Legal Ethics Forum

COPRAC seeks applicants

The State Bar of California's ethics committee -- COPRAC -- is seeking applicants. The deadline for applying is February 3, 2014. More info here and here. The bar's outreach letter is below. There are lots of medium to big firm lawyers on the committee and it's always good to add some from a variety of different practice areas and practice settings.

Download 2014_COPRAC_Applicant_Recruitment_Letter[1]

Challenge to Florida Advertising Rules

Story here. Complaint here: Download 3945204-0--11419

Florida seems keener than other states to restrict advertising.  I don't know why.  Taking the allegations as true for the sake of argument, the rules and enforcement actions the complaint describes seem to me unwise.  On its face the complaint identifies a substantial issue.

DM

Jed Rakoff, Shira Scheindlin, and judges who talk to (or write for) the media

Jed Rakoff has an essay in the current New York Review of Books. He criticizes DOJ's failure to prosecute individuals for conduct leading to the financial collapse. Then Rakoff gave an interview to Adam Liptak (tomorrow's Times) elaborating on his essay.

 Liptak's column recalls individual prosecutions from past financial scandals and continues:

'"And what of the recent financial crisis? The statute of limitations on most plausible charges is running out, and it seems there will not be a single prosecution of a prominent figure in the entire mess.

"Judge Jed S. Rakoff wants to know why. In a blistering essay in the issue of The New York Review of Books that arrives this week, he argues that the Justice Department has failed in its rudimentary responsibilities, offering excuses instead of action."

The column proceeds to recount highlights of Liptak's interview with Rakoff.

(I pass over "blistering," a cliche that seems especially reserved for judicial opinions -- or  medical diagnoses. Judge Leon's NSA opinion  was  called "blistering" on the News Hour tonight and likely will be so in some stories tomorrow.)

But back to Liptak/Rakoff: One inevitably thinks about the Circuit's removal of Scheindlin. True, she was found (perhaps incorrectly) to have addressed a case then before her.  She says not. References to her case did not come from her interviews, she says. (Rakoff did not address a particular case.)

For some reason, Liptak chose not to raise  the Schiendlin comparison. Same court, subjects of equally high profile. And Rakoff has handled high visibility financial cases and may again.

A prallel to Scheindlin, so recent, will occur to many. Addressing it would have enriched the piece. Of course, the Times has no interest in questioning a judge's decision to submit to an interview.

My copy of the New York Review has not yet arrived and I will certainly not read it on a screen.

We may now see recusal motions in a Rakoff case, citing the Circuit's Scheindlin decision. Not so farfetched. Whether or not one would succeed is another matter. They rarely do. 

 

"Austen Parrish named dean of IU Maurer School of Law"

Press release. (IU-Maurer is where I taught ethics for two years. The school has a 4-credit Legal Profession course for 1Ls.) Excerpt:

Austen L. Parrish will be the next dean of the Indiana University Maurer School of Law, IU Bloomington Provost Lauren Robel has announced. Before his appointment, Parrish served as the interim dean and CEO of Southwestern Law School in Los Angeles.

He will become dean of the Maurer School of Law on Jan. 1, and he will also have the title James H. Rudy Professor of Law at the school. His appointment is subject to confirmation by the IU Board of Trustees.

...

Parrish served as interim dean from July 2012 until November 2013 at Southwestern Law School, where he is a professor of law. From 2008 to 2012 he was the school's vice dean, with responsibility for its overall academic program, including initiatives that brought Southwestern national recognition for curricular reform, professionalism and skills training.

A widely published scholar of transnational law and the use of domestic law and institutions to address global challenges, Parrish has been a Southwestern faculty member since 2002.

...

Parrish is an expert in transnational litigation, civil procedure and conflict of laws. He is a leading scholar on issues related to cross-border disputes and has served as an expert witness in cases involving this topic. He is the author of numerous scholarly articles published in leading law reviews and is co-author of a widely used book on legal writing and a popular guide for new law students. Before entering academia, Parrish practiced complex business litigation at O’Melveny & Myers, a global law firm.

The Benefits of Civil[ized] Litigation

When I was a third year lawyer, I was an associate on the plaintiff's side of legal malpractice case.  In some ways, legal mal cases can be the most contentious.  Nothing is more offensive to a lawyer than being accused of malpractice or unethical behavior.  This seems to be especially true for litigators - you know, the lawyers who sue other people every day.  But despite the angry emotions that overwhelmed the parties in that case, my counterpart on the other side of the case (we will call her "Jane")* always conducted herself with the utmost decorum and civility.  I learned so much from her example. 

Now, eight years later, I am still friends with Jane.  We have broken bread together, shared a bottle of wine, friended each other on Facebook, spoken on CLE panels together, and celebrated each other's career milestones. 

In the years that have passed, we have both confessed that the legal mal case was a pivotal learning experience.  Jane forced me to raise my game.  She says I did the same for her. We grew to respect each other's abilities and treated each other with civility.  Yet, there is no question in my mind that both of us represented our clients zealously.

Since that time, I have encountered many other adversaries, with many different styles.  As a New York litigator, you can find yourself across the table from some of the rudest, most offensive people you would ever care to meet.  They count on their ability to wear out their adversary -- to the point where they get what they want because everyone just wants them to go away.  Sometimes, this can be an effective strategy.  Some clients want their lawyers to be hyper-aggressive and view civility as a weakness.  For some lawyers, rudeness is their calling card.

