Legal Ethics Forum

In-House Counsel Ethics: Practicing Law as a Square Peg

In a recent ethics column I wrote for Business Law Today, I argue that in-house lawyers are like the proverbial "square pegs" trying to practice law in the "round hole" of legal ethics.  In my view, the model rules (which have been adopted in some form by most US jurisdictions) are designed primarily for the private law firm context. In addition, most ethics committees (including my own, frankly) are populated with law firm practitioners who tend to focus on the ethics issues that relate to their practice models.  This can make it difficult for in-house lawyers to figure out how the ethics rules apply to their conduct.

The article is not meant to be a criticism of anyone, but to bring attention to a serious gap in the existing ethical guidance. One approach to closing that gap is for more in-house lawyers to serve on ethics committees, so that they can help committees identify the ethical issues that in-house lawyers struggle with and provide more useful guidance. 

 

Pleadings regarding that Patton Boggs settlement and the objections by Ecuadorian clients

I previously posted about the Ecuadorian clients who have objected to the settlement by Patton Boggs in the case where it was being sued by Chevron. The clients (or actually former clients, I suppose) say that the law firm revealed client confidences. The motion and supporting papers make for interesting reading for law of lawyering types. (As noted, I was previously involved in a small aspect of the larger matter and will not be offering any opinions. I will, however, post documents or link to news stories to the extent I think they will be of interest to our readers.)

Here is the settlement:

Download Patton Boggs settlement

Motion to Intervene and Reconsider (i.e., the objection to the settlement):

Download Mot intervene and reconsider FILED

The supporting papers:

Download Mot intervene and reconsider[] Ex A Decl of Fajardo FILED

Download Mot intervene and reconsider[] Ex B Chev Press Release

Download Mot intervene and reconsider[] Ex C Law360 article

Download Mot intervene and reconsider[] Ex D Attorney decls

Download Mot intervene and reconsider[] Ex E Letter from clients to PB...

It is time to wipe the smirk off the face of the CEO at Credit Suisse and other banks that commit felonies

Senator McCain has rightfully expressed his indignation at yet another Obama Administration settlement with a big bank, this time Credit Suisse, which agreed to pay a $2.3 billion fine for helping clients avoid taxes through Swiss bank accounts.

One need not read this New York Times article to see how Credit Suisse executives feel about this “punishment.”  Just look at the photo and the smirk on the face of Credit Suisse CEO Brady W. Dougan, who gets to keep his high paying job while his shareholders absorb the cost of the fine.

http://dealbook.nytimes.com/2014/05/21/in-credit-suisse-settlement-a-question-of-justice/?_php=true&_type=blogs&_r=0

Dougan does need to keep the shareholders happy, so he publicly reassured investors that the punishment would not do much damage to the Bank.  The conviction, he said on a conference call, would not cause “any material impact on our operational or business capabilities.”   The word material means something that investors would consider important in deciding whether to buy or sell the Bank’s shares or in voting for its directors.  So the bottom line message is “we committed a felony but it does not matter.”

Senator John McCain was among the Members of Congress who blasted this settlement.  “Nor does the plea deal hold any officers, directors or key executives individually accountable for wrongdoing, raising the question of whether it will sufficiently deter similar misconduct in the future,” Senator McCain said in a statement, according to the New York Times.

I and my colleague Claire Hill urged in an earlier New York Times op-ed that banks require their senior executives to pay a portion of the fines imposed upon the banks:

http://dealbook.nytimes.com/author/claire-a-hill/

I have also mentioned this suggestion in Congressional testimony.   Congress need not enact a law to make it happen.  Prosecutors and regulators who impose these fines, and judges who approve them, can insist that substantial portions come out of the pockets of executives who were in charge of the bank when the misconduct occurred.  Shareholders would be given a break and the New York Times might publish a more somber photo of a CEO whose bank has just been found guilty of a felony.

