Legal Ethics Forum

Amici support Michigan lawyer who resisted judge's questioning of a client

ABA Journal: The ACLU has appeared in support of a Michigan lawyer who actively resisted a judge's efforts to ask the lawyer's client about the client's drug use. The briefs by the lawyer's firm and the ACLU brief are below.

ACLU amicus brief

Lawyer's firm's brief

 

Legal ethics odds and ends (December 21, 2011)

• Thomson Reuters: New Jersey Supreme Court dismissed an ethics charge against a lawyer whose website had an image of the seal of the New Jersey Board of Attorney Certification -- although he wasn't a certified lawyer.

• Louisiana Record: "U.S. Magistrate Judge Sally Shushan apparently kicked out of court an engineer who switched sides from BP to Halliburton in Deepwater Horizon litigation, but her exact action and her reasons remain secret."

• JD Supra: "Nostradamus, Esquire? -- Making the Enforceability of Advance Conflict Waivers by Sophisticated, Independently Represented Clients More Predictable for Non-Clairvoyant Lawyers"

• E! Online: The mother of deceased Hollywood actress Brittany Murphy has sued her lawyers for legal malpractice, alleging that their advice kept her from pursuing damages under the theory that household mold was a cause of Murphy's death. At the link you can access the complaint. (No, I don't read E! Online. It just turned up in my automatic searches.)

• BBC: A proposal has been made to end the requirement of corroboration in Scottish criminal prosecutions. "In the Scottish legal system, all key evidence presented in a criminal prosecution has to be backed by two sources and has traditionally been regarded as an important safeguard against miscarriages of justice."

• Legal Futures (UK): "The legal profession “is not doing enough” to make itself more representative of society, Deputy Prime Minister Nick Clegg claimed yesterday.   [ ]  "Some of our key professions still need to do a much better job of opening their doors. To take one example, the legal profession remains woefully unrepresentative,” he said. “More than two-thirds of all High Court judges and top barristers are privately-educated. Nine out ten QCs are men. Nineteen out of 20 are white."

Law of lawyering case, U.S. v. Jicarilla Apache Nation, provides special insights into Justice Sotomayor's jurisprudence?

So says John Paul Rollert, at Slate. (h/t: How Appealing) My summary of the case is below.

It was an 8-1 decision upholding the federal government's assertion of attorney client privilege. Justice Sotomayor didn't like the idea that the federal government was being called a trustee but was exempting itself from the strict fiduciary duties that usually burden trustees. Rollert's final graf:

"Jurisprudential prerogatives, and the moral imperatives that underpin them, are the stuff of lonely dissents, which tend to be less about the law than its shortcomings. They are written accounts of a judge’s reckoning with the oldest dilemma of her profession: that what is legal is not necessarily just, and what is just is not necessarily legal. As Sotomayor attests, they can be telling in their despair."

[Summary] In an action brought by the Jicarilla Apache Nation (“Nation”) against the federal government (“Government”) for mismanagement of trust funds, the Supreme Court of the United States denied the Nation’s request for production of trust-related, attorney privileged communications between the Government and the Government’s lawyers. The Nation had prevailed below by establishing the common law “fiduciary exception” to the attorney client privilege. That is, the Nation had shown that it was the beneficiary of a trust, that trustees (the Government) had obtained legal advice as mere representatives of the beneficiaries (the Nation) who were the real clients of the lawyers rendering the advice, and that the common law duty of trustees to provide trust-related information to the beneficiaries outweighed the trustees’ personal interests in the attorney client privilege. The Supreme Court acknowledged the continuing vitality of the common law’s fiduciary exception doctrine, but held that the relationship between the Government and the Nation was not sufficiently analogous to the relationship between common law trustees and beneficiaries; that the Government had its own independent legal duties to uphold while administering the trust; and that the statutory schemes enacted by Congress served to limit and alter the scope of duties—including the duty of providing information to the beneficiaries—that normally applies under common law approaches. For those reasons, the Nation’s request was denied. (For the leading case on these issues in California, see Moeller v. Superior Court, 16 Cal.4th 1124 (1997).)

[Update: It occurs to me that the ability of a trustee to assert privilege against the beneficiary is akin to the currently hot topic of the degree to which a lawyer may obtain legal ethics advice from the firm's general counsel (or ethics partner) and keep that advice privileged from a current client.]

Top Ten Legal Ethics Stories of 2011 Is Coming Soon to a Blog Near You

I've been asked about the annual round-up and it's about half done. Will post it before the year ends, I'm sure.

