Legal Ethics Forum

Texas Ethics Opinion Under Attack

Back in May, I mentioned the misguided Texas State Bar ethics opinion prohibiting anyone without a law degree from holding a position like "Chief Technology Officer" in a law firm.

The opinion appears to have caused more bucking than a bronco at a rodeo.  Legal Technology News is reporting that 53 law firms have protested the decision, including 24 firms in the Am Law 100.  The professional ethics committee responsible for the opinion plans to revisit it (lasso it?) next month.

"NALP's Fuzzy Definition of 'JD Advantage'"

At ALM, Matt Leichter breaks down what that loose term, JD Advantage, really means. Great graph showing job outcomes since 2001. (Bernie Burk previoulsy discussed JD Advantage at The Faculty Lounge.)

Tigran Eldred on "Grieving Cameron Todd Willingham"

New England Law's Tigran Eldred shares his thoughts below on the Willingham case:

In the long debate over whether the US has executed anyone who was innocent, one of the cases most frequently mentioned is of Cameron Todd Willingham, who was put to death in Texas in 2004 for setting fire in his home that killed his three young children. Most of the attention in the case has focused on the extensive forensic analysis addressing whether the prosecution relied on “junk science” to establish that the fire was arson rather than an accident. Some LEF readers may have read David Grann’s excellent 2009 article in the New Yorker, Trial By Fire, which describes in detail the problems with the forensic evidence used to convict Willingham (the case also received extensive media coverage during the last presidential cycle when Gov. Rick Perry was criticized for allegedly interfering with the commission that was investigating the matter; see here and here).

Now there is a separate and more recent basis for the claim of Willingham’s innocence: mounting allegations that the prosecutor in the case, John Jackson, for more than two decades has suppressed evidence of a secret deal made with a key witness in the case -- the jailhouse snitch who testified at trial that he overheard Willingham confess to the murders. The witness has recently provided an extensive interview that describes how he fabricated his testimony in exchange for substantial leniency he was promised by Jackson’s office.

The details of the alleged cooperation agreement, and how it further reveals why Willingham may have been innocent, are set out in this 69-page bar grievance filed by the Innocence Project and others (including lawyers from powerhouse law firm, Susman Godfrey) [news account here; Jackson’s response to the press here]. The grievance alleges that Jackson (who, after Willingham’s conviction, became a judge and has since retired) violated a host of disciplinary rules and Texas criminal laws, including tampering with evidence and perjury.  Coming on the heels of the Ken Anderson case (the former Texas prosecutor who was disbarred and sentenced to jail for suppressing evidence), it will be interesting to see what comes of this grievance, one of the most extensive I’ve seen.

For more on the Willingham case, see the Innocence Project’s webpage.

Washington State's Rule 4.4 Comment Aimed at Protecting Undocumented Immigrants

I came across a comment in Washington State's version of Rule 4.4 that appears to forbid threatenting to report an undocumented immigrant as a negotiating strategy. It provides in part as follows. Is this provision unique?

"The duty imposed by paragraph (a) of this Rule includes a lawyer's assertion or inquiry about a third person's immigration status when the lawyer's purpose is to intimidate, coerce, or obstruct that person from participating in a civil matter. Issues involving immigration status carry a significant danger of interfering with the proper functioning of the justice system. See Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 230 P.3d 583 (2010). When a lawyer is representing a client in a civil matter, a lawyer's communication to a party or a witness that the lawyer will report that person to immigration authorities, or a lawyer's report of that person to immigration authorities, furthers no substantial purpose of the civil adjudicative system if the lawyer's purpose is to intimidate, coerce, or obstruct that person. A communication in violation of this Rule can also occur by an implied assertion that is the equivalent of an express assertion prohibited by paragraph (a)...."

"Are These Fake Facebook Personas Trolling For Real Law-Firm Clients?"

Interesting article at Forbes. (h/t: Eric Goldman) If that's what is really happening (let's treat it as a hypo for now and assume it's true), doesn't that violate the rule against deceit and dishonesty? Is it different than stings for civil rights testing and IP investigation because it isn't for representing a client but rather for drumming up business? And because the ploy (if it's really real) doesn't disclose that it's a form of advertising?

 

"Pioneering Trial Attorney Ordered to Help Pay $42 Million To Fen-Phen Plaintiffs"

Story at WSJ. Excerpt:

Stanley Chesley, the famed Ohio trial lawyer brought low by his involvement in a disputed diet-drug lawsuit, could be on the hook for at least $25 million to settle claims that he took $7.5 million more than his share of a 2001 settlement.

