Legal Ethics Forum

Decreased law school enrollment stats

Caron and Campos report stats collected by the Top Law Schools message board.

Vincent R. Johnson, "Legal Malpractice in a Changing Profession: The Role of Contract Principles"

Article. Abstract:

A looming transformation of the American legal profession threatens to undercut the central pillars of the current legal ethics regime. This is true because the present system of disciplinary and malpractice liability is based on the assumption that legal services will be provided by lawyers who are held to professional standards. Yet, as Professor Thomas D. Morgan of George Washington University compelling argues in The Vanishing American Lawyer (Oxford University Press 2010), legal services are increasingly likely to be provided to clients by nonlawyers, or by lawyers who are not fully licensed.

This article examines why, in a less unified legal profession involving a variety of providers and “unbundled” legal services, ethics rules and the principles of negligence and fiduciary duty will often be incapable of protecting clients. The article argues that contract principles will not adequately fill the developing gap in the law of legal malpractice. Contract law offers no great repository of client protection principles, but rather an array of rules which do as much to limit obligations to clients as to create them. Weak and unsophisticated clients are unlikely to be safeguarded by contract principles from those who are incompetent, dishonest, or disloyal.

U.S. v. Williams: Privilege, Confidentiality, Strickland, and a Divided Court

Sorry if this opinion has appeared here already, but I did not see it if so.

This 7th circuit case decided April 2012 contains a dense discussion of the conduct of a lawyer for an alleged bank robber who disclosed the client's intention to present a false alibi defense. The intention appeared in a sealed envelope the client asked the lawyer to deliver to a cousin. The lawyer opened the letter and discovered the plan. He disclosed it in a motion to wihdraw, as his reason to withdraw, without first trying to dissuade this client and without seeking to submit the motion under seal so the prosecutor was informed of the client's plan. The prosecutor then called the now former lawyer to testify against his client, who was convicted. The new (trial) lawyer did not object.

The opinion addresses both the confidentiality rule and its exceptions and the privilege. Posner joined by Rovner affirmed the conviction. Hamilton dissented, finding the lawyer's conduct unethical and ineffective assistance and finding the trial lawyer's failure to object to the former lawyer's testimony also ineffective.

Both opinions fault the procutor's strategic decision to call the former lawyer as essentially piling on. The majority writes that even if its opinion is wrong in every particular, the error was harmless, which Hamilton disputes.

Hamilton points out that the majority opinion would entitle a lawyer to go straight to the authorities whenever a criminal defendant suggests perjury or a fraud on the court in order to beat a charge, which he suggests correctly is not a rare occurrence. He writes at length to explain why that is and should be forbidden as a "first response" to the client's suggestion.

Hamilton has much the better argument and his opinion is grounded in the reality of criminal defense work and criminal adversary justice. Posner's opinion gives inadequate (actually almost no) recognition to the adversary system and the role of a criminal defense lawyer or to the consequences of allowing defense lawyers to do what the lawyer here did. He writes as though the lawyer's first and unqualified duty was to the court and so he was free to sound the alarm as soon as the client went looking for a false alibi witness.

Kim M. Economides & Majella M. O'Leary, "The Moral of the Story: Toward an Understanding of Ethics in Organizations and Legal Practice"

Article. Abstract:

This article critically examines the potential of storytelling to shape professional and organizational ethics, in particular within the modern law firm. Drawing on both theoretical and empirical research on storytelling from fields as diverse as organization and management studies (OMS), folklore, and moral philosophy, the article argues that despite certain risks storytelling can enrich our understanding and teaching of professional conduct through exposing latent ethical dilemmas ever present in the delivery of legal and other services.

Some recent decisions

Justia has news of an opinion from the Supreme Court of Alabama, tolling the statute of limitations in a legal malpractice case (Jett v. Wooten); and an opinion from the Supreme Court of Illinios (People v. Fields) re-instating a conviction in a sexual assault case where the defendant's lawyer had previously represented the victim in a guardian ad litem representation. (The intermediate appellate court had ruled for the defendant and had remanded the matter for a new trial.)

Stats on trends in biglaw hiring

From Bill Henderson, at Legal Whiteboard:

NALP just announced that the median salary for first year associates in Big Law has dropped from $160K to $145K.  I think that is very significant.  We are now back to to the entry level price point of 2007.

But to my mind, there is much bigger story here.  In 2011, firms of 500+ attorneys hired 2,856 entry level lawyers.  In 2007, that figure was 4,745.  So, after five years, Big Law is paying the same wage but hiring 40% fewer lawyers.

Restatement 4th?

The Restatement (Third) of the Law Governing Lawyers is now 12 years old. (Why is it the Third? Did I miss the First and Second?) Anway, much has happened in the last dozen years, including four ABA commissions/task forces with attendant Rules amendments and other proposals, SOX, Dodd-Frank, and incremental case law developments. 

Restatement Third has been cited about 100 times per year since its formal adoption. Pretty remarkable. 

Is it time for an update? The project took 13 years as I recall. The update would likely require 3-4.

"9th Circuit Deepens Split Over the Statutory Right to Counsel in Immigration Proceedings"

Head over to Circuit Splits for the details.

Alice Woolley, "The Problem of Disagreement in Legal Ethics Theory"

Our very own Alice Woolley has this article up at SSRN. (h/t: Legal Theory Blog) Abstract:

Legal ethics theories give competing and exclusive accounts of the ethical foundations of the lawyer’s role. They disagree about the relationship between morality and law, about the content of the lawyer’s central ethical duties and about how specific ethical problems should be resolved. Each theoretical account asserts that the others are mistaken in some fundamental way. Yet all legal ethics theories are theories of action; legal ethics theorists do not seek merely to enlighten, they also seek to influence how lawyers and the legal profession respond to ethical issues. This creates a problem of disagreement: the problem created by the divergent but exclusive claims made by different ethical theories at the point when those theories are to be translated into action. This paper considers how, given the problem of disagreement, legal ethics theories can have any impact on individual ethical decision-making or public policy. Specifically, it considers how theories can have any impact given a) that they fundamentally disagree; and b) what experimental psychology tells us about how people make ethical decisions in fact, and the nature of lawyer regulation.

Details on NY's new plan for mandatory pro bono for law students

New York Law Journal and Above the Law have details about the new rule (pdf here) requiring 50 hours of pro bono. This appears to apply not just to law schools in NY, so this may be the second recent event where the NY system is having a huge impact on legal education nationwide. (NY also requires students to take a stand-alone course in PR, which will impact elite schools, schools with lots of foreign LLM students, and schools that feed into the NY market.)