Legal Ethics Forum

"Judicial Fact Finding Run Amok: Judge Posner’s Judicial Fashion Shows"

I've been meaning to post something about Judge Posner's independent fact finding and investigation in a recent case, so here's a link to Josh Blackman's post about it. (The case dealt with salary for time spent putting on and taking off clothes and equipment at a plant. Judge Posner had his law clerks put on the clothes themselves and timed the process.)

On the one hand, it seems horribly wrong for an appellate judge to do his own investigation. On the other hand, isn't that exactly how any reasonable human being would evaluate the disagreement between the respective counsel about how long the process took?

"Lawyer for Oakwood home invasion defendant says [client is committing perjury]"

Raleigh News Observer. (h/t: ABA Journal) In California, the lawyer would use the narrative technique rather than tell the judge about the client's perjury. Excerpt:

One of the brothers accused in a series of burglaries and violent home invasions took the stand in his own defense Wednesday and claimed someone else – a man of similar size and features – was responsible for the crimes.

Jahaad Marshall, 27, testified against the advice of his attorney, a strategy that prompted Deonte Thomas, the Raleigh lawyer representing him, to rise before the judge and ask to be removed from the case.

Thomas also told Judge Henry Hight while jurors were out of the room that he believed Marshall was committing perjury on the stand.

Amanda C. Leiter, "Soft Whistleblowing"

Article. Abstract:

This Article explores the underappreciated role that agency insiders play in directing outside oversight of their employer agencies and, in turn, manipulating agency policy development. Specifically, the Article defines, documents, and evaluates the phenomenon of “soft whistleblowing” — an agency employee’s deliberate, unsanctioned, substantive, and instrumental disclosure of nonpublic information about issues of policy. This phenomenon is ubiquitous but has received no systematic attention in the academic literature.

As the Article demonstrates, agency employees regularly engage in soft whistleblowing to congressional staff, journalists, and agency watchdog groups, in an effort to bring outside pressure to bear on their employer agencies to shift policymaking direction. The phenomenon results in a high-volume, employee-generated flow of information out of agencies. This flow has significant implications for the distribution of policymaking power within agencies and for the direction and efficacy of agency oversight. For example, the Article posits that soft whistleblowing empowers those agency professionals whose codes of ethics encourage some information disclosure (engineers are one example), while disempowering agency lawyers, whose code of ethics all but forbids unsanctioned disclosures about their client agencies’ activities. With respect to outside oversight, soft whistleblowing increases agency transparency, and strengthens congressional oversight, but undermines so-called “presidential administration.” Consequently, the activity likely serves a keel-like function, keeping the agency on a relatively steady policymaking course in the face of shifting political winds.

Proposed California bill would require advance fees to be deposited in the trust account

I'd rather not have our Assembly be the one to add the requirement, but neither our Bar nor our Supreme Court seems inclined to do it -- so it's better it's done by someone than by no one. Here's the bill.

California Statewide Ethics Symposium - April 12th

Should be a good program. Jim Brosnahan will give the keynote. Held in San Francisco. Details here. Program:

Schedule of Events
8:30 - 9:30 a.m.
Registration

9:30 a.m. - 9:45 a.m.
Welcoming Remarks
Wendy Wen Yun Chang: Chair, Committee on Professional Responsibility and Conduct
Rachel Van Cleave: Dean, Golden Gate University School of Law
Luis J. Rodriguez: President, State Bar of California

9:45 a.m. - 11:15 a.m.
Defending a Charles Ponzi or Bernie Madoff
This panel explores ethical issues that arise when lawyers represent clients alleged to be involved in financial fraud or other illegal behavior. Panel attorneys litigate actions brought against lawyers accused of participating in or aiding and abetting their clients’ activities. Ethical issues include client confidentiality, the duty to withdraw, options to report up or out, and conflicts between individuals acting for the client.
Scott B. Garner: Moderator; Vice-Chair, Committee on Professional Responsibility and Conduct; Partner, Morgan, Lewis & Bockius LLP, Irvine
Jennifer A. Becker: Member, Committee on Professional Responsibility and Conduct; Partner, Long & Levit LLP, San Francisco
Joy A. Kruse: Partner, Lieff Cabraser Heimann & Bernstein, San Francisco
Sean SeLegue: Partner, Arnold & Porter LLP, San Francisco
John R. Sheller: Partner and Leader of Lawyers for Professionals Department, Hinshaw & Culbertson LLP, Los Angeles

