Legal Ethics Forum

Interesting Conflict Waiver Case

The New York Court of Appeals this week highlighted the special care with which courts should approach client waivers of actual conflicts of interest in criminal cases. The client in this case, People v. Solomon, was charged with child sex abuse. Defense counsel simultaneously represented a police officer who testified at Solomon's trial that he confessed to the crime. The Court found that Solomon's conflict waiver did not suffice because the trial court failed to ensure that Solomon understood the nature of the conflict. The prosecution, however, argued lack of prejudice, because this conflict did not adversely affect the performance of Solomon's lawyer, who cross-examined the officer effectively. See Cuyler v. Sullivan, 446 U.S. 335, 350 (1980) (a defendant must "establish that an actual conflict of interest adversely affected his lawyer's performance"). The Court of Appeals rejected the prosecution's argument, concluding:

[W]e have never held, and decline now to hold, that
the simultaneous representation of clients whose interests
actually conflict can be overlooked so long as it seems that the
lawyer did a good job.  Our cases, and the United States Supreme
Court's, make clear that, where such an actual conflict exists
and is not waived, the defendant has been deprived of the
effective assistance of counsel.

ABA Journal article here. Court's opinion here.

Facebook, Rule 1.16, Rule 3.3, and the Crime-Fraud Exception

Here's a New York Times story that could make for a good classroom discussion. 

In a nutshell, several high profile lawyers have withdrawn from representing a man who claimed that, in 2003, he entered into a written agreement with Mark Zuckerberg in which Zuckerberg promised the plaintiff a substantial ownership stake in Facebook.  The U.S. Attorney's Office has now initiated criminal fraud proceedings against the plaintiff, alleging that he fabricated the alleged agreement.

The story implicates several issues covered in the typical PR class.  For example, students should be able to speculate as to why the lawyers for the plaintiff withdrew by analyzing Rules 1.16 and 3.3.  Students could also explore whether the prosecutors will be able to compel the testimony of the withdrawing lawyers through the use of the crime fraud exception to the attorney-client privilege.  There may also be some issues for those lawyers regarding Rule 3.1 (i.e., at what point did they know the claim was frivolous?).  Any other issues?

Pass the Plate a Second Time to Support (Oppose) Marriage . . .

We have learned this election season of the many ways money flows into political campaigns from all corners of the Country.   Now we have one more place to look for funds:  the church collection plate.

There are legal niceties that politically involved churches should observe.  A church’s collection money cannot be used to support candidates in partisan elections without jeopardizing the church’s 501c3 tax exempt status (denying a candidate communion is acceptable, but explicitly endorsing his opponent is not).   Mentioning a candidate by name in the Sunday service before an election is risky unless it is part of the routine (e.g. rote prayers for the President of the United States in a book of common prayer).  Church money, however, can be used to support ballot initiatives and “get out the vote” drives for ballot initiatives because ballot initiatives are about laws not candidates.   And never mind that this effort also benefits candidates who support the ballot initiatives.    

Here in Minnesota, several churches across the state have taken up a second collection to raise funds to support the campaign for a constitutional amendment prohibiting same sex marriage. 

http://www.startribune.com/politics/statelocal/174875371.html?refer=y

Money is also pouring into Minnesota from out-of-state religious organizations that support the Amendment.  There are Christian and Jewish denominations on the other side of the issue, but for whatever reason they have been slow to respond.   Most have stuck to the old fashioned notion that church and synagogue is about preaching and prayer, not politics.

So perhaps it is time for everybody -- whether Republican, Democrat or Independent -- to support their favorite political cause at their house of worship.   Until somebody shows up to kick political fundraisers and other money changers out of the temple, a religious 501c3 is just about as good as any other organization for throwing money at our electoral process.

Pass the plate please  . . . .  

Update 10/7/2012:  According to the Star Tribune one denomination alone spent over $650,000 to urge passage of the "marriage amendment":

http://www.startribune.com/local/blogs/177704901.html?vi_adid=W

 

 

There's a list of financially troubled biglaw firms

ABA Journal: Citi Private Bank has the list (but I guess it's not public). Citi Bank has the best data on big firms and they run a lot of comparative and bench-marking reports.

A Tax Cut for Democracy / Taxation only with Representation

Many of us are tired of the mostly negative political ads this year, so perhaps it is counterintuitive to suggest that we should have more of them.  We nevertheless would have a better democracy if citizens could support political campaigns of their choice with some of their money that would otherwise go to pay taxes. 

I discussed the influence of money in politics in the final chapter of my 2009 book on government ethics, which was published before the Supreme Court in Citizens United struck down statutory limitations on corporate political expenditures.   Government ethics rules and federal regulation of lobbyists I argued will not accomplish very much without campaign finance reform.  The Supreme Court’s decision in Citizens United made the situation even worse, but as I pointed out in my book, regulating political expenditures is extremely difficult to begin with.   

Attention should turn to proposals for public financing of political campaigns, including the proposals of Professor Larry Lessig in his book Republic, Lost:   

http://en.wikipedia.org/wiki/Republic,_Lost

I could do without the proposal for a constitutional convention to overturn Citizen’s United (the fact that political extremists who lack Lessig’s sense of moderation also want a constitutional convention will be worrisome when issues other than campaign finance end up on the agenda).  Lessig’s ideas about public financing of political campaigns, however, are fundamentally sound.  

Public financing, given the constitutional limitations articulated in Citizens United, will be in addition to and not instead of private money; even if campaigns are given a choice between public money and private money there is no way to get the private money out of the system.   That means public financing will need to be substantial to make a real difference in reducing the impact other campaign expenditures have on who wins elections and on decisions people make in public office.  The public financing we have today is nowhere near enough, and indeed it is so little that many campaigns don’t even want public money when it comes with strings attached.

