Legal Ethics Forum

Near Entry of Judgment, District Judge Orders Parties in High Profile Case to Reveal Ties to Bloggers, Others

Oracle and Google got in a major IP tussle, blogged by many -- including apparently at least one person who blogged for a long while without revealing that he was a paid consultant to one of the parties. The judge ordered both parties to reveal any relationship with not just bloggers, but journalists and academics with whom either had a financial relationship. The long article is here.

My first reaction is that it's a good idea.  I draw the analogy to "sponsored" scientific research. Thoughts?

Rebecca Aviel, "The Boundary Claim’s Caveat: Lawyers and Confidentiality Exceptionalism"

Article. Abstract:

In legal ethics scholarship, the “boundary claim” stands for the idea that lawyers must represent clients zealously but within the bounds of the law. The idea has long been embraced by the legal profession as both a description of — and justification for — the unique moral, social, and political space occupied by lawyers. This Article asserts that this professed commitment to obey the law comes with a caveat: the legal profession has been unwilling to acknowledge that lawyers must comply with laws that require the disclosure of client confidences. In fact, the bar has a fairly extensive history of suggesting or asserting that lawyers are exempt from such laws. This Article traces that history and then considers its significance. Properly located within the state and federal constitutional structures that should form the framework for this assessment, the idea that lawyers are exempt from laws that require disclosure is, in some of its manifestations, really quite radical, raising questions about the role of lawyers in a constitutional democracy that the bar has never satisfactorily addressed.

Lonnie T. Brown, Jr., "Civility and Collegiality — Unreasonable Judicial Expectations for Lawyers as Officers of the Court?"

Article. Abstract:

It is a well-settled and often-recited fact that lawyers are “officers of the court.” That title, however, is notoriously hortatory and devoid of meaning. Nevertheless, the Eleventh Circuit recently took the somewhat unprecedented step of utilizing the officer-of-the-court label to, in effect, sanction an attorney for the purportedly uncivil act of failing to provide defendant attorneys with pre-suit notice. While the author applauds the court’s desire to place greater emphasis on lawyer-to-lawyer collegiality as a component of officer-of-the-court status, the uncertainty the decision creates in terms of a lawyer’s role will potentially force litigators to compromise important client-centered duties. This Article argues that it would be preferable for courts to define sanctionable officer-of-the-court duties by reference to well-defined, existing procedural and ethical norms, thereby enhancing predictability and imbuing the label with much-needed substance.

(frivolous post) do you pronounce it law-yerr or loy-err?

It's vacation time and so I'm posting on a perhaps frivolous topic: do you pronounce lawyer with a "law" or a "loy" as the first syllable?

"Ex-Judges Press SCOTUS on Prosecutorial Misconduct"

WSJ Law Blog has the story. Suppose that a prosecutor acts with malice -- but acts with probable cause. Should the prosecutor's conduct be sanctionable?

Justin Marceau, "Embracing a New Era of Ineffective Assistance of Counsel"

Article. Abstract:

The recent decisions in Missouri v. Frye and Lafler v. Cooper represent a seismic shift in the Court’s right to counsel jurisprudence. No longer is the right to counsel limited to protecting the
fairness and adequacy of the trial. Although these two cases arose in the plea bargaining context, the doctrinal shift may have its greatest impact in cases where plea bargaining is not at issue.

This Article identifies the salient features of this new — non-trial oriented — conception of the right to counsel and explains its far-reaching impacts on the day-to-day practice of criminal law.

Specifically, this Article explains the import of the newly minted right to effective assistance as it relates to a variety of procedural constitutional rights, including speedy trial, pretrial detention, double jeopardy, and jury selection rights. The explicit recognition that the right to counsel is not only, or even primarily a trial or truth protecting right promises to be a staggeringly important constitutional event.

Benjamin Zipursky, "Legal Positivism and the Good Lawyer: A Commentary on W. Bradley Wendel’s Lawyers and Fidelity to Law"

Article. Abstract:

W. Bradley Wendel’s Lawyers and Fidelity to Law aims to defend the “Standard Position” in Legal Ethics by drawing upon Legal Positivism as a normative jurisprudential theory. One of its central arguments begins with the claim that established, positive law enacted through democratic processes allows a society with pluralistic values to flourish, but only if citizens are able to grasp the content of that law in an accurate and unbiased manner. This is why, argues Wendel, it is critical to the defensibility of our political system that lawyers engaged in counseling provide clients with candid and accurate interpretations of the content of the law. Their doing so permits intractable conflicts to be averted by the law. Similarly, litigation through a fair system where each is represented zealously is our best effort to provide an impartial means of resolving intractable conflicts. In both cases, lawyers must adhere to the “standard position,” rather than either abandoning all ethical rules, or fully embracing what the lawyer believes substantively to be the just answer, Wendel argues. The review essay argues that: (A) Wendel too quickly assumes a notion of client entitlements; (B) he fails to provide an adequate argument for a general duty to obey the law; (C) he fails to provide a justification of his assertion that legal determinacy can be attained without reliance on values; and (D) his treatment of legal ethics in the litigation setting actually conflicts with his treatment of legal ethics in the counseling setting. While constructing ‘repairs’ for Wendel on points A, B, and C, the essay asserts that he cannot avoid the difficulties of problem D, and should therefore alter his position on legal ethics in the litigation setting.

 

"Judge in Google-Oracle case seeks names of paid reporters, bloggers"

Yahoo has the news. Eric Goldman, of Santa Clara, is quoted.

ABA Task Force on Future of Legal Education

The 18-member panel will meet for 2-years. The article is here.

Stephen Galoob & Su Li, "Are Legal Ethics Ethical? An Empirical Study"

Article. Abstract:

Many core questions in legal ethics concern the relationship between ordinary morality and rules of professional conduct that govern lawyers. Do these legal ethics rules diverge from ordinary morality? Is the lawyer's role morally distinctive? Do professional norms establish what the lawyer has most reason to do? Conjectured answers to these questions abound.

In this Article, we use methods from moral psychology and experimental philosophy to provide the first systematic, empirical examination of these questions. Based on results from a survey experiment, we find that legal ethics rules about advocacy and confidentiality diverge from lay moral judgments; that lay judgments do not, in general, attribute distinctive moral significance to the lawyer’s role; and that norms of professional conduct can change (but do not fully determine) lay judgments about the moral status of lawyers’ actions. We conclude by discussing some of the most important theoretical and policy implications of these findings.