Legal Ethics Forum

"Why John Edwards Can Practice Law but Stephen Glass Can’t"

WSJ Law Blog carries the story and quotes our own Stephen Gillers.

Federalist Society panel: "The New Age of Litigation Financing"

Panel discussion here.

NDCA Challenge to NSA Surveillance

My friends Mike Page and Ragesh Tangri have filed an amicus brief on behalf of the National Association of Criminal Defense Lawyers in a case challenging NSA surveillance.  

Their brief is here:  Download 3_13-cv-03287-JSW_dkt_62_Attachment__1_Exhibit (1)

The moving papers are here:  Download 2013.11.06 dkt 024 Mtn for Partial Summary Judgment That the Telephone Records Program is Unlawful

 

Toby J. Heytens, "Reassignment"

With a hat tip to Prawfsblawg, here is a new article about reassignment of matters to trial judges -- a topic that's received a lot of attention in the stop-and-frisk litigation. Head to Prawfsblawg for Toby Heytens's comments. Abstract:

This article is about something federal courts of appeals have done for more than 50 years and more than 600 times. That thing is reassignment, a practice where a reviewing court returns a case to a lower court for further proceedings while also directing that those proceedings be conducted by a different trial judge. Drawing on an examination of the local rules and informal reassignment practices of every federal circuit and district in the United States, as well as an original dataset of 668 decisions in which reassignment was ordered, this article represents the first scholarly examination of when reassignment happens, who orders it, and how it is ordered. More broadly, this article uses reassignment as a way to explore the various ways that appellate courts can seek to control trial judges and influence trial court outcomes. It also discusses what reassignment can teach us about notions of judicial impartiality and neutrality, as well as familiar debates about whether legal tests are better expressed through rules or standards and the extent to which it is desirable for judges to give reasons for their decisions.

"New York Advises as to Appropriate Time Frame for Duty to Disclose False Testimony"

Legal Ethics in Motion carries the story. The ABCNY opinion is here.

"It isn’t only left-leaning judges who get into 'ethics' trouble"

Senior Judge Kopf, at Hercules and the Umpire has some strong thoughts about people who complain that judges attend ACS or Federalist Society dinners and about those two organizations as well.

Checklists

I'm in Abu Dhabi at the moment as a member of the Global Agenda Council on the Rule of Law for the World Economic Forum's Annual Summit on the Global Agenda.  One item we are taking up is the creation of a checklist for corporate CEO's to encourage their engagement in coordinated governance initiatives and rule of law values.  Working on this project reminded me of a post I wrote here a few years ago, Ordinary Injustice, Checklists, and the Court's Focus on Bad Lawyering.  In that post, I reflected upon books by Amy Bach (Ordinary Injustice) and Atul Gawande (The Checklist Manifesto), and I asked whether there are checklists that might be useful for the legal profession. Your comments generated a number of examples: due diligence, limited scope of representation agreements, e-discovery, and criminal defense services.  So LEF readers, I come to you again asking for suggestions, this time not for checklists to improve our lawyering but for checklists to improve awareness of the rule of law.  Thoughts?

"[Connecticut] Supreme Court Says Prosecutor Went Too Far In Criticizing Defense Strategy"

Connecticut Law Tribune. Excerpt:

The state's highest court has overturned the conviction of a Bethel man who was sentenced in 2010 to six years behind bars for allegedly molesting an 8-year-old girl.

.....

Specifically, Maguire claimed the prosecutor acted improperly by repeatedly asserting during her rebuttal closing argument that both Maguire and his defense lawyer at the trial, Norman Pattis, were asking the jury to "condone child abuse," that Maguire's testimony was "coached," and that the defense strategy was a game of "smoke and mirrors."

Download 310CR98

Fraud on the market hanging in the balance?

I was surprised to hear that the SCOTUS will be considering the continuing viability of the fraud on the market theory of viability. (Forbes; amicus brief of SEC Commissioners and professors urging reversal of Basic v. Levinson) Setting aside the wisdom of overruling a 25-year-old precedent, it sure would have a huge impact on a significant segment of the legal profession.

Arizona adopts 3.8 rule on prosecutors' post-conviction duties to the convicted

New rule here, requiring prosecutors to take action when they have knowledge of credible, material evidence that a convicted person might not have committed the offense. [edited since posted] Here are the new sub-paragraphs of 3.8, including (i), which isn't found in the Model Rule:

(g) When a prosecutor knows of new, credible, and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:

(1) promptly disclose that evidence to the court in which the defendant was convicted and to the corresponding prosecutorial authority, and to defendant’s counsel or, if defendant is not represented, the defendant and the indigent defense appointing authority in the jurisdiction, and

(2) if the judgment of conviction was entered by a court in which the prosecutor exercises prosecutorial authority, make reasonable efforts to inquire into the matter or to refer the matter to the appropriate law enforcement or prosecutorial agency for its investigation into the matter.

(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall take appropriate steps, including giving notice to the victim, to set aside the conviction.

(i) A prosecutor who concludes in good faith that information is not subject to subsections (g) or (h) of this Rule does not violate those subsections even if this conclusion is later determined to have been erroneous.

You can compre that to Model Rule 3.8(g-h):

(g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:

(1) promptly disclose that evidence to an appropriate court or authority, and

(2) if the conviction was obtained in the prosecutor’s jurisdiction,

(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and

(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.

(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.