Legal Ethics Forum

Nisreen Mahasneh & George Critchlow, "A Dialogue on Jordanian Legal Education"

Article. Abstract:

This is a readable article about the need for legal education reform in Jordan. It grew out of the experiences, discussions, and shared interests of the co-authors – a Jordanian female law professor and an American male law professor who have worked with the American Bar Association Rule of Law Initiative (ABA ROLI) and Jordanian law faculties to develop strategies for strengthening legal education in Jordan. The article is unusual in that it is presented as a dialogue in order to identify and reflect the authors’ different professional and cultural perspectives. The text is supported by citation to authority in conventional footnotes.

Jordan’s system of legal education is challenged by the need to produce lawyers who have the knowledge and skills necessary to represent clients in traditional settings and to meet the demands of modern transnational commerce, democratization, and the rule of law, including human rights law. The traditional mode of learning in most Jordanian law classes is passive. The article describes and discusses learning theory that emphasizes the need for students to be engaged in a variety of interactive learning experiences. The concept of separating theory and practice (which underpins the traditional Jordanian legal education model) is addressed by reference to critiques of legal education in the United States. The article argues for more integration of theory and practice as a means of fostering critical thinking and problem-solving skills. It concludes with concrete recommendations that Jordanian (and other) law professors might find useful for introducing more integrated, active learning experiences into their classrooms.

While the article is about Jordanian legal education, it has obvious relevance for educators who operate in similar models of legal education throughout the Arab world. It also provides a readable summary of learning theory and teaching strategies for law teachers everywhere.

Nicholas Matich, " Patent Office Practice after the America Invents Act"

Article. Abstract:

Currently, the Patent and Trademark Office (PTO) requires all lawyers practicing before it in patent matters to possess a hard science or engineering undergraduate degree. The relative obscurity of PTO practice has allowed this requirement to remain, mostly unnoticed, even though it bars most lawyers from practicing before the PTO. Like all administrative agencies, however, the PTO is subject to the requirements of the Administrative Procedures Act (APA). Although the PTO’s technical degree requirement may have once passed muster under the APA, this may no longer be the case. Congress recently made major changes to US patent law by passing the America Invents Act (AIA). The AIA at once makes PTO practice far more important and brings into question whether the PTO can continue to exclude the vast majority of lawyers from practicing before it. This article suggests that the increased importance of PTO practice after the AIA creates a strong incentive for attorneys to challenge the PTO’s admissions requirements under the APA and argues that such a challenge, when brought, will likely succeed.

Marysville Exempted Village Sch. Dist. Bd. of Educ. v. Union County Bd. of Revision

From Justia: The Ohio legislature had amended a statute to permit a salaried, non-lawyer employee of a corporation to file a complaint on corporation's behalf.

A look at two "low bono" lawyers

Lawyerist has a profile of two lawyers, Emily Cooper and Tracy Reid, who use a sliding scale for all their clients. Excerpt: "Cooper and Reid use a sliding-fee scale for all their clients. Every client who walks in the door gets a fee he or she can afford based on their income. Their target market is, basically, people who fall into the gap between between free legal services and the cost of a regular lawyer."

Time to require double-blind sequential lineups?

This one is slightly off-topic, but the introduction of (arguably) systematically unreliable evidence is an ethics issue. This article from the East Bay Express looks at how Bay Area counties are responding to the idea of double-blind sequential line-ups, which are designed to reduce errors in witness identification. My county, Santa Clara, has implemented them and apparently is pleased with the results.

"What motivates a lawyer to defend a Tsarnaev, a Castro or a Zimmerman?"

Abbe Smith, in the Washington Post, offers this article, which I found well worth reading. The question -- how can I represent them? -- is appropriate as to all three defendants, given that all three are recipients of enormous public condemnation.

But as noted at Instapundit, one of those three is not like the other two. Regarding Zimmerman, Smith asks, "And what about the attorneys for the recently acquitted but still controversial George Zimmerman? Do they really believe he is completely innocent of any wrongdoing in shooting an unarmed teen?" I'm guessing they did believe and still do.

Joshua L. Plager, "All Things Equal: Unintended Consequences and Allegedly Misrepresented [Law School] Statistics"

Article. Abstract:

This paper describes the current class action lawsuits against law schools on grounds of misrepresented statistics (schools' self-reported job employment rates, salary data, etc.). It argues that these suits are merely the visible tip of a veiled iceberg; that these misrepresented statistics may themselves be a contributor to our legal economy's current woes.

It addresses why students choose to attend law school in the first place, and observes that the industry that is legal education is, at bottom, a business. It analyzes economics and the economy, with a particular focus on labor market economics, and the likely distorted supply and demand curve in the market for legal employment.