Once known as the “Master of Disaster,” Mr. Chesley was disbarred last year in Kentucky after that state’s Supreme Court sanctioned him for professional misconduct in the case, though the court did not require him to pay any restitution.  Soon after he surrendered his Ohio law license, effectively ending a decades-long career in mass tort litigation.

Now a Kentucky judge has ruled that Mr. Chesley is indeed “jointly and severally liable” for $42 million in damages awarded to plaintiffs in 2007 against three other lawyers in the case, all of whom were found to have violated their fiduciary duty to their clients.

"Lawyer Discipline in New York is ‘Seriously Deficient,’ Says NYU Professor"

The WSJ qutoes our own Stephen Gillers. Stephen's paper is here. Excerpt:

New York’s system for disciplining lawyers is shrouded in secrecy and riddled with inconsistency, according to a new paper by a leading legal ethics expert.

“A study of all lawyer discipline cases in New York from mid-2008 through 2013… reveals that the system for lawyer discipline in New York is seriously deficient,” writes New York University law professor Stephen Gillers.

The professor — whose article appears in the most recent issue of the “New York University Journal of Legislation and Public Policy” — levels a number of criticisms at the Empire State’s sanction system. One glaring weakness, he says, is how difficult it is for a prospective client to look up a lawyer’s disciplinary history.

“New York cloaks its process in secrecy unless and until a court imposes public discipline,” he writes. Most of the time, a sanction takes the form of a private reprimand. And even when a sanction is made public, according to Mr. Gillers, it’s hard to find.

Abstract of the paper:

A study of all lawyer discipline cases in New York from mid-2008 through 2013 and many cases in earlier decades reveals that the system for lawyer discipline in New York is seriously deficient. Clients are not protected. The cases take far too long, often many years. Sanctions are dramatically inconsistent. There is no statewide effort to reconcile different sanctions in different courts. Many cases do not attempt to reconcile sanctions with those in similar cases from the same court. Secrecy is rampant. In the small number of cases where discipline is public, a prospective client cannot easily discover a lawyer's disciplinary record.

"Some Want [California] Discipline to be Punishment. Who Are They?"

David Cameron Carr, at KafkaEsq., has thoughts on the State Bar of California's Discipline Standards Task Force and on the comment by the Bar's Executive Director that some want the disciplinary standards to move in a more punitive direction. Excerpt:

It’s a worn out cliche but the Supreme Court is the 800 pound gorilla in the room.  Except it wasn’t in the room.  The Supreme Court’s representative to Discipline Standards Task Force, the protean Beth Jay, did not attend either meeting.  Whether this reflects a lack of interest or an aversion to open meetings is unknown (the ED was kind of enough to warn the Task Force members about the open meeting laws at the first meeting.) To paraphrase my comment to the Task Force, their scope of action is entirely circumscribed by Supreme Court authority.  Unless they signal a change in direction, the State Bar cannot endorse discipline as punishment.

 

light blogging for two weeks

The dog days, and all that. Just for fun, I thought I'd publish this "throw back Thursday" pic of my older brother and me, which led my younger brother (also a lawyer) to comment that it prefigured Charlie's job as prosecutor and my job in leal ethics.

Realism without nihilism--an example from a sanctions order for deposition objections

One of the hardest things to teach students is how to deal with the sometimes significant variation in judicial reactions to similar conduct.  The attached sanctions order (Download Memorandum Opinion And Order) is a nice example.  

The judge in this case views "object to form" as inadequate to state a deposition objection.  He wants to see "objection, compound" or the like, which I prefer as well.  The opinion notes, however, that other courts have viewed anything more than "object to form" as impermissible coaching, which I've heard from several lawyers based in the SDNY.   

Two things to note about this very thorough and thoughtful order.  Noting the division of opinion on stating objections the court does not issue the sanction for counsel's moderately extensive objections.  The court seemed to me more concerned by the consistency with which the deponent's answers tracked the objections, which to the court implied impermissible coaching.  The opinion is getting more press for the nature of the sanction--having the lawyer create a video on how to make a proper deposition objection--but to me the more interesting issue from a teaching perspective is how to prepare students to deal with a world in which what one judge requires another forbids, which is the real world.  "Pay close attention to custom" is helpful, and an obvious point, but I do find that students throw up their hands and tend toward nihilism when they perceive how much variation they will face.  Teaching realism without nihilism is important but tough.

DM