11:30 a.m. - 1 p.m.
Complex Conflicts Issues Deciphered
This panel will examine complicated questions confronting lawyers in scenarios involving advance consents and non-waivable conflicts. Both subjects arise in various contexts, including conflict clearance in obtaining and retaining clients, potential discipline, disqualification, and claims for malpractice or breach of fiduciary duty, and require thoughtful and deliberate navigation.
William K. Mills: Moderator; Member, Committee on Professional Responsibility and Conduct; Partner, Parker Shumaker Mills LLP, Los Angeles
Dan L. Carroll: Partner, Downey Brand LLP, Sacramento
Robert K. Sall: Shareholder, Sall Spencer Callas & Krueger, Laguna Beach
Michele K. Trausch: Partner, Hanson Bridgett LLP, San Francisco

1 p.m. - 2 p.m.
Lunch & Keynote Address

Lunch: 1 p.m. - 1:40 p.m.

Keynote Address 1:40 p.m. - 2 p.m.
"Utopian Legal Ethics in 2020"
James J. Brosnahan, Senior Trial Counsel, Morrison & Foerster LLP

2 p.m. - 3:30 p.m.    
Trial Ethics: Don't Risk Your Soul to Win a Point
This panel of seasoned trial attorneys will examine ethics issues that are unique to trial. Those issues include identifying the sometimes fuzzy line between ethical and not when: dealing with witnesses; producing (or not producing) evidence; jury selection (including discrimination and the use of social media); references to non-existent or inadmissible evidence; asserting an unsupported position; client perjury; appealing to the jury’s passions and prejudices and other issues for closing argument; and communicating with jurors before, during and after trial.
Alison P. Buchanan: Moderator; Member, Committee on Professional Responsibility and Conduct; Shareholder, Hoge, Fenton, Jones & Appel, Inc., San Jose
Wendy Wen Yun Chang: Chair, Committee on Professional Responsibility and Conduct; Partner, Hinshaw & Culbertson, LLP, Los Angeles
James J. Brosnahan: Senior Trial Counsel, Morrison & Foerster LLP, San Francisco
Hon. Peter H. Kirwan: Judge, Santa Clara County Superior Court, Complex Civil Department
Allen J. Ruby: Partner, Skadden, Arps, Slate, Meagher & Flom LLP, Palo Alto

3:45 p.m. - 5:15 p.m.
"Disruptive" Ethics? Innovative Models of Providing Legal Services
This panel will examine the ethical issues that arise as the practice of law takes new forms and expands traditional boundaries. Innovative models for providing legal services blur the lines between law firms and their clients, or challenge the very idea of what a law firm is and how legal services should be provided. Outsourced legal services, national virtual law practices, companies offering online legal forms and “panel attorney” consultations, and online crowd-sourced legal directories that match up potential clients and lawyers all pose new ethical questions for lawyers to consider and issues to deal with.
Merri A. Baldwin: Moderator; Member, Committee on Professional Responsibility and Conduct; Shareholder, Rogers Joseph O’Donnell, San Francisco
Chas Rampenthal: General Counsel, LegalZoom, Los Angeles
R. Amani Smathers: Innovation Counsel, ReInvent Law Laboratory at Michigan State University
John J. Steele: Sole Practitioner, Palo Alto  

Cybersecurity at Large Law Firms Under Scrutiny

The New York Times covers the story here. 

