Legal Ethics Forum

Some odds and ends (April 19, 2012)

• Lawyerist: Idaho has adopted the ABA's proposed rule on liberalizing admission for military spouses with law licenses. This is a good reform in and of itself, and may hasten the day we have a national admissions policy.

• Lawfare tooks a look at the role of senior lawyers within the Executive Branch who announce policies throuhgh speeches. The post deals with "who's the client?" and related issues. In some contexts, those government lawyers are "law declarers" (my phrase, not Lawfare's) and, if that's true, the few comments in the Model Rules about the role of counselors/advisors aren't adequate to explain the proper ethical constraints of the roles of those lawyers.

• One of our commenters noticed these two stories from the Washington Post about how the DOJ handled information about the potentially flawed forensics that were used to obtain convictions.

Harvard law student group singles out big firms for their representations

"Judging lawyers by the choice of their clients" is a perennial topic here at Legal Ethics Forum. Some law students at Harvard have a "Firmly Refuse" group that singles out big law firms for the clients they represent and urges HLS students not to work at big firms.

[This was posted by John Steele. When I post from the editing mode, the blogging software assumes the poster is John Dzienkowski.]

SCOTUS reverses 9th Circuit on qualified immunity for temporary government attorney

A unanimous Supreme Court reversed the Ninth Circuit today in Filarsky v. Delia, holding that a temporary government attorney is entitled to qualified immunity.  Opinion here.

"Ethics 20/20 Commission Suspends Campaign to Draft a Proposal on Nonlawyer Ownership of Law Firms"

ABA Journal has the big news.

Some links on ethics and the prosecution of George Zimmerman for the homicide of Trayvon Martin

Andy Perlman and I questioned the behavior of Zimmerman's prior lawyers as they announced that they no longer represented Zimmerman.

Monroe Freedman questions the prosecutor's press conference.

Dan Markel, at Prawfsblawg, asks questions about the charging decision.

Radley Balko, at Huffington Post, looks more broadly at the ethcis of charging decsions.

Alan Dershowitz, in a TV interview we posted about, says that the probable cause affidavit was "unethical." At National Review Online, David French and Andrew McCarthy disagreed about the quality of the probable cause affidavit. At the Atlantic, Andrew Cohen has been running some pieces that strike me as partisan and shallow, but check them out and see what you think. Empty Wheel gives the probable cause affidavit a close, critical reading.

Here's the link to the prosecutor's press conference. The prosecutor, Angela Corey, discusses who she works for, what she's ethically allowed to say about the case, the no-contact rule, what level of evidence justifies a charging decision, and other issues.

George Conk, at Otherwise, has thoughts about the prosecutor.

Trayvon Martin, Angela Corey, and Prosecutors' Ethics

Special Prosecutor Angela Corey used her press conference to establish three things.

First, her investigative team is highly professional,  and “worked tirelessly” in a “never-ending search for the truth and a quest to always do the right thing for the right reason.”  We are “not only ministers of justice,” we are “seekers of the truth,” and we “stay true to that mission.”

Second, Ms. Corey and her team “did not come to this decision lightly.”  Only after they were able to establish “the facts” and “the truth” through an “extensive” and “full investigation”  has “the search for justice for Trayvon ... brought us to this night” (i.e., the press conference announcing the filing of charges).

Third, Ms. Corey would not have filed charges until her team had established beyond a reasonable doubt that Zimmerman is guilty, and they had eliminated all affirmative defenses, including excusable or justifiably homicide.

Florida Rule of Professional Conduct 3.8, cmt.: “Florida has adopted the American Bar Association Standards of Criminal Justice Relating to the Prosecution Function. This is the product of prolonged and careful deliberation by lawyers experienced in criminal prosecution and defense and should be consulted for further guidance.”

ABA Std. 3-1.4(a): “A prosecutor should not make ... an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication, if the prosecutor ... reasonably should know that it will have a substantial likelihood of prejudicing a criminal proceeding.”  Cmt. to 3.1: “the opinion of the lawyer on the guilt of the defendant, the merits of the case, or the merits of the evidence in the case” is “ordinarily likely to have a substantial likelihood of prejudicing a criminal proceeding.”

Corey:  “We know only one category as prosecutors, and that is a ‘V.’  It’s not a ‘B,’ it’s not a ‘W,’ it’s not an ‘H.’  It’s ‘V,’ for victim.  That’s who we work tirelessly for.  And that’s all we know, is justice for our victims.”  Corey also referred to “our precious victims.”

ABA Std. 3-2.1, cmt.:  “The idea that the criminal law ... is designed to vindicate public rather than private interests is now firmly established.”
ABA Std. 3-3.2, cmt.: “the prosecutor’s client is not the victim.”

Corey:  The first thing my team and I did upon being appointed was to meet with Trayvon’s family and pray with them.  “We opened our meeting with prayer.”  Also, Ms. Corey thanked “all those people across this country who have sent positive energy and prayers our way,” and she asked them to continue to pray for Trayvon’s family and for her team.  “Remember, it is Trayvon’s family that are our constitutional victims....”

At this point, do we need the due process of a trial by jury?  Can Zimmerman receive the due process of a trial by an impartial jury?  Why should anyone care?

Symposium Round-Up, "Gender and the Legal Profession's Pipeline to Power"

I'm hoping that both live and cyber-conversations inspired by the MSU Symposium will continue. 

Here's a round-up of all of my Symposium-related posts from this blog as well as from Feminist Law Professors and The Faculty Lounge:

Three Student Reactions to “Gender and the Legal Profession’s Pipeline to Power”

Afternoon Program for "Gender and the Legal Profession's Pipeline to Power" Symposium at MSU

"The Pipeline to Power For Women Lawyers in Michigan"

Paula Monopoli on “Gender Equality and Legal Academia”

Involving Men in the Conversation

Gender Equality: From the Boardroom to the Electorate

Nancy Gertner Just Rocked My World

Judge Nancy Gertner on “How the Courts Have Repealed the Civil Rights Act”

Gender, Race and the Judiciary @MSU Law Symposium

“Gender and the Legal Profession’s Pipeline to Power” Symposium Under Way at MSU

Deborah Rhode on “Women and the Path to Leadership”

Linda Greenhouse on “Is the Pipeline Half Full or Half Empty?” 

Pre-Symposium Thoughts on “Gender and the Legal Profession’s Pipeline to Power”

I'll sign off with thanks to the conference organizers for inviting me to live blog the conference and to the Legal Ethics Forum team for allowing me to guest-blog here. 

Afternoon Program for "Gender and the Legal Profession's Pipeline to Power" Symposium at MSU

I provided details on the morning line-up at the "Gender and the Legal Profession's Pipeline to Power" Symposium at MSU Law, April 12-13, 2012.  Here is a list of yesterday afternoon's presentations:

Plenary Address--Judge Nancy Gertner, How the Courts Have Repealed the Civil Rights Act

Panel 1--Rethinking Our Understanding of Gender Equality

Moderator: Dean Joan Howarth

Carol Greenhouse (Anthropology, Princeton), Disembodying Difference: 'Women' in the Discourse of Judicial Confirmation

Paula Monopoli (Maryland), Gender Equality and Legal Academia: Deconstructing Masculine Norms

Carla Pratt (Penn State), 'Sisters' in Law: Black Women Lawyers' Struggle for Advancement

Julie Suk (Cardozo), Gender Quotas and the Work-Family Conflict

Panel 2--Bringing It Closer to Home--The Pipeline to Power for Women Lawyers in Michigan 

Moderator: Janet Welch, Executive Director, State Bar of Michigan

Julia Darlow, Regent, University of Michigan; First Female President, State Bar of Michigan, 1985-1986

Nancy Diehl, Felony Trial Division Chief, Wayne County Prosecutor's Office (ret.); Third Female President, State Bar of Michigan, 2004-2005

Julia Fershtman, Shareholder, Foster, Swift, Collins & Smith; Fourth Female President, State Bar of Michigan, 2011-2012

Closing Remarks--Hannah Brenner and Renee Newman Knake

It was a great Symposium, with much food for thought.  For me, I am sure that it will take some time for the richness of many of the presentations to sink in.  Lucikly, symposium papers will be published in the Michigan State Law Review, so this is just the beginning of the conversation.

"The Pipeline to Power For Women Lawyers in Michigan"

The last panel of today's "Gender and the Legal Profession's Pipeline to Power " Symposium is "Bringing it Closer to Home: The Pipeline to Power for Women Lawyers in Michigan."

The first speaker is Julia D. Darlow, a former present of the State Bar of Michigan (1986-87).  She was the first woman to serve in that capacity.  She reports that when she started practicing law in 1971, her main goal was to be able to support herself and her toddler daughter.  Being the only woman in her firm Dickinson Wright PLLC, she forged connections with women lawyers outside her firm.  They banded together on legal reform projects involving women's issues and promoting women's election to office.  Ms. Darlow urged a broad view of working as a non-conformist through bar associations. For her, the "path to power" was not bar work, though, but rather rainmaking with clients.  These clients were not ones handed to her from senior lawyers, but clients that had started out small but became bigger consumers of legal services.

The second speaker, the Honorable Victoria Roberts (E.D. Mich.), was unable to attend at the last minute because of illness.  She was the President of the State Bar of Michigan in 1996-97.  She was the first woman of color to hold that position.  She was the managing partner of a prominent Detroit firm before being appointed to the bench.

The third speaker, Nancy Diehl, is the Retired Chief of the Wayne County Prosecutor's Office, Trial Division.  She was the State Bar of Michigan President from 2004-05.  She described how her male colleagues were gleeful that a woman was in the bureau to take over all of the child abuse cases, which were "unimportant."  Ms. Diehl turned that to her advantage and became an expert prosecutor of those cases.  Her advice is to be flexible in taking work assignments.  Ms. Diehl became involved in the county bar association.  She ran for a local judgeship, but lost. She was then asked to run for a position in local bar leadership, which was otherwise dominated by big-firm attorneys.  That led to further bar leadership positions. She concluded with the thought, as a retired prosecutor, that "happiness is  power."

The last speaker, Julie Fershtman, is the current president of the State Bar of Michigan. She describes her "personal pipeline story."  She had been counseled by her father not to go to law school out-of-state, for fear of lacking local Michigan colleagues when she returned to the jurisdiction to practice. Ms. Fershtman made connections as a young lawyer through the bar association.  She says that power as a private attorney comes with having portable book of business, but don't expect that doors will open to you. What we can do to help women succeed?  Encourage, encourage and encourage. Be bold. Mentoring is critical to success. What is the future of women in bar leadership at the state bar level in Michigan?  It is difficult for any woman who wants to be a high-level bar leadership position without making sacrifices being away from family and the office. Nevertheless, there are many examples in the State Bar of Michigan of women in leadership positions who are willing to help other women.

Feds try to DQ Quinn Emanuel in Megaupload case

Details, including Quinn's opposition brief, at Above the Law. Unfortunately, I haven't been able to track down the government's brief, but it apparently asserts that Quinn represents many content owners who will be witnesses or who are victims of the crimes alleged in the Megaupload case. No doubt, Quinn has represented and does represent all sorts of big, famous high-tech companies in other matters. But will that be enough to disqualify them from representing a criminal defendant who really wants them to be his counsel?