Legal Ethics Forum

Professional closure, by the federal government? (tax preparers reined in by Civil War statute about horses?)

It's always intersting to look at the boundaries that define a particular profession -- be they self-imposed by the profession or imposted by government regulation. Reuters carries a story about the federal government's efforts to assert dominion over tax preparers, using a Civil War statute. Excerpt:

The Obama administration on Tuesday defended its effort to regulate the tax return preparation business for the first time in U.S. history, basing its case largely on a 19th century law dealing with horses lost or killed in the Civil War.

At an appellate court hearing on a challenge brought by libertarian lawyers challenging the administration, Justice Department Tax Division lawyer Gilbert Rothenberg said: "I hate to beat a dead horse, especially one from the Civil War era."

But he explained that the administration sees the "Horse Act of 1884" as providing ample authority for the U.S. Internal Revenue Service to regulate the tens of thousands of preparers who fill out millions of Americans' federal tax returns.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit heard the administration's argument. Rothenberg said the IRS should be allowed to force tax return preparers - who are now unregulated - to pass a competency test and take annual continuing education classes.

Ninth Circuit finds "textbook prosecutorial misconduct"

Ninth Circuit reverses a state court conviction because prosecutor elicited false testimony, failed to correct it, and made an improper argument about the testimony in the rebuttal closing.  Excerpt:

La Carl Martez Dow’s state court trial for second degree robbery involved textbook prosecutorial  misconduct, recognized as such by the California Court of Appeal (“state court”). In the course of the trial, the prosecutor knowingly elicited and then failed to correct false testimony. That testimony, by Detective Oglesby, was that Dow (rather than his attorney) made the request that each of the  participants in a lineup wear a bandage under his right eye at the location at which Dow had a small scar under his. Then, based on this evidence, the prosecutor told the jury during closing argument that Dow had demonstrated consciousness of guilt by trying to hide his scar in order to prevent the sole eyewitness from identifying him. Dow contended that the prosecutor’s eliciting of false testimony and failure to correct it violated his federal constitutional rights. The state appellate court held that misconduct had occurred. It stated:

We find that misconduct occurred. Although Detective Oglesby testified that defendant made the  request to have “the band-aid placed beneath all the participants’ right eyes,” the prosecutor was aware that representation of the evidence was erroneous. More importantly, by asserting that defendant was attempting to “hide” his scar, the prosecutor was mischaracterizing the evidence.

Download Dow

"Don't coddle law students!"

Article at Careerist, suggesting that grading curves be toughened and standardized within schools and across schools. (h/t: ABA Journal) I recall from my days as hiring partner that one of the top 14 schools had a curve on the mean grades in 1L classes but not on the distribution and one professor was famous (or infamous) for bimodal grades that left him the principal determiner of 1L class standing. As for standardizing grades across schools, the higher you go in the law school rankings, the more the schools were able to disguise class rank. I wonder if that's changed now that it's a buyer's market.

 

Deferred prosecution agreements

Not 100% on point for legal ethics, but this New York Times article about the regulation of corporate behavior through deferred prosecution agreements struck me as relevant to the duties of in-house lawyers, outside counsel, and prosecutors. (h/t: The Conglomerate)

Nora Freeman Engstrom, "Re-Re Financing Civil Litigation: How Lawyer Lending Might Remake the American Litigation Landscape, Again"

Article. Abstract:

Stephen Yeazell has long recognized that changes to case capitalization affect the nature and intensity of civil litigation. So too, writing back in 2001, Yeazell identified the next wave of capital with the capacity to alter the American litigation landscape: third-party litigation finance. In the ensuing decade, that industry, and specifically what I call the “lawyer lending” industry — comprised of lenders who extend capital to plaintiffs’ lawyers to finance personal injury litigation — has blossomed. Today, firms like Advocate Capital and Counsel Financial channel tens of millions of dollars to plaintiffs’ personal injury lawyers each year and seem poised for further expansion. Picking up where Yeazell left off, this Essay, written in his honor, asks: How might the arrival of lawyer lending transform the capitalization, organization, and sophistication of plaintiff-side practice? And how might changes to plaintiff-side practice affect the quantum and character of personal injury litigation in the United States?

