Legal Ethics Forum

Lawyer blogs, public facts, and confidentiality (or, that blogging criminal defense lawyer from Virginia won on First Amendment grounds)

Many of us have been following the case of Horace Frazier Hunter, the criminal defense lawyer in Virginia who blogged about his cases without client consent and without a disclaimer about outcomes and guarantees. The State Bar successfully disciplined the lawyer but he appealed on First Amendment grounds and has achieved some success in that appeal (opinion here). The court framed the issues as:

In this appeal of right by an attorney from a Virginia tate Bar (“VSB”) disciplinary proceeding before a three judge panel appointed pursuant to Code section 54.1-3935, we consider whether an attorney’s blog posts are commercial speech, whether an attorney may discuss public information related to a client without the client’s consent, and whether the panel ordered the attorney to post a disclaimer that is insufficient under Rule7.2(a)(3) of the Virginia Rules of Professional Conduct.

The court held that the blog was  commercial speech and that the regulations requiring a disclaimer about guarantees and outcomes were consitutional. No surprises there.

Then the court had to decide if the bar could prohibit lawyers from discussing public facts that are potentially embarrassing or detrimental to the client. Here's the interesting part: "Thus, we are called upon to answer whether the state may prohibit an attorney from discussing information about a client or former client that is not protected by attorney-client privilege without express consent from that client. We agree with Hunter that it may not." That's contrary to a lot of settled expectations, isn't it?

Further: "The VSB argues that it can prohibit an attorney from repeating truthful information made in a public judicial proceeding even though others can disseminate this information because an attorney repeating it could inhibit clients from freely communicating with their attorneys or because it would undermine public confidence in the legal profession. Such concerns,however, are unsupported by the evidence. To the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections. In that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom. Thus, the circuit court did not err in concluding that the VSB’s interpretation of Rule 1.6 violated the First Amendment."

What do you all think about that holding? I don't like it, but have to admit that I'm not deeply versed on the law of the First Amendment's application to attorney speech. It seem to me that it even if the facts are public, it especially hurts to have the client's own agent repeat them. It also makes me wonder about any continuing duty of loyalty that might be tied to the subject matter of the representation, as in the Oasis West Realty case. The holding doesn't just lack a "fit" with the law of lawyering; it would seem to undo many important principles in that law. For example, everything the client gives us (including information) is held in trust for the benefit of the client. Why can I use what's been entrusted to me to embarrass my own client?

[I've edited this a little bit and may continue to do so.]

UPDATE: in the comments, Margaret Tarkington offers these thoughts.

I think the opinion is absolutely wrong, John. I think the state constitutionally can forbid attorneys from violating the traditional (and even quite broad) duty of confidentiality. This is the whole point to my access-to-justice approach to the First Amendment (45 U.C Davis L. Rev. 27). Traditional First Amendment doctrines fail to illuminate what attorney speech must be protected (such as speech essential to providing legal advice to clients or to invoke the law on behalf of clients, and overarchingly, speech necessary to invoke or avoid government power in the protection of client life, liberty, and property), and, conversely, the traditional doctrines do not illuminate what attorney speech constitutionally can and should be prohibited.

As you know, my view is that the First Amendment as applied to attorney speech must be keyed to the attorney's role in the system of justice in protecting client life, liberty, and property (or depriving others of life, liberty, or property—for example, a prosecutor). Thus restrictions on speech essential to that role are constitutional under my theory—and confidentiality would be a prime example. Attorneys have access to client information solely because of the delegation of state power to them to practice law, to discover the most embarrassing and terrible information possible about people. That information is provided to the attorney for the express purpose that the attorney will be able to use the information to invoke and/or avoid government power on behalf of that person. As an essential component of the role of the lawyer, Virginia and other states can constitutionally prohibit attorneys from disclosing information about their clients outside of what is necessary for this role, unless the client consents.

As a matter of First Amendment theory, these ideas are reflected in the work of Alexander Meiklejohn and Wittgenstein. Wittgenstein argues generally that speech protection must be keyed to the "form of life" in which it exists. Thus, as applied to the system of justice, speech regulation and protection must preserve that form of life—and here, our system of justice as a “form of life” requires confidentiality. Alexander Meiklejohn uses the town meeting as an example. Although political speech is absolutely protected in town meetings, yet it is and must be abridged (for example, through rules and regulations about who speaks when, and order by the chair, etc.). The abridgment is necessary to accomplish the governmental purpose—that is, the purpose of holding the town meeting. While manipulation of the process cannot be allowed through abridging just one side of an issue, for example, abridgment through creating rules of the game is essential to preserve the process itself.

In like manner, there are many restrictions on attorney speech that are essential to the proper functioning of the attorney’s role in the system of justice and as an advocate for her client. These regulations are constitutional precisely because they make it possible for the speech essential to our system of justice to take place. Without confidentiality, clients don’t talk, a lawyer’s knowledge in pursuing legal remedies becomes limited, and, more importantly, state powers and processes to discover information through the justice system can be used by attorneys (who are licensed with state power to discover such information for these very purposes) to instead embarrass and undermine clients—and perhaps even harm their reputation and property. As you know, there are plenty of regulations on attorney speech that I think are unconstitutional under the First Amendment and that I have written about. But confidentiality is not unconstitutional; instead, it is an essential aspect of the attorney’s role in our system of justice.

