Legal Ethics Forum

In Memoriam: Justice Walter Croskey

At the Lectern has a nice post about the passing of California Court of Appeal Justice Walter Croskey. In our field, Croskey is perhaps best known for his thougtful opinion in Kirk, recognizing the efficacy of ethical screens. 

"Keeping Corporate Lawyers Silent Can Shelter Wrongdoing"

The New York Times Dealbook looks at recent developments in the law of corporpoate attorney client privilege.

"ABA: Throwing Stones in Glass Houses?"

At CorporateCounsel.net, James Brashear offers some pointed comments about the ABA and cyber-security. Excerpt:

At the ABA's 2014 annual meeting earlier this month, delegates approved a resolution that “encourages all private and public sector organizations to develop, implement and maintain an appropriate cybersecurity program.” When you consider that some pundits characterize lawyers as technology Luddites and law firms as “the soft underbelly” of data security in corporate America, it may seem odd for the legal industry to be lecturing other organizations about getting their cyber houses in order.

The Legal Ethics Implications of NSA Surveillance of Lawyer-Client Communications

The September issue of the ABA Journal covers the story here.  Links to our prior discussions are below:

"[NSA] Eavesdropping Ensnared American Law Firm"

The NSA is Listening in on Lawyer-Client Conversations

ABA protests NSA spying

NSA Responds to ABA on Interception of Privileged Communications

Protecting Client Confidences in a Digital Age: The Case of the NSA

In Memoriam: Browning Marean

Browning Marean is remembered here, here, and here. I first heard of him some time time in the 1990s, when I was a newly minted ethics partner and Marean was already well known in biglaw circles for playing that role at Gray Cary, which was to eventually become part of DLA Piper. He generously shared his knowledge with ethics partners and law firm GC types and was also known for his innovative thoughts on e-discovery.

Carolyn Elefant, "If We Change Rules to Allow Non-Lawyers to Own Law Firms. How About Changing Them to Let Lawyers Compete?"

At My Shingle, Carolyn Elefant suggests that solos be allowed to innovate in the delivery of legal services.

California bar demands more

The respondents' bar in California has seen a significant "ratcheting up" of demands by the Office of Trial Counsel. David Cameron Carr has details. At what point does a prosecutor acknowledge that what he/she is demading is not what the system is delivering?

Kentucky Supremes strike down pleas with waivers of IAC claims

Very big news and a "must read" for our field. Do the feds have options left to attack this ruling? I imagine they are deeply disappointed by it. The opinion is below. Our earlier coverage here. I'm told that the credit for this goes to NACDL (Vince Aprile, John Wesley Hall and Ellen Yaroshefsky). Well done.

UPDATE: Tigran Eldred has thoughts here.

Screen shots of key paragraphs:

 

 

Download KY Opinion IAC Waivers

 [I've updated this post a couple of times.]

"Do occupational-licensing laws trump the First Amendment?"

NYT round-table about doctors. (Lots of people have written on the topic as it applies to lawyers. I've enjoyed Margaret Tarkington's articles.)

Must or Should D.A. Robert McCulloch Step Aside in the Michael Brown case?

A NYT editorial tonight says Robert McCulloch should should step aside in the Michael Brown case. Among the reasons:

When he was a boy, "his father [a police officer]  was killed on the job...by a black suspect while helping another officer. ...

"The St. Louis Post-Dispatch reported that after a shooting in 2000, when two detectives shot two unarmed black men in the town next to Ferguson, Mr. McCulloch failed to bring any independent evidence to the grand jury. He claimed that 'every witness' testified that the detectives were defending themselves, but secret grand jury tapes showed that several witnesses did not do so...."

This is not as clear as we might expect. Was there "independent evidence" not brought to the grand jury? That would be quite damning if true. Why was the evidence the grand jury heard not independent?  Perhaps we need transcripts.

(Unfortunately, McCulloch foolishly called on the governor to "man up" and decide. Why do I question the objectivity of a prosecutor who calls on others to "man up?" What would he say if the governor were a woman?) 

Anyway,  the paper is not saying McCulloch must step aside -- I doubt a judge would remove him -- but that he should do so voluntarily or if he does not, that the governor should replace him. He may not be required to step aside but neither is he required to stay in. 

There's much to be said for stepping aside in the face of widespread public distrust, espeically in this case, but there's  something to be said for staying and not creating a precedent. After all, he is elected and poltically accountable to the entire population of the county. A special prosecutor may have no political accountability at all.