Legal Ethics Forum

California recognizes intra-firm privilege against current client

Big news, which aligns California with Georgia, Massachusetts, and (imo) the modern view. (h/t: Legal Profession Blog) The case is below. Intro paragraph:

The question before us is whether the attorney-client privilege applies to intrafirm communications between attorneys concerning disputes with a current client, when that client later sues the firm for malpractice.  We conclude that when an attorney representing a current client seeks legal advice from an in-house attorney concerning a dispute with the client, the attorney-client privilege may apply to their confidential communications.  Adoption of the so-called “fiduciary” and “current client” exceptions to the attorney-client privilege is contrary to California law because California courts are not at liberty to create implied exceptions to the attorney-client privilege.  In the unpublished portion of the opinion, we hold that the exceptions to the attorney-client privilege embodied in Evidence Code sections 958 and 962 do not apply to the circumstances presented here.  Accordingly, we grant in part the petition of Edwards Wildman Palmer LLP and Dominique Shelton for a writ of mandate, and remand to the trial court for further proceedings.

Download B255182

In memoriam: Prof. Robert E. Rodes, Jr.

During his long tenure at Notre Dame, Rodes wrote often on legal ethics. (h/t: Prawfsblawg) One example:

Forming an Agenda - Ethics and Legal Ethics

The law profession is unique in the scope of the mandate it gives those within it to intervene in other people's affairs. As a result of this unique power of intervention, lawyers encounter a number of unique problems. This paper elucidates upon, and applies, the moral standards and intuitions to be used in approaching these problems. It argues that we should form our consciences in dialogue with our clients and that once they are formed we must follow them and limit our representation accordingly. If lawyer and client cannot agree on an agenda with which both are comfortable, the lawyer should withdraw. In any event, no client has the right to the assistance of a lawyer- or anyone else- in perpetrating an injustice.

Robert I ("RIC") Cusick, Director of the United States Office of Government Ethics 2006-11

OGE's message on RIC's passing is here:

http://www.oge.gov/Media-Resources/News-Releases/2014/The-Passing-of-the-Honorable-Robert-I--%E2%80%9CRIC%E2%80%9D-Cusick,-former-Director-of-the-U-S--Office-of-Government-Ethics/

RIC practiced law in Kentucky for many years, and was not a Washington insider when he came to OGE as an appointee of President Bush.  That was one of the many reasons he was the right man for the job.  It was an honor for me to work with RIC, his assistant Beverly Johnson and his colleagues at OGE when I was the White House ethics lawyer.  RIC and his colleagues sought to make our government accountable to the people and not to special interests, and their work, under current director Walter Shaub, continues to be critically important today.

 

Unethical Prosecutor's Conduct in Ferguson Case

    “A prosecutor could get a grand jury to indict a ham sandwich” (so said the Chief Judge of New York State’s highest court).  Or could indict Abel for killing Cain.  Or Reeva Steenkamp for killing Oscar Pistorius.  And commonly the prosecutor would do that in a grand jury proceeding lasting only hours.  Indeed, the grand jury that does not act as a rubber stamp of the prosecutor is so unusual that it has a special name - a “run-away grand jury.”   Can anyone doubt that if Michael Brown had killed police officer Darren Wilson, Brown would immediately have been taken into custody and charged with first degree murder?

    So why was the St. Louis County prosecuting attorney, Robert R. McCulloch, conducting a three-month grand jury investigation into Wilson’s killing of Brown?

    The reason begins with McCulluch’s most serious ethical violation, which was his conflict of interest in participating in the indictment of a police officer in his own jurisdiction.  An unethical conflict of interest occurs when there is a risk that the lawyer’s representation of a client will be materially and adversely affected by the lawyer’s own interest or by the lawyer’s duties to a current client, a former client, or a third person.  The forbidden conflict of interest exists even though it’s not probable that any adverse effect will in fact occur.  Therefore, there’s an unethical conflict of interest when a prosecutor participates in the indictment of a police officer in his or her own jurisdiction, because the prosecutor has a personal and professional need to maintain good relations with the police, who have been known to publicly threaten not to cooperate with a prosecutor thereafter if a fellow officer is indicted.  A prosecutor in that position should therefore obtain the appointment of a special prosecutor who does not herself have a conflict of interest.