This is not the first time I've read that lawyers (even lawyers at the largest and most sophisticated law firms) are sometimes the weakest link in a company's data security chain.  Another way of thinking about this is that lawyers may be able to satisfy their ethical obligations fairly easily under newly adopted Rule 1.6(c), but cybersecurity is an increasingly important client relations issue, particularly for law firms with clients who have high value confidential information.

"How a Lawyer Defied the Gay Establishment and Got Michigan's Marriage Ban Struck Down"

Story at Huffington Post about the lawyer who brought and won the same sex marriage case in Michigan.

Proposed California ethics opinion ESI - Public Comment Sought

From the Digest:

An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and then become integrated with the practice of law. Attorney competence related to litigation generally requires, at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, i.e., the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a given matter and the nature of the ESI involved. Such competency requirements may render an otherwise highly experienced attorney not competent to handle certain litigation matters involving ESI. An attorney lacking the required competence for the e-discovery issues in the case at issue has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues can also result, in certain circumstances, in ethical violations of an attorney’s duty of confidentiality, the duty of candor, and/or the ethical duty not to suppress evidence.

Download 11-0004 - 90-day Public Comment Notice & Draft Opinion

W. Bradley Wendel, "A Legal Ethics Perspective on Alternative Litigation Financing"

Article. Abstract:

One of the foundational principles of legal ethics is that the lawyer owes an obligation of undivided loyalty to the client, and no other interests or relationships can be permitted to interfere with the lawyer’s exercise of independent professional judgment on behalf of the client. The strongest non-consequentialist doctrinal objection to third-party litigation funding is that it may compromise the lawyer’s independence. Yet this argument cannot be made in too strong a form, because lawyers are already permitted to enter into relationships or have interests that present a prima facie risk to the lawyer’s independence. In the United States, two such situations are the representation of plaintiffs in contingent-fee financed litigation and the representation of insured defendants by lawyers compensated, and substantially controlled, by liability insurers. Both of these situations present conflicts of interest that are mitigated for the most part not by formal rules of professional conduct but by other legal and non-legal sources of constraint. In the insurance defense context, many apparent conflicts are mitigated by doctrines within insurance law that limit the extent to which insurers can act self-interestedly at the expense of the insured. Regarding contingent-fee representation, market mechanisms are entrusted with the role of regulating the size of fees, while agency and tort principles regulate the conduct of lawyers representing plaintiffs in contingent-fee matters. These comparisons show that third-part litigation finance should not be condemned categorically as compromising the lawyer’s independent judgment. Rather, the acceptability of third-party finance should be dependent upon the extent to which the relationship between the funder and the recipient of funding is regulated to mitigate the risk of self-interested behaviour on the part of the funder.

Tigran Eldred, " Motivation Matters: Guideline 10.13 and Other Mechanisms for Preventing Lawyers from Surrendering to Self-Interest in Responding to Allegations of Ineffective Assistance in Death Penalty Cases"

Article. Abstract:

Defense lawyers whose clients are sentenced to death are virtually guaranteed to be accused of ineffective assistance of counsel. The question is how they will respond. On one hand, lawyers alleged to be ineffective are obligated under Guideline 10.13 of the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases to continue to safeguard the interests of their former clients, a duty that includes full cooperation in appropriate legal strategies chosen to pursue the ineffectiveness claim. On the other hand, lawyers who are accused of ineffectiveness often react defensively to the allegation, reflexively viewing the claim of poor performance as an attack on their competency and reputation. To date, there has been no systematic attempt to understand how these tensions are mediated and resolved.

To fill this gap, this article explores the psychological dimensions of how lawyers can be expected to respond to allegations of ineffectiveness. Relying on empirical research into “motivated reasoning” – a phenomenon that describes the many ways in which people unconsciously seek out, interpret and recall information in a manner that is consistent with their pre-conceived wishes and desires – it argues that motivation can be expected to play a dominant role in how lawyers respond to alleged ineffectiveness. Further, because motivation exercises its power implicitly, efforts to encourage compliance with the obligations set forth in Guideline 10.13 must take into account the subtle psychological forces that influence behavior. Simply put: motivation matters.