Legal Ethics Forum

National Review On-Line Op-ed Complains about Breach of Donald Sterling’s Privacy

This op-ed completely misses the point when it comes to business ethics, and the right of other business owners to have nothing to do with a colleague who has shown poor ethics and poor judgment:

http://www.nationalreview.com/article/376828/even-donald-sterling-entitled-privacy-j-delgado

I am not sure whether Donald Sterling has a cause of action against anyone for breach of privacy for release of his taped conversations expressing racist views (he has the money to pay lawyers to explore that).  I am not sure whether a man who walks in racist parades wearing a white sheet over his face has a cause of action against another man who walks up to him and lifts the sheet from his face for all to see who he is (the Klan can pay lawyers to explore that). 

But the rest of us have a right to protect ourselves, our reputations and our businesses from either man.

The exposed Klansman can sue who he likes for lifting the sheet from his face, but he is likely to be fired if he turns out to be president of the local bank or any other business that depends upon public support.  If he owns his own business, other sensible business owners will disassociate from him.  These business owners are not rewarding anybody when they take such action; they are protecting themselves.

All of this privacy talk may be of personal interest to the National Review On-Line and perhaps a few of its readers, but none of this comes close to being a reason for the NBA not to get Mr. Sterling out of basketball as fast as possible. The NBA does not “reward” anyone’s bad behavior, as the National Review On-line op-ed suggests it does, by protecting itself and its member teams from Mr. Sterling.  Owners, players and fans of NBA teams have every reason to do the only sensible thing which is to have nothing to do with Mr. Sterling.  Personal ethics matter for any business including basketball, and racist views, no matter how “personal” and “private” are both morally reprehensible and bad for business.  Free enterprise – a concept that the National Review should understand – means the freedom to have nothing to do with someone whose actions and views could destroy one of the most successful enterprises in modern America. 

Sterling and the few Americans who want to defend him are entitled to their opinions.  But the rest of the NBA owners, managers and players are free to do the only sensible thing to preserve their reputation and their game: play ball without him.

COPRAC Formal Opinion 2014-190 (Lawyer's duties upon dissolution of firm)

We often ask, "Who is the client?" Sometimes we have to ask, "Who is the lawyer?" Below are the Issue and Digest of the new ethics opinion from the State Bar of California's ethics committee ("COPRAC").

Issue: Upon the dissolution of a law firm, what duties does an attorney affiliated with the firm owe to a client on whose behalf he or she provided legal services if the attorney no longer will be representing the client following the dissolution? How does the fulfillment of those duties differ if the attorney had no connection with or knowledge of the client prior to dissolution of the firm? Do the steps an attorney may be required to take depend on the nature of the attorney’s position with the firm?

Digest: Rule 3-700(A)(2) of the California Rules of Professional Conduct, provides that a member may not withdraw from the representation of a client until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client. The requirements of rule 3-700(A)(2) apply when an attorney’s withdrawal is prompted by the dissolution of the attorney’s law firm. In the event of dissolution, all attorneys who are employed by or partners of a firm are required to comply with rule 3-700(A)(2) as to all clients of the firm, regardless of their connection to any specific client or the specific nature of their affiliation with the firm. What “reasonable steps” an attorney must take to protect a particular client’s rights may vary considerably, however, depending on the circumstances, including the attorney’s relationship to the client and its matter and the attorney’s position within the firm.

Download CAL 2014-190 (11-0003)

 

Ellen Koenig - A Fair Trial: When the Constitution Requires Attorneys to Investigate Their Clients' Brains

Article. Abstract:

The U.S. Constitution guarantees every criminal defendant the right to a fair trial. This fundamental right includes the right to a defense counsel who provides effective assistance. To be effective, attorneys must sometimes develop specific types of evidence in crafting the best defense. In recent years, the U.S. Supreme Court has found that defense attorneys did not provide effective assistance when they failed to consider neuroscience. But when must defense attorneys develop neuroscience in order to provide effective assistance? This question is difficult because the standard for determining effective assistance is still evolving. There are two leading approaches. First, in Strickland v. Washington, the Court adopted a two-prong ″reasonableness″ test, which, according to Justice O’Conner, may result in court decisions that fail to properly protect a criminal defendant’s rights. Recently, courts have adopted a second approach based on guidelines promulgated by the American Bar Association.

This Note aims to answer this question. It first provides a background on the right to effective assistance of counsel and briefly describes neuroscience evidence, oppositions to and limitations on in its use, and its admissibility in court. Second, this Note attempts to give some guidance to attorneys by exploring the American Bar Association and U.S. Supreme Court standards. Third, it summarizes the results of a statistical analysis conducted by the author, which helps further define when courts require attorneys to develop neuroscience evidence. It concludes by arguing that attorneys need guidance to ensure they are not violating the Sixth Amendment. This Note expands on the American Bar Association’s standard and suggests a framework attorneys may use to determine whether they should develop neuroscience evidence to ensure that their client has a fair trial.

Alice Woolley: Context, Meaning and Morality in the Life of the Lawyer

Article. Abstract:

Legal ethics theory focuses on the moral problem of lawyers pursuing morally suspect (but lawful) ends and using morally suspect (but lawful) means. It considers possible justifications for lawyers’ conduct arising from moral or political philosophy, and how those justifications may require shifts in the lawyer’s role. This paper argues that legal ethics theory needs to expand its focus to consider other ethical aspects of the lawyer’s role and, in particular, the extent to which being a lawyer can complicate, or contribute to, the accomplishment of a meaningful life. Meaning — defined by Susan Wolf as ‘loving something (or a number of things) worthy of love, and being able to engage with it (or them) in a positive way’ — will be affected in positive and negative ways by the moral dimensions of the lawyer’s role, but also by broader aspects of legal practice. The paper further argues that legal ethics theory needs to be more sensitive to contextual variations in legal practice. The ethical challenges and opportunities of legal practice, both its meaning and its morality, are contextually specific in ways legal ethics theory has not sufficiently accounted for. The paper sets out how meaning and context can be included in analysis of the ethics of a lawyer’s life.

Robert A. Prentice, "Behavioral Ethics: Can It Help Lawyers (and Others) Be Their Best Selves?"

Article. Abstract:

Using the principles of behavioral psychology and related fields, marketers have changed human behavior in order to increase sales. Governments have used these same principles to change human behavior in order to advance policy goals, such as increasing savings behavior or organ donation. This article surveys a significant portion of the new learning in behavioral ethics in support of the claim that by teaching behavioral ethics we have a realistic chance to improve the ethicality of human decision making and actions.

SCOTUS reverses Federal Circuit on awards of attorneys fees

News at Patently-O. SCOTUS unanimously reversed the Federal Circuit, holding that district courts have discretion in awarding attorneys fees and that the appellate review should give deference to the trial court. New opinions here and here. Seems like the high court believes it needs to tighten the reins on the Federal Circuit.

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Lawrence S. Krieger & Kennon M. Sheldon, "What Makes Lawyers Happy? Transcending the Anecdotes with Data from 6200 Lawyers"

Article. Abstract:

Attorney well-being and depression are topics of great concern, but there has been no theory-driven empirical research to guide lawyers and law students seeking well-being. This article reports a unique study establishing a hierarchy of five tiers of factors for lawyer well-being, including choices in law school, legal career, and personal life, and psychological needs and motivations established by Self-Determination Theory. Data from several thousand lawyers in four states show striking patterns, repeatedly indicating that common priorities on law school campuses and among lawyers are confused or misplaced. Factors typically afforded most attention and concern, those relating to prestige and money (income, law school debt, class rank, law review, and USNWR law school ranking) showed zero to small correlations with lawyer well-being. Conversely, factors marginalized in law school and seen in previous research to erode in law students (psychological needs and motivation) were the very strongest predictors of lawyer happiness and satisfaction. Lawyers were grouped by practice type and setting to further test these findings. The group with the lowest incomes and grades in law school, public service lawyers, had stronger autonomy and purpose and were happier than those in the most prestigious positions and with the highest grades and incomes. Additional measures raised concerns: subjects did not broadly agree that judge and lawyer behavior is professional, nor that the legal process reaches fair outcomes. Specific explanations and recommendations for lawyers, law teachers, and legal employers are drawn from the data, and direct implications for attorney productivity and professionalism are explained.

Animals as clients?

Over at On Lawyering, Rich Cassidy has a post up, "The Evolution of the Law: Will Animals Become Legal Persons?"

The Evolution of the Law: Will Animals Become Legal Persons? - See more at: http://onlawyering.com/2014/04/the-evolution-of-the-law-will-animals-become-legal-persons/#sthash.NLmb1zea.dpuf

Over 1,000 Law Professors Sign Letter Expressing Concern About Treatment of DOJ Nominee

More than 1,000 law professors have signed a letter to Senators Leahy and Grassley expressing "deep concern about the discourse surrounding the Senate vote on the confirmation of Debo Adegbile as Assistant Attorney General for Civil Rights."

Numerous Senators (including both Democrats and Republicans) recently voted against Mr. Adegbile at least in part because he represented death row inmate Mumia Abu-Jamal, a man convicted of killing a Philadelphia police officer in 1981.  The letter makes a number of powerful arguments for why Mr. Adegbile's work should not have been held against him in the confirmation process. 

John Steele previously referenced the story here, and we have covered related issues over the years (e.g., here, here, here, and here.)   Unfortunately, the unfair criticism of lawyers who represent unpopular clients is a perennial problem that appears to be growing in frequency as political discourse coarsens.