Legal Ethics Forum

More on the Second Circuit's re-assignment of the trial judge in the stop-and-frisk case

The Wall Street Journal has this post, quoting our own Monroe Freedman, Stephen Gillers and LEF alum Anita Bernstein.

Here's a Miami Herald article recounting earlier episodes where judges were removed from cases because they interacted with the news media in ways that arguably embroiled the the judges in the dispute itself -- notably, the abortion protesters case out of Wichita and the Microsoft case. The take-away: if you're a federal judge, don't defend your ruling in the press.

UPDATE: News accounts suggest that after the ruling, Judge Scheindlin issed a press release. News article. Text of what is apparently the press release. The judge offers context for her decision regarding the related case issue and says that although she did give press interviews she carefully avoided discussing the case and that the media inaccurately made it appear as if she had commented on the case.

This is one of the interviews, at Huffington Post. If the judge really wasn't talking about the case, the editing of the interview seems awfully misleading.

UPDATE 2: Here's a link to the same interview, as run by the Associated Press. If the judge's description of her interview is correct, the journalist Larry Neumeister needs to explain himself. It would be interesting to see if he responds to the judge's press release.

Stephen Glass's Day in Court

On Wednesday, 11/6 at 9 a.m. PT,  the California Supreme Court will hear oral argument on whether Stephen Glass should be admitted  to the bar. The briefs are available on the court's website. The court offers videotapes of arguments but I don't know if they are available in real time. Some apparently are. I don't if this one will be. 

[note from John Steele: for some background, here is the wiki page about Stephen Glass, the former journalist who fabricated stories, and here are some of our prior posts about Glass's case.]

"Lawyers with Troubles" blog

Ted A. Waggoner, of Peterson Waggoner & Perkins, LLP, is publishing the Lawyers with Troubles blog. Check it out.

In stop-and-frisk case, Second Circuit stays remedies, rebukes trial judge for ethics lapse, reassigns case

Opinion below. Key excerpt:

The case is REMANDED to the District Court for the sole purpose of implementation of  this Order, and the mandate shall otherwise remain with this Court until the completion of the  appeals process.

Upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2  (“A judge should avoid impropriety and the appearance of impropriety in all activities.”); see also Canon 3 (C)(1) (“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . . .”), and that the appearance of partiality surrounding this litigation was compromised by the District Judge’s improper application of the Court’s “related case rule,” see Transfer of Related Cases, S.D.N.Y. & E.D.N.Y. Local Rule 13(a), and by a series of media interviews and public  statements purporting to respond publicly to criticism of the District Court.

Accordingly, we conclude that, in the interest, and appearance, of fair and impartial administration of justice, UPON REMAND, these cases shall be assigned to a different District Judge, chosen randomly under the established practices of the District Court for the Southern District of New York. This newly-designated District Judge shall implement this Court’s mandate staying all proceedings and otherwise await further action by the Court of Appeals on the merits of the ongoing appeals.

Download 13-3123_13-3442_post

Jonathan Todres, "Human Trafficking and the Private Sector: A Role for Corporate Counsel"

Article. Abstract:

The private sector plays a critical role in the area of human trafficking. It can both facilitate exploitation and help prevent it from occurring. This short article discusses the emerging role of the private sector in preventing and responding to human trafficking, the evolving legal landscape, and the implications of this trend for corporate counsel.

Bruce H. Kobayashi, "Law's Information Revolution as Procedural Reform: Predictive Search as a Solution to the 'In Terrorem' Effect of Externalized Discovery Costs"

Article. Abstract:

By allowing parties to proceed on an informed basis, liberal discovery under the Federal Rules of Civil Procedure was intended to support the Rule 1’s idealized goal of securing the "just, speedy, and inexpensive" resolution of civil cases. The large costs of conducting discovery may instead produce the opposite result. The creation of cross-party agency costs and the litigants’ ability to externalize much of the effort and costs of discovery to their adversary can generate litigation that is expensive, slow, and unjust. The problem may be particularly acute in cases involving vast amounts of electronically stored information, where the amount of data and potential for externalized costs of discovery can rise exponentially. This paper examines how the expanded use of technology can serve as de facto procedural reform. Use of advanced technological tools such as predictive search allow the tasks and costs to be allocated in a way that simultaneously yields better incentives, mitigates asymmetric cost and information problems, and reduces cross‐party agency costs. This in turn mitigates both the problems of overdiscovery and the in terrorem effect of discovery costs on pre‐discovery settlements. The result is more information and lower costs, allowing the system of legal discovery to move toward fulfilling the idealized goals of Rule 1.

