It? Bar Admission for Those with Youthful Offenses, soon be published in the Michigan State Law Review.  After reviewing thirty years of reported cases for this article, I concluded that the nature of one’s youthful offenses (as opposed to serious criminal activity), in virtually any combination, do not predict the outcome. Rather, having past problems usually gets the applicant  an interview at which the following questions are evaluated: 1. Was the applicant candid and remorseful? 2. Is there a risk of future drug or alcohol abuse?

Having reached these conclusions, I focused on the candor and remorse issues. Using literature from the fields of social and legal philosophy and ethics on the nature of apology and remorse, I argue that inquiry into a bar applicant’s remorse in cases of youthful offenses fails to serve significantly the underlying purpose of the process. It is also likely to encourage deceit by applicants and produce ethical dilemmas for lawyers and law professors counseling the applicants. The focus on remorse muddies this already complex task and adds little, if anything, to the Committee’s ability to access the applicant’s candor during the process.

After having completed this work, I grudgingly recognized that this article was unlikely to change the well-settled pattern of looking at candor and remorse in youthful offense cases. Also, there is, in my opinion, a legitimate need to look at remorse in cases of serious offenses. I joined with my colleague at UNH, Nick Smith, and Nicole Negowetti, from Valparaiso Law School to propose guidelines to improve this decision making. That article, Apologies and Fitness to Practice Law: A Practical Framework for Evaluating Remorse in the Bar Admission Process, will be published in the Journal of the Professional Lawyer in the fall.

In light of the importance of remorse in the character and fitness process and the difficulty committees—and indeed all of us—face in interpreting the meaning and value of apologetic gestures, this article develops specific guidelines that committees can use to evaluate whether a bar applicant’s statements of remorse are sufficient to show rehabilitation. It provides an analysis of the inconsistent treatment of apologies and remorse in the character and fitness context and explains the confusing and often contradictory meanings conveyed by apologies.

My colleague Nick Smith has argued that adversarial legal environments are not a natural habitat for repentant gestures like remorse and apology. Following his theory of categorical apology set out in his book I Was Wrong, we enumerate thirteen questions that should guide review boards as they evaluate the apologies and remorse of bar applicants.  Such principles, we believe, will concentrate the reviewer’s attention on the variables most salient to evaluating the quality of the applicant’s remorse.  We argue that such a principled framework can lend rigor and increase consistency in the review process, which will, in turn, better serve both the bar and applicants to the bar.

We welcome your thoughts on the character and fitness process and the arguments in our articles.

odds and ends (August 8, 2010)

• Law Firm Risk Management Blog: "Standards and Ethics for Lawyer Use of Hosted Cloud Software Services"

• LA Times: Pierce O'Donnell pleads guilty to money laundering.  (ht: Overlawyered)

• While sitting on the beach Sunday, I read Prof. Drew Westen's  NYT op-ed, which argues that what Westen views as President Obama's failure is due in large part to the president's failure to tell the story that the public needed to hear.  Political scientist types have jumped all over Westen's article (see roundup of links at George Conk's Otherwise).   What interested me from a legal ethics point of view was Westen's apparent lack of awareness of the ethical ambiguity of narrative story-telling.  It's something that legal-ethics-types worry about all the time -- even though, being professional story-tellers, we're often ready to craft narratives that will help either side of a dispute.  To my eyes, Westen's article seems thin on the ethics of narrative and overly optimistic about the power of any partisan to succeed solely on the strength of a self-serving narrative. [edited slightly, to clarify that I'm not endorsing Westen's views on the supposed failures of the president, but rather am talking about Westen's views on narratives.]

 

Benjamin Wittes on "Paul Starobin on Harold Koh" on role morality

I had just finished reading the NYT piece on Harold Koh's "volte-face" when I saw that Benjamn Wittes's new post at Lawfare captured my initial thought: "One explanation [the article] doesn’t consider [for explaining Koh's shift] is the possibility that Koh is a lawyer with a client, and that the role of the academic and the role of the government lawyer differ."  Of course, that basic explanation isn't yet a justification for either of Koh's positions, but Wittes does pursue the thought in a critical vein.

UPDATE: Starobin responds to Wittes.

Koh himself recently gave a speech to the American Society for International Law in which he contrasted the roles of academic and lawyer.  Some excerpts:

In much the same way, I learned that the making of U.S. foreign policy is infinitely harder than it looks from the ivory tower. Why? Because, as lawyers, we are accustomed to the relatively orderly world of law and litigation, which is based on a knowable and identifiable structure and sequence of events. The workload comes with courtroom deadlines, page limits and scheduled arguments. But if conducting litigation is like climbing a ladder, making foreign policy is much more like driving the roundabout near the Coliseum in Rome.

In this maze of bureaucratic politics, you are only one lawyer, and there is only so much that any one person can do. Collective government decision-making creates enormous coordination problems. We in the Legal Adviser’s Office are not the only lawyers in government: On any given issue, my office needs to reach consensus decisions with all of the other interested State Department bureaus, but our Department as a whole then needs to coordinate its positions not just with other government law offices, which include: our lawyer clients (POTUS/SecState/DepSecState); White House Lawyers (WHCounsel/NSC Legal Counsel/USTR General Counsel); DOD Lawyers (OGC, Jt Staff, CoComs, Services, JAGs); DOJ Lawyers (OLC, OSG, Litigating Divisions-Civ., Crim, OIL, NSD); IC Lawyers (DNI, CIA); DHS Lawyers, not to mention lawyers in the Senate and House.

To make matters even more complex, we participate in a complicated web of legal processes within processes: the policy process, the clearance process, the interagency process, the legislative process; and once a U.S. position is developed, an intergovernmental lawyering process. So unlike academics, who are accustomed to being individualists, in government you are necessarily part of a team. One obvious corollary to this is that as one government lawyer, your views and the views of your client are not the only views that matter. As Walter Dellinger observed when he worked at OLC:

"[U]nlike an academic lawyer, an executive branch attorney may have an obligation to work within a tradition of reasoned, executive branch precedent, memorialized in formal written opinions. Lawyers in the executive branch have thought and written for decades about the President’s legal authority… When lawyers who are now [in my office] begin to research an issue, they are not expected to turn to what I might have written or said in a floor discussion at a law professors’ convention. They are expected to look to the previous opinions of the Attorneys General and of heads of this office to develop and refine the executive branch’s legal positions." 

 

Lawfare blog, "Spat Over Who’s Waging Lawfare in Padilla 4th Circuit Briefing"

Lawfare Blog on the appellate briefing in the Padilla case.

Defending Zealous Representation

I love this: An elected official, from a party that does not have a consistently honorable record dealing with anti-Muslim bigotry, vigorously defending a judicial nominee who as a lawyer represented Muslim-Americans who had been improperly detained by the FBI after 9/11. We need more politicians willing to defend zealous client representation in principle, rather than scoring cheap political points based on ignorance.

 

H/T Talking Points Memo

Pro hac vice denial is reversed on appeal; out-of-state court counsel didn't violate 3.6

You don't see these issues litigated too often, and seeing both in one opinion is a man-bites-dog event.  ABA Journal has the story and a link to the opinion.  In a legal mal case, pro hac vice was denied by the trial court on the ground that comments by plaintiff's counsel to the press violated 3.6  The trial court was reversed on appeal.

Six new ethics rules submitted to California Supreme Court, as test case for format of the bulk of the new rules

This one has been confusing to me, but I hope I now have it right.  After a long process, the State Bar of California, acting initially through a Rules Revision Commission, has drafted about 70 new ethics rules, based upon the ABA's Model Rules. (Previously, California's ethics rules have not been based on the ABA Code or Rules.)

Although that large number of rules has been approved through the highest level of the State Bar (i.e., the Board of Governors), at this time only six rules have been submitted to the Supreme Court of California for immediate consideration.  Many of us (or least me) had thought that the bulk of rules had been submitted months ago.  In fact, there has been a long delay devising a format for the various materials that will accompany the rules being submitted to the Court and, as a sort-of test case, six rules are being submitted so that the high court can decide if it likes the formatting of the submissions.  The six rules are the Purpose and Scope rule (1.0) and the five 7.x rules that deal with advertising, communications, etc.  If the format works, then the remaining rules will eventually be submitted to the court.  Story here.  Hope that's clear.  And if I've got it wrong, please leave a comment below!

Last we heard, California will adopt a reporting rule about other lawyers and judges; will have an aspirational pro bono rule; will not have a rule on imputation (what we in California call "vicarious" disqualification); and in general will have lots of ABA-based rules on topics as to which California's rules have long been silent.  And, by the way, the proposed 1.6 should finally lay to rest that oft-heard claim that California has only one exception to the duty of confidentiality (i.e., to prevent a crime leading to death or substantial bodily harm).  California case law has long recognized other exceptions (e.g., in disputes between clients and lawyers) and the proposed rule would formally recognize them.

As for advance waivers, the proposed rule 1.7 has a comment 22 that is, in my view, a reasonable statement of when advance waivers should be enforceable.  As I've argued previously, courts should tacitly insist that corporate clients contract around the uncertainties surrounding the corporate affiliate conflicts problem and should enforce advance waivers when the client is a corporation that employs its own lawyer.

Proposed rules can be accessed at the bottom of this page.

Anders Breivik (Norwegian mass murderer) and his lawyer, Geir Lippestad, in the news

Anders Breivik, the Norwegian mass murderer, has been making some demands of the police and Breivik's lawyer, Geir Lippestad, has been publicly commenting on those demands.  News stories here, here, and here.

Lippestad said that Breivik has been making routine requests, such as for cigarettes and clothing, but has also made requests, for example, that the Norwegian government step down.  Lippestad described those requests as, "unrealistic, far, far from the real world and shows he doesn't know how society works."  Presumably, Lippestad is preparing the public and courts for an insanity defense. 

It's interesting to think about Lippestad's behavior through the lens of US legal ethics rules.  Are those public comments expressly or impliedly authorized by the client?  Do they help or hurt?  Would the client prefer instead that his lawyer publicly assert the sanity and resolve of his client (even if we'd find such assertions odious and offensive)?  From all the press accounts I've read, Lippestad is a very highly regarded professional, so I do not intend to criticize him here.  It just raises some classic questions about the attorney client relationship.

Meanwhile, Breivik has asked that his psychiatric evaluation be done by a Japanese expert, because, as Lippestad explains it, "[Breivik] claims the Japanese understand the idea and values of honor and that a Japanese [expert] would understand him a lot better than any European would."