Legal Ethics Forum

Smith v. Cain argument today

The Supreme Court hears oral argument in Smith v. Cain this morning.  This case gives the Court another opportunity to weigh in on prosecutorial misconduct out of the District Attorney's office in Orleans Parish.  Recall that the same office was involved in last year's Connick v. Thompson, where last term the Court overturned an $18 million jury award granted to Mr. Thompson after he was exonerated having served 18 years in prison.

Military Commission Regs

(h/t: Lawfare)  The new regs for the Military Commission have been issued and can be downloaded below -- but at 209 pages it's a big file.

Chapters 8-9 regulate the prosecutors and defense counsel.

The Commission also offers this comparison chart, which is no doubt designed to emphasize what it believes are the strengths of the Commission's procedures.

Download 2011 MC Regulations

 

Chekhov on the Challenge of the Large Class Lecture

Here is an apt description of what lecturing to a large professional school class is like, in this case to medical students. Certainly, there is no better description in all of literature and this one comes from Anton Chekhov's early famous story "A Boring Story," written when Chekhov was 29. His plays and other great stories were yet to come before his utimely death 15 years later.

"I know what I am going to lecture about, but I don't know how I am going to lecture, where I am going to begin or with what I am going to end. I haven't a single sentence ready in my head. But I have only to look round the lecture-hall (it is built in the form of an amphitheatre) and utter the stereotyped phrase, 'Last lecture we stopped at . . .' when sentences spring up from my soul in a long string, and I am carried away by my own eloquence. I speak with irresistible rapidity and passion, and it seems as though there were no force which could check the flow of my words. To lecture well -- that is, with profit to the listeners and without boring them -- one must have, besides talent, experience and a special knack; one must possess a clear conception of one's own powers, of the audience to which one is lecturing, and of the subject of one's lecture. Moreover, one must be a man who knows what he is doing; one must keep a sharp lookout, and not for one second lose sight of what lies before one.

"A good conductor, interpreting the thought of the composer, does twenty things at once: reads the score, waves his baton, watches the singer, makes a motion sideways, first to the drum then to the wind-instruments, and so on. I do just the same when I lecture. Before me a hundred and fifty faces, all unlike one another; three hundred eyes all looking straight into my face. My object is to dominate this many-headed monster. If every moment as I lecture I have a clear vision of the degree of its attention and its power of comprehension, it is in my power. The other foe I have to overcome is in myself. It is the infinite variety of forms, phenomena, laws, and the multitude of ideas of my own and other people's conditioned by them. Every moment I must have the skill to snatch out of that vast mass of material what is most important and necessary, and, as rapidly as my words flow, clothe my thought in a form in which it can be grasped by the monster's intelligence, and may arouse its attention, and at the same time one must keep a sharp lookout that one's thoughts are conveyed, not just as they come, but in a certain order, essential for the correct composition of the picture I wish to sketch. Further, I endeavour to make my diction literary, my definitions brief and precise, my wording, as far as possible, simple and eloquent. Every minute I have to pull myself up and remember that I have only an hour and forty minutes at my disposal. In short, one has one's work cut out. At one and the same minute one has to play the part of savant and teacher and orator, and it's a bad thing if the orator gets the upper hand of the savant or of the teacher in one, or vice versa.

"You lecture for a quarter of an hour, for half an hour, when you notice that the students are beginning to look at the ceiling, at [the teaching assistant]; one is feeling for his handkerchief, another shifts in his seat, another smiles at his thoughts. . . . That means that their attention is flagging. Something must be done. Taking advantage of the first opportunity, I make some pun. A broad grin comes on to a hundred and fifty faces, the eyes shine brightly, the sound of the sea is audible for a brief moment. . . . I laugh too. Their attention is refreshed, and I can go on. No kind of sport, no kind of game or diversion, has ever given me such enjoyment as lecturing. Only at lectures have I been able to abandon myself entirely to passion, and have understood that inspiration is not an invention of the poets, but exists in real life, and I imagine Hercules after the most piquant of his exploits felt just such voluptuous exhaustion as I experience after every lecture."

A Rule 1.10(b) Riddle

Here's a riddle. Rule 1.10(b) says that after a lawyer leaves a firm, it may handle a matter adverse to a client the departed lawyer had represented at the firm unless :

"(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and

(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter."

While at firm AB, Jake drafted a contract for client X. The opposite party was Y. Jake leaves AB. No one remaining at AB has information defined in (b)(2). 

Question One: Can AB now ETHICALLY represent Y in a dispute with X over the meaning of the contract Jake drafted while at AB?

Question Two: Can AB in that lawsuit ETHICALLY claim that the contract is void as against public policy? 

By "ethically" I mean so far as the Rules are concerned. And if the answer is yes to either or both questions, should the Rules be amended? 