"High Anxiety: The Reason Why Lawyers Are So Vulnerable To High-Pressure, Low-Return Marketing Scams"

Carolyn Elefant, at MyShingle.

"LeClairRyan Partners with UnitedLex in Launch of Innovative Legal Solutions Center"

I'm still trying to understand exactly what the plan is, but here's excerpts from the press release:

Collaborative venture, with more than 400 attorney and technology resources, pairs best-in-class technology and innovative quality control processes to offer broader scope, lower cost and more predictable and efficient services

Richmond, Virginia (October 30, 2013) –The national law firm of LeClairRyan and UnitedLex, a leading global provider of legal and business technology and consulting services, today jointly announce the creation of the LeClairRyan Legal Solutions Center.

This collaborative venture, effective November 1, will provide a wide range of support services and incorporate best-in-class technology and quality control processes which will be uniquely integrated into the law firm's litigation and transactional practice areas. The LeClairRyan Legal Solutions Center is an innovative response to the rapidly evolving legal landscape and will assist clients with achieving their objectives of obtaining more comprehensive, value-based services at a lower and more predictable cost.

[Stephen Gillers asks in the comments about the siginficance of this announcement. I could be wrong, but it strikes me as a big change when a large law firm starts partnering this way with a LPO business. It's an increase in the porosity of biglaw, an increase in the disaggregation of legal services, etc.]

 

[edited since posting]

(h/t: Kevin Colangelo)

Defense counsel asks to be called, "Captain Justice, Guardian of the Realm and Leader of the Resistance"

This motion is making the rounds and although it builds slowly I did enjoy the culmination. It's an opposition brief to a motion by the State of Tennessee asking that the defense counsel not refer to the state as "the government." (h/t: Instapundit)

Other People's Money

I've been doing research on lawyer discipline. A lawyer in Manhattan who converts escrow money will almost certainly be disbarred. A lawyer in Brooklyn, Albany or Buffalo who does the same will likely be suspended or even censured. This is because NY, alone among US jurisdicitons, has decentralized discipline.

So that's a problem. But there's yet a second disparity. A Manhattan lawyer who steals money in other ways will only be suspended. Yesterday, the intermediate appellate court in Manhattan disciplined a lawyer named Lerner who over the years charged clients $50,000 for private car services used by his family. (His firm eventually caught and said it would report him if he did not report himself, which he did.)

If Lerner had taken the same sum from his escrow acount (or even a tenth as much), he'd be disbarred. But not Lerner. The court identified other cases with financial shenanigans and concluded:

"Balancing all mitigating and aggravating factors, [Lerner's] misconduct warrants a one-year suspension ( see Matter of Carmody, 32 A.D.3d 173, 819 N.Y.S.2d 518 [1st Dept 2006] [one-year suspension for billing 129 hours of personal telephone calls to firm clients over a two-year period for a total of $30,000]; Matter of Stone, 230 A.D.2d 481, 657 N.Y.S.2d 2 [1st Dept 1997] [one-year suspension based on petit larceny conviction for over billing the Assigned Counsel Plan approximately $6,000]; Matter of Ruegger, 207 A.D.2d 166, 621 N.Y.S.2d 308 [1st Dept 1995][one-year suspension based on federal misdemeanor conviction for defrauding the U.S. Department of HUD by submitting falsely inflated billing statements];Matter of Denhoffer, 127 A.D.2d 230, 514 N.Y.S.2d 733 [1st Dept 1987] [attorney with unblemished record suspended for one year for, among other things, taking advantage of and over billing immigration clients] )."

Perhaps it's possible to distinguish Lerner's and the other lawyers' conduct from conversion,  but I have a hard time seeing it.