It suggests that the misrepresented statistics being hurled at potential law students prevents the labor market from reaching its true equilibrium -- it obscures demand and prevents all things from being equal.

It concludes by turning toward the causes of recession as a point for comparison, and argues that the starting point for recovery in the legal market is in law schools' disseminating -- as mandated by the American Bar Association -- accurate and non-misleading statistics about their programs.

Georgakis v. IL State Univ.

From Justia: In qui tam action, the plaintiff must be a licensed lawyer or represented by a lawyer.

 

Does SAC Capital Have a “Don’t Ask, Just Tell” Defense to Insider Trading?

Lots of experts are weighing in on the government’s chances of success in its insider trading indictment against SAC Capital:

http://www.ctpost.com/news/article/Indictment-could-be-fatal-to-SAC-Capital-but-4687526.php

This indictment comes after the SEC has spent months investigating SAC’s chief executive officer Steven Cohen, apparently finding only enough evidence to charge him civilly with bad oversight of SAC (and those charges have yet to be proven).  Other SAC employees have been criminally charged and convicted for insider trading, but until now the government has not charged SAC itself.

The government confronts several complications when criminally charging corporate entities for conduct of employees, including sometimes the difficulty of proving sufficient knowledge of the criminal conduct by persons in charge of the organization. 

In insider trading cases, in particular, the government also must work with federal insider trading jurisprudence that does not criminalize trading on the basis of all material nonpublic information, only trading on the basis of material nonpublic information that has been misappropriated in an act of deception perpetrated upon the source of the information.  Even theft of the information from the source of the information is probably not sufficient for insider trading liability if the source of the information has not somehow been “deceived” by the thief (thus, a lawyer who misappropriates client information and uses it for insider trading goes to jail, US v. O’Hagan, 521 U.S. 642 (1997), but a person who peers into the lawyer’s briefcase on a subway and trades on the information may escape liability unless that person “deceived” someone in the process).

Because deception of the source of misappropriated information is a critical element of an insider trading charge, the government has an additional problem: the prosecution in a criminal case must prove beyond a reasonable doubt that the source of the information did not know that the person entrusted with the information was likely trading on the information or tipping the information to persons who would trade on it.  A showing that the source of the information did not give permission to trade is not sufficient for liability, because trading without asking for permission to trade is not necessarily an act of deception.  If the source of the information did know – or the defendant can at least create a reasonable doubt that the source of the information knew – that the information would be used for securities trading, the government’s “deception” case falls apart.  And with the deception element, falls apart any criminal or civil insider trading case brought under Section 10b of the 1934 Securities Exchange Act.  More on the “don’t ask, just tell” defense to insider trading is in an article I co-authored in 1998, Don't Ask, Just Tell: Insider Trading After United States v. O'Hagan, 84 Virginia Law Rev. 153 (1998):

http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2675&context=faculty_scholarship

What does this have to do with legal ethics?  A lot, because the seminal case defining the parameters of the “misappropriation theory” of insider trading, US v. O’Hagan, 521 U.S. 642 (1997), involved a lawyer who, without telling his client or his law firm, took client information and used it for trading in securities markets.   That was an easy case for the Supreme Court to apply its misappropriation of information theory.  Just about every client expects that a lawyer will not disclose or use client information for any purpose other than helping the client, without consulting with the client first.  See ABA Model Rules 1.6 and 1.8.  This, however, is not necessarily true of other business relationships where people sometimes acquire nonpublic information from other people and entities, and it is anticipated that some of this information will be used for private gain, including in securities trading.  Once again, all a defendant in a criminal case needs to do is create a reasonable doubt as to whether the source of the misappropriated information was “deceived” into believing it would not be used for securities trading.  If the source of the information was told or already knew enough about the potential use of the information in securities markets, the “just tell” defense to the insider trading charge may be satisfied.  How many of the entities from which SAC obtained material nonpublic information were not really “deceived” when and if SAC traded on it?   We will learn more about this question as the prosecution proceeds, but federal insider trading law does not make the government’s case an easy one.

Therese Kerfoot, "Law 2.0: The New Continuum of Legal Education"

Article. Abstract:

Today’s legal educators aim at a moving target. Education invariably prepares students for a future that is different from the present. But fundamental change in the legal profession today occurs at an unusually rapid pace.

Dynamism within the legal landscape is notable in itself. Law is traditionally conceived of as a slow moving, incremental, and conservative profession. Regulation, such as the regulatory structure that superintends legal services, typically attenuates the rate of industry change. Yet the characterization of a stable, slow moving professional business models is no longer accurate within law. Instead, this is a period in which creation and destruction occur at a brisk clip.