Illinois issues final report on its false stats

Full report here. News article here. Two of the report's recommendations [which I wish were obvious well before the mis-reporting started and which I hope are uncontroversial at Illinois and elsewhere]:

5. Institutional Culture—We recommend that the COL Dean and other members of the COL leadership team take steps to reinforce COL’s commitment to integrity and ethical conduct, and to make clear to the COL community that unethical behavior will not be tolerated.

6. Advocacy for Transparency and Data Integrity—As a public institution, COL has an obligation to instill trust in the integrity of its information and personnel. COL should consider seizing this opportunity not simply to come into compliance with current data reporting requirements and guidelines, but to champion industry-wide reforms that would provide heightened transparency for key constituencies and stakeholders (e.g., other law schools, prospective and current students, legal employers, faculty, employees, alumni, and donors), as well as the public at large.

[bracketed poritions are edits]

"No Disqualification Where Disclosure of Confidential Information Controlled by Joint Defense Agreement"

McDermott Will & Emery has a nice discussion about the case, as does Law Firm Risk Managment Blog (IntApp).  In re Shared Memory Graphics LLC, Misc. Dkt. No. 978 (Fed. Cir., Sept. 22, 2011) (Dyk, J.) (Newman, J., dissenting).

I like the result and view it as being in a category of situations where the courts need to let corporate clients contract around the default settings of the conflicts rules. That category includes joint defense agreements, advance waivers, and corporate affiliate conflicts.

Regarding that last point, I was disappointed by the Second Circuit's holding in GSI Commerce Solutions, Inc. v. BabyCenter LLC. Although the court was wise enough to cite my law review article :-) -- it should have given more credence to the first question in the five part analysis I had offered: what did the firm and client agree to when they discussed the corporate affiliate issue? The "one client" clause in that case was buried in an addendum, and I'm OK with a holding that disregards buried clauses. But if the case comes to be understood as disregarding "one client" clauses when they're appropriately conspicious, the Second Circuit got it wrong and the result won't stand.

 

Legal ethics odds and ends (November 7, 2011)

• WSJ: "The Unfinished Business of Law Firm Collapses"

• Tax Adviser: "Conflicts of Interest: IRS Rules Differ from AICPA Professional Standards"

• Hinshaw Culbertson: "Nevada Supreme Court Adopts Disqualification Rule for Use of Information from Anonymous Source"  Note: there have been a few puzzling fact patterns surrounding the "inadvertently produced privilege document" rule, and this is one of them.

• Tax Prof Blog: "The Numbers: JD Degrees and Lawyer Employment"

• Herald-Tribune (Fla): "[Flordia] Courts Need More Diversity"

 

For your weekend reading

There's a wonderful series of blogs about law school economics and the changing needs of the profession over here, on legal times. A taste:

Personally, I'm in the camp of people who believe that the legal education model will change. However, it's apparent to me that changes must come predominately from outside of schools and the ABA Section of Legal Education. Survival instincts may prohibit even well-respected, well-meaning faculty scholars from adequately assessing the scope of the problems with the current law school model. But the increasing interest from U.S. Senators should signal to the uninitiated that law schools cannot continue to operate in a bubble. Nor can this discussion continue if everyone ignores the crux of the problem: intolerably high costs and an unacceptable number of unprepared graduates.

Multi-tasking and Malpractice

In this e-world, clients want answers fast and I often see lawyers juggling tasks -- attending a deposition while using their smartphones to deal with some other question or problem.

I have always believed that, for me personally, multi-tasking increased the error rate, and I've seen indications of that in the work of others, especially students who think they can attend class and bid on new shoes at the same time.

The book The Shallows was a good read on how most of us were not made for multi-tasking.  A new study is out that concludes that for multi-taskers, "if performance is measured with accuracy of results, the relation is a downward slopping line, in which increased levels of multitasking lead to a significant loss in accuracy."  Rachel Adler, Raquel Benbunan-Fich, Juggling on a High Wire:  Multitasking Effects on Performance.  The study is available, for purchase, here.

 

"Out-of-state lawyers sue the California Supreme Court for admission to the California Bar without taking the Bar Exam"

At the Lectern (a great blog for appellate news in California) carries this story. First paragraph of the complaint:

"Our founding fathers brought forth a new nation conceived in liberty and
dedicated to the proposition that all men are created equal. If all men and women are
created equal, and American lawyers are men and women, then all American lawyers
are created equal. The issue in this case is whether the equal rights, privileges and
immunities inherent in bar admission on motion, which the United States Supreme
Court has squarely held is a constitutionally protected privilege and immunity, Supreme
Court of Virginia v. Friedman, 487 U.S. 59 (1988), should be denied to the Plaintiffs."

Download Cal Bar Admission Complaint