Legal Ethics Forum

Top Ten Legal Ethics Stories of 2012

Here are the Top Ten Lists for 2004, 2005, 2006, 2007 2008, 2009, 2010, and 2011.

My list has benefited from discussions with Judith Maute, Andy Perlman, Steve Gillers, and correspondents from the APRL listserv -- none of whom are responsible for my choices and possible errors!

Also, I had wanted to find more entries on legal ethics from around the world. If you have suggestions along those lines, please leave a comment.

The post has been edited a couple of times already.

In Memoriam

Gary Munneke, a professor at Pace University, was a leader in academic writing about law practice management.

Steven Keeva, the author of Transforming Practices: Finding Joy and Satisfaction in the Legal Life.

If you are aware of any other lawyers, judges, or professors from our field who passed away in 2012, please let me know or leave a comment below.

THE TOP TEN

1. The Supreme Court of the United States (SCOTUS) expanded its application of constitutional standards in the context of critical pre-trial processes in criminal matters, such as plea bargaining and discovery.

As part of what may be a multi-year, sea change in the law of lawyering, the SCOTUS issued two more opinions that extended the constitutional guarantee of effective assistance of counsel to the plea bargaining stage of criminal matters. In Missouri v. Frye, the prosecutor offered a deal for a limited time but the defense counsel failed to communicate the deal on time to the client. The SCOTUS held that the defendant be given a second chance to more precisely support his claim of ineffective assistance of counsel (IAC). In Lafler v. Cooper, the accused claimed that defense counsel offered bad advice about whether to accept the deal or go to trial. The SCOTUS held that the prosecution should once again make the plea bargain to the defendant. These cases follow the 2009 case, Padilla v. Kentucky, which also dealt with IAC at the plea bargain stage. (Orin Kerr, at Volokh, had a discussion of the new cases when they came out.) Although it’s not an IAC case, the SCOTUS also issued Smith v. Cain, which reversed a criminal conviction because the prosecutors failed to make adequate pre-trial discovery to the defense. And in Martinez v. Ryan, the court clarified when an IAC claim can be asserted. (More discussion here.) Given that so few cases go to trial anymore, this far-reaching expansion of constitutional protections to the critical pretrial stages of criminal matters is a re-fashioning of Bill of Rights protections for a new era. It will also be a major part of Justice Kennedy's legacy. In both cases, he was the swing vote and wrote the majority opinion.

2. The ABA’s 20/20 Commission proposed several amendments to the Model Rules and related policies in August, and the House of Delegates approved all of them.

Andy Perlman, the Chief Reporter for the Commission, offered extensive coverage of those developments. The amendments made improvements and technical corrections to a number of rules and were designed in large part to adapt the ethics rules to changes in technology and the mobility of lawyers and clients both nationally and globally. (The Commission's August 2012 overarching report is here.) The Commission also drafted a new Model Rule on Practice Pending Admission and made amendments to the Model Rule on Admission by Motion. The Commission’s work isn’t done. It recently made recommendations regarding inbound foreign lawyers and choice of law.

3. The outside ownership of law firms took a big step forward in the UK but stalled in the USA.

The outside ownership of law firms came of age in the UK in January 2012, but in the USA the movement lacks momentum for now. The ABA’s 20/20 Commission dropped the topic from its agenda in the Spring. In New York, the law firm of Jacoby & Meyers initially lost its claim that the restrictions against outside ownership were unlawful, but as reported here by Nicole Hyland the Second Circuit recently revived that suit.

4. Politics continued to swirl on the issue of recusal by SCOTUS justices.

We saw op-eds and blog posts galore claiming that various justices needed to recuse themselves from the healthcare decision, the case concerning DOMA, etc. The justices began to push back in the press, politely, on the issue. More recently, it was noted that Justice Breyer’s decision to recuse himself in some environmental cases may affect the outcomes.