    As a result of McCulloch’s conflict of interest, however, he was determined to see that officer Wilson was not charged with a felony.  McCulloch has therefore conducted this extraordinary three-month grand jury, so that he can put the responsibility on the grand jury  for declining to indict Wilson.  The potential criminal charges against Wilson were:

■ Second-degree murder, defined as “knowingly causing the death of another person,” and punishable by a prison term of 10 to 30 years;

■ Voluntary manslaughter, which is causing a death “under the influence of sudden passion arising from adequate cause,” with a penalty of five to 15 years;

■ Involuntary manslaughter in the first degree, which can mean “recklessly” causing a death, with a penalty not to exceed seven years;

■ Involuntary manslaughter in the second degree, which is acting “with criminal negligence” to cause a death, with a penalty not to exceed four years.

    But all McCulloch had to do in this case was explain to the grand jury the formal requirement for an indictment, which is probable cause.  Probable cause in a criminal case means that the police and/or prosecutors must be able to explain why they have a reasonable belief, despite some doubt, that a crime has been committed and that the accused person did it.  That requirement can be refuted, however, just by Darren Wilson’s own testimony that Brown went for Wilson’s gun, and that Wilson reasonably believed that Brown was about to kill him when Wilson shot Brown in self-defense.

    How then can a prosecutor get a grand jury to indict an accused person after only a brief proceeding?  The reason is that grand jury proceedings are confidential and are not overseen by any court or other authority.  Also, constitutional law allows prosecutors to use hearsay, other evidence that would be inadmissible at trial, and one-sided evidence; they are not required to present exculpatory evidence.  If a prosecutor wanted an indictment of Wilson in Brown’s killing, for example, he would inform the grand jurors of testimony by Brown’s friend  Dorian Johnson, who said he was within arm's reach of Brown throughout the incident, and that the teenager never went for Wilson’s gun.  He would also use reports by some eye-witnesses that Brown had his hands in the air to surrender, and by other eye-witnesses that Brown was running away when Wilson shot him.  He might also emphasize to the grand jurors that probable cause does not mean proof beyond a reasonable doubt.

    One result of McCulloch’s conflict of interest, therefore, is unequal justice - different “justice” for officer Darren Wilson, as against justice for an ordinary member of the community like Michael Brown.

    The final ironical truism illustrated by the case in Ferguson is that Robert R. McCulloch will never be disciplined for his unethical conduct, because prosecutors are virtually never professionally disciplined.

Sharia Wills Guidance in E&W

The solicitors' representative body, the Law Society has withdrawn controversial guidance to its members on the drafting of Sharia wills which encouraged the favouring of male children and the exclusion of illegitimate kids, for example. You can read about it here... http://www.legalfutures.co.uk/latest-news/law-society-climbs-sharia-will-practice-note-apologises

The Continued Movement Away from the Billable Hour

Jackson Lewis has announced that it will no longer ask associates to bill by the hour.  The firm's chair is quoted as saying, “The billable hour is directly opposed to the best interest of the client and to the provider of service because by its very nature it adds an artificial barrier to the accomplishment of the only real objective, which is a quality legal product for a set and expected price."

As the quote suggests, the billable hour gives rise to many oft-discussed ethics issues.  Ron Rotunda recently summarized one of the problems here.  We've discussed related issues here and here.

More on the executive action on immigration

The DOJ memo about the legality of the executive action is here. Josh Blackman has analysis. (h/t: Volokh)

After a decade of Congress stonewalling Presidents Bush and Obama on immigration the White House finally gets fed up

President Obama’s speech and executive order are here:

http://www.whitehouse.gov/issues/immigration

Although the President’s actions will be challenged, the executive order is very likely within his legal authority.

http://thehill.com/sites/default/files/scholars_letter_on_immigration_2_1.pdf

http://thehill.com/homenews/administration/224964-top-legal-scholars-back-obamas-lawful-actions

This issue has a profound impact on lawyers’ ethics.   From everything written about the abysmal process in deportation and illegal crossing cases, including what Judge John T. Noonan Jr. (USCA 9) has written, it is nearly impossible for defense attorneys, prosecutors and judges to do their jobs and conform to basic standards of due process.  Congress nonetheless has done nothing, even though Presidents Bush and Obama over ten years asked for immigration reform.