Any Thoughts?

A judge found a lawyer in comtempt for refusing to disclose the identity of a teenaged client who was seeking  the court's consent for an abortion in a confidential parental bypass proceeding.

 

After the girl indicated that she and  her younger sister were possibly being neglected by their parents, the judge demanded the petitioner's name so the court could report the possible abuse to child protective services. The attorney refused to reveal it, saying it would defeat the purpose of the confidential bypass procedure and that her client specifically told her not to reveal her name. The judge sentenced the lawyer to six months in jail for comtempt, for refusing to disclose the name and for misleading the court by initlally saying that she didn't know the girl's full name.

 

The state Supreme last week refused to hear the case, and the lawyer now says she will disclose the client's name, but she has asked the judge to be disqualified from further hearing the case for allegedly creating a conflict of interest and at least the appearance of impropriety by offering to reduce the lawyer's sentence from six months to one weekend -- if the lawyer would give her a written apology and pay her legal fees. The lawyer says the judge improperly tied the resolution of the case to her own pecuniary interests.

 

Did the lawyer act properly?  Did the judge act properly? Should another judge be appointed to determine punishments?

Legal ethics odds and ends (December 19, 2011)

• The State Bar of California issued a draft ethics opinion saying that viritual law offices are permitted as long as you fulfill your duties of confidentiality, etc. (h/t: Otherwise) Unlike some states, including New Jersey, California does not have a "bona fide office" rule.

• Inside Counsel: BofA's attempt to disqualify Quinn Emanuel failed. More at Law Firm Risk Management Blog. The ethical screen was deemed effective even though the allegedly tained lawyer had worked a handful of hours on the matter before being screened.

• Business ethics (News Gazette): Twenty-eight University of Illinois [business] students received a total of $4,200 in scholarship awards for designing products to help meet basic needs of people throughout the world.

• Myrtle Beach Online: A legal ethics prof, Gregory Adams of South Carolina, keeps the heat on prosecutors following a sex crimes conviction that many view as a miscarriage of justice.

• David Segal (NYT) keeps up his criticism of law schools, this time looking at how the ABA accreditation standards (effectively controlled by the legal educators, not by the practicing lawyers!) have killed off diversity in types of law schools. Imho, the accreditation standards also make it much harder to have diversity among the student bodies.

• On a related point, NITA is reporting success in teaching some skills remotely, via webinars, etc. NITA's top notch at what it does. They will even show up at your law school and teach the faculty how to teach skills and do role plays. A brave new world indeed  . . .

 

International Legal Ethics Conference V (ILECV) - Call for papers

Who wouldn't want to visit Banff in July anyway, plus you'll get lots of great panels on legal ethics at the International Legal Ethics Conference V. (h/t: Faculty Lounge) The due date for the call for papers is January 31, 2012.  For more details, contact our own Alice Woolley. ILEC-IV, at Stanford, was a terrific conference and I'm sure that this one will be too.

Welcome!

Welcome to the 2012 International Legal Ethics Conference V.

The Organizing Committee is pleased to be hosting this conference in Banff, Alberta, Canada from July 12 - 14, 2012 at The Banff Centre. The Banff Centre is situated in the centre of Banff National Park and is known for its excellent conference facilities and its leadership in fostering arts and culture.

Call for Papers

Proposals for presenting a paper or panel are invited from scholars from all disciplines, legal professionals, judges and students.  Presenters are encouraged to submit papers within one of the following streams:

1.  Culture, Ethics & Society
2.  Empirical Approaches to Legal Ethics
3.  Philosophy and Legal Ethics
4.  Regulation of the Profession(s) / Ethics and Education

Proposals may be for a paper or for a panel, and should include an abstract of no more than 250 words.  If the proposal is for a panel, the name of the panelists should be identified.

Proposals should indicate the stream in which the panel or paper is to be presented.    For more information about the subject of each stream, and for the names of the stream organizers, click "STREAMS" above.

We ask that participants limit their participation to two panels.

The deadline date for proposals is January 31, 2012.

Proposals should be submitted to ilecv@ucalgary.ca with the subject heading "ILECV paper proposal".

For more information, contact:

1.  Richard Devlin
     Schulich School of Law, Dalhousie University
     richard.devlin@dal.ca

2.  Alice Woolley
     Faculty of Law, University of Calgary
    awoolley@ucalgary.ca

 

Legal ethics odds and ends (December 15, 2011)

• Contract Professor Blog: "Prosecutor's Literary Contract Conflict of Interest"

• Ninth Circuit (via Leagle): Barrios v. Diamond Contract Services. "Appellant Maria Barrios was a prevailing plaintiff in an action brought under Title VII and California's Fair Employment and Housing Act. Barrios appeals the denial of statutory attorney's fees and partial denial of costs. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse and remand to a new district court judge for a proper fee calculation."

