Legal Ethics Forum

"Former Abramoff Case Prosecutor Now Representing Abramoff? Justice Department Cries Foul"

Story at Main Justice. Excerpt:

The Justice Department has sparked a heated exchange of court filings after its decision to seek the disqualification of former Public Integrity Section lawyer Peter R. Zeidenberg from a Jack Abramoff tax case.

The government said Zeidenberg has no business representing Abramoff in his effort to recover nearly a half-million dollars in seized tax refunds because the Arent Fox LLP attorney prosecuted Abramoff associate David Safavian in 2009 as a trial attorney for the Justice Department’s public corruption unit.

SCOTUS asks lawyer for death row volunteer to explain why brief was filed

Story at McCall. Excerpts:

The U.S. Supreme Court wants an attorney who filed an appeal on mass murderer Michael Eric Ballard's behalf to explain why he apparently did so without his client's knowledge.

In a two-sentence order Monday, the justices dismissed a petition that sought to challenge the death sentence Ballard received for massacring four people in a Northampton home in 2010. But in a rare move, the court also ordered Philadelphia lawyer Marc Bookman to address Ballard's allegation that the appeal was made against his wishes, with Bookman given 40 days to do so.

In the letter and another that he sent to The Morning Call, Ballard said he does not intend to continue to fight his execution, a decision that — if he sticks to it — could set the stage for him to be the first Pennsylvania inmate put to death since three men abandoned their appeals in the 1990s.

"I never authorized anyone to file anything on my behalf," Ballard wrote the court. "I am not appealing this sentence any further than it has been."

The filing, Ballard said, was done by attorneys who are "acting against my own wishes to waive my appeals."

James C. Martin, Colin E. Wrabley, M. Patrick Yingling, "The Expanding Role of Private Lawyers in Parens Patriae Lawsuits"

Article. Abstract:

This article explores several topical issues surrounding states’ use of contingency fee agreements with private counsel to help prosecute parens patriae suits. It specifically examines measures that have been taken to regulate these partnerships and explains why parens patriae lawsuits will continue to be litigated using private lawyers under contingency fee agreements.

More on the proposed Sunshine in Litigation Act

We've been covering this story lately and I wanted to offer links to a USA Today editorial in favor of the litigation as well as an op-ed opposing it. (USA Today typically offers opposing op-eds to its own editorials.) Thanks to Richard Zitrin for sending it along. Richard's letter to the editor is below the fold.

My two cents on the issue is that it should be worked out as a matter of legislation rather than trying to control the issue via the legal ethics rules.

Secret Searches and Professional Privilege

The Council of Bars and Law Societies of Europe (CCBE - an umbrella organisation for European bar associations) recently published an interesting report on the threats posed to legal professional privilege by state surveillance and Cloud storage looking across Europe at the different levels of formal protection.  The thrust of the report is probably captured in this short excerpt.

It is particularly concerning that the report has identified this general trend. Where data is stored in cyberspace and/or transmitted by a telecommunications network, in many jurisdictions that is subject to surveillance by the security services without any specific or effective provisions to protect legal professional privilege or professional secrecy. In many countries there are important regulatory gaps both generally and in regard to legal secrecy or privilege. Furthermore, even where there is a statutory basis for access to information by national security services (including secret searches of premises, computers, storage facilities etc.), these powers are very broad and sweeping and there tend to be no express legal safeguards for such privileged or secret material.

If there is a requirement for a warrant, it is seldom judicial and is usually administrative, and such judicial protections as exist are often of possibly limited effect, such as the use in the United Kingdom of a Tribunal which receives only a limited number of complaints as, due to lack of any notification, a surveillance subject (for example, for the purposes of his report, a lawyer) will be unaware that he has been the subject of surveillance and legally privileged/secret information may have been compromised. He will not know he might have a complaint, so cannot complain. If a complaint is made, the Tribunal's deliberations are held in secret and its specific decisions are not made public. By contrast, in Ireland, although there is no single mechanism equivalent to the UK Regulation of Investigatory Powers Act to govern virtual surveillance by the security services, there is a variety of individual measures, some requiring a warrant from a judge, but others, more concerningly, where the warrant is issued by a senior police officer. As in the United Kingdom, there is no specific protection for privileged information. 

A further area of regulatory uncertainty arises due to the circumstance that, in some countries the way the relevant lawyers' information protection is worded, it is not clear whether the relevant provisions apply to information stored at outside service providers, like hosting or cloud computing service providers. Such uncertainty is a problem in Slovakia and in Hungary, and the Italian criminal code also defines the protection of a defence counsel with the law office in mind. Such uncertainties could encourage law enforcement agencies to turn directly to the cloud service provider for information stored in his server or servers (without a court warrant in some countries), instead of going to the lawyer’s premises with a proper warrant issued by judicial authority.