Immigration to America goes back to the Mayflower crossing in 1620.  Tens of millions of Americans have ancestors who did not ask permission to immigrate from the people who were already here.   Approximately 11 million people living here today are in a similar situation.  The President’s executive order protects about 5 million of them from deportation if they comply with the conditions.   

This Thanksgiving the President is doing more than pardoning a turkey.  He is not solving the immigration problem, but a solution requires Congress.  For that we can keep waiting.

Client who had paid up lawyer in full before lawyer sued was prevailing party entitled to attorneys fees

The case is DAVID S. KARTON, A LAW CORPORATION v. WILLIAM RUSSELL DOUGHERTY. The lawyer sued for fees but the client was able to prove that he had paid (actually, overpaid) for the services. The court declared the lawyer the prevailing party, presumably because the lawyer had proved that he was entitled to be paid, but the appellate court has reversed and sent the matter back for calculation of the attorneys fees to be paid to the client. One imagines that the lawyer will take a bath on this litigation and be forced to pay out far higher sums than he sought to receive.

Download B244231

Senator Reid’s Chief of Staff blasts White House for listening to lawyers and not raising enough campaign cash

If there is one news story that tells us all we need to know about what is wrong with our campaign finance system it is this one.  The White House apparently followed the advice of its ethics lawyers and kept a healthy – and legal – distance from campaign fundraising in 2014.  Senate Majority Leader Harry Reid – soon to become Minority Leader – is not happy about that.  His chief of staff is now blaming the President for losing the election because he didn’t raise enough cash.   The Constitution has no reference to fundraising as part of the President’s job, but that does not matter in Washington these days.

Been there done that.  I saw this story play out in the 2006 election cycle, and it is not a pleasant one.  Blame the President.  Blame the ethics lawyers.   Blame anybody and anything but the corruption of our government by campaign finance.  The President’s poll numbers are not good, but Congress’s approval ratings are a lot worse.  I wonder why.

The story in the Washington Post is here:

http://www.washingtonpost.com/politics/battle-for-the-senate-how-the-gop-did-it/2014/11/04/a8df6f7a-62c7-11e4-bb14-4cfea1e742d5_story.html

And the most relevant text from the story is this:

With Democrats under assault from Republican super-PAC ads, Reid and his lieutenants, Sens. Charles E. Schumer (D-N.Y.) and Richard J. Durbin (D-Ill.), went to the Oval Office on March 4 to ask Obama for help. They wanted him to transfer millions of dollars from the Democratic National Committee to the DSCC, a relatively routine transaction.

Beyond that, they had a more provocative request — they wanted Obama to help raise money for the Senate Majority PAC, an outside group run by former Reid advisers.

Despite his deep aversion to super PACs, Obama in early 2012 reluctantly sanctioned Priorities USA, a super PAC set up to back his reelection, and allowed White House and campaign officials to appear at the group’s fundraisers. But Reid and Senate Democrats thought the president was not giving the same level of support for Senate Majority PAC.

Lawyers negotiated for months over legal minutia, with Obama’s counselors insisting that the president appear only as a guest and do no donor solicitation, which would have violated federal law. After Obama appeared at two Senate Majority PAC events — June 17 in New York and July 22 in Seattle — the president’s lawyers demanded that no staffer follow up with the donors for at least seven days.

These contingencies were so strict, [Sen. Reid’s Chief of Staff] Krone argued, that it would be fruitless to involve the president at all. “They were setting the rules as they saw fit,” he said. “For some reason, they hid behind a lot of legal issues.”

The White House maintains that it was prudent in protecting the presidency and avoid any appearances of a quid pro quo. The senior White House official voiced displeasