Legal Ethics Forum

Ralph Nader, "The Duty of Lawyers"

@ Huffington Post.    (h/t: Law of Criminal Defense)   After listing a number of recent scandals, Nader asks:

Who has the power to stop this descent into a nation of reckless leadership and lawlessness?

The million lawyers of America do. Lawyers know how to apply law to power. They know how to use the courts and how to lobby. They can cut through the jungle of legalese. They know when the laws are being violated and the remedies for the victims. They know how to draft legislation. They have contacts and resources. It's only a matter of more of them utilizing these powerful tools.

"The Competition is for Full-Time, Professional Law-Related Jobs, Part I"

BIll Henderson's new post is at Legal Whiteboard. Key quote: "Setting aside the year-over-year flucuations, the trendlines suggest a relatively large and persistent shortfall in the number of full-time, professional law-related jobs." Given the recent reports about the economics of law firms, I can't see too much of a change in the profession's numbers except for the anticipated drop in the number of enrolled students. It will take three years for that change to directly affect the labor market for lawyers.

George W. Kuney, "Addressing Shortfalls in Traditional Legal Education: UT's Concentrations and Capstones and Waller Lansden's Schola2juris Program"

Article. Abstract:

Law school’s traditional educational model needs to be revamped. The traditional law firm’s summer associate model needs restructuring. Some might say they are both broken. Across the country, educators, and commentators are talking about legal education reforms and leading law firms are confronting how to improve the age-old mechanism for recruiting law students. 

In the recent past, the legal employment landscape provided no incentive for law firms to question their traditional recruiting practices. The traditional law-firm recruitment model—the summer-associate program—is often little more than a glorified summer camp for some of the most highly educated—and debt-ridden—law students of our time. This summer-long social event often fails to provide students with a true depiction of life inside the law firm. Instead, the experience introduces the summer associate to isolated but “glamorous” aspects of legal matters, rather than assigning the students to perform necessary, but perhaps mundane, billable hours. Even in firms whose clients continue to allow them to bill for work performed by summer associates, a seasoned associate is often required to rework the majority of the student’s work or reduce or delete time spent by the student from the final bill. 

The traditional summer-associate program historically emphasizes entertainment over providing the summer associate with a realistic experience of life inside a law firm. Law students and law schools are realizing that the apprentice stage of legal education should provide a more valuable, tangible experience. The students recently voiced their discontent in The American Lawyer’s 2012 Summer Associate Survey, which reveals the students’ desire to engage in legal work and to experience professional mentoring, while decreasing the number of over the top social events that are the norm.

The problem of wasted summer work opportunities is compounded by another phenomenon, discussed by Dean Daniel Rodriguez of Northwestern Law School, who has openly questioned the value of the third year of law school. Rodriguez asserts that law schools must do more to provide substantive experiences and exposure to real life legal matters to prepare their students for legal careers. Some law schools are catching on, while others have long integrated skills-based courses in their curriculums.

This article addresses The University of Tennessee’s Concentrations in Advocacy and Buiness and related programs, which seek to bring practice experience into law school, and Waller Lansden’s Schola2Juris program, which seeks to bring teaching about law and practice into its recruiting program. Both are coming at the same set of shortfalls of traditional legal education with substantially similar solutions, but from different ends of the legal job market.

Retraction

I recently posted about an article claiming to discuss a big firm's decision to severely tighten its processes regarding confidentiality and technology. The article published was what supposedly the internal email from the management of the firm. As it turns out, the article was deliberately false. The author of that article wrote a follow-up article in which he disclosed that his first article was a work of fiction designed to make people think about what might have happened. I've deleted my post.

Douglas Richmond, "Sanctioning Clients for Lawyers' Misconduct—Problems of Agency and Equity"

Downloadable below is another of many law review articles by Doug Richmond on the difficult issues that crop up in real practice. Abstract and some excerpts:

Abstract: Courts have long invoked agency law to sanction clients for litigation misconduct by their lawyers. This approach dates to the Supreme Court’s 1962 decision in Link v. Wabash Railroad Co. But Link, while correctly decided on its particular facts, was incompletely reasoned. Unfortunately, subsequent courts have uncritically accepted its rationale. In fact, agency law is a poor basis for imputing lawyers’ misconduct to clients where sanctions are concerned. The hallmark of agency is the agent’s ability to bind the principal contractually. In contrast, principals are generally not liable for agents’ intentional misconduct. Vicarious liability instead requires a master-servant relationship. That is fatal here, of course, because lawyers are presumptively independent contractors vis-à-vis their clients. The alternative liability theory of apparent authority is unavailing because agents are generally authorized by their principals to undertake only those activities that are legal and proper, which does not include the sort of misconduct for which sanctions will lie. In short, agency law simply doesn’t work well when attempting to assign responsibility for sanctions between lawyers and clients. Courts should therefore discard it. Imposing sanctions based on equitable principles is more efficient and reasonable. When the issues are properly analyzed using equitable principles, clients should be sanctioned for lawyers’ misconduct in only two situations. The first is where the client is complicit in the misconduct. The second is where sanctions will be meaningful only if they affect the client, or it is impossible to cure the lawyer’s misconduct without sanctioning the client. This is most often the case where a lawyer commits misconduct during trial. This Article advocates courts’ adoption of these positions based on a thorough analysis of agency law, and principles of equity and efficiency.

Excerpts: It is understandable that a party that engages in bad faith conduct in litigation may be sanctioned by a court. It is also logical that where a lawyer and the lawyer’s client are guilty of coordinated litigation misconduct, the court may sanction them both and either hold them liable jointly and severally, or allocate or apportion sanctions between them. But what of the situation where the lawyer alone commits misconduct and the court visits the lawyer’s sins on the innocent client when awarding sanctions, as per-haps by striking the client’s pleadings, precluding the introduction of evidence or testimony favorable to the client, fining the client, or even dismissing the client’s case with prejudice? In a tragic Illinois product liability case, for example, the court struck the defendant manufacturer’s pleadings—a so-called “death penalty” sanction—as punishment for the defense lawyers’ serious misconduct in discovery. Stripped of its liability defenses, the de-fendant settled with the plaintiffs for an estimated $15 million.

Courts and others who seek to hold parties liable for their lawyers’ misconduct have long invoked agency law as a basis for doing so. This is a superficially appealing approach; after all, the attorney–client relationship is plainly an agency relationship. Yet agency law is not a reliable basis for imputing a lawyer’s misconduct to a client in the sanctions context. Vicari-ous liability based on respondeat superior requires a master–servant rela-tionship, but lawyers are not their clients’ servants even though they are their agents. Rather, lawyers generally are independent contractors. Liability based on a lawyer’s apparent authority is no answer for several reasons, the most fundamental being that a lawyer’s apparent authority generally extends only to conduct that is legal and proper. In addition, sanctioning innocent clients for lawyers’ misconduct is often unfair and is unlikely to remedy the misconduct or to deter misbehavior in the future. To be effective, sanctions should be personal to the offender. Courts should therefore depart from agency law when considering sanctions that may penalize a client for its lawyer’s misconduct and instead rely on equitable principles in fashioning an appropriate penalty. 

In a nutshell, clients should be sanctioned for their lawyers’ miscon-duct in only two situations. The first is where the client is complicit in the lawyer’s misconduct, as where the misconduct is the product of their coor-dinated effort. The second is where a sanction will be meaningful only if it affects the client or if it is impossible to cure the lawyer’s misconduct with-out penalizing the client. Some courts now follow these courses, discarding imprecise and often inaccurate notions of agency law in the process. All courts should do so.

California ethics opinion: it's ok to take advantage of opponent's unilateral mistakes

California's ethics committee has issued an opinion about taking advantage of the opponent's unilateral mistakes. The opinion can be uploaded below and under that is an article I wrote for BNA on a similar issue, not focusing just on California. On first glance, the California opinion takes a hard-line, or pro-partisan, view. I may have more to say about this later. Here's the opening question and summary.

[edited since posting. i have been reviewing a different, draft opinion from COPRAC and mistakenly referred to this one as a "draft." it's not. thanks to a commenter for pointing out my error.]

Has an attorney engaged in deceitful conduct by not alerting opposing counsel of: (A) an apparent material error made by opposing counsel in contract language; or (B) a material change made by the attorney in contract language?

Where an attorney has engaged in no conduct or activity that induced an apparent material error by opposing counsel, the attorney has no obligation to alert the opposing counsel of the apparent error. However, where the attorney has made a material change in contract language in such a manner that his conduct constitutes deceit, active concealment or fraud, the failure of the attorney to alert opposing counsel of the change would be a violation of his ethical obligations.

Download CAL 2013-189 [11-0002]

Download Steele BNA Answer 2

"ABA Proposal Alarms Law School Diversity Advocates"

National Law Journal has the story. (h/t: Tax Prof Blog) Excerpt:

A proposal to tighten the American Bar Association's bar passage requirement for law schools hasn't gone over well with some advocates for diversity in the legal profession.

The committee updating the ABA's accreditation standards has received letters from numerous faculty and diversity organizations expressing concern since the plan appeared to enjoy widespread support among committee members in late April. The proposal would raise the minimum bar-pass rate from 75 to 80 percent, among other changes.

The National Bar Association — the largest association of black lawyers and judges — on June 20 passed a resolution opposing the proposal. The Society of American Law Teachers (SALT) and the Clinical Legal Education Association (CLEA) sent a joint letter to the committee warning the changes would have "dire consequences on law schools with racially diverse student populations."

ABA opens DC digs

Blog of the Legal Times carries the story. I wonder if the ABA wanted to strengthen its connection with the federal governnment.

David Chambers, " Satisfaction in the Practice of Law: Findings from a Long-Term Study of Attorneys' Careers"

Article. (Does anyone know why Michigan stopped surveying its grads?) Abstract:

For forty years beginning in the late 1960s, the University of Michigan Law School conducted annual surveys of its alumni. The project included fifty successive graduating classes, with all but the most recent classes surveyed more than once. Over thirteen thousand alumni participated. Over the forty years, American legal education and the American legal profession underwent huge changes. When the study began, there were almost no women or minority students at Michigan and very few in the country as a whole. The vast majority of all students and lawyers were white and male. By the end, white men constituted far less than half of the students not only at Michigan but also at the huge majority of other law school in the United States. Similarly at the beginning of the survey, the overwhelming majority of Michigan graduates and law-school graduates in general began their careers in solo practice or in very small law firms. Few firms with more than one hundred lawyers even existed. By the end, more than half of Michigan students started their careers in firms of more than two hundred, and many started in firms of over a thousand.

This article focuses on a theme that runs through all the graduating years – the varied satisfaction of graduates with their careers. Our findings, though necessarily limited to one school’s graduates, seem likely to apply to the experiences of most practitioners regardless of the school from which they graduated. Some findings may be surprising. We have found, for example, that, among Michigan’s graduates five, fifteen and twenty-five years out of law school, for both men and women, overall work satisfaction is much more closely related to perceptions of the social value of their work and the quality of their relations with co-workers than it is to their satisfaction with income or with their prestige in the community. This finding helps make more explicable another of our findings – that, on the whole, women practitioners are somewhat more satisfied than men – since it appears that, in general, women place a higher priority than men finding employment in settings where the work (as they view it) has comparatively high social value and where they are likely to have especially good relations with coworkers.

Non-Lawyers in Practice: NYC Bar Report

The NYC Bar Committee on Professinal Responsibility has issued a 34 page report recommending that trained non-lawyers be allowed to serve as advocated (or "aides") in some court and agency tribunals and also to advise on certain matters outside tribunals.

The report is at http://www2.nycbar.org/pdf/report/uploads/20072450-RolesforNonlawyerPractitioners.pdf.

As you know, Chief Judge Lippman of the New York Court of Appeals has convened a task force to study whether and how non-lawyers may be authorized to perform services now deemed within the exclusive province of lawyers.

Here is yet another event that foreshadows greater changes in the traditional law marketplace. Non-lawyer practitioners are meant to enable clients who are now unrepresented to get affordable advice. That's a worthy goal assuming the non-lawyers are competent to perform the permitted tasks. Testing and training requirements should be able to ensure that competence. On the other hand, of course, some of what they will do might otherwise have been done, for some of their clients at least, by practiciging laywers who will  lose the business.

When the Washington Supreme Court recently adopted a rule to allow non-lawyers to perform certain services other than under the authority of a lawyer, it recognized that its rule would redirect some work that would otherwise go to lawyers. But it rejected that prospect as a legitimate consideration when balanced agaisnt the need unrepresented populations have for informed advice.