Legal Ethics Forum

Adam Liptak on SCOTUS oral arguments about bad legal advice

Adam Liptak reviews cases heard by the Supreme Court today involving bad legal advice.  Lafler v. Cooper and  Missouri v. Frye involve separate appeals but are linked together because they address the same issue:  whether bad advice from a lawyer during plea negotiations may impact a subsequent guilty verdict.  Frye's attorney neglected to inform him about two deals offered by prosecutors before he pled guilty.  Cooper was advised against taking a plea deal by his attorney only to be found guilty.  Liptak's NYT article is here.  Update 11/1/11:  Liptak's recap of the oral arguments is here.

Grassley will try to block the DOJ's proposed rule that would let them lie in response to FOIA requests

Main Justice continues to report on the story I blogged about earlier.  If you teach PR, it might be useful when you get to 4.1 and 3.3 and ask your students if there is any such thing as an ethical lie.  (I wonder if the DOJ couldn't handle this problem with, "I can neither confirm nor deny  . . . ."  My brother-in-law, who was a submarine officer in the US Navy, used that line when asked about the presence of nukes on subs that were designed to carry nukes.)

"Selling Judgments"

Larry Ribstein's Truth on the Market brings news of an innovative use of the internet: creating a virtual market for judgments. What hath DARPA wrought?  (I once had a student who went to law school and quickly decided that his entire career would be in the enforcement of judgments. It's the sort of pratice area that students almost never know exists.)

The Honorable Vaughn Walker's Lecture, “Moving the Strike Zone"

At the Univesity of Illinois site. The description: "The College of Law welcomed the Honorable Vaughn R. Walker as the David C. Baum Memorial lecturer. In his talk, titled “Moving the Strike Zone,” Judge Walker likened the role of judges to that of an umpire in a baseball game. Laws, like balls and strikes, are not decided on strict standards, but judges do and must do take into account all metaphorical angles and aspects of the game and field. And when appropriate, they must move the strike zone."

"The Ethics of Law Professor Amicus Briefs"

Ilya Somin comments on Orin Kerr's comments on Richard Fallon's article on "The Ethics of Law Professor Amicus Briefs." I'll limit my comments to legal ethics briefs and letters. You should have a sound basis for signing on to amicus briefs and letters, something that doesn't always seem to happen.

"Attorneys outline strategy for Norway attacks suspect"

Deutsche Presse-Agentur: Geir Lippestad has outlined his defense for the Norwegian mass murderer Anders Breivik -- a request for leniency. I keep posting about this case because it strikes me as similar to the defense of the Unabomber and therefore raises the issues of who controls the defense and how an attorney can represent a client who has committed an indefensible act.

Breyer and Scalia Before the Judiciary Committee

I have just read the testimony of Justices Breyer and Scalia before the Judiciary Committee on October 5, 2011.  These are two of the worst offenders in ignoring statutory and constitutional recusal requirements.

Without referring specifically to Justice Thomas, Breyer testified that each Justice is bound by financial reporting requirements of “every penny that I take in or my wife or my – or minor children, every asset has to be listed in depth, and it’s all filed.”  He added that “the amount of money that [a judge] can take from anyone outside is far more limited, I believe, under the codes of ethics than people who are not judges.  Judges have special restrictions there.”

Breyer also testified that under “general ethics requirements” “you can’t sit in cases.  Those are statutory, and I think they bind us, period.  I’ve always thought so.”  In particular, when he was on the First Circuit, “if I had a close question, I’d take myself out of the case.”  – That testimony is false.  See 30 Okla. City Univ. L. Rev. 513, 521-527.

In addition, Breyer said that if he had “a problem” regarding recusal, he would “call an ethics professor.”  That is true.  When he has been clearly subject to recusal, but wanted to sit on a case because of a strong personal interest, he has called a friendly ethics professor, who has given him an incompetent and dishonest opinion letter saying that he was free to sit on the case.  See, e.g., id. at 530-532.

Ironically, Breyer also testified that “there’s a lot of skepticism and cynicism about government in the United States.”  This echoes language in Liljeberg, where the Court observed that because of “suspicions and doubts about the integrity of judges,” sec. 455(a) was adopted to avoid “the appearance of impropriety whenever possible.”

Should the DOJ be permitted to lie in response to certain FOIA requests?

Main Justice: "The Justice Department is under criticism by open-government groups for proposing a regulation that would allow federal law enforcement agencies, in rare instances, to tell people seeking information under the Freedom of Information Act that the government has no records on a certain subject — when, in fact, it does."

Justice Stevens discusses the ethics issues aimed as Jutice Thomas

USA Today: Justice Stevens wishes that Justice Thomas and his wife kept a lower profile, but Stevens isn't buying the disqualification meme being pushed from political types on the left. I agree with Stevens.

is it true that Justice Kagan must recuse in the University of Texas case about affirmative action?

The Bench Memo blog makes that claim, arguing that on the day the United States filed an amicus brief in the case, Kagan was formally in charge of deciding whether amicus briefs will be filed, and hence she necessarily participated in the case. Can any of readers shed light on that argument?