Steven Henry Hobbs, "O'Connor's Canons: The Professional Responsibility Jurisprudence of Justice Sandra Day O'Connor"

It would be interesting to compare the PR jurisprudence of Burger, O'Connor, and Roberts. Article. Abstract:

Justice Sandra Day O’Connor came to the Supreme Court at a time of tremendous change in the legal profession. With the development of commercial free speech doctrine, lawyers were permitted to advertise their services. Justice O’Connor vigorously opposed this development because of the potential legal advertising had for damaging the ethical standards of the profession. She believed that lawyers, because of their privileged position in society, had a higher moral duty to society as officers of the court. Moreover, she asserted that ethical standards should be established at the state level and the Court should defer to the states in this regard. Justice O’Connor wrapped her professional ideals around the belief that our majestic law steeped in traditions of freedom, democracy and liberty was to be maintained by lawyers with the highest commitment to professional duty and a willingness to sub serve their own financial and personal interests to the needs of the clients. This article will consider the constitutional jurisprudence of Justice Sandra Day O’Connor in the arena of professional responsibility with a focus on how she expressed her ethical canons in light of First Amendment Doctrine as applied to commercial free speech. Her views are immensely relevant to current discourse on professionalism.

A Brilliant Solution to Dead End Hyperlinks in Court Opinions and Scholarship

The New York Times has a great article today by Adam Liptak describing an increasing problem: hyperlinks in Supreme Court opinions that lead to nowhere.  Liptak 's article also mentions a brilliant solution -- a website at Harvard (called perma.cc) that captures web pages, stores them, and allows people to create links to those captured pages. 

The premise is similar to existing services, such as bit.ly, except that the shortened link created by Harvard's service takes readers to the screen shot captured at the time the link is created rather than to the source website, which might change or disappear in the future.  Here's a more detailed description from perma.cc's website:

When a user creates a Perma link, Perma archives a copy of the referenced content, and generates a link to this irrevocable, unalterable hosted instance of the site. Regardless of what may happen to the original source, if the link is in a published citation, the archived version will always be available through the Perma link.

Readers who click on a Perma link are taken to a page that lets them choose to go to the original site (which may have changed since the link was created) or see the archived copy of the site in its original state.

Perma is an online preservation instrument developed by the Harvard Law School Library in conjunction with university law libraries across the country and other organizations in the “forever” business.

Federal court smacks down Nebraska AG over puported ban on lawyers for patent trolls

The title of this post may leave you scratching your head. Basically, a number of states have sought ways to protect their businesses from patent infringement suits by non-practicing entities (sometimes called "trolls"). The Nebraska Attorney General sent a cease and desist letter to a plaintiff-side patent litigation firm, demanding that they not bring new actions against Nebraska businesses. (See, IP Law Blog's story and also Omaha.com) When the lawyers brought the matter to the attention of the federal judge (remember: patent lit is exclusively federal), the AG claimed there was no case or controversy at issue becuase it applled only to suits that had not yet been filed. The court nonetheless entered this order. (h/t: Michael Risch) Excerpt:

During the hearing, the Court questioned counsel for the Nebraska Attorney General. Counsel conceded that this court has complete and exclusive jurisdiction over patent cases. He further conceded that the cease and desist order is not intended to keep Farney Daniels from representing Activision in this case or a case in any other jurisdiction. He also agreed that counsel for Activision can pursue any of the prospective infringers that have already been identified and can file suit against any newly identified potential infringers. Counsel for the Nebraska Attorney General stated that the cease and desist order only prohibits Farney Daniels law firm from sending out letters to potential new infringers.

With these concessions, the Court will rule that Farney Daniels can file an appearance in this case or any other federal cases without running the risk of violating the State of Nebraska Attorney General’s cease and desist order. Further, Farney Daniels and its attorneys may proceed to prosecute their cases, including all discovery, as it would in any other lawsuit.

Download Nebraska AG

Law school captured in six words?

Lisa Mazzie of Marquette created the challenge. WSJ Law Blog wrote about it. (h/t: TaxProf Blog) I noticed a marked difference between the entries of students and profs.

Appellant's brief in Parallel Networks, LLC v. Jenner & Block LLP

David Hricik posted about the case below. The appellant believes that its original lawyers made a business decision to drop a big, complicated, expensive contingency case but now want to be compensated. If I can, I will post the appellee's brief as well.

Download Redacted Brief of Appellant Parallel Networks LLC