Legal Ethics Forum

As the Lateral Market Churns . . .

The Illinois disciplinary authorities have filed charges against a prominent Chicago lawyer, who, while at his former firm, claimed reimbursement for $69,000 in fictitious taxi rides and thousands of dollars in personal entertainment expenses (h/t the Legal Profession Blog). 

In response to an inquiry from Above the Law, his new firm released the following statement:

The firm was aware of this matter during the hiring process. After our own due diligence and a thorough review of the facts, the firm decided to give great weight to the total body of [the attorney's] work over his 25-plus years as a lawyer and to extend to him the opportunity to continue his career . . . [The attorney] is ... well-respected. . .  has learned from his experience and taken all the necessary steps to move forward as a productive member of our team.

The allegations against the attorney have yet to be proven, and I certainly do not begrudge attorneys for seeking to learn from their mistakes and moving on from them.  But I cannot help but wonder, if this were anyone but a partner with a presumably substantial book of business, would he be afforded the opportunity to work for another prestigious law firm in light of the seriousness of the allegations? Is BigLaw becoming like the world of professional sports, where, if an individual is sufficiently talented and has the potential to generate substantial revenue, someone somewhere will be willing to overlook even serious transgressions to give the individual another chance?

[For purposes of full disclosure, I formerly worked for one of the firms involved in this story but am not acquainted with the attorney in question and have no personal knowledge of any of the facts of his case.]

 

"Why Black Judges Are Vanishing From the Bay Area Federal Bench"

American Lawyer Media explores why the number of African-American judges in the Northern District of California has dropped. I closely follow the demographics of the legal profession and the general population here in California and part of the reason is because we have a different mix than other parts of the country. One might argue that the most massive gap between the citizenry and the make-up of the judiciary in California involves Latinos.

That graph is from slides that Judge Harbin-Forte presented at a State Bar symposium on diversity in the profession a few years back. It compares Latino population to the percentage of the state bar that is Latino. Judge Harbin-Foote is quoted in the article:

Judge Brenda Harbin-Forte of Alameda County Superior Court, a fierce advocate for more women and minorities in the judiciary, has tracked demographics on the state bench for more than a decade. She says the stakes are particularly high in federal court because of its broad jurisdiction to hear discrimination and civil rights cases.

"Everybody ought to be up in arms," she said. "We're at a crisis point now, and I am very, very concerned that pretty soon we will be the invisible judges."

Federal judge rejects plaintiffs law firms in unusually frank tone

American Lawyer Media is carrying this story about Judge Alsup's (N.D. Cal.) dissatisfaction with the performance of plaintiffs counsel in a class action. Judge Alsup conditionally certified the class but said that he wanted to see a different set of lawyers as lead counsel.

If you've seen what plaintiffs lawyers and defense lawyers say about each other, that's nothing compared to what plaintiffs lawyers say about other plaintiffs lawyers. So this ruling could "leave a mark" as the dissed firms seek lead counsel status in the future.

Help wanted finding case about lawyer who deleted pornography from client's hard drive

Does anyone remember a case, perhaps five years ago, possibly in Connecticut, possibly in federal court, in which a lawyer got into trouble (disciplinary?  criminal?) for erasing pornography from a client's hard drive?

New survey by Altman Weil bespeaks caution, says firms are proceeding cautiously

News of the new Altman Weil survey. Comment here. Summary of key points:

The fifth annual Altman Weil Law Firms in Transition Survey finds law firm leaders are acutely aware of the changes that the profession is facing. 

• They are concerned that the demand for legal work is flat or shrinking in many practices. 
• They feel real pricing pressure from clients. 
• They recognize the competitive forces of commoditization and the emergence of lower-priced, non-traditional service providers.  
• They are coming to grips with the idea that aggressive growth in lawyer headcount may no longer make sense. 
• They believe that the pace of change is increasing.

Now in its fifth year, the survey shows the ongoing evolution of thinking on many of these issues including some dramatic shifts in opinion since 2009.  However, there is less evidence of tangible changes in how law firms operate. 

Headcounts and billing rates are still up on average – albeit far less than they would have been pre-recession.  Firms use alternative pricing, but in a limited (and usually non-strategic) way.   There is some tightening of partnership admission standards at the top of the pyramid, and broader use of contract lawyers at the base. 

Most firms appear to be reacting to external forces and making incremental changes within the framework of the existing business model, rather than pursuing opportunities to meaningfully differentiate their firms in the eyes of clients.  So far firms are staying ahead of the curve of transition with these tactics — but is this a sustainable long-term course if the forces of change really are accelerating?

Conducted in March and April 2013, the survey polled Managing Partners and Chairs at 791 US law firms with 50 or more lawyers.  Completed surveys were received from 238 firms, including 37% of the 250 largest US law firms.

The report includes sections on industry trends, pricing and alternative fee arrangements, economic performance, law firm growth, lawyer staffing levels, succession planning, and the future of the profession.

In re Adams (Michigan)

Justia has this summary:

The Judicial Tenure Commission (JTC) issued a formal complaint against Judge Deborah Adams of the Third Circuit Court for misconduct (misrepresentations under oath, forgery and the filing of forged and unauthorized pleadings, and misrepresentations to the commission). The JTC found two of the three counts against Judge Adams were established by a preponderance of the evidence, and recommended that she be suspended without pay for 180 days and ordered to pay costs. The Supreme Court affirmed the JTC's findings of fact and conclusions of law. However, the Court rejected the JTC's recommendation of suspension and instead removed her from office.

United States v. Tavera (6th Cir.) - Brady violation was not a close call

Justia has this summary:

Mendoza drove a truck from North Carolina to Tennessee with Tavera as a passenger. The truck contained construction equipment. A large quantity of methamphetamine was hidden under nails. The truck was stopped after being followed as part of a sting operation. At trial, Tavera, a roofer, testified that he did not know about the drugs and that he thought he was going to Tennessee to view a construction project. Tavera was convicted of participating in a methamphetamine drug conspiracy and sentenced to 186 months of imprisonment. He subsequently learned that days before the trial Mendoza had participated in plea negotiations in which he told Taylor, the prosecution’s trial lawyer, that Tavera had no knowledge of the drug conspiracy. Mendoza later pled guilty and changed his story. Tavera filed an appeal and a year later moved for a new trial in the district court. The district court has not ruled on the motion. The Sixth Circuit vacated the conviction, based on the “Brady” violation, calling the case “not close,” and recommended that the U.S. Attorney’s office conduct an investigation of why the prosecutorial error occurred.

Could a U.S. Lawyer Ethically and Legally Advise Snowden?

While the news media chase Edward Snowden around the globe, we will focus on the really interesting question that others will ignore. Would U.S. legal ethics rules prevent a U.S. lawyer from advising Snowden on where he could go to minimize the chance of extradition and how to get there with least risk of capture?

Snowden is, of course, now a fugitive so one would have to ask whether obstruction of justice statutes (18 U.S.C. 1503 et seq.) would prevent anyone -- or at least any U.S. person or any person physically within the U.S. -- from assisting his effort to avoid capture.  (Could the U.S. obstruction statutes extend to non-U.S. persons assisting a U.S. fugitive from outside the country?)

That raises the question: Would the reach of these laws extend to giving legal advice on, say, extradition agreements that various nations have with the U.S. and whether  Snowden's conduct is encompassed by them? Or would a U.S. lawyer violate the obstructions laws (or any other laws ) simply by giving legal advice other than the advice to surrender? Put another way, can legal advice be obstruction of justice? Even if not, would it be unethical?

This may not be a purely  theoretical question -- theoretical perhaps but not purely so -- because the New York Times reports on its website that Snowden is accompanied by a WikiLeaks consultant Sarah Harrison:

"Ms. Harrison is a British citizen who is working with the WikiLeaks legal defense team, the WikiLeaks statement said. She has also worked at the Bureau of Investigative Journalism and the Center for Investigative Journalism in Britain, the statement said."

Unsaid is whether she is a lawyer. Presumably not. And I don't know what the UK ethics rules or laws would say. But what about our rules? Hypothetically speaking.

 

Zimmerman trial: can the prosecutor ethically prosecute murder two?

I was skeptical all along that the prosecutor in the George Zimmerman trial had sufficient evidence to charge murder two. (Here is my post about some of the PR issues arising from the matter.) Dan Markel, at Prawfsblawg, expressed serious doubts a while back and it now appears that the prosecutor has even less evidence than we all had imagined. The prosecutor is ethically required to keep re-evaluating whether the prosecution is justified as the case develops.

The trial judge has now excluded the technical evidence the prosecutor wanted to admit to prove that screaming heard on the taped phone call was the deceased Trayvon Martin. (NPR) Criminal law is not my forte but the murder two charges seem to me to be clearly beyond what an ethical prosecutor should bring.

UPDATE: As the trial nears its conclusion, my concerns about the murder two charge seem even stronger. The proseuctor's office avoided a grand jury so that they could bring a charge that was political. I realize that, as suggested in the comment below, such behavior may rarely be the subject of discipine against the prosecutors in the real world. That's unfortunate.

Benjamin Barton, "A Glass Half Full Look at the Changes in the American Legal Market"

Article. Abstract:

The American legal profession finds itself in the midst of dizzying changes. What was once viewed as a brief downturn now looks like a much more substantial restructuring and downsizing. The main commentators on these trends have been those most likely to be affected: law professors and corporate lawyers, and they have largely presented these trends as disastrous. This Essay argues that while these changes will be painful in the near term, they will prove beneficial overall.

The obvious reason for optimism is that America will be significantly better off if we spend less on legal services. Whatever else the future holds it seems likely that legal services will be more widely available to more people at lower prices. This trend starts at the top with corporate law firms and bubbles up from the bottom with LegalZoom and other online forms providers and will eventually reach the entire market. Expenditures on law are typically just transaction costs and everyone is better off when transaction costs shrink. If you have enjoyed the digital revolution in music or photography, you will likewise enjoy the legal market of the future. Legal services will be cheaper, more accessible AND better. These changes are bad for lawyers in the same way digital photography was bad for Kodak. Nevertheless, it is outstanding news for the country as a whole.

Less obviously, the trends identified in Larry Ribstein’s “Death of Big Law” and the ripple effect through law schools will, ironically, lead us to a leaner, happier profession. For years the hope of securing a job in Big Law, the easy availability of student loans, and the misperception of what lawyers do and what law school is like have drawn many ill-suited individuals into law. This has had a number of deleterious effects on those individuals and on the practice as a whole. Current market forces and news coverage, however, will eventually result in a profession staffed by individuals who chose law despite a substantial headwind, rather than because they did not know what else to do and they thought it would guarantee a high salary for life. This will make the profession as a whole healthier than it has been in years.