5. Our legal education system saw even more turmoil this year as it adjusts to the new normal.

If there has been a bursting bubble in the legal profession, the schools have been the last major player to feel the explosion. Law school applications continued to drop sharply and there have been countless press and blog accounts of whether that’s a good thing, bad thing, or something else. Some of the law suits against law schools for allegedly false and misleading employment statistics failed but some continue. (Even in the major victory for the schools—in the suit against NYLS—the court scolded the schools for failing to display candor.) Disclosure requirements for law schools have been beefed up. The New York courts have flexed their muscle by imposing pro bono requirements and requiring a stand-alone PR course for any applicants who wish to take the New York bar exam. The State Bar of California established a commission to consider a requirement for practical training. (Is it possible for the largest state bars to force the hand of legal educators?) Here at Legal Ethics Forum, Renee Knake ran an online symposium about the educational response to the economic changes in the profession. In light of all that, one wonders if the legal education community doesn’t feel a bit besieged.

6. Ethics issues kept arising in the criminal prosecution of George Zimmerman.

Lots of issues: Was the probable cause affidavit proper? In that affidavit, may the prosecutor leave out the evidence that helps the defendant? Should that affidavit use the word “profile”? Was the charging decision ethically appropriate? Should the prosecutor have prayed with the lawyer for Trayvon Martin’s parents? Should the defense counsel have created media sites? Did the first judge have grounds for recusal?  Was the next judge properly disqualified? Did Zimmerman’s first set of lawyers say too much when they withdrew? (Yes, they certainly did.); etc. I suspect that we will see fireworks in 2013 as the matter heads to trial.

7. In about 300 jurisdictions, debt collectors used the local District Attorney’s stationary to send out legal warnings and demand payments.

We discussed it here. The NYT ran a story here.

8. There was continued fall-out from the implosion of the Dewey law firm.

Steven Davis, the former chairman of the firm, hired a criminal defense lawyer in wake of an investigation into whether the firm systematically misrepresented the firm’s finances to lateral partners and others.

9. Prosecutorial misconduct was in the headlines.

The biggest story was the report from the DOJ’s Office of Professional Responsibility on the prosecution of then Senator Stevens of Alaska, finding that the lower level prosecutors were guilty of misconduct. The US Attorney in New Orleans resigned after it was revealed that prosecutors in that office had used false names (sock puppets) to comment on the internet about cases involving their office. A disciplinary panel of the Arizona Supreme Court disbarred the elected prosecutor of Maricopa County for using his office to punish political opponents.

10. Congress cited the Attorney General, Eric Holder, for contempt after the assertion of privilege as to documents related to the ATF’s “Fast and Furious” operation.

Whether or not this is purely partisan politics, citing the AG for contempt is precedent setting and the legal basis for the assertion of privilege raises interesting issues.

HONORABLE MENTIONS

• In the Filarsky case, the SCOTUS held that a private practice lawyer hired to conduct an investigation for a municipality was entitled to governmental immunity.

• As part of the new regulatory framework for legal services in England and Wales, the Legal Services Board issued an interim baseline report and asked for input and comments.

• There were concerns that increased demographic diversity in the profession may have stalled. (With tuition costs rising and the expected return of a JD dropping, we may see some backsliding.)

• In a high profile disqualification dispute, Covington & Burling was disqualified in the case of State of Minnesota v. 3M. The former client has now sued the firm. 

• We continue to hear complaints that the legal system is not adequately representing criminal defendants or civil litigants from the middle and lower economic classes.

• Paul Ceglia, who sued for partial ownership of Facebook, was indicted for allegedly fabricating evidence to support his claim. Ceglia had been represented by a couple of firms who withdrew from the representation.

• We have an ethics opinion out of New Jersey clarifying what counts as UPL and the state is considering whether to eliminate retaining liens.

• During her successful run for the US Senate, allegations were raised that Elizabeth Warren had committed UPL (unauthorized practice of law) by appearing in numerous federal litigations while using her Harvard office. Warren had no license to practice in Massachusetts. (I argued that the claims against Warren weren’t established by the facts as reported so far.)

