Legal Ethics Forum

Patrick O'Donnell's bibliographies

Many of our readers know that Patrick O'Donnell is one of our frequent, prolific, and thoughtful commenters. Ratio Juris has a collection of Patrick's bibliographies on a wide variety of topics. They aren't legal ethics focused, but they are useful. Thanks, Patrick.

Sorry about all the spam comments!

From time to time, the businesses that leave spam comments manage to trick our site's anti-blogging software and lately we've had a lot of spam comments. I try to erase them once a day or so.

I guess this is as good a time as any to remind readers that we do have a policy about comments. There is a link on the right to the policy.

Timothy Fry, " Prosecutorial Training Wheels: Ginsburg's Connick v. Thompson Dissent and the Training Imperative"

Article. Abstract:

This comment picks up on a section of Justice Ginsburg's dissent from the impactful 2011 decision in Connick v. Thompson that criticized the majority for assuming that law schools teach prosecutors all they need to know about criminal procedure and, specifically, compliance with the Brady doctrine. By testing this claim empirically through a survey of ABA-accredited law school curriculum, the author determines that only a quarter of schools make criminal procedure a graduation requirement. Similarly, most criminal procedure textbooks provide only cursory treatment of the Brady doctrine, making the point that even law schools that require criminal procedure may not address that specific topic in sufficient detail. Concluding that law school does not provide enough training in criminal procedure, despite the Supreme Court majority's claims, the author proceeds to identify a number of proposals -- legislative, executive, and judicial -- that would help train new prosecutors and/or increase accountability for offices' failures to train after the Court eliminated civil liability as a possibility in Connick.

 

"Women Occupy GC Slots at a Fifth of Nation's Top Companies, Survey Finds"

ALM has the story. Excerpt:

The Bay Area is home to a number of high-profile female general counsel, from LinkedIn's Erika Rottenberg to Oracle's Dorian Daley.

And approximately 20 percent of the GC posts at California companies in the Fortune 1000 are held by women, according to a new survey by the Minority Corporate Counsel Association. Nationwide, women hold roughly the same proportion of those jobs. At the highest-earning U.S. companies, there are 189 female chief legal officers, up three over last year's survey. They work alongside just 20 women — like Hewlett-Packard's Meg Whitman, IBM's Virginia Rommety and Yahoo's Marissa Mayer — running the nation's top companies.

"This shows progress, however slowly, in the diversity and inclusion within the legal profession, but all legal leaders must dedicate themselves to offering more women within their departments increased opportunities for mentoring, development and career growth for there to be parity with male legal leaders," Joseph West, president and CEO of the MCCA, said in a statement.

"Fee Award Vacated Over Arbitrator's Perceived Conflict"

Article from ALM may be behind a paywall. Excerpt:

A state appeals court has vacated a $453,100 award for Jeffer, Mangels, Butler & Mitchell in a legal malpractice case after finding that the arbitrator failed to disclose that he once listed name partner Robert Mangels on his resume.

The 2d District Court of Appeal found on Tuesday that former Los Angeles County Superior Court Judge Eli Chernow should have disclosed the potential conflict, which "reasonably could cause an objective observer to doubt his impartiality as an arbitrator."

"An objective observer reasonably could conclude that an arbitrator listing a prominent litigator as a reference on his resume would be reluctant to rule against the law firm in which that attorney is a partner as a defendant in a legal malpractice action," the panel concluded.

*    *    *    *    *

"The significance of the opinion is it gives further clarification to what the obligations are of a proposed arbitrator to disclose all facts that would give a reasonable person a doubt that the arbitrator could be impartial," he said. "In this case, Judge Chernow never advised the parties that he had utilized one of the partners at the defendant firm as a reference."

Rachel Zahorsky and William D. Henderson, "Who’s eating law firms’ lunch?"

ABA Journal. Bill Henderson has been following these legal services providers for some time. While most of them are not huge in terms of total revenue, they continue to grow and multiply. They are one of the key reasons we shouldn't expect the next 20 years to be like the last 20 years. (h/t: TaxProf Blog and lots of other sites in the blawgosphere.) Excerpt:

Johnston isn’t the only corporate client seeking alternative legal service providers and partnerships over the sole reliance on traditional firms—at a hefty swipe at those firms’ bottom lines. In fact in 2012, Novus Law claims, it saved another of its corporate clients nearly $3 for every dollar spent on work originally tasked to another firm. For every $3 it saved the client, Novus Law earned $1 in fees.

That means the client’s law firm lost $4 for every dollar paid to Novus Law.

Or look at it this way: 2012 revenue for the top 100 U.S. firms totaled more than $70 billion, according to American Lawyer magazine. Since the recession hit the legal profession in 2007, these firms have grown in headcount, often through mergers and the absorption of lawyers from several law firm failures. But on a per-lawyer basis, revenue has been essentially flat.

Novus Law, by contrast, is tripling its revenue year over year. And as Novus and many other legal vendors snatch millions of dollars in work typically done by traditional law firms, the growth of the Am Law 100 could disappear completely.