Governor Tom Corbett: Another Wise Republican Who Won’t Waste Taxpayer Money on Losing Litigation Against his own Constituents

The Pennsylvania Governor’s statement on his decision not to appeal the same sex marriage ruling is here:

http://www.wtae.com/news/gov-tom-corbetts-statement-on-no-appeal-of-gay-marriage/26101294

The Governor clearly has his eyes on the upcoming election and public opinion against government taking sides on an issue that is increasingly a sectarian dispute.  The Governor opposes same sex marriage as a Roman Catholic.  There are many Roman Catholics in Pennsylvania, some of whom agree with the Governor and with their Church on this issue (many do not), but there are also many Quakers (where did the name Penn come from?), Episcopalians and Jews, and other faiths whose congregations in large numbers approve of same sex marriage.   The Governor should have realized at the outset that government has no business taking sides by refusing people permission to marry because some churches will not celebrate or recognize a marriage.   At least the governor now won’t continue to pour taxpayer money down the anti-marriage rat hole.

Part of good lawyers’ ethics is advising a client not to waste money on losing litigation, particularly when only harm can come from the position asserted.  The State’s lawyers should have given such advice, but this was an issue for the client to decide.  Just because the legislature years ago passed a law does not mean that the Governor has to spend scarce resources defending it in court, particularly if the law serves no useful purpose.  Fortunately this Governor made the decision to stop.

Occasionally in Pennsylvania graveyards one finds tombstones of same sex couples who lived together but were denied the freedom to marry.    They were denied the legal and social support that other couples had but they chose to be buried together in a cemetery that would take them (Pennsylvania law at least did not prohibit that).   Then there were people whose relationships that, while longstanding, did not last to the end for whatever reason (the law did not help).   This grave of a well know Pennsylvanian, Samuel Barber (a composer and a Corporal in the US Army during World War II) tells that story.  The American flag near his grave in Westchester, Pennsylvania commemorates his service to his Country; the second stone on the right was installed on a plot that he had bought next to his own when he was dying of cancer.       

http://www.findagrave.com/cgi-bin/fg.cgi?page=gr&GRid=8288

Gregory C. Sisk, "The Legal Ethics of Real Evidence: Of Child Porn on the Choirmaster's Computer and Bloody Knives Under the Stairs"

Article. Abstract:

With little guidance from the Model Rules of Professional Conduct and continuing confusion on professional obligations, questions about engagement with real evidence continue to bedevil criminal defense lawyers, incite prosecutors, generate disputes, and attract judicial attention.

Where should we draw that line between what is demanded by the professional duties of zealous advocacy and client confidentiality and what constitutes obstruction of justice? When may a document or object that could conceivably be relevant in some future investigation or proceeding be destroyed, altered, or removed? May a criminal defense lawyer take possession of evidence of a crime for purposes of analysis, even if forensic characteristics are altered? What should the lawyer do with real evidence afterward? May the lawyer ever retain real evidence without being accused of impeding access? May the lawyer return evidence to where it was found or to the person who delivered it? What advice should the lawyer give to the possessor? And what of the problem of material that may not merely be evidence but also may constitute contraband?

This Article critically examines the law of real evidence under the search light of professional responsibility, attorney-client confidentiality, and the constitutional rights of criminal defendants.

Cassandra Burke Robertson, "Regulating Electronic Legal Support Across State and National Boundaries"

Article. Abstract:

Technology and globalization are changing the practice of law and creating new challenges for lawyer regulation. Middle-class litigants who struggle to afford legal services — but are comfortable using online resources — are increasingly seeking and finding legal support online. State and national boundaries dissolve in the online marketplace, making it easy for attorneys to provide services to litigants in other jurisdictions. Differences in national economies make it cost effective for both clients and lawyers to engage in transnational practice, so that attorneys in India and other jurisdictions can offer legal support and advice to American litigants for as little as $22 an hour, and paraprofessionals for less than $10 an hour — significantly less than the $150-an-hour billing floor found in many U.S. jurisdictions. The growing globalization of online legal services suggests that bar regulators who truly want to protect the public will have to become more open to onshore computer-assisted legal services.