• Main Justice: "Appeals Court Backs Prosecutors in Stevens Case"

• ABA Journal: "Scott Rothstein Says other Law Firms Aided $1.2B Fraud by Turning Blind Eye to His Lies." Bear in mind, though, that the swindler is facing 50 years and his hoping that his testimony will bring that number down.

• Legal Profession Blog: Jim Jones, of Hildebrandt, will be joining Georgetown's Center for the Study of the Legal Profession as a senior fellow. Jim's a great guy and he has his finger on the pulse of law firms in the US.

• Lots of news about the financial side of law school. As rounded up by Paul Caron at Tax Law Prof Blog, the University of Chicago and Yale offer a terrific breakdown of stats on the employment of their grads. Kudos to UC. Paul Caron also offers a nice post on Jim Chen offers a handy rule of thumb about when the costs of law school are worth it.

• JD Journal: A follow-up on the suit against a biglaw firm about an allegedly missing escrow fund of $5.5 million.

• Legal Language Explorer (h/t: Legal Theory Blog) Try inputting your favorite legal ethics terms. I did a search for "legal ethics," and you can then download an excel spreadsheet of all the cases using that term. [edited per Patrick O'Donnell's comment]

Eli Wald, "A Primer on Diversity, Discrimination and Equality in the Legal Profession"

The Fall 2011 issue of the GJLE has several articles on the topic of diversity in the legal profession, and (woeful) initiatives to address diversity.  Eli Wald's article is worth a look - he engages with the idea of what we mean by diversity, and tries to push past thinking about diversity as valuable for the legal profession only in a utilitarian ("it's good for business") sense.  SSRN link is here: Wald on Diversity 

Legal ethics odds and ends (December 12. 2011)

American Lawyer Media: A "[n]ew survey shows a spike in lawyers' use of mobile tools but firms, clients, and judges struggle with integration of devices into the workplace."

National Law Journal: "A Call for Prosecutorial Accountability: New research shows that prosecutors are rarely disciplined when misconduct occurs."

How Appealing: Howard Bashman links to a right-wing news site that quotes emails and claims that Elena Kagan was "brought into the loop" on the healthcare statute while she was Solicitor General. As I've noted before, it's possible that new facts will emerge about whether she participated as an adviser or counsel regarding the statute. At first reading, the emails evince an SG who had decided to be walled off and was trying to be walled off but who was at least at the periphery of the matter. If she was walled off, Neal Katyal wasn't doing her any favors by cc'ing her on the email that is quoted.

Jamaica Observer: "THE rapid increase in the number of students pursuing law degrees in Jamaica over the last few years has caused some members of the legal profession to question if the country will soon be producing more lawyers than it can accommodate

South Carolina Ethics Advsiory Opinion 11-09. Apparently, their version of the rule prohibits not just the threat to report a matter to criminal prosecutors to gain an advantage, but also the reporting itself if done solely to obtain an advantage in a civil matter. (Is that part of the rule constitutional? That is, if there's a reasonable factual basis for the reporting, isn't the reporting a protected petitioning of the government, regardless of the lawyer's motive in a civil case?) Key parts of the opinion:

Lawyer A represents Defendant in taking Plaintiff’s deposition in a tort case. Plaintiff’s lawyer is also present for the deposition. Under oath, Plaintiff admits to knowingly never having filed state and federal income tax returns, though he has been employed his whole adult life and has been paid in cash. He further testifies that his employer does not withhold payroll taxes or social security from his pay and does not issue W-2s at the end of the year.

Questions

1) May Lawyer A report this incident to the IRS and the state tax commission and include a copy of the deposition testimony?
2) Is Lawyer A required to report this incident to the IRS and the state tax commission?
3) If Lawyer A reports to the IRS and state tax commission, must he wait until the litigation is concluded?

Summary

A lawyer may report information learned by taking the deposition of the opposing party to tax authorities only with her client’s informed consent as provided in Rule 1.6(a). Since Rule 4.5 prohibits reporting or the threat of reporting to criminal authorities solely to obtain an advantage in a civil action, the lawyer may find it prudent to wait until the litigation is concluded, though the rules do not specifically require it.