Russell Engler, "Turner v. Rogers and the Essential Role of the Courts in Delivering Access to Justice"

Article. Bonus track. Abstract:

The United States Supreme Court’s decision in Turner v. Roger created a stir in the civil-right-to-counsel and access-to-justice communities. A unanimous Court ruled that there was no categorical right to counsel under the Due Process Clause in a civil contempt case based on failure to pay child support, even where the contemnor faced incarceration. The majority nonetheless found that South Carolina’s procedures violated due process.

Some commentators decried the Court’s refusal to recognize a categorical right to counsel, while others praised that decision. Some focused on the promising implications, from an access-to-justice perspective, of the majority’s decision to recognize that the question of appointment of counsel is tied to the fairness of the underlying procedures. Others feared that the decision might foreshadow a rollback in the number of civil proceedings in which states currently recognize a right to counsel. The responses suggest that, while the decision represents a civil-right-to-counsel “loss,” it might well represent an access-to-justice “win.”

Despite the presumptive importance of a Supreme Court decision, the trends that form Turner’s backdrop are likely to have far greater impact on a civil right to counsel and access to justice than the decision itself. The Supreme Court infrequently addresses these issues, while state courts, state legislatures, and state access to justice commissions regularly grapple with the flood of unrepresented litigants in the courts. Whether Turner proves to be a watershed or a footnote, the success of access-to-justice initiatives, including an expanded civil right to counsel, will likely be determined in other arenas.

This article begins by describing Turner, the access-to-justice backdrop against which Turner was decided, and scholarly responses to the decision. The article next revisits a comprehensive access-to-justice strategy I have articulated elsewhere that is consistent with the logic of Turner. The three-pronged strategy involves (1) expanding the roles of the key players in the court system to promote meaningful access, (2) utilizing an array of assistance programs short of full representation by counsel, paired with rigorous evaluation of the programs to identify the scenarios in which they can sufficiently protect the interests at stake, and (3) an expansion of a civil right to counsel where the lesser steps cannot afford meaningful access. Because the true meaning of Turner will emerge only over time, the success of the access-to-justice initiatives that formed Turner’s backdrop will be more likely than the Turner decision itself to achieve the goal of meaningful access. The article illustrates the way in which progress on an array of initiatives, consistent with all three prongs of the comprehensive strategy, is underway. The article concludes with observations and questions that are implicit in Turner but which must be articulated and answered to help assess whether those without counsel can receive meaningful access to justice in the courts in the post-Turner world. While the solutions depend on the coordinated efforts of many actors in the public and private sectors, the courts themselves, as Turner suggests, must play a crucial role.

Douglas R. Richmond, "Watching Over, Watching Out: Lawyers' Responsibilities for Nonlawyer Assistants"

Article. Abstract below. Bonus Youtube clip.

Lawyers depend on the support of many different non-lawyer assistants in order to practice successfully. Unfortunately, these assistants sometimes err and are occasionally guilty of deliberate misconduct. Either way, courts and professional authorities may hold the employing or supervising lawyers responsible under Model Rule of Professional Conduct 5.3 and state analogs, as well as tort and agency law principles. This approach is consistent with clients’ expectations. In short, clients hire lawyers to represent them and while they understand that lawyers may delegate aspects of their work to lay assistants, they expect lawyers to guide the performance of those services. More broadly, clients expect a law firm’s partners to establish reasonable standards for the delivery of high-quality representation by everyone in the firm and by contractors on whom the firm relies. But if lawyers’ supervisory responsibilities for their non-lawyer assistants seem obvious, it is also true that lawyers all too often fail in them — or perhaps fail to appreciate or recognize them until it is too late. Moreover, despite the importance of lay assistants in the practice of law and the many cases in which lawyers have been disciplined under Rule 5.3 for failing to supervise assistants, scholarship on lawyers’ related duties is scarce. Lawyers and courts alike suffer from the resulting lack of guidance on key issues. This Article is intended to remedy that deficiency. In doing so, it carefully maps the contours of lawyers’ supervisory duties in this context and analyzes several issues that regularly ensnare practicing lawyers or which present special challenges. Importantly, the Article explains why lawyers who fail in their supervisory duties must be disciplined on that basis rather than being held vicariously liable for assistants’ misconduct. This is an enormously important issue in practice and, regrettably, one that some state supreme courts miss.

Campos won't be writing at "Inside the Law School Scam" any longer

He made the announcement here. In the comments, Orin Kerr said that "[the blog's] message has pretty much become the common wisdom."

OH, CANADA

At a recent CLE, I talked about the drop in the number of law school applications. LSAC keeps a moving tally of  the number of applications and the number of applicants to US law schools. As you know, the applications this year are well below last year, and the applications last year were well below the prior year.

