Legal Ethics Forum

More on reform of bankruptcy fees

Nancy Rapoport (UNLV) has been covering the issue in depth and has a round-up of links to her previous posts and her articles. The NYT ran a letter to the editor by the Chair of the National Bankruptcy Conference, citing Nancy's work.

"Washington Supreme Court Adopts Standards for Indigent Defense"

We've discucssed this important issue in quite a few contexts. Here is there press release from the state of Washington's court system. (h/t: Law of Criminal Defense)

Washington Courts: News and Information

Supreme Court Adopts Standards for Indigent Defense; Case Limit Guidelines Effective in 2013

June 15, 2012

Olympia, WA June 15--The Washington Supreme Court has adopted new Standards for Indigent Defense Services. The new standards will be effective September 1, 2012, except Standard 3.4 regulating caseload limit guidelines which will take effect September 1, 2013.

The new standards include guidelines for caseload limits and types of cases; administrative costs, limitations on private practice, qualifications of attorneys, appellate representation and use of legal interns. 

 

The rule was approved by a majority of the Court, with Justices Charles W. Johnson and Mary E. Fairhurst dissenting. A copy of the final order can be found online by clicking here together with the text of the new rule.

 

The standards were authored by the Washington State Bar Association’s Council on Public Defense to address concerns about the quality of indigent defense services in Washington. The WSBA approved the standards, and recommended adoption to the Supreme Court in July 2011. 

 

Recognizing the fiscal impact new caseload guidelines will have on local governments, Chief Justice Barbara Madsen said, “We understand the delicate balance in providing a constitutional right to an attorney and the monetary impact on local governments. By delaying implementation of the caseload limits until 2013, our goal is to move towards the promise of the landmark U.S. Supreme Court case of Gideon v. Wainwright.”

 

Numerous reports, including the Seattle Times 2004 series entitled “Unequal Defense: The failed promise of justice for the poor” have documented serious flaws in the indigent defense system in Washington State. Since then, numerous legislative and court rule changes have made improvements to the system. This is the first time actual caseload limits by type have been adopted.

 

The standards are also necessary to implement court rules CrR 3.1, CrRLJ 3.1 and JuCR 9.2 previously adopted by the Court which will become effective on July 1, 2012.

 

The adoption of the standards by the Supreme Court follows a four-month comment period that ended in April 2012.

Odds and ends (June 15, 2012)

• Miami Hearld: The defense attorneys in the military tribunals filed a motion asking that their clients be allowed to wear military clothing and/or detainee jumpsuits during the trial.  (The motion is available at the Lawfare site.) Good lawyering sometimes includes choices about what your client wears. Never not advocating!

• White Collar Crime Prof Blog: If you're following the policy battles over discovery compliance by prosecutors -- including the proposed Fairness in Disclosure of Evidence Act of 2012 -- then you may want to read Jon May's response to the public statement by Deputy Attorney General James Cole.

Richard Zitrin on Legal Education

In a column last week, Richard Zitrin offered his take on the increasingly discussed state of U.S. legal education.  Richard provided me with this overview:

This week’s Moral Compass column in the SF Recorder and on law.com focuses on the same topic I wrote about last August – that our nation’s law schools are churning out too many law grads for our legal system to absorb.  In this article, I focus on my dean Frank Wu’s plain-spoken speech at the annual CA State Bar ethics conference, where he said, inter alia, that some schools are engaging in "the educational equivalent of predatory lending." I then describe Hastings’s bold plan to cut its student body by 20%.

The August 2011 column that Richard refers to can be found here.  Here is Richard's abstract:

I accuse some law schools of ignoring their fiduciary duties to their students, adding students in order to increase profits, and engaging in questionable promotional campaigns.  I wrote about the glut of new lawyers back in 1999 as well.  We were saturated with new lawyers then, and we’re super-saturated with new lawyers now, many saddled with substantial debt pursuing a dream only half of them will fulfill.

