Legal Ethics Forum

"Report: Appeals court judges violated ethics laws"

Story from AP. Excerpt:

WASHINGTON (AP) -- More than a dozen federal appeals court judges have violated federal conflict-of-interest laws over the past three years, throwing into doubt decisions in 26 cases, according to an analysis from a watchdog group.

The Center for Public Integrity, in a report being released Monday, found 24 cases in which judges ruled despite owning stock in a company appearing before them. In two other cases, the judges had financial ties to law firms representing one of the parties.

In 1968 Ralph Nader led a group of my GW Law School students in picketing the law firm of Wilmer, Cutler, & Pickering, criticizing the lawyers for defending General Motors’ right to pollute the air that we all breathe. In a debate about the picketing with Mike Tigar, I took the position that lawyers shouldn’t be vilified for their choice of clients because it would make it difficult for unpopular clients and causes to get representation.

Tigar disagreed, arguing that it was entirely proper for the demonstrators to challenge lawyers at the firm to ask themselves: “Is this really the kind of client to whom I want to dedicate my training, my knowledge, and my skills as a lawyer? Did I go to law school to help a client that harms other human beings by polluting the atmosphere with poisonous gasses?” “What I am proposing,“ he added, “is a moral decision. Many of the people in that firm say that they believe in certain things, and I think that it is all right to ask them whether in fact their conduct belies the assertion that they believe in those things.”

I later came to realize that Tigar was right. Lawyers have always been vilified for taking unpopular cases, even by other lawyers and judges, and lawyers have nonetheless been found to represent the most heinous of clients. In the face of the harshest invective, lawyers have represented “The Meanest Man in New York,” American Nazis to advocate their constitutional right to march in Skokie, Ill., and Guantanamo prisoners. The issue is not whether General Motors should be represented. Of course they should, and there will always be lawyers who will do it. The real issue for each of us is: Should I be the one to represent this client, and if so, why?

The defense of a lawyer who is criticized for representing a criminal defendant should not be based on limiting the First Amendment rights of te critics. Rather, we should seize the opportunity to explain publicly why it is important for lawyers to represent even the worst criminal defendants. For arguments, see, e.g., Smith & Freedman, How Can You Represent Those People? (2010); Freedman & Smith, Understanding Lawyers’ Ethics, App. A (the Tigar-Freedman debate) (4th ed., 2010) and Chapter 3 (“The Lawyer’s Virtue and the Client’s Autonomy”).

New York Court of Appeals Rules on Attorney Fees Issue

In an ethics alert written by my partner, Ron Minkoff, he discusses a recent decision by the New York Court of Appeals on an legal fee issue that "has long bedeviled civil rights and employment lawyers - and their clients."  Where a contingency agreement entitles an attorney to a percentage of the "net sum recovered," does that amount include both the damages award and any statutory attorneys' fee award? 

As explained in the alert:

In Albunio, the attorney argued that "net sum recovered" included both the damages award ($986,671) and the attorneys' fee award ($296,826.04), which would have led to an approximate $400,000 recovery on the trial fees alone. The Court of Appeals disagreed. After reiterating the well-established principle that the attorney has the burden to show that fee contracts (and particularly contingent fee contracts) are "fair, reasonable, and fully known and understood by their clients," the Court held the attorney had not met that burden, and indeed had not even mentioned the possibility of a statutory fee award in the retainer. As a result, the Court concluded that the client could not have been on notice that the term "net recovery" would include a statutory fee award. Thus, the attorneys' contingent fee was limited to one-third of the damages award, approximately $330,000.

The attorney may be able to alter this result by making clear in his retainer agreement that the net sum recover includes any attorney fee award, as explained in the alert:

Can the attorney vary this by being more explicit about the fee award in his or her retainer agreement, even going so far as to get the full court-awarded counsel fees plus a share of the damages? The answer is clearly yes. But the Court cautioned attorneys "that such an arrangement would be subject to requisite scrutiny under applicable laws and rules controlling the reasonableness of attorney compensation." In some ways, this is not much of a limitation at all, since courts rarely interfere with contractual fee arrangements. But we do urge lawyers who do this kind of work to exercise caution in making these rich arrangements, especially when dealing with less-educated or less-sophisticated clients. Moreover, arrangements which simply make clear that the attorney is entitled to one-third of the statutory fee award and one-third of the damages will probably be considered acceptable.