• Judge Rakoff expressed doubts about the candor of the Solicitor General's office in a case dealing with deportations.

• Attorney advertising restrictions were struck down in New York.

• The SEC continued its policy of challenging the ethics of lawyers representing targets of investigations.

• With good (but flawed) intentions, a trial lawyer purported to settle his disabled client's personal injury case without consent while the jury was finalizing a $9 million judgment in the client's favor.

• What happens when a lawyer schedules depositions for Dunkin Donuts, wears shorts to the depo, and spends time during the depo playing Angry Birds and drawing pictures of male genitalia? The lawyer gets booted from the case.

• The Fourth Circuit dismissed the Bivens claim brought by Jose Padilla, alleging that his confinement and treatment were violations of his constitutional rights. The Ninth Circuit dismissed Padilla's claim against John Yoo.

SOME ISSUES FOR 2013

• California is wrestling with admissions issues involving a serial fabulist, former-journalist and an illegal alien. Diane Karpman had thoughts about the two matters.

• In the Clapper v. Amnesty International case, the SCOTUS will decide whether lawyers and others have standing to challenge US government anti-terrorism wiretapping that could intercept attorney client communications and inhibit the lawyers’ robust representation of their clients. (The Second Circuit had granted standing.)

Paying the principal witness: Animal rights group that unsuccessfully sued Ringling Bros circus subsequently paid the circus $9 million to settle claims that the group unfairly litigated its case against the circus

Denver Post has the story. So does Overlawyered.

Animal rights groups had brought litigation against the circus for various forms of animal abuse. But back in 2009, a federal judge rejected the law suit against the circus and noted in great detail how the major witness for the plaintiff had been paid a lot of money by the plaintiffs and had deceptively responded to interrogatories about such payments. After winning the underlying suit, the circus struck back and sued the groups. The ASCPA has now settled by paying about $9 million to the circus. The circus's suit against the lawyers and others still continues. Documents concerning the lawsuit can be found at the circus's pages here and here.

Client e-mail snooping: Thoughts on four issues

I recently read NY Bar Association opinion 945 (link below), dealing with most of the relevant issues that arise when a lawyer learns a client is reading and retrieving e-mail from an opponent, often a spouse in a divorce proceeding though sometiems an employer or former employer in termination-related litigation.

Assume the client deduces the password to an e-mail account the client has no permission to access.  The client reads e-mails, copies them, provides copies to the lawyer, and demands that the lawyer use them to impeach the author at a deposition.  More concretely, assume the client is a wife who accesses an e-mail account, downloads evidence showing that husband has been having an affair, prints the evidence, gives it to the lawyer, and demands that the lawyer use it. 

The opinion deals with all issues but use.  My own take on the relevant issues, which largely tracks the opinion, is:

(1) May or must the lawyer tell the husband or the husband's lawyer that the client is accessing the account and reading e-mail?  No.  The information is confidential and the lawyer's services are not being used, even assuming it is a crime, which it may not be.  (This conclusion is even easier under the CA rules, which have no exceptions for this case.) The text of 4.4(b) does not extend to this case because the documents were not inadvertently provided. 

Opinion 945 gives lawyers some manuevering room to deal with uncertainty, and grounds that room in Rule 1.6(b)(6).  If a case in a jurisdiction actually considered the issue and held that such a duty exists then I would agree.  I am not sure the issue has been confronted squarely or resolved in these terms, however, and certainly not in all jurisdictions. The cases cited in the opinion either pertain to communications with lawyers or work product, which I think raise distinct issues, or appear to reflect passing comments rather than considered holdings. 