The debate on Legal Professional Privilegemore generally is likely to warm up somewhat here in the UK. The accountants have sought legal professional privilege for tax work (the Supreme Court deined them it) and but may now gain it via Alternative Business Structures.  The News of the World hacking scandal led some in-house lawyers to wonder privately whether the wrong doing exposed there might lead to pressure to deny in-housers LPP (theres already a denial in relation to EU competition investigations). There may be more to come on the role of lawyers in that scandal: in-housers and prviate practtitioners have been embroiled in a range of difficulties (for some - but not all -of them see these blogposts). And there are some signs that regulators are increasingly interested in the role of lawyers in regulatory problems (a leading member of the European Parliament recently tried to introduce law designed to imnhibit professionals engaging in what she called regulatory arbitrage and what Doreen McBarnet would call creative compliance, for example.)  The legal professional privilege wind is not blowing all one way, though the professions will resist any change with vigour (and will be aided by the courts who elevated privlege to a fundamental right with a bit of historical revisionism some time ago and show no signs of letting go of that).

Paula Schaefer, A Primer on Professionalism for Doctrinal Professors"

Article. Abstract:

Legal education reform advocates agree that law schools should integrate “professionalism” throughout the curriculum. Ultimately, it falls to individual professors to decide how to incorporate professionalism into each course. This can be an especially difficult task for doctrinal professors. The law — and not the practice of law — is the focus of most doctrinal casebooks. Law students typically do not act in role as lawyers in these classes, so they are not compelled to resolve professional dilemmas in class, as students would be in a clinic or simulation-based course. As a result, it takes some additional preparation and thought to introduce professionalism issues into these courses. Some professors may resist making this change — not knowing which aspect or aspects of professionalism should be the focus, fearing that time spent on professionalism will detract from the real subject matter of the class, or believing professionalism is adequately covered elsewhere in the curriculum.

This Article considers how and why doctrinal professors should address the challenge of integrating professionalism into the classroom. Part I briefly discusses the multitude of meanings ascribed to attorney professionalism and argues that the lack of a clear, concise, and shared definition is a substantial barrier to effectively incorporating professionalism into the law school curriculum. Next, Part II provides a more coherent, streamlined definition of attorney professionalism. This Part also identifies and describes three primary aspects of lawyer professionalism: fulfilling duties to clients, satisfying duties to the bar, and possessing core personal values essential to being a good lawyer. This simplified conception of professionalism should begin to address the concerns of professors who do not know where to begin to incorporate professionalism into their classes. It is also intended to persuade skeptics that professionalism is something they can and should teach as part of their doctrinal classes.

Thereafter, Part III provides guidance for developing course outcomes that connect course subject matter and professionalism. Questions prompt doctrinal professors to look for the natural connections between their course subject matter and issues of professionalism. Then, Part IV considers various methods doctrinal professors can use to introduce professionalism topics into their courses. Integrating professionalism into the classroom does not require professors to abandon their casebooks; using case law can be an effective method. This Part also considers other teaching methods and materials for combining doctrine, skills, and professionalism. Finally, Part V concludes with thoughts on how students benefit when professors make the effort to incorporate professionalism into every law school classroom.

Crisis of Confidence

Charles Blow published today a list representing a Crisis of Confidence in American institutions.  It includes the following items, of particular interest to lawyers, that indicate a “great deal of confidence” or “quite a lot of confidence”:

The military [for comparison] 74%
The police  53%
The Supreme Court  30%
The Criminal Justice System 23% 

Introducing Blogger Richard Moorhead

I'm delighted to introduce our newest blogger, Richard Moorhead.

Richard is Professor of Law and Professional Ethics and Director of the Centre for Ethics and Law at University College London. He conducts mainly empirical work on lawyers, legal services and access to justice and blogs at http:\\lawyerwatch.wordpress.com.  You can get a flavor of his work there or here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2407370

SCOTUS justices and public comments

This AP article suggests that Justice Sotomayor publicly said that alternatives to affirmative action have been shown not to work. I've been critical of Justice Scalia for his occasionally loose language in interviews and if the AP article is accurate -- admittedly a huge assumption -- then I would have advised Justice Sotomayor to be more circumspect about matters that are subject to proof in cases that will wend their way to the Supreme Court. Excerpt:

Supreme Court Justice Sonia Sotomayor rejected on Sunday the notion that alternatives to affirmative action such as income or residency could achieve similar results in diversifying the nation's colleges and universities.

When asked whether other "less fractious" measures could achieve similar results for schools, she said that statistics show the alternatives simply don't work.

Law Student Writing Competition: How Would You Improve the Delivery of Legal Services?

1-800-Law-Firm is sponsoring a law student writing competition with a generous $10,000 cash prize for the student who best answers the question, "What would you do to improve how legal services are delivered to the public?"  More details here.