Legal Ethics Forum

Diane Karpman, "Exercise caution when a third party foots the bill"

Diane's latest. Excerpt:

Highly placed sources at the State Bar Court (who are often seen in black robes) have remarked that suddenly the Office of Chief Trial Counsel is actually charging violations of Rule 3-310 (F) of the Rules of Professional Conduct.

This is is known as the third-party payer rule and is triggered when someone other than the client is paying the lawyer’s fees. For example, Mom and Pop are paying for their minor’s DUI/shoplifting offense, or Dad is paying for his daughter’s dissolution of marriage. Or, on a much more sinister level, a crime boss is paying for a minion’s silence, or a drug cartel is paying for a mule’s (carrier’s) defense.

UK: "Who is responsible for ethical breaches when a case is run on a team basis?"

Thoughts from Richard Moorhead at Lawyer Watch (UK).

Jan. 31 deadline for submissions to the 2014 International Legal Ethics Conference VI (London)

It's not too late to submit a paper proposal for ILEC 2014, but the deadline is Friday, Jan. 31!  

Here's the call for papers.

Call for Papers Proposals for presenting a paper or panel are invited from scholars from all disciplines, legal professionals, judges and students. Presenters are encouraged to submit papers within one of the following streams: Culture, Technology, Ethics and Society Empirical Approaches to Legal Ethics Philosophy and Legal Ethics Regulation of the Profession(s) Ethics and Legal Education The Conference will be organised into sessions of 90 minutes each. Normally, three papers will be presented in any one session. Alternatively, a proposal for a Panel involving discussion or other formats will be considered. Proposals for a paper or for a panel should include an abstract of between 100 and 250 words. If the proposal is for a panel, the name of the panellists should also be identified. Abstracts should include title, author/s and institutional affiliations. Up to five key words should also be provided at the end of the abstract. Proposals should either indicate the stream in which the paper or panel is to be presented or identify with clarity an alternative theme within which the proposal sits. In order to accommodate a diverse group of presenters, participants should not present in more than two events. The deadline date for proposals is January 31, 2014. Proposals should be submitted to [email protected] with the subject heading “ILECVI paper proposal”.

The website with registration details is here.

Susan Saab Fortney, "The Role of Ethics Audits in Improving Management Systems and Practices: An Empirical Examination of Management-Based Regulation of Law Firms"

Article. Abstract:

For decades, legal malpractice experts have urged lawyers to implement risk management measures. To assist law firms in doing so, legal malpractice insurers have provided audit services and self-audit materials. The ABA Model Rules of Professional Conduct also recognize the importance of policies and procedures as an aspect of a firm’s ethical infrastructure. Specifically, Model Rule 5.1 and state versions of Model Rule 5.1 require that firm principals make reasonable efforts to ensure that the firm has in effect measures to ensure that firm lawyers conform to the rules of professional conduct.

In Australia, legislation requires that incorporated law firms appoint a director to be responsible for management of legal services and that the director ensure that “appropriate management systems” be implemented and maintained to enable the provision of legal services in accordance with obligations imposed by law. Under this regulatory regime, incorporated legal practices are required to complete a self-assessment process and to report on the firm’s compliance with ten objectives of sound law practice.

Early studies in Australia revealed that management-based regulation of law firms dramatically reduced the number of complaints involving incorporated law firms that completed the self- assessment process. To obtain data on the reasons for the reduction in complaints, as well as other effects of the self-assessment process, I conducted an empirical study, surveying and interviewing practitioners in law firms that completed the self-assessment process. Study results revealed that the self-assessment process first raised lawyers’ “ethics awareness” and then contributed to their firms implementing and improving their management systems.

This article discusses study findings and recommendations related to the effects of the self-assessment process. The article examines how features of management-based regulation may be integrated into lawyer regulation in the U.S. and how regulators, insurers, and bar leaders can create incentives encouraging lawyers and firms to examine and improve their management systems and practice controls.

Online Symposium about Character & Fitness Determinations - "Stephen Glass, Sergio Garcia, and How the Decisions Should Be Made

Starting next week, we'll have an online symposium about the two recent California C&F cases -- involving Stephen Glass and Sergio Garcia -- and about the broader issues at play in making such decisions. We've nearly nailed down the lineup and will post it soon.