The full text of the alert can be found here.

If you would like to be included on Frankfurt Kurnit's ethics alerts, please email me at [email protected].

"Judge Vaughn Walker tells his side of Prop. 8 trial"

Story at SF Gate. Excerpt:

The trial that led to the legalization of same-sex marriage in California included harrowing testimony by a gay man who had undergone "conversion" therapy to try to turn him straight. Now a new book reveals that the trial judge, Vaughn Walker, once subjected himself to the same much-condemned treatment.

"Forcing the Spring: Inside the Fight for Marriage Equality" describes Walker blinking back tears as he listened to the man's testimony in 2010, recalling the therapy he had undergone three decades earlier to try to unsnarl uncertainties about his own sexual orientation - but it was a nightmare not revealed publicly until now.

*    *    *

Few members of the Bay Area legal community were taken aback by his disclosure. But it added fuel to Prop. 8 proponents' claims of judicial bias, and opened another avenue of appeal of his ruling.

The book says Walker wasn't surprised by the accusations, but concluded there was nothing wrong with presiding over a case in which he had nothing personal at stake. He recounts that he had never discussed marriage with his partner, and hadn't even considered marrying during the five-month period in 2008 when same-sex nuptials were legal in California, under a state Supreme Court ruling that Prop. 8 overturned.

"African American judges hear race discrimination cases all the time, while female judges hear cases charging gender bias. ... Why shouldn't a gay man hear the challenge to Prop. 8?" Becker quotes Walker as asking. Federal appelate courts used the same reasoning when they found no grounds to disqualify him.

South Carolina: LegalZoom is not the the Unauthorized Practice of Law

Jordan Furlong has a nice analysis of the South Carolina Supreme Court's conclusion.  LegalZoom's press release is here.

(I couldn't find the order from the South Carolina Supreme Court that LegalZoom references in its press release.  If anyone has a link, please pass it along.)

UPDATE: The ABA Journal has published the findings and recommendations here.

ABA Formal Opinion on the Monitoring of Jurors' Internet Presence

Here is an overview of the new ABA Formal Opinion 466.  The Opinion itself is here.

It appears that the ABA Standing Committee on Ethics and Professional Responsibility has largely affirmed a number of opinions from state bars on the monitoring of jurors' internet presence. For the most part, these opinions have reached the reasonable conclusion that a lawyer is permitted to review a juror's internet presence as long as the lawyer does not initiate contact with the juror (e.g., sending a "friend" request or a request to connect).  Anything that is publicly available or available to anyone on the same networking platform is free game.

The Opinion also addresses a topic that I've thought is a bit trickier.  Namely, are lawyers permitted to review a juror's social media profile if the lawyer knows that the juror will learn that the lawyer has visited the juror's social media page?  For example, LinkedIn users can see who has reviewed their profiles, so if a lawyer does not take steps to review a juror's LinkedIn profile anonymously (and there are ways to do it), a juror might learn that a lawyer has reviewed the juror's LinkedIn page.  If so, does that constitute an impermissible contact under Rule 3.5?  The Formal Opinion (reasonably in my view) says no: "The fact that a juror or a potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer in violation of Rule 3.5(b)." 

The Opinion also discusses some interesting issues relating to a lawyer's duty to report juror misconduct uncovered through the monitoring of the juror's internet presence.

Ad targets South Carolina politician for his work as criminal defense counsel

At the Volokh site, Jonathan Adler critcizes an attack ad by the Republican Governor's Association that focuses on a political candidate's work as criminal defense counsel.  News story here. I have gone back and forth about posting the ad itself and ultimately decided not to. You can see it at Volokh.