Controlling the costs of outside (bankruptcy) counsel

Reuters, NYT, WSJ, and ABA Journal are all reporting on a movement to rein in high legal fees and costs in bankruptcy matters.

I wasn't surprised about the sorts of abuses being alleged, but I was a little surprised that the Trustees may not have made use of the basic techniques that big corporate clients have develped to control legal costs. Some of those abuses mentioned in those articles are simply impossible to pull off for law firms operating under standard Outside Counsel Guidelines.  A massive body of work has been done by corporate American and the ACC in this field. Entire conferences are devoted to it. It may be helpful to send the Trustees and some federal judges to the conferences so they can better understand how savvy purchasers of legal services play the game these days.

Update: The letter from the big firms, objecting to the proposed controls on fees and costs, is below.

Download Law_Firms_Comments re BK fees

Prosecutorial Disclaimers

Can a prosecutor suggest during a closing argument that the defendant, his attorney, and a psychiatrist colluded to fabricate a defense of extreme emotional disturbance if the prosecutor subsequently states that the defense attorney is not unethical and that the psychiatrist did not necessarily perjure himself?

This is the odd question addressed in the Supreme Court's decision in Parker v. Matthews.  The Supreme Court held that the prosecutor's statements taken together did not rise to the level of violating the defendant's due process rights.  Here are the prosecutor's allegedly improper comments in full: 

“He’s arraigned, he meets with his attorney and either he tells his attorney, I did it or I didn’t do it. One or the other. But, the attorney knows what the evidence is. By the way, the defendant knows what the evidence is, because while he’s giving this statement, it’s sitting right in front of him at the Homicide Office. Here’s the gun. Here’s the shoes, David. ‘Nah, nah, I never saw it before. I never borrowed a gun. I never borrowed any money. I wasn’t there. I was at home in bed asleep.’ He’s denying it there.

And what does his attorney think? His attorney sees all this evidence, and he’s going through his mind, what kind of legal excuse can I have? What is this man’s defense? Self protection? No, there’s no proof of a gun found at that house on 310 North 24th Street. No proof of that. Protection of another? The defendant’s mother is at home on Lytle Street. He isn’t protecting her over there on North 24th Street.  Intoxication? Yeah, well, he was drinking that night. Maybe that will mean something.

But that isn’t enough, Ladies and Gentlemen. Mr. Busse has to contact a psychiatrist to see his client, and he comes in and sees his client one month after the day of his arrest, one month to the day, and by that time, Mr. David Eugene Matthews sees his defense in the form of Doctor Chutkow, and do you think this guy is aware of what’s going on? He’s competent. He can work with his attorney, and he enhances his story to Doctor Chutkow.  Yeah, I was drinking. I was drinking a lot. I was taking a lot of pills, too, and let me tell you about the pills I was taking.

Don’t you think he has a purpose in enhancing his story to the psychiatrist? Don’t you think he would exaggerate his fears about his wife, his mother-in-law, and all these other things about what other people might be doing to his mother? Don’t you think he would overstate the extent of his intoxication to his psychiatrist? It’s the defense of last resort, Ladies and Gentlemen. He has no excuse for his conduct, but that’s his only way out."

The Supreme Court believed that the Sixth Circuit erred in failing to take into account the following corrective remarks made by the prosecutor:

“And that’s not to say that Mr. Busse is unethical. Not at all. He is entitled to the best defense he can get, but that’s the only defense he has, what the doctor has to say, and that’s not to say that the doctor gets on the stand and perjures himself. He’s telling you the truth. He wouldn’t perjure himself for anything. He’s telling you the truth, Ladies and Gentlemen.”

Prof. Tushnet suggests on Balkinization that the Court's analysis of the prosecutor's comments was simplistic, and in my view the title of Prof. Tushnet's post ("Brutus is an honorable man") quite nicely captures the chief deficiency in the Supreme Court's reasoning.  The impact of the prosecutor's long diatribe (flight of fancy, really) on the jury cannot be defused with brief platitudes (to the extent that the jury will even recall the corrective remarks).     

In any event, whatever one's views on the merits of the Supreme Court's decision, I think there are strong grounds to believe that the prosecutor violated Model Rule 3.4(e), which the Court did not cite in its opinion.  The prosecutor seems to have alluded to collusion where no facts supported such a charge and also opined on the credibility of the psychiatrist and the guilt of the accused.  

The Supreme Court's analysis does raise an interesting question, however.  From a legal ethics standpoint, should a prosecutor be allowed to make statements during a closing argument that are prohibited by Model Rule 3.4(e) if he or she later disavows those statements in the same closing? (I have in mind here a much more robust disclaimer than the one offered by the prosecutor in Parker).

Presumably prosecutors should be afforded some leeway to correct statements that they wish they had not made.  On the other hand,  when a prosecutor makes a comment that runs afoul of 3.4(e), that is bound to have a significant effect on a jury, regardless of whether or not the prosecutor later seeks to correct his previous comment.  Given that closing statements are usually not spontaneously delivered and prosecutors' roles as "ministers of justice," my view is that it would be inappropriate for a prosecutor to avoid sanction under 3.4(e) because he/she disclaimed an offending comment towards the end of his/her closing.

One additional complaint about Parker.  Neither the Supreme Court nor Sixth Circuit opinion appears to name the prosecutor in the case whereas Mr. Busse, the defense attorney, has been immortalized for his relatively minor role.  Given civil immunities and the paucity of disciplinary cases against prosecutors, one of the only constraints on prosecutors is for other members of the bar to name and shame them when they appear to commit misconduct. 

 

Legal profession odds and ends (June 8, 2012)

• Philadelphia Business Journal: “Philadelphia law firm Stradley Ronon Stevens & Young has been accused of malpractice in a lawsuit by former client Sovereign Bank    over alleged errors in setting up $200 million in loans to the subprime lender Taylor Bean & Whitaker Mortgage Corp.”

• BNA: "Unfinished client matters of a dissolved law firm remain its property when departing partners complete that business at other firms, even when the cases are billed by the hour rather than on a contingent fee basis, the U.S. District Court for the Southern District of New York held May 24 (Development Specialists Inc. v. Akin Gump Strauss Hauer & Feld LLP, S.D.N.Y., No. 11 civ. 5994 (CM), 5/24/12)."

• Thomsen Reuters: "Law students who graduated in 2011 faced the toughest job market in more than a decade, resulting in one of the lowest employment rates for law graduates on record, according to a report released on Monday."

• Larry Velvel (via Huffington Post): "So it is important that law schools and the law remain open to -- remain a route of advancement for -- the middle and lower economic classes. But such access is increasingly difficult to come by. The reasons have to do with elitism, failure to teach students what they need to know in order to practice, and costs." This has been an issue for me, given the recent run-up in legal tuition and the perceived loss of economic opportunity in law practice. Now that a number of schools are scaling back admissions, it would be interesting to see how the demographics change in law school, if at all.

• Isle News: "The association of Jersey solicitors known as the Chambre Des Ecrivains has recently elected a new President and a new Secretary.  Mr Philip Syvret a partner at Benest & Syvret has been elected to the post of President.  He takes over the role from Malcolm Le Boutillier who has acted as President since 2007."

• Business Day (South Africa): "Critics of the controversial Legal Practice Bill were wrong to claim that it offended the rule of law and compromised the independence of legal practitioners, Department of Justice official JB Skosana told Parliament yesterday."

Taking the high road (and don't rise to the bait!)

I've been following the prosecution of George Zimmerman for the homicide of Trayvon Martin and have more than once cited to Alan Dershowitz's articles in the popular press on a topic that continues to interest me: whether a prosecutor filing a probable cause affidavit can deliberately omit facts that are inconvenient to, or contradictory to, the prosecutor's theory of the case. It's a question that goes to the heart of the lawyer's duty to be partisan.

(You sometimes hear it said that part of the standard conception of American legal ethics is a duty to be fully partisan for the client. In reality, the degree to which the lawyer can present just the client's version of the issue varies quite a bit under the rules, depending on context. On top of that, lawyers often have considerable discretion about the degree of partisanship they employ, because they so often control the tactics. I don't practive criminal law, so I don't know what the rule would be in this case.)

Dershowitz has now authored an article that more than one reader has sent to me. In it, he claims that the prosecutor, Angela Corey, called Harvard Law School and went on a 40 minute rant, including threatening to sue Harvard, in response to Dershowitz's articles. Assuming that Dershowitz's article is accurate (query: is he allowed to be strongly partisan in his op-eds or should he be present all the facts that a neutral reader would need to reach a reasoned decision?), isn't that something that Corey shouldn't have done? It must be hard to be the prosecutor in a high-stakes case, but I would have advised her to take the high road and suffer the slings and arrows -- if only to avoid a Streisand Effect.

Book review of "Lawyers in Practice: Ethical Decision Making in Context"

Mark C. Miller, of Clark's political science department, reviews the book "Lawyers in Practice" at Law and Politics Book Review.  The volume, edited by Leslie Lavin and Lynn Mather, has a number of well done analyses of different types of lawyers. I coiuld see it being a great second reading for a PR course.

Outsourcing in 2012

As Professor Perlman reported in May, the ABA Commission on Ethics 20/20 has filed final versions of its resolutions and reports with the ABA House of Delegates.  I am particularly interested in the outsourcing proposals because, for better or worse, outsourcing has the potential to profoundly shake up the domestic market for legal services (to the extent it has not done so already) and poses potentially serious ethical challenges.  I was not privy to any of the Commission's discussions concerning the proposals, but I do have two observations.    

1. Although I do not view the proposals as controversial, I expect that there will be a significant public backlash if they are adopted.  This prediction might seem odd given that large firms (and some small ones) have been outsourcing for some time and that the Commission's proposals were preceded by Formal Opinion 08-451. Nevertheless, given current economic realities, there are many unemployed, newly-admitted lawyers in virtually every state that likely would be willing to perform the duties being outsourced to attorneys in foreign jurisdictions for marginally higher pay.  Indeed, the New York Times reported in 2010 on the phenomenon of attorneys abandoning the U.S. to move to India to work for legal outsourcing firms. The formal recognition and acceptance of outsourcing at this point in time could be viewed in some corners as evidence that the ABA is concerned with protecting the the "wrong" constitutiences. Such complaints are, of course, familiar in debates about the outsourcing of jobs generally but may be particularly heated in this context because the ABA has already faced a great deal of criticism in the media, and lawyers obviously incur far greater costs to join their chosen profession than do most other workers.  

2. US-style civil discovery is widely decried by the rest of the world.  Even if one is an ardent defender of the system, however, it is noteworthy the extent to which concerns about the burden and expense of discovery are increasingly driving changes to the American legal system.  Clients naturally want to minimize costs and outsourcing projects to foreign jurisdictions is entirely logical when a case necessitates the review of millions of documents, as many do given the ubiquitous use of email, instant messenger, etc.  At the same time, there are obviously risks in having foreign lawyers engaging in work that heretofore has been predominately performed by attorneys who are trained and cultured in the American legal system and are subject to its disciplinary mechanisms.  The belief that civil defendants should be more readily able to obviate the burdens of discovery was also part of the rationale for the Supreme Court's holding in Iqbal, which arguably ushered in a seismic shift in pleading practice.  

I wonder whether we will reach a point when it will become necessary to  fundamentally rethink civil discovery as opposed to continuing to tinker with its ethical and procedural machinery.