Kristen K. Robbins-Tiscione, "The Rhetoric of Email in Law Practice"

Article. Abstract:

This article responds to and appears alongside an article by Professor Kirsten Davis in the December 2013 issue of the Oregon Law Review. An interesting debate has arisen among legal writing faculty with respect to the primary form of communication today between attorneys, and between attorneys and clients. Although most legal writing faculty agree that teaching traditional memoranda continues to have pedagogical benefits for first-year students, there is disagreement on how to conceptualize and teach the use of email memoranda in law practice. Professor Davis argues that to think of and label “email memoranda” as something different from traditional memoranda is misguided. In contrast, this article argues that email memos are indeed different — that the medium of email has altered the nature of the message (as Marshall McLuhan might say). In other words, the process of writing email in the context of a conversation changes both the format and the nature of legal analysis. This author also believes that the question for legal writing faculty is not whether to teach traditional memoranda or email analysis but how to teach both well to prepare law students for the real world of law practice.

The Indefensibility of Reciprocity Provisions?

The ABA Journal is running a story this month that is rather critical of states that have no admission by motion rule or have procedures that are more restrictive than those contained in the Model Rule. 

As some readers may recall, the ABA Commission on Ethics 20/20 successfully proposed a modest liberalization of the Model Rule, which now allows lawyers to gain admission by motion after three, rather than five, years of practice.  The Commission also successfully proposed a resolution calling for states that have not adopted the Model Rule to do so and for states that have admission by motion procedures to delete requirements (like reciprocity provisions) that are more restrictive than the Model Rule.

I offered a provocative quote for the ABA Journal article, saying that restrictions beyond those contained in the Model Rule (such as reciprocity provisions) “serve no public policy purpose.  In my view they are indefensible from the standpoint of public and client protection and should be eliminated.”

Does anyone disagree?  If so, why?

Kathleen Clark, " Congress’s Right to Counsel in Intelligence Oversight"

Article. Abstract:

This article examines Congress’s ability to consult its lawyers and other expert staff in conducting oversight. For decades, congressional leaders have acquiesced in the executive branch’s insistence that certain intelligence information not be shared with congressional staffers, even those staffers who have high-level security clearances. As a result, Congress has been hobbled in its ability to understand and analyze key executive branch programs. This policy became particularly controversial connection with the Bush administration’s warrantless surveillance program. Senate Intelligence Committee Vice-Chair Jay Rockefeller noted the “profound oversight issues” implicated by the surveillance program and lamented the fact that he felt constrained not to consult the committee’s staff, including its counsel. This article puts this issue into the larger context of Congress’s right to access national security-related information, and discusses congressional mechanisms for protecting the confidentiality of that information. The article also provides the most comprehensive history of congressional disclosures of national security-related information. That history suggests that the foremost danger to confidentiality lies with disclosure to members of Congress, not to staff. The article identifies several constitutional arguments for Congress’s right to share information with its lawyers and other expert staff, and explores ways to achieve this reform.

"Judge Must Recuse After Initiating Facebook Friend Request to Litigant–Chace v. Loisel"

At Technology and Marketing Law Blog. Excerpt:

We’ve blogged about several cases where courts said Facebook friendships between litigants and judges do not necessarily warrant recusal. ... This case presents a slight twist on the facts.

Chace was one of the parties in a marriage dissolution proceeding. Prior to entry of judgment, the presiding judge sent a “friend” request to Chace. After consulting with counsel, Chase declined the request, after which the trial court entered a judgment not particularly favorable to Chace. Following entry of judgment, Chase filed a complaint against the judge, alleging that the unfavorable ruling was retaliatory because she declined the judge’s friend request. Interestingly, Chace came across other cases where the trial judge had similar ex parte social media communications with litigants. Her motion was denied. On appeal, the court says that disqualification is required where there is a “well-founded” fear that the party will not receive a fair hearing. While subjective believe of bias is insufficient, disqualification is appropriate where there are facts sufficient for a reasonable person to form an impression of bias.

California Supreme Court Denies Admission to Stephen Glass

From the Opinion:

Glass's misconduct was also reprehensible because it took place while he was pursuing a law degree and license to practice law, when the importance of honesty should have gained new meaning and significance for him. (emphasis added). 

Slightly off-topic question: At what point during law school should the "importance of honesty" gain a "new meaning and significance?"  Is that date tied to when students are required to take an ethics course?