(2) Assuming a proceeding is pending, may or must the lawyer inform the tribunal?  It depends on whether the underlying conduct is criminal, which requires interpretation of the Stored Communications Act or, if applicable, a similar state law.  If so, there is a plausible argument that Rule 3.3(b) applies and compels disclosure.  If not, 3.3(b) does not apply and we default to the answer above.  Note that courts differ on how to read the SCA in this circumstance.  Orin Kerr ably surveys the terrain here.  One might argue that this is fraudulent rather than criminal conduct, but that is a debatable point.  Deduction is not deceit.  Presumably one could argue that the e-mail system itself has been deceived because it treats a password as equivalent to authorization, and one could imagine CFAA arguments being brought to bear here, but I have not yet seen a case deciding such a claim and the answer does not strike me as obvoius.  The client's conduct is sneaky, yes.  Fraudulent within the meaning of Rule 3.3, I'm less sure.

(3) May the lawyer read these e-mails?  E-mails between the husband and his paramour are not privileged; if the messages were between the husband and counsel then the lawyer should not read them simply to avoid disqualification, regardless whether one is willing to stretch "methods" in Rule 4.4(a) to cover this situation. (4.4(b) does not apply for the reason stated above.) 8.4(d) might fill this gap to the extent one thinks it needs filling.

(4) May the lawyer use the e-mail in the deposition (suppose the husband denies infidelity)?  Assuming the statements made in the messages are true there is no issue under Rule 3.3(a). If we've gotten past the 3.3(b) issues then I see no reason the rules themselves preclude such use, though my intuition is that courts would be receptive to motions to exclude such evidence or possibly sanction lawyers trading on it. 

(5) One also might argue that the lawyer has a duty to discourage, or at least not encourage, the client's conduct, to the extent it is continuing.  I suspect the 1.2(d) analysis tracks the 3.3 analysis above. 

I'd be interested in readers' thoughts or reactions.  These are interesting issues, I think, that appear not to have been resolved definitively but which are likely to arise with increasing frequency as more of our lives are stored in the cloud. 

DM

Download EO_945

 ABA opinion 11-460 is relevant as well. It is here: Download 11_460_nm_formal_opinion.authcheckdam

And COPRAC has a relevant opinion circulating as well (though not one interpreting the CA rules, interestingly). It is here: Download 06-0004_ConfidentialInformation_10-15-12-1

 

Rule 1.6 and Responding to a Client's Public Criticisms

A couple of years ago, Stephen Gillers asked whether the duty of confidentiality prohibits a lawyer from responding to a former client's public criticisms.  As Stephen's post suggested, the Model Rules do not clearly resolve the issue. 

Now comes the Los Angeles County Bar Association's Professional Responsibility and Ethics Committee with a useful opinion on the subject (here).  The opinion addresses the issue under the California Rules of Professional Conduct, which (at least for now) are quite a bit different from the Model Rules, but the analysis is informative. In a nutshell, the opinion says that a lawyer "may publicly respond to such comments as long as the rebuttal: (1) does not disclose any confidential information; (2) does not injure the former client in any matter involving the prior representation; and (3) is proportionate and restrained."

For the reasons referenced in the comments to Stephen's original post, I think the answer is (and should be) the same under the Model Rules. 

(H/T to the always-useful ABA/BNA Lawyers' Manual on Professional Conduct.  I think I've put in a plug for the Lawyer's Manual before, but it deserves another one.  The publication offers the most effective and comprehensive regular coverage of professional responsibility issues I've seen.  If you specialize in professional responsibility and don't subscribe, make it a holiday gift to yourself!)