The cost of financing political campaigns with taxpayer money would be substantial, but is small in comparison to the economic loss caused by ineffective regulation and wasteful government spending that often occurs when campaign contributors get the quid pro quos  they want.   On the merits, taxpayer financing of political campaigns would probably save money in the long run.

The problem with these proposals is political.  Most of these proposals involve government subsidies of political campaigns, and/or “vouchers” distributed by government to citizens who would use them for political campaigns.   Advocates of small government will attack government “handouts” to political campaigns in an era of trillion dollar deficits.   A “voucher” given directly to citizens may sound like a good idea to academics, but in political discourse it too will be likened to food stamps or some other coupon program that is essentially a “handout.”  Controversy over any of these ideas will be stirred up by proponents of corporate campaign expenditures who don’t want to see their “constitutionally protected” expenditures diluted by an influx of government money.

And it does not need to be this way if we stop to think about whose money it is to begin with.  The distinction between public money and private money is artificial -- it was all private money to begin with before government took some of it.  And perhaps citizens should get a meaningful say in who runs their government before the government begins to take their money.

To change the tone of the conversation, campaign expenditures should be discussed in terms of a “tax cut” or “tax rebate” instead of a subsidy or a voucher.   This is about returning to taxpayers a portion of their own money so they can have a real voice in what is done with the rest of their money.  The idea would be to return to American taxpayers a flat sum taken out of taxes paid (perhaps $200 per taxpayer) for use by them in political contributions of their choice.   The tax rebate program would be an acknowledgment of the fact that the right to vote is not enough in a world where money is easy to convert into electoral success.   Each taxpayer also needs some money with which to “vote”, and government can make this possible by sending some of their money back to be used for that purpose.

The government could send a tax rebate check of $200 to every citizen over the age of 18, with one condition:  the rebate check can only be endorsed over – in hard copy or electronically -- to a bona fide political campaign or political party organization for expenditures in connection with an election.   The check could not be used for any other purpose.  Every citizen over age 18 should get a $200 check because every citizen pays some type of taxes (income tax, sales tax, gas tax, etc.) (the federal government could subtract amounts sent to persons who don’t pay federal income taxes from federal revenue sharing with states in which those persons live and pay other taxes).   The point would be that every citizen is entitled to use some of his or her tax money ($200) to help choose the people who decide how the rest of the tax money is spent, and it would be up to the individual citizen to decide whether and how to “vote” with her $200 in federal, state or local elections.   People could of course increase the size of their monetary vote by using after tax money also on political expenditures (and corporations might even use pre-tax money for this purpose after Citizen’s United).  But everybody would get to spend $200 to help choose their government before paying any taxes to support their government. 

This “tax rebate” concept is similar in function to the many “voucher” ideas being proposed by advocates for government funded political campaigns.  But there is a critical difference.  This is not about the government paying for anything with “its” money.   This is about the government allowing us to use a portion of our money that would otherwise go to taxes for the purpose of choosing the public officials who spend the rest.

If the Constitution were to be amended to implement such a tax rebate, it perhaps could be an Amendment Providing for Taxation only with Representation, stating that:

"No person eligible to vote in the United States shall be required to pay any federal, state or local income tax or any other tax, and no sales tax shall be levied with respect to transactions entered into by such person, unless such person has an opportunity to designate once each year out of federal, state or local tax receipts an amount of not less than two hundred dollars for expenditure in support of a candidate or candidates of the person’s choice for elected office in the federal, state or local governments that collect said taxes." 

Rob Vischer chosen as new dean at St. Thomas

Rob Vischer has been appointed as the new dean at St. Thomas. Congrats! Very early in the history of this blog, we did a print interview of Rob, examinging the religious lawyering movement.

Patrick Fitzgerald moves to private practice at Skadden

Chicago Tribune: Patrick Fitzgerald, one of the most respected and most accomplished US Attorneys, has joined Skadden and will do white collar criminal defense work there. (For a broader look at how biglaw firms added criminal defense practices, you might want to read this article, Big Law's Sixth Amendment, by Chuck Weisselberg and Su Li.)

"Law School Falsified Jobs Data, Ex-Employee [of Thomas Jefferson Law School] Says"

This news has been covered in lots of places, but given that we've been commenting on law schools "juking the stats" for a long time, I wanted to link to this WSJ Law Blog account of a big development. An ex-employee of Thomas Jefferson Law School has offered a declaration stating that she was instructed by TJLS to falify data about the grads' employment outcomes. (We already knew that Illinois and Villanova had lied.) We'll know within a week or so what TJLS says about the claim.

How Tom Goldstein Gets Clients for his SCOTUS Practice

The Atlantic carries this interesting story about how Tom Goldstein created a SCOTUS practice and how the established members of that bar have adopted some of his methods. (Basically, Goldstein identified circuit splits, cold called the parties' [lawyers], and offered to do the briefing at SCOTUS for free.) Goldstein's SCOTUSBlog is now ten years old.

[edited to suggest that Goldstein communicated with the parties counsel]

Holding the Govt. Responsible for Bad Faith Prosecutions

Under the Hyde Amendment, sanctions may be awarded against the United States if its position in a criminal case is “vexatious, frivolous, or in bad faith.”  The issue is being contested in the Supreme Court, where the Governemnt is contending that as long as the prosecutor has gotten a grand jury to indict for probable cause in an ex parte proceeding, no amount of bad faith or prosecutorial abuse can meet the statutory standard.

The ham sandwich epigram is the most familiar comment on prosecutors and grand juries, but my favorite is that a prosecutor can get a grand jury to indict Abel for killing Cain.