"State Bar trying again to expand enforcement powers"

Dan Walters, at the Sacramento Bee, has this story. (h/t: KafkaEsq, where David Carr offers analysis.) Excerpt from Walters:

The State Bar is something of an odd duck – a quasi-private, quasi-public entity that simultaneously regulates the legal profession and acts as a trade association and political advocate for lawyers.

That issue arose last year in Assembly Bill 888, carried by Sacramento Democrat Roger Dickinson, which would have empowered the State Bar to levy civil fines against those it deemed to be unlawfully practicing law.

The State Bar and Dickinson insisted that new powers were needed to protect unsuspecting consumers from those offering legal services without being licensed lawyers.

Practicing law without a license is already illegal, as it should be, but the State Bar said that persuading prosecutors to file cases is cumbersome. Therefore, it wanted power to pursue cases (and collect revenue) itself.

The bill drew sharp opposition from sub-professional groups, such as firms providing do-it-yourself legal forms. They saw it as a power play aimed at squeezing them out of business with threats of fines so that lawyers could obtain more clients and more money.

Gov. Jerry Brown ... vetoed AB 888, saying, “We already have adequate enforcement mechanisms and remedies to stop the unlicensed practice of law through the existing powers of the State Bar or through the authority of the attorney general and local prosecutors to bring civil and criminal actions.”

That, however, wasn’t the end of the story.

Just before the Legislature left town for an 11-day spring break this month, Dickinson took over a moribund Assembly bill sitting in the Senate, stripped its contents and inserted a new version of AB 888, bypassing the usual committee process.

Read more here: http://www.sacbee.com/2014/04/22/6341929/dan-walters-state-bar-trying-again.html#storylink=cpy

W. Bradley Wendel, "In Search of Core Values"

Article. Abstract:

A consensus appears to have emerged among American lawyers that globalization and information technology are transforming the practice of law in fundamental ways. In particular, non-lawyers are increasingly involved in what has traditionally been defined as the practice of law. Scholars such as Richard Susskind, in the United Kingdom, and Thomas Morgan, in the United States, have hypothesized that lawyers may be going the way of wheelwrights, cordwainers or mercers (traders in fine cloths and silks), and that one day in the not-so-distant future we will consider the profession of lawyer as something to be studied historically, wonder why lawyers were once needed by society, and speculate as to the cause of their demise as a distinct occupational group. Like the demand for fine cloths and leather goods, the demand for legal services will still exist, but new technologies and means of delivering these services will develop and displace the traditionally organized guilds that previously enjoyed a monopoly in this market. Many lawyers have been receptive to proposed changes in the structure and regulation of the market for legal services, but their more traditionally minded colleagues have expressed concerns -- sometimes in fairly apocalyptic terms -- about the erosion of the core values of the legal profession.

The trouble with the idea of core values is that it is often invoked in a question-begging way, and when the rhetoric of professionalism is probed more carefully, it often turns out to be merely a cover for a rearguard action to protect the profession’s monopoly rents. Having observed the debate over multidisciplinary practices and, more recently, the ABA Ethics 20/20 Commission’s alternative business structures proposal, it is apparent that the position of many of the opponents of change is not empirical, but is essentially a conceptual argument, that terms such as “lawyer” or “legal profession” refer to natural kinds, not conventionally designated categories. Prior to the US Supreme Court’s decisions in Bates and following cases, one might have said that American lawyers had the property of being unable to advertise their services. Contingent fees are regarded as anathema to the concept of lawyer in most countries, but accepted as unproblematic by American lawyers. More closely related to alternative practice structures, the organized bar in the United States once vigorously fought against the providers of group legal services plans, offered by organizations like unions and automobile clubs, which made lawyers available to low- to middle-income consumers. Now no lawyer would seriously contend that providing services under a legal services plan is conceptually incompatible with the core values of her profession. Experience with regulatory reform in the U.K. similarly shows that it may be possible to increase access to justice and the efficiency with which legal services are delivered, while preserving the core values of the legal profession. This essay therefore argues for a conception of professional core values that is compatible with reform that addresses the concerns of clients as well as those of lawyer.

Yet another apology, because Typepad blogs are down

The attack on Typepad that's been keeping us off-line is, according to this article, a modern form of highway robbery.