Legal Ethics Forum

Cuomo's Watergate?

The Times reports today that US Attorney Preet Bharara has warned Cuomo about obstruction of justice. This warning came after Cuomo on Monday defended his decision to disband the  state Moreland Commission formed to investigate corruption in Albany. Cuomo's defense responded to a detailed Times story about interference with the Commission's work by the governor and his  people. Concurrent with Cuomo's Monday defense, some Commission members publicly said there was no interference. Cuomo repeatedly cited some of these statements. One of the Commissioners whose statements Cuomo cited several times had previously said or implied the opposite.

Although the possible implications from Bharara's letter are far less sordid than the burglary and bribery in Watergate, the lesson is the same: It's not the crime but the coverup. Left unsaid is that a coverup can also be a crime.

It may all turn out to be innocent (see below), but surely Cuomo did not need this headache. He did not need to give a Bharara a basis to investigate him and his inner circle. It could have been avoided if Cuomo had made his defense without the chorus of Commissioner statements.

Before Monday, I and others had been trying to figure out what statutes Bharara may have been looking at. Certainly, he could pursue evidence of corruption by state officials, including lawmakers, whom the Commission had been investigating before it was dismissed, and about which it had files.

But Cuomo's claim that he had a right to disband the Commission, because it was "my" Commission, did not seem to be a basis for federal investigation even if it was a politically foolish decision and defense.

Now,  Bharara has a basis to investigate Cuomo himself and his aides. The statute would be 18 USC 1512(b) and possibly others. It is a crime to knowingly corruptly persuade another to keep information from an official proceeding. That's the Arthur Andersen case in the Supreme Court among others.

There is a sitting grand jury, which is an official proceeding, and former Commissioners must have been aware that they could be witnesses even if not yet subpoenaed.  Cuomo would also be so aware.

Bharara is warning Cuomo that any effort to coordinate a false story (of non-intervention) that these Commissioners would  tell the grand jury if called would be a federal crime. This is so even if their statements are so far only public statements,  even if the effort fails because the Commissioners don't testify. The statute forbids attempts.

Now, as I say, it may all be innocent. The Commissioners who spoke out, and who  prior to doing so may have been contacted by the governor's people to solicit their statements (Bharara says he "has reason to believe" they were), may have spoken truthfully with no "knowing corrupt  persuasion" at play. 

But Monday's events put the governor is at risk in ways he was not before. The US obstruction statutes are incredibly broad. Whoever got the idea to coordinate the concurrent Commissioner statements, assuming there was coordination and not a coincidence,  and even if any such idea was entirely benign, may not have been aware of  what they were handing Bharara for investigation.

 

The ABA Journal on LegalZoom

Here's the article.  Milan and I offer contrasting perspectives that largely resemble our earlier discussions here.

In a nutshell, my take is that LegalZoom should be permitted to continue its work, but with some modest regulatory oversight, much as Stephen Gillers suggested in his comment to one of Milan's earlier posts and as Deborah Rhode suggests in the ABA Journal article and in a Fordham Law Review article she recently co-authored with Lucy Buford Ricca (see page 2607-08).

More on red-lining (Cal. Opn. 2013-189)

A helpful reader reminded me that the recent COPRAC opinion 2013-189 on ethics in contract negotiation has a scenario based upon red-lining.

What is going on at Clearspire?

Clearspire -- along with Axiom, LegalForce, VLP Law Group, Vista Law, Legal Force, and Paragon -- is one of the most interesting and innovative companies (law firms?) in the legal space.  (John Dzienkowski published an excellent article about these companies earlier this year at 82 Fordham L. Rev. 2995 -- read it here.) But I just heard from someone that Clearspire has suspended operations.  I immediately went to the Clearspire home page, which now says:

For five years, Clearspire led the charge in revolutionizing the 21st Century workplace and the delivery of legal services.  We built a reengineered law firm as an alternative to BigLaw and, in the process, challenged the entrenched legal industry to think and act differently.

Our law firm was a laboratory– a proof of concept that demonstrated just how innovative today’s lawyers can be. In the process, we redefined client satisfaction, lawyer efficiency, and pioneered the model for the future of legal services delivery.

Now, the time has come to scale.  We’re  taking Clearspire to the next level with a mission to empower not a law firm, but all law firms.

We are actively working to ready our class-leading Legal Services Delivery Platform for you!  Stay tuned to these pages in the coming weeks and months for updates on our global deployment of The Next Revolution.

Welcome to Clearspire.  Again.

Does anyone have more information about what happened, and what Clearspire is planning for the future?

ACLU/Human Rights Watch Report on Government Surveillance of the Media and Lawyers

The ACLU and Human Rights Watch have issued this 120 page report on government surveillance and its effects on journalists and lawyers.  A press release summarizing the key findings is here.  

The report has a section on professional responsibility starting at page 54.  (Stephen Gillers and I are quoted.)