In the chart I printed yesterday, the number of applicants this year is currently 40,000 compared with 50,000 and 60,000 applicants (approximately) in the two immediately prior years at this time in the cycle. 

And last year at this time, LSAC reports, 76 percent of the final number of applicants had applied.  So absent a "growth spurt" we can expect the numbers to stay the same relative to each other.

But LSAC does the same tally of applicant and application numbers for Canadian law schools. Here there is no signficant fall off from 2011 to 2012 or 2012 to 2013. The graph lines converge.

How can this be? Are we so overlawyered where by contrast Canada has found the market sweet spot? Are Canadian law graduates finding jobs, thereby explaining the continued strength in the  Canadian application rate? And if so, why the difference?

Prominent Republicans Sign SCOTUS Brief Against California Prop 8

The brief is to be co-authored Reginald Brown, a highly regarded lawyer at Wilmer Hale who also served with me in the Bush White House Counsel’s Office.  Dozens of promient Republicans are signing on.

http://bostonglobe.com/news/nation/2013/02/26/dozens-republicans-sign-brief-supporting-gay-marriage/QzCwwsFFo0gWenWPJXewJK/story.html

Crowd Funding, Private Placements and other Options for Funding Plaintiffs' Lawsuits under the JOBS Act of 2012

For better or worse, the public may soon have an opportunity to invest in lawsuits against a wide range of defendants for ideological reasons, for profit, or both.  Potential defendants include tobacco companies, gun manufacturers, banks, drug companies, birth control/induced abortion providers, coal mining companies and any other defendant investors don’t like, or simply want to sue for profit.

And Congress has perhaps lent a helping hand.  The Jumpstart our Business Startups (JOBS) Act of 2012 makes it a lot easier to raise capital without the expensive process of filing a registration statement with the SEC.  One significant innovation in the Act is "crowd funding", a process by which a large number of investors are solicited -- for example over the Internet -- to contribute modest amounts of capital that add up to a lot of money (the Act allows an issuer to raise $1 million every 12 months, which when combined with other funding options and/or lawyers' contingent fees can be enough money to fund a major lawsuit for a year).  The JOBS Act also raises the dollar cap for unregistered Regulation A public offerings to $50 million; and also lifts restrictions on solicitation of accredited investors in Regulation D private placements.  Combine these relatively inexpensive modes of conducting an offering with innovative arrangements for financing litigation, and there are many possibilities for plaintiffs to reach out to investors for financial support.   

There are also many important ethics issues for lawyers as well as securities law issues for litigation finance companies.  I have posted a brief discussion of relevant securities laws on a web site hosted by Professor Maya Steinitz, who is the most prominent academic studying litigation finance arrangements these days:

http://litigationfinancecontract.com/litigation-financing-and-the-securities-laws/

Amnesty International v. Clapper

AP story here. Jonathan Adler, at Volokh, has these initial impressions.

The case has been decided 5-4 on the grounds that the plaintiffs lack standing. I may update this later today. Background available here at SCOTUS Blog. Lyle Denniston previously wrote: "The Supreme Court showed [during oral argument] Monday that it is genuinely troubled that the govenment, carrying on a sweeping program of wiretaps seeking to track terrorism activity, may be putting lawyers in a serious professional and ethical bind as they represent individuals potentially caught up in that eavesdropping.  It was not immediately clear, though, whether that worry was deep enough to lead the Court to give those attorneys a right to sue to challenge the constitutionality of the global surveillance that seems to be tracking Americans’ conversations, too."

I had listed the case as one of the developments to look for in 2013, in my list of the Top Ten Legal Ethics Stories of 2012.

Reports on outlook for biglaw lawyers (GULC Peer Monitor; Citibank; Fulbright & Jaworski)

We previously reported on the Peer Monitor Report from GULC and the Citiank Report, both of which have pessimistic predictions for biglaw. Fulbright & Jaworski has now released its 9th Annual Litigation Trends Survey. It looks like the need for regulatory compliance work may be increasing. "Indeed, the Fulbright survey found that the rate of companies retaining outside counsel for assistance in a regulatory investigation jumped in the U.S. (from 55% in 2011 to 60% in 2012) and skyrocketed in the U.K. (from 27% to 72%)."

Odds and ends (Feb 26, 2013)

• The Hill: Justice Sotomayor criticized a prosecutor for invoking racial stereotypes -- but did not name the prosecutor.

• Texas Lawer Blog: A SMU law prof suffering from leukemia goes above and beyond to teach her students (with the help of Skype). 

• SF Examiner: Following a pipe explosion, a prposed new bill would force the California Public Utilities Commission to separate its prosecutorial and judicial functions.

• JS Online: "Saying a Waukesha law firm concealed vital information and documents during a bitter four-year battle over the Derzon Coin fortune, the heirs to the estate this week sued Cramer Multhauf & Hammes for more than $7 million plus at least $1 million in legal fees."