There is an ongoing debate over whether -- and to what extent -- lawyers should be disciplined or sanctioned for uncivil behavior.  Every so often, a case hits the news of a lawyer being censured or suspended for truly obnoxious conduct.  But most uncivil behavior goes unpunished.  Sometimes it is even rewarded.  

This is the lesson I have learned: Incivility is often a substitute for skill and competence.  As with Jane, a good lawyer's work speaks for itself.  You don't have to be a jerk to be an effective lawyer.  In fact, I don't think you get the best results for your clients by being the nastiest lawyer on the block.  As the saying goes, you can attract more flies with honey than with vinegar.

The other day, Jane sent me a text that eloquently summarized our journey: "our careers tried to cast us as adversaries and life made us friends."  I felt honored and humbled by that sentiment.

What do you think?  Can rudeness play an effective role in the practice of law?  Should we be striving for a more civil profession?  I'm interested in your views.

 

*Not her real name.

"Should We Cheer The California Attorney General's Revenge Porn Arrest -- Or Find It Alarming?"

Eric Goldman offers thoughts at Forbes about the state of California's criminal prosecution of the owner of a site that published "revenge porn."

"Law firm sues Florida Bar over rules restricting what legal websites and blog posts can say"

ABA Journal reports on a story covered by Courthouse News.

UPDATE: Here is the complaint. I'm interested in hearing what the Florida bar's response is, but after reading the complaint I'm of the tenative view that Florida really is out of step with modern practice and with the First Amendment. Thoughts out there?

(off topic?) "L.A. County social workers strike over salary increases, caseloads"

LA  Times. It so strongly reminded me of the overworked PDs out there that I thought I'd post here. Excerpt:

In the first strike by Los Angeles County employees since 2000, more than 1,000 social workers took to the picket lines Thursday in a major escalation of a labor dispute over salary increases and caseloads.

The timing of a 6% raise is among the main sticking points in contract negotiations. But union leaders focused the public face of the dispute on social workers' caseloads, which protesters said were so high that they jeopardized the safety of the county's most vulnerable children.

"Turn around" deans

Back in April, when I posted about "turn around" deans, I had Thomas Jefferson School of Law in mind. I didn't want to idenitfy the school because it was just my hunch that the newly appointed dean was brought in for that purpose. The dean has sent an interesting email (below) explaining some of the moves TJSL has been taking. Paul Campos does some number crunching at his blog.

This is the first in a series of short, periodic letters I will write to keep you abreast of what is happening at Thomas Jefferson School of Law. First, let me say that since Kathe’s and my arrival on July 1, we have been overwhelmed with the support and encouragement given by the alumni and friends of the law school.

The law school, as you know, is facing a number of serious challenges. Many of them are systemic--the result of the disproportionate impact on the legal profession of the recent economic downturn. We have all seen and lived through this and I won’t bore you with a recap.

Some of the issues, such as the Alaburda litigation, are inexplicable to me. I do not know how Thomas Jefferson became the whipping boy for critics of legal education. We must, however, be honest with ourselves; many of our troubles are the result of our own missteps, our own failure to plan, and our own failure to address problems in a timely fashion. My immediate plan and promise to you is that we will take aggressive and transparent action to confront these challenges. Since July 1, we have taken what I think are positive, though at times painful, steps to address the most critical challenges, whether self-imposed or systemic. Let me give you three examples.

First, while a general decline in enrollment is a systemic problem, we did not help the situation by allowing an unsustainable growth in the administrative structure of the school or building a facility as grand as ours. But, as you may have seen in press reports, the law school made severe cuts to its budget in response to the nationwide decline in applications. The reports did not paint the full nature of those cuts. For fiscal year 2014, the law school made cuts, totaling $4,798,081. Among other things, we layed-off 12 staff members, eliminated many more unfilled open positions, cut staff salaries by a minimum of 5%, cut faculty salaries by a minimum of 8%. In spite of these cuts, I am proud to say that 100% of the faculty contributed to this year’s annual fund.

Second, we also did not help ourselves by a slow response to the bar passage problem. But, we are changing that. New academic support and bar prep programs were adopted last academic year and after careful study this past July, the faculty adopted a sweeping array of changes to the way they will teach and assess all courses at the law school that are tested on the California bar examination.

The law school has also taken steps to help our alumni who are repeat bar exam takers. For students who are not successful on the bar exam in their first attempt, the law school for several years has provided a Continuing Bar Candidate support program (the CBC program). This program is offered at no charge to our alumni. In a major commitment of resources, we are now also making available the supplemental online version of the BarSecrets® bar course to repeat bar examination takers at no cost, effective with the alumni taking the February 2014 California Bar Examination. This new program will now allow our alumni (regardless of which prior bar review course they originally took) to have access to the program.

Third, students have had a legitimate complaint about our often indecipherable scholarship policy. In an effort to be both more transparent and fair, we have dramatically changed our scholarship program for incoming students. If you are interested in more details, click here.

Of course, more work must be done on these fronts, as well as a multitude of others. In the coming months, I will keep you informed, through letters like this, about these issues and how Thomas Jefferson is responding.

When I took the job as President and Dean, my eyes were open to the difficult challenges ahead. I also saw incredible strengths and opportunities among a committed group of alumni, faculty, students, staff and Board of Trustees. Nothing I have learned about since my arrival has changed the belief that, with your help, we will meet these challenges and Thomas Jefferson will become stronger as a result. I appreciate your support, welcome your comments and look forward to meeting more of you in the months ahead.

"Chief Judge For 9th Circuit Cites 'Epidemic' Of Prosecutor Misconduct"

Story at Huffington Post. The article looks at a recent dissent by Judge Kozinski. (h/t: Instapundit)