Drury D. Stevenson & Nicholas J. Wagoner, " Lawyering in the Shadow of Data"

Article. Abstract:

Attorney bargaining has traditionally taken place in the shadow of trial, as litigants alter their pretrial behavior --- including their willingness to negotiate a settlement --- based on perceptions of likely outcomes at trial and anticipated litigation costs. Lawyers practicing in the shadow of trial have, in turn, traditionally formed their perception of the likely outcome at trial based on their knowledge of case precedents, intuition, and previous interactions with the presiding judge and opposing counsel in similar cases.

Today, however, technology for leveraging legal data is moving the practice of law into the shadow of the trends and patterns observable in aggregated litigation data. In this Article, we describe the tools that are facilitating this paradigm shift, and examine how lawyers are using them to forecast litigation outcomes and reduce bargaining costs. We also explore some of the risks associated with lawyering in the shadow of data and offer guidance to lawyers for leveraging these tools to improve their practice.

Our discussion pushes beyond the cartoonish image of big data as a mechanical fortuneteller that tells lawyers who will win or lose a case, supposedly eliminating research or deliberation. We also debunk the alarmist clichés about newfangled technologies eliminating jobs. Demand for lawyers capable of effectively practicing law in the shadow of data will continue to increase, as the legal profession catches up to the data-centric approach found in other industries. Ultimately, this Article paints a portrait of what big data really means for attorneys, and provides a framework for exploring the theoretical implications of practicing law in the era of big data.

Ethics opinion about reading email of departed partner

THE PHILADELPHIA BAR ASSOCIATION PROFESSIONAL GUIDANCE COMMITTEE Opinion 2013-4
(September 2013), downloadable below. (h/t: ABA Journal) I would have thought that having a "dead letter" policy protects the firm's clients and the firm itself and that if the firm has a policy to that effect, the practice should be ethical. It seems that Philadelphia lawyers agree.

Excerpt:

Additional fallout from B’s departure from the firm relates to B’s email account at the firm
which the inquirer advises has been set up to reply that B is no longer with the firm. It
appears that under this arrangement, the emails are received and read by the firm and
forwarded to B if they relate to a matter B took with him. This practice is based on the
Inquirer’s position “that any email that comes into the firm is presumptively firm email.”
For his part, B has asked that the firm program his former address so that emails
simply “bounce back” (presumably unread) to the senders with a message that B’s
email account has been closed.

*    *    *    *    *

From these general principles, it can be inferred that the Inquirer’s practice of opening
and reviewing emails addressed to B is permissible to the extent necessary to carry out
the duties identified above.3 Those same duties would seem to preclude the Inquirer’s
firm from honoring B’s request for a simple “bounceback”; i.e., some degree of
interaction with the substance of messages to B’s old email address would, as a
practical matter, be necessary in order for the inquirer’s firm to sort out its
responsibilities to current clients, former clients, those clients who have elected to follow
B, as well as to third parties.

Download Philly Opinion2013-4

The Legal Ethics of Closing a Real Estate Deal (for Whitey Bulger)

Whitey Bulger was recently convicted of a wide range of charges, including money laundering, and a Boston news team has asked an interesting question: did the lawyer who helped Bulger close the real estate deals that facilitated the money laundering engage in any misconduct? 

I was interviewed for the story and said that the answer essentially turns on what Bulger's real estate lawyer knew and when he knew it.  (You can watch the video here and read the transcript here.) That seems like the easy answer under Massachusetts Rule 1.2 and the predecessor to the Rule that would have been in effect at the time.

Somewhat suprisingly, Bulger's real estate lawyer (who performed the work decades ago) agreed to be interviewed for the story and expressed some regrets about his work for Bulger.  The lawyer said he thought at the time that the deals were "legal," but he also noted that he had some "fear" of Bulger. 

These remarks raise a number of interesting issues.  First, I'm not sure it was a great idea for Bulger's old lawyer to share these thoughts on television.  But putting aside the wisdom of it, do you think any of the information disclosed in the interview is covered by Rule 1.6?  It's notable that the lawyer (rightly) refused to answer any questions about the specific transactions he handled for Bulger, so the answer is not entirely clear.  And even if the answer is yes, might the comments be justified on the grounds that the lawyer was being accused of potential misconduct? 

Second, there is an empirical question here that is hard to answer in hindsight: could a reasonable lawyer at the time of the real estate closings have believed the transactions were "legal"?  The reporter makes reference to a source who said the transactions were, in fact, questionable at the time, but the ethics issue turns on what Whitey Bulger's lawyer actually knew. 

Third, and perhaps most interestingly, assuming for the sake of argument that no reasonable lawyer could have believed the real estate deals were legitimate, could the lawyer's "fear" offer a defense against discipline?  Are there are any disciplinary cases in which lawyers have successfully defended themselves against alleged misconduct on the grounds that they were acting out of fear of their clients?  

"Mark Harris of Axiom Answers Hard Questions"

post and video clip at Legal Whiteboard.