Bruce Green, "Prosecutors and Professional Regulation"

Article. (h/t: White Collar Crime Prof Blog)  Abstract:

Prosecutors often express mistrust of professional regulators, their rules and their processes. This may have been more understandable twenty years ago, when prosecutors perceived that the organized bar had been captured by defense lawyers seeking to use professional regulation as a means of imposing limits on criminal investigative authority that the law did not otherwise recognize. Although that criticism no longer has much basis in reality, it has persisted in the rhetoric prosecutors employ in advocacy regarding their professional conduct. This article explores prosecutors’ public attitude toward professional regulation, beginning with a brief account of their responses two decades ago, then considering three recent examples: the NDAA’s opposition to a broad reading of Model Rule 3.8(d)’s disclosure obligation; some prosecutors’ opposition to states’ adoption of the post-conviction obligations of Model Rules 3.8(g) and (h); and the Queens County, NY, district attorney’s opposition to a trial court’s consideration of the ethical propriety of his office’s post-arrest interrogation practices. The article argues that prosecutors’ anti-regulatory rhetoric undermines the culture of prosecutors’ offices and is contrary to the public interest in other ways.

Ethan Michelson, "Women in the Legal Profession, 1970-2010: A Study of the Global Supply of Lawyers"

Article. (h/t: Legal Theory Blog) Abstract:

This article represents the first effort to measure the changing global supply and composition of lawyers over a period of several decades. In it I assemble data on lawyer populations and gender compositions from 86 countries and use them to calculate estimates for the rest of the world in order to paint a truly global picture of the changing supply of lawyers in general and of female lawyers in particular. Most of the data supporting my analyses come from a unique and hitherto untapped source: individual-level census data. Results show that, although its legal profession experienced significant feminization over the past few decades, the United States lags far behind many other countries. Indeed, owing to the enormous population of American lawyers, its relatively unfavorable gender composition has hindered the growth of the total global supply of female lawyers. Results also reveal a clear sequence in the global process of lawyer feminization. Bar expansion beyond a critical threshold almost always precedes — and is thus a general precondition of — the attainment of a critical threshold of lawyer feminization. More specifically, almost no country’s legal profession has attained a feminization level of at least 30% women before its lawyer density surpassed a level of 2,000 people per lawyer. According to estimates, although almost one-half of all the world’s countries (containing almost 30% of the world’s population) have crossed both thresholds, almost 30% of all countries (containing 55% of the world’s population) remain in contexts that have crossed neither. In global perspective, therefore, the process of lawyer feminization has hardly begun. I conclude this article by discussing an important implication of this pattern. In contrast to earlier scholarship which has focused attention on opportunity structures shaping the legal careers of women, I consider the issue of access to legal services among people with legal needs. The growing global supply of lawyers has enhanced access to legal services for both men and women. However, because the production of female lawyers has been faster than the production of male lawyers, and to the extent that female lawyers are more likely than their male counterparts to represent women clients, the growing supply of lawyers has probably improved women’s access to lawyers more than it has improved men’s access to lawyers. Global growth in the production of lawyers is likely a good thing from the standpoint of both women seeking legal careers and women seeking legal assistance.

Ethics 20/20 Proposals on Inbound Foreign Lawyers and Choice of Law

The ABA Commission on Ethics 20/20 recently filed four resolutions and reports for the ABA House of Delegates to consider at its February 2013 midyear meeting.  I have summarized the proposals below and included links to the relevant documents.  The proposals address issues relating to the increasing globalization of the legal marketplace and, with one exception, focus on issues arising for foreign lawyers seeking to practice in the U.S. (i.e., inbound foreign lawyers). 

Proposal Regarding Choice of Law and Conflicts of Interest.  The Commission proposes to add new language to Comment [5] of Model Rule 8.5 (Choice of Law) that would, subject to several important limitations, authorize lawyers and clients to specify a particular jurisdiction as within the scope of Rule 8.5(b)(2) for purposes of interpreting the phrase  “predominant effect.”  (Additional information is here.) 

Proposals Regarding Inbound Foreign Lawyers.  The Commission is proposing three sets of amendments to address issues related to foreign lawyers who seek to practice within the U.S.  They include:

• Amendments to the Model Rule on Pro Hac Vice Admission that would permit judges, at their discretion and subject to numerous limitations, to authorize foreign lawyers to appear pro hac vice. (Additional information is here.)

• Amendments to Model Rule 5.5(d) that would authorize foreign lawyers to serve as in-house counsel from a continuous and systematic presence in the U.S.  (Additional information is here.)

and

• Amendments to the Model Rule for Registration of In-House Counsel that would provide a mechanism to identify, monitor, and hold foreign lawyers accountable for their in-house counsel work in the U.S.  (Additional information is here.)

The Commission’s overarching report is here.  It summarizes the reasons for the proposals and explains the Commission’s decision not to propose changes to address other subjects, such as choice of law issues relating to nonlawyer ownership as well as multijurisdictional practice issues arising from virtual law offices.

The Commission will complete its work in February 2013.

Taking Gideon Seriously

“Rationing Legal Services” by I. Glenn Cohen is another thoughtful effort do deal realistically with the practical problem of under-funding and overloading in legal services offices.  This goal is to be achieved by betraying the interests of some clients and focusing on the cases of others.  What this does, fifty years after the beginning of the failure of Gideon v. Wainwright, is to maintain the illusion that indigent criminal defendants are receiving their rights to effective assistance of counsel under the Sixth Amendment.

In “An Ethical Manifesto for Public Defenders,” 39 Valparaiso L. Rev. 911 (2005), and in ULE 123-126 (4th ed., 2010), I have laid out the several ethical obligations that defenders regularly violate in these circumstances.  Predictably, that plea for ethical, constitutional conduct has been generally ignored.  The reason is that any public defender who acts in accordance with our country’s and our professions hypocritically stated ideals will likely suffer loss of employment.

So let me get practical, and reduce my plea to a single constitutional and ethical imperative.  That obligation is summed up in ABA Standards for Criminal Justice, Std. 4-6.1: “Under no circumstances should defense counsel recommend to a defendant acceptance of a plea unless appropriate investigation and study of the case has been completed, including an analysis of controlling law and the evidence likely to be introduced at trial.”

Whenever a defender stands beside a defendant who is entering a guilty plea, and the defender has not complied with Std. 4-6.1, the defender is engaging in dishonesty, fraud, deceit, or misrepresentation by putting on the record the false representation that the defendant is entering the plea with the requisite advice of counsel.  Accordingly, the defender should put on the record that she has not been able to give the defendant effective assistance of counsel because overloading has prevented her from doing so.

That single act would establish compelling records of the extent to which the constitutional promise of Gideon is being broken.  It would give individual clients grounds to attack their sentences directly and collaterally.  It would establish the basis for class actions on behalf of their clients and other defendants who have similarly been denied the right to counsel.  It would provide the news media with dramatic source material for informing the public about the failures of the administration of criminal justice.  And it would make it more difficult for society and for the established bar to continue to deny ethical representation, due process, and the effective assistance of counsel to indigent criminal defendants.

Fifty years of constitutional and ethical hypocrisy is enough.

Bowdoin's law school (that never was)

Legal History Blog has a short post about a new article recounting the ultimately unsuccessful efforts of Bowdoin to found a law school.

All Male Iowa Supreme Court Defends Traditional Marriage,Tells Female Employees that If You Are Too Hot for the Boss’s Marriage, You’re Fired

Unbelievably, that is the law in Iowa as of last Friday.   The Iowa Supreme Court was recently reconfigured after special interest groups spent millions convincing voters the Court was not doing enough to defend marriage.   The Court apparently got the message and has voted 7-0 to allow male bosses to fire female employees whom bosses – or their wives – perceive to be a threat to their marriage.

[edit by JS; the decision is here:  Download Iowa Supreme Court Nelson  ]

http://abcnews.go.com/blogs/headlines/2012/12/state-supreme-court-rules-irresistible-employees-can-be-fired/

http://www.nydailynews.com/news/national/iowa-court-oks-firing-female-worker-irresistibly-attractive-article-1.1226068?localLinksEnabled=false

A century of American history has shown that when a group of people is discriminated against in one place they move somewhere else, usually north.  That works here.  Minnesota judges and lawmakers know better.