Legal Ethics Forum

James M. Anderson and Paul Heaton, "How Much Difference Does the Lawyer Make?"

Available at RAND and forthcoming in the Yale Law Journal. Abstract:

One in five indigent murder defendants in Philadelphia are randomly assigned representation by public defenders while the remainder receive court-appointed private attorneys. The authors exploit this random assignment to measure how defense counsel affect murder case outcomes. Compared to appointed counsel, public defenders in Philadelphia reduce their clients' murder conviction rate by 19% and lower the probability that their clients receive a life sentence by 62%. Public defenders reduce overall expected time served in prison by 24%. They find no difference in the overall number of charges of which defendants are found guilty. When they apply methods used in past studies of the effect of counsel that did not use random assignment, they obtain far more modest estimated impacts, which suggests defendant sorting is an important confounder affecting past research. To understand possible explanations for the disparity in outcomes, they interviewed judges, public defenders, and attorneys who took appointments. Interviewees identified a variety of institutional factors in Philadelphia that decreased the likelihood that appointed counsel would prepare cases as well as the public defenders. The vast difference in outcomes for defendants assigned different counsel types raises important questions about the adequacy and fairness of the criminal justice system.

Birth Control, Marriage, Faith and other Freedoms Addressed at UST - Minnesota Catholic Conference Syposium on Religious Freedom

The University of St. Thomas hosted a fascinating program on religious liberty on June 28.

I attach my own address to the conference in which I discuss the role of lawyers in fighting for religious and other liberties, drawing on the example of Thomas More who died for his own convictions while being tolerant of others.  Recall that his dispute with King Henry VIII began with an issue that is still with us today -- differing views over the validity of a marriage.

I side with the Catholic Church on the recent birth control controversy, although I personally favor birth control, and I side with the Catholic Church in its opposition to any government effort to require it or affiliated organizations to recognize same sex marriages.  I make clear, however, that the State has no right to prevent people from buying birth control, an issue that has already been decided, and that I disagree strongly with the Catholic bishops support for constitutional amendments in Minnesota and elsewhere that restrict the freedom to marry.   It is the job of lawyers to protect the religious and other freedoms of everybody, not just themselves.

Download STU CLE lecture

 

Download STU CLE lecture

 

 

 

Rick Hills, "Exactly What Sort of Executive Privilege -- Constitutional or Common-Law -- Is Attorney General Holder Asserting?"

Rick Hills explores this issue in some depth at Prawfsblawg. (Hills comments, "Holder's letter muddies the issue." In some circles, that's a sign of good lawyering. I suspect that the DOJ is trying to maintain flexibility while waiting for a political resolution.)

More insights on the Zimmerman case

The case may be a useful focus for PR courses this Fall. Over at TalkLeft, Jeralyn continues to provide good insights, this time regarding the recent release of evidence. My initial list of issues for a PR class is here. I continue to doubt whether the prosecutor could ethically charge murder two.

David Cameron Carr, "The Ethos of a Discipline Defense Lawyer"

One of David's recent blog posts at Kafkaesq.

California Supreme Court Returns 24 Discipline Cases to the State Bar for Reconsideration

Below is a press release from the State Bar of California, suggesting that that State Bar's believes that the state's high court wants tougher discipline imposed.

 

FOR IMMEDIATE RELEASE

SUPREME COURT RETURNS 24 DISCIPLINE CASES TO THE STATE BAR

Contact: Laura Ernde           415-538-2028                                                    [email protected] <mailto:[email protected]>

SAN FRANCISCO – The California Supreme Court has returned 24 attorney discipline cases to the State Bar for a second look in an order that suggests the proposed discipline was too lenient. Historically, the Supreme Court approves hundreds of suspensions and disbarments every year on the recommendation of the State Bar, its administrative arm for regulating lawyer admission and professional conduct.

“The Court’s action, while unanticipated, is consistent with the efforts already underway at the State Bar to tighten the professional standards governing California attorneys,” observed State Bar Executive Director/CEO Joe Dunn. “The return of these cases gives us an opportunity to further advance this goal.” 

The cases sent back for review predated new policies by current Chief Trial Counsel Jayne Kim. Early in her term as Acting CTC, Kim began requiring management approval of proposed discipline to ensure consistency, adherence to the discipline standards and maximum public protection. Previous practice did not so rigorously require this.

Bar prosecutors and the State Bar Court follow a set of standards for imposing sanctions against attorneys who are found culpable of professional misconduct. (See Title IV of the Rules of Professional Conduct).

The cases were returned with a June 21, 2012 order stating:
 
“The above-entitled matters are returned to the State Bar for further consideration of the recommended discipline in light of the applicable attorney discipline standards. (In re Silverton (2005) 36 Cal.4th 81, 89-94; see In re Brown (1995) 12 Cal.4th 205, 220.)”

Both cases cited in the order are cases in which the Supreme Court ordered more severe discipline than was initially recommended by the State Bar Court. In the more recent case, the Supreme Court disbarred attorney Silverton, concluding that the State Bar Court’s recommended suspension was inadequate given the primary purpose of disciplinary proceedings to protect the public, the courts, and the legal profession; maintain high professional standards by attorneys; and preserve public confidence in the legal profession.  