Honesty and competence in negotiating contracts: red-lining etiquette

There's an interesting discussion at Adams on Contract Drafting about red-lining etiquette. (h/t: Corporate Counsel) The comments discuss what's fair, or misleading, or confusing. I was recently told by some corporate lawyers that they always ask for a clean draft from the other side and then run their own comparison. For a case where clever red-lining might support an inference of fraud, see Henning v. Ahern, 601 N.W.2d 14 (Wis. Ct. App. 1999)(party made last minute change without alerting other party; reasonable jury could find fraud)

UPL where lawyers do not practice

 Lawyers can't have it both ways

In much of Canada (and perhaps the United States), a very broad area of legal services is reserved to lawyers (and to regulated paralegals in Ontario). Yet it is clear that lawyers do not practice, and individuals do not use lawyers, in large parts of this broad reserved area. 

One of the policy rationales for alternative legal practice structures (ABSs) is that new ways of providing legal services can permit service of currently unserved or under-served areas.

While the issues are more complicated in areas where lawyers do provide legal services, is the principled choice not between eliminating UPL and permitting ABSs in areas where lawyers do not provide legal services?

"Judge Refuses to Disqualify Tolkien Attorneys in ‘Lord of the Rings’ Dispute"

Story at Variety. I will try to post the ruling. The opening brief (i.e., the losing side) is below. It was an interesting motion, well worth reading if you keep up on DQ motions.

Download Lord-Of-The-Rings-Case-WB-DQ-Motion-r2__140610204241

Law and Literature

For more than 15 years, Catharine Stimpson and I have taught a "Law and Literature" seminar at NYU Law School.It is a popular class (mainly because of Kate, a literature professor and former dean of the graduate school) with lively discussions. Ephraim London originated the class decades ago but it had not been offered for years after Ephraim died. (Ephraim's landmark anthologies, THE LAW IN LITERATURE and THE LAW AS LITERATURE are a delight.) 

Our blog attracts teachers of legal ethics and others with interest in the subject.  The works on our reading list (some staples, others new each year) are chosen because they raise questions about justice and morality, often in a legal context broadly defined. This is a way to talk about the issues in a legal ethics class, among other issues, from a very different perspective.  

I thought I'd share the reading list for the coming term in case anyone is interested in considering such a class.  I invite suggestions for other works. We often include a Dickens or Trollope novel but not this year. 

W.H. Auden, LAW LIKE LIVE.

Sophocles, ANTIGONE.

Shakespeare, THE MERCHANT OF VENICE.

Moises Kaufman, GROSS INDECENCY: THE THREE TRIALS OF OSCAR WILDE. We also assign passages from Wilde's DE PROFUNDIS.

Kafka, THE TRIAL (preferably the Breon Micthell translation) and Orwell, A HANGING (this is a short essay available on line). 

Zora Neale Hurston, THEIR EYES WERE WATCHING GOD.

Chinua Achebe, THINGS FALL APART.

Assia Djebar, CHILDREN OF THE NEW WORLD.

J.M. Coetzee,WAITING FOR THE BARBARIANS. 

Janet Malcolm, IPHIGENIA IN FOREST HILLS (we  also assign a court case about the events in this book).

Athol Fugard, THE ISLAND.

With Fugard we discuss ANTIGONA, an adaptation of ANTIGONE,  by Jose Watanabe.

 

Immunity for judge who had intimate relationship with complaining witness in felony matter

New decision from Sixth Circuit in case where judge had an intimate relationship with the complaining witness in a felony matter.

Judge Wade McCree, while serving as the presiding judge in a felony child - support case against Robert King, maintained a romantic and sexual relationship with the complaining witness against King. In part as a result of this conduct, the Michigan Supreme Court both removed Judge McCree from judicial office and prospectively suspended him without pay for six years if voters should reelect Judge McCree in November 2014. King Sued Judge McCree Under 42 U.S.C. § 1983, alleging that Judge McCree’s conduct surrounding his case violated his right to due process of law. The district court determined that Judge McCree is immune from suit under the doctrine of judicial immunity. Because any violation of King’s constitutional rights arose purely from Judge McCree’s judicial actions, we affirm.

From the concurrence:

Absolute judicial immunity remains “strong medicine.” Forrester v. White, 484 U.S. 219, 230 (1988) (internal quotation marks omitted). At times, its application will seem overinclusive — shielding from suits for damages those who clearly have abused their office and tarnished the reputation of the judiciary. This is the price we all must pay for “the benefit of the public, whose interest it is that judges should be at liberty to exercise their functions with independence and without fear of  consequences.” Pierson v. Ray, 386 U.S. 547, 554 (1967) (internal quotation marks omitted). I take solace knowing that the Michigan Supreme Court has already stepped in and rendered the best justice possible: removing Judge McCree from office. Accordingly, I join the majority in affirming the district court’s grant of judicial immunity and dismissal of King’s suit.

Download King v McCree