This article, prepared for the University of Akron’s Miler-Becker Symposium “Navigating the Practice of Law in the Wake of Ethics 20/20: Globalization, New Technologies, and What it Means to be a Lawyer in These Uncertain Times,” argues that these changing practices will require significant collaboration between online legal service providers and bar regulatory officials. This relationship, however, has not always been a good one. Many jurisdictions have only reluctantly allowed attorneys to provide limited representation to pro se litigants, and states have objected even more forcefully to electronic legal assistance, charging companies like LegalZoom under laws prohibiting the unauthorized practice of law. These efforts, though aimed at the protecting the public, also contain an element of protectionism — and the line between protecting the public and protecting lawyers’ economic livelihoods is not an easy one to draw.

Nevertheless, there is room for collaboration: both legal regulators and the online intermediaries that facilitate lawyer-client connections would benefit from identifying and excluding harmful or fraudulent actors. It is true that individual clients may not be able to evaluate the quality of the legal services they have been provided. After all, the very theory of lawyer regulation is founded on the notion that clients cannot themselves evaluate the quality of the professional they hire, and so the market cannot ensure a base level of quality — regulation must do that. But in the aggregate, some of the online services call that assumption into question. By crowdsourcing and publicizing a wealth of information about legal service providers’ job history and client satisfaction, these sites offer prospective clients a much more effective way to evaluate potential attorneys. Although regulatory officials are unlikely to be able to stem the flood of online legal service providers, they can also use these pre-existing informational networks to assist in their public protection efforts.

Ecuadorians cite alleged ethical lapses, ask judge not to accept Patton Boggs settlement

Story at Reuters. (Does anyone have the brief? It sounds interesting from an ethics point of view. The allegation is that Patton Boggs has revealed client confidences.) (H/t: How Appealing) Excerpt:

May 22 (Reuters) - A group of Ecuadorean villagers is urging a judge to reconsider his acceptance of a settlement resolving claims that law firm Patton Boggs tried to enforce a fraudulent multibillion-dollar pollution judgment against Chevron Corp.

...

By expressing regret and providing "disclosure of client information" as part of the settlement, Patton Boggs violated professional legal ethical codes "and is therefore contrary to law and public policy," the motion said.

UPDATE: As I previously represented an entity/person not necessarily aligned with Patton Boggs, I will not be opining on this matter but may post publicly filed documents.

"A Justice Department reversal: OK, let's record our interrogations"

Lots of news outlets, including CNN, are covering the DOJ's decision to permit, and even usually require, recording of interrogations. the new policy is here.

Carole Silver, "Globalization and the Monopoly of ABA-Approved Law Schools: Missed Opportunities or Dodged Bullets?"

Article. Abstract:

As the market for lawyers and for law itself has responded to global forces, legal education also is becoming accustomed to working within a global context. U.S. law schools routinely look beyond the country’s borders to attract new students and opportunities. As with law firms and business generally, it no longer is sufficient to be domestic only; in order to gain prestige and to effectively compete in the U.S. market, schools must have a credible claim to being globally connected, if not global themselves. But despite the reorientation of law schools toward globalization, the regulatory regime in which U.S. law schools operate has not made a parallel shift toward embracing a global framework. Rather, it continues to maintain a distinctly U.S.-centric approach. The article offers a case study of globalization’s role in the fragmentation of power, and explores the resulting tensions.

Robert Rosen at Jotwell: New Law School Fields of Study: [Corporate] Compliance and Risk Management

Robert Rosen comments on a new textbook of corporate law that focuses on compliance and risk management. (His comments could apply to large law firms as well.) Excerpt:

I commend to your attention Geoffrey Miller’s The Law of Governance, Risk Management, and Compliance. This casebook is a convincing argument that compliance and risk management are fields of study appropriate for legal education. It expands the law school field of corporate governance from its current restricted view, discussing shareholders and boards, to one that encompasses all the actors within and without corporations who have an impact on compliance.

In corporations today, lawyers are in conflict with themselves and others about whether the management of compliance activities is a lawyerly activity. Is teaching and inspecting compliance with the law a job for lawyers? Some lawyers answer “no;” some legal departments are happy to forsake such policing functions, preferring consultative activities. Others believe that the organizational knowledge required for managing compliance goes beyond normal legal skills. And, yet others take a dim view of lawyers as organizational problem-solvers or compliance motivators.