“We take the Supreme Court’s citation of the Silverton case very seriously. It is a reminder that our State Bar discipline system must demand the highest professional standards of California attorneys,” Dunn said.

###

The State Bar of California is an administrative arm of the California Supreme Court, serving the public and seeking to improve the justice system for more than 80 years. All lawyers practicing law in California must be members of the State Bar. By June 2012, membership reached 237,000.

Laura Ernde
Acting Communications Director
The State Bar of California
180 Howard St., San Francisco, CA 94105
direct: 415-538-2028
mobile: 415-722-8310

"The Most Dangerous Idea In The History Of The District of Columbia Bar"

Mike Frisch, at Legal Profession Blog, opposes a proposal to shift control of the DC Bar's prosecutorial function to the Board of Governors.

Assertion of privilege leads to constitutional showdown

Main Justice (and many other sites) are carrying the news.

UPDATE: The Monkey Cage has a nice historical discussion of executive privilege. The Congressional Research Service has a paper on the topic. (h/t: Volokh).

This post at Heritage by Todd Gaziano says, "As Holder surely knew all these past months, there is no privilege that exists between Congress and the executive branch to withhold documents except the constitutional executive privilege, which is based on the separation of powers. For example, the attorney-client privilege does not exist between Congress and the executive branch because they have the same client—the American people." (emphasis mine)

Do any of our readers know if it's true thtat neither branch can assert ACP in response to requests by the other branch? And if there is legal authority for that proposition, is it premised on the notion that the client is "the people"?

A Hypo on Virtual Law Practice and Rule 5.5

Imagine that Laura Lawyer is licensed only in Massachusetts and operates a virtual law office from there.  She writes wills for clients in Massachusetts and, occasionally, New Hampshire.  Lately, the flow of clients from New Hampshire has increased, and Laura is writing an increasing number of wills for New Hampshire citizens.  Assume that Laura never visits New Hampshire and performs all of her work in Massachusetts over the Internet. 

Here are a couple of questions.  First, assuming that the wills are governed by New Hampshire law, does Laura violate Rule 5.5 by writing any wills at all for these New Hampshire citizens?  In other words, are these occasional representations permitted by Rule 5.5(c)(4)?  (See Comments [13] and [14].)

Second, assuming the occasional representations are permitted, or the hypothetical is altered to make it clearer that the representations fall within Rule 5.5(c)(4) (e.g., Laura is drafting documents that are intended to have their effect in Massachusetts and will be governed by Massachusetts law), at what point does the flow of clients become so significant that Laura needs to become licensed to practice law in New Hampshire?  Put another way, at what point does her practice in New Hampshire become sufficiently “systematic and continuous” to trigger Rule 5.5(b)(1)? 

Currently, Comment [4] to the Rule offers limited guidance as to the second question.  It says that a lawyer’s “[p]resence may be systematic and continuous even if the lawyers is not physically present” in the jurisdiction. Thus, the Rule and the Comment do not tell us much about how extensive the practice can be in a jurisdiction before admission is required.

The ABA Commission on Ethics 20/20 released a paper today that asks whether Rule 5.5 should be revised to offer more guidance on this second question. One option the paper identifies is a Comment-based approach that would list a variety of factors that are relevant to determining whether a lawyer's contacts are "systematic and continuous," including:

• the nature and volume of communications directed to potential clients in the jurisdiction;
• whether the purpose of the communications is to obtain new clients in the jurisdiction;
• the number of the lawyer’s clients in the jurisdiction;
• the proportion of the lawyer’s clients in the jurisdiction;
• the frequency of representing clients in the jurisdiction;
• the extent to which the legal services have their predominant effect in the jurisdiction; and
• the extent to which the representation of clients in the jurisdiction arises out of, or is reasonably related to, the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice

Is this a workable solution?  If not, is there another approach that would be preferable?  Or is the applicable standard so inherently vague that it is difficult to say more than "systematic and continous" contacts require admission? 

Civil procedure buffs will recognize "the systematic and continuous" phrasing as the standard for when general in personam jurisdiction is established (i.e., when a defendant's contacts with a state are so extensive that the defendant is subject to personal jurisdiction for claims that may have arisen elsewhere).  Given that the Supreme Court hasn't offered very clear guidance as to what the phrase means in the personal jurisdiction context, perhaps the concept is not capable of clear expression.  On the other hand, personal jurisdiction and multijurisdictional practice are distinct concepts with different underlying policies, so perhaps Rule 5.5(b) should not encompass the same kinds of contacts with a jurisdiction as the concept of general jurisdiction.

If the Commission produces any proposal on this issue, it won't be presented to the ABA House of Delegates until February 2013.  In the meantime, what do you think?  How, if at all, would you address this issue?

Tamanaha on the ethics of law schools

Brian Tamanaha's new article at The Daily Beast is hard hitting: "And it won’t stop: Law schools will always manipulate whatever metric U.S. News employs in its ranking, ethics be damned." Tamanaha's book, Failing Law Schools, has shipped.