Legal Ethics Forum

Margaret Colgate Love, "Evolving Standards of Reasonableness: The ABA Standards and the Right to Counsel in Plea Negotiations"

With a hat tip to Law of Criminal Defense, here's a new article by Margaret Colgate Love and here's the abstract:

The ABA Criminal Justice Standards have been recognized by the Supreme Court as one of the most important sources for determining lawyer competence in Sixth Amendment right to counsel cases. Because the constitutional test is whether defense counsel’s performance was “reasonable” under “prevailing professional norms,” it is necessarily an evolving one. Padilla v. Kentucky underscores the defense bar’s stake in participating in the ABA standard-setting process to guide the development of their obligations in plea negotiations. In addition, to the extent the courts give the ABA Standards credence in judging ineffective assistance claims, they can be powerful catalysts for changing the behavior of other actors in the plea process, as well as system norms. The Standards can also be leveraged to help the defense bar gain access to the additional resources necessary to comply with the constitutional obligations of defense lawyers post-Padilla. Two developments give this problem particular urgency: One is the proliferation of status-generated “collateral” penalties affecting every activity of daily life, penalties that are frequently more severe than any sentence potentially imposed by the court. The other is the broad applicability of these collateral penalties to misdemeanants and other minor offenders who in the past would have been spared the reduced legal status and stigma reserved for convicted felons. Part I of this Article analyzes the Supreme Court’s treatment of the ABA Standards in Sixth Amendment cases, and Part II discusses the manner in which the Standards are developed and approved as ABA policy. Part III describes the provisions of the Standards that govern plea negotiations, and proposes their expansion in light of the new mandate given defense lawyers by Padilla. It concludes by urging greater defender participation in the Standards process to shape how the Sixth Amendment standard evolves, and to maximize Padilla’s systemic effect.

Socio-economic status and law school admission: Richard Sander and ten responses

Denver University Law Review has a new article by Richard Sander, "Class in American Legal Education," as well as ten responses. The Chronicle of Higher Education has some analysis of the issues. Some passages from Sander's article:

• The purpose of this paper is twofold: first, to uncover and explore some of the basic facts about socioeconomic diversity in law schools, and second, to compare racial and “class” diversity as objectives that law schools should pursue. While the available data is not perfect, it is detailed enough to make possible several robust conclusions:
• The vast majority of American law students come from relatively elite backgrounds; this is especially true at the most prestigious law schools, where only five percent of all students come from families whose SES is in the bottom half of the national distribution.
• The degree of SES eliteness across law schools is very similar in recent surveys (from the 1990s and early 2000s) as it was in surveys from the early 1960s. Although racial diversity has increased sharply during the intervening decades, the great majority of non-white law students are, like whites, from relatively elite backgrounds.
• Both racial minorities and non-elite classes are underrepresented when we compare law school enrollments to the general population. But blacks and Hispanics are numerically well-represented in law schools compared to the general pool of college graduates. This is not true of low- and moderate-SES college graduates.
• Law school admission policies use very large and relatively mechanical racial preferences, but appear to generally ignore SES considerations. Some law school policies militate against the admission of low- and moderate-SES applicants. Even in awarding grants and scholarships, law schools apparently generally ignore need; low-SES whites receive half as much scholarship aid as do high-SES whites.
• Policies implemented by both law schools and undergraduate colleges have shown that class-based preferences are feasible and effective in creating diversity, and they involve much smaller academic costs than do racial preferences. In short, a serious discussion in the legal academy about how to address socioeconomic diversity is long overdue. I hope the collective work in this issue of the Denver University Law Review will convey such a consensus, and will be followed by some organized effort within the academy to pursue these questions in a thoughtful and sustained way.

Nova Southeastern University issues press release about MPRE passage rate

I've never seen this sort of thing before: Nova Southeastern University issued a press release noting, "In relation to all South Florida law schools, NSU ranked first on the MPRE exam, leading by 6.1 percentage points, and second by a mere 2.2 percentage points on the general exam. This year’s performance of 87.4% was 6.6 percentage points better than the previous year." I wonder how they did it.

What do you think about a press release like that? Do you think it hurts their academic prestige? Do you think it helps them in converting admittees into enrollees?

[edited as to the actual name of the school, twice -- apologies!]

University of Illinois correct four years of false data

Tax Law Prog Blog has the details.  Would this justify a class action suit?  A sort of fraud on the market?  Will the Illinois state bar investigate?

BNA analyzes new ABA opinion on preparing your client to talk to the opposing party

BNA looks at the ABA's new opinion 11-461, "Advising Clients Regarding Direct Contacts with Represented Persons."

Anthony Alfieri, "Fidelity to Community: A Defense of Community Lawyering"

Article. [edited to include link.] Abstract:

In July 2011, Miami-Dade County Mayor Carlos Gimenez, faced with a $400 million budget gap, proposed to close thirteen libraries across Greater Miami, including the Virrick Park Library in Coconut Grove Village West (“the West Grove”), an impoverished Afro-Caribbean-American community served by the University of Miami School of Law’s Historic Black Church Program. Now in its fourth year, the Historic Black Church Program provides multidisciplinary resources in education, law, and social services to underserved, predominantly low-income residents of the West Grove through partnerships with the Coconut Grove Ministerial Alliance, a consortium of historic black churches, and other local nonprofit entities, service providers, and schools for the purposes of grassroots community organization and legal rights mobilization. Publicly, Miami-Dade County officials asserted that the libraries slated for closing “were picked on two criteria: use and geography.” Nevertheless, because the closings disproportionately impacted low-income communities of color adversely, the selection process raised serious questions and widespread suspicions of class bias and racial animus.

Like many county library systems across the nation struggling to educate large and growing low-income populations, Miami-Dade County libraries “serve not only as a resource to borrow books and participate in literacy programs, but provide much-needed Internet service.” Although described as “a very modest facility in terms of space,” the Virrick Park Library reportedly offers “a thriving educational experience for a substantial number of both youngsters and adults.” As a result, both West Grove community advocates and elected officials protested the Mayor’s proposed closing of the Virrick Park Library, declaring that “the cost of the library is minimal compared to the value it provides the community.”

Within days of the Mayor’s announcement, West Grove church ministers and community leaders began to circulate e-mails opposing the Virrick Park Library closing and calling for political action to block it. To help map and gauge various strategic options, the Historic Black Church Program began to assess a range of legal-political tactics, including recommendations of limited direct service representation, county-wide impact litigation, and legislative law reform. Direct service representation required the recruitment of pro bono counsel (e.g., legal services organizations or for-profit law firms), the solicitation of injured plaintiff-parties (e.g., West Grove families and children), the formulation of plausible causes of action (e.g., civil rights disparate impact claims and state constitutional right to education claims), and the fashioning of appropriate relief (e.g., declaratory and injunctive remedies, the latter requiring an impracticable evidentiary showing of irreparable injury and the probability of success on the merits). More daunting, impact or test case litigation demanded the cooperation of multiple co-counsel and complex calculations of party standing and class certification. Law reform, by comparison, entailed private and public lobbying of key decision makers in the Mayor’s Office and at the County Commission.

In addition, the Historic Black Church Program explored non-legal alternatives, such as private fund-raising to replace the projected library budget shortfall and the physical relocation of the Virrick Park Library to a neighborhood church or school. Furthermore, the Program contemplated a media campaign (e.g., editorials and letters), public protest (e.g., a march, rally, or sit-in), and political pressure (e.g., reporting selected public officials for unethical or unlawful conduct to regulatory agencies in unrelated matters), all to persuade local municipal and county officials to help mobilize public opposition to the proposed closing.

Taken together, this conventional and sometimes controversial array of legal-political strategies and tactics will sound familiar to community lawyers. The notion of “community lawyering” is by now well entrenched in the literature of the legal profession. Wide ranging in scope, that literature spans civil rights and poverty law studies, clinical education and skills training courses, and the empirical work of interdisciplinary scholars. Indeed, histories of the American civil rights and poor people’s movements highlight the role of community lawyers in legal advocacy and political organizing. Likewise, developments in law school curricular design and campus-community outreach point to the integration of community lawyering models into legal education more generally. Similarly, the writings of law and society scholars underscore the significance of community or “cause” lawyering here and abroad.

This Essay will offer an ethical defense of community lawyering against the backdrop of W. Bradley Wendel’s important new book Lawyers and Fidelity to Law. Building upon his prior distinguished work on legal ethics and the contemporary writings of moral and political philosophers, Lawyers and Fidelity to Law advances a theory of legal ethics positing “fidelity to law” as the central obligation of lawyers at work in liberal democratic societies. Wendel’s moral and political arguments for a “fidelity to law” conception propound political legitimacy as a normative benchmark for lawyer decision-making. Moreover, his arguments ground the duties of lawyers in democratic law-making and the rule of law, thus situating the ethical value of lawyering in the domain of politics, rather than in ordinary morality or social justice. By defending a theory of legal ethics that places fidelity to law, instead of client or community interests, at the core of lawyers’ obligations, Wendel seeks to rehabilitate the idea of legitimacy as a normative ideal for lawyers, and to channel lawyers into a formal, procedural system of advocacy and counseling largely independent of substantive justice objectives. Wendel’s transformation of the evaluative framework of legal ethics from the concerns of ordinary morality and substantive justice to the considerations of political legitimacy and process-oriented legality, I will argue, exposes community lawyers to new terms of normative criticism and erodes the justification of their crucial work in American law and society.

The Essay proceeds in three parts. Part I describes Wendel’s “fidelity to law” conception and its normative, positive law underpinnings. Part II examines the meaning of and justification for community lawyering within Wendel’s ethical framework. Part III sketches an outsider ethic of disobedience and resistance as an alternative guidepost for community lawyers.

Johnson v. Leeds Morelli et al (2nd Cir.): Amazing If True

This is a must read for the legal ethics crowd with jaw dropping allegations. It was decided by the 2nd circuit on 9/26 (Winter, J.).

Leeds Morelli  had more than 587 individual clients with employment discrimintion claims against Nextel. It settled the claims for all but 14 clients. Nextel promised to pay the firm various fees that could ultimately total $7.5 million; the schedule of payments was  contingent  on the firm getting the clients' to agree to waive various rights and claims and accept arbitration.

The class action complaint against the firm, 7 firm lawyers, and Nextel alleges that the firm breached its fiduciary duty to the plaintiffs, is guilty of fraud, is guilty of malpractice, and breached its contract. Allegations are made against Nextel for aiding the conduct.

The firm and the lawyer defendants argued that the clients gave informed consent to all of their conduct. The court holds that the firm's conflicts were unconsentable under the circumstances and upholds various claims in the complaint against a motion to dismiss.

The alleged conduct is beyond belief and if true would seem to justify serious discipline. 

Almost as amazing as the alleged conduct is that the district judge dismissed the complaint, a decision the circuit reverses.

I don't know if either side put in an expert declaration. It would be hard to imagine one for the defendants based on the allegations in the complaint, which the court accepts as true for purposes of the motion. But I'll check when I next get on PACER. 

Alice Woolley, "Rhetoric and Realities: What Independence of the Bar Requires of Lawyer Regulation"

Article. Abstract:

The Canadian legal profession is largely self-regulating. Provincial law societies governed by lawyers elected by their peers set the standards for admission to the profession and for ethical conduct, and investigate, prosecute and adjudicate allegations of professional misconduct by lawyers. Advocates for this regulatory structure rely on the concept of “independence of the bar,” the idea that lawyers must be free from any external interference with their representation of clients. Critics of the regulatory structure, meanwhile, argue that independence has a broader meaning than the advocates suppose and that, in any event, the self-regulatory structure of the Canadian profession is not necessary to ensure independence.

This paper presents the varying interpretations of independence of the bar and suggests that while the advocates for self-regulation have a more justifiable understanding of independence than do critics, the concept of independence of the bar is not itself central to assessing the validity of any particular regulatory scheme. Rather, the things that independence should protect – the ability of lawyers to be zealous advocates for clients within the bounds of legality – should be used to assess the adequacies of any regulatory scheme. Does regulation ensure that lawyers fulfill their duty of zealous advocacy? Does regulation ensure that lawyers remain within the bounds of legality? Does regulation ensure access to justice?

With these criteria in mind, and using recent changes to the regulation of lawyers in England and Wales as a comparator, the paper then analyzes the adequacy of regulation of Canadian lawyers with respect to competence, the general structure of professional regulation and access to justice. Based on this analysis, the author proposes changes to improve lawyer regulation in Canada. These changes do not abandon self-regulation. However, they include separating the adjudicative function of the law societies into a distinct dispute resolution entity with expanded regulatory powers in relation to hearing complaints brought directly by the public, addressing a broader range of matters in relation to competence and client service, and providing remedies beyond sanctioning lawyers. The changes would also include the creation of a legal regulatory review office in each province, governed by lawyers and non-lawyers alike, to exercise some constrained oversight and review of law society activities. Finally, the changes propose a variety of ways to enhance access to justice such as focusing law society activities on improving the functioning of the market for legal services through providing greater information to clients.

Laurel Rigertas, "Stratification of the Legal Profession: A Debate in Need of a Public Forum"

Article. Abstract:

The American legal profession cannot presently meet the legal needs of the population. Ordinary citizens’ demand for legal services continues to rise, but those services are increasingly unaffordable. Recent law school graduates struggle to find professional employment opportunities, particularly ones that can provide salaries to meet their rising debt obligations. At the same time legal education continues to provide a general program of education while legal practice is increasingly specialized. The legal profession has not been innovative about meeting these related challenges.

This article argues that the stratification of the legal profession has not been adequately explored as a way to increase access to legal services. Specifically, stratification would involve the training, education and licensure of professionals—other than lawyers - to provide some legal services. For example, a one-year program that focused on housing law leading to a limited license as a housing advocate could be created. This might be an effective way to meet an area of high consumer demand. However, because the state judiciaries regulate the scope of the legal profession’s monopoly, there is inadequate public participation and, accordingly, insufficient external pressure on the legal profession to consider these options. These deficiencies can be illustrated by comparing the judiciaries’ regulation of legal services to the legislatures’ regulation of health care services. This article proposes reforms to allow for public participation in the debate on the scope of the legal profession’s monopoly.

David Zaring, at The Conglomerate, "Your Law Firm Craters; Then What?"

David Zaring comments at The Conglomerate on a presentation by a business professor, Chris Rider, on what happened to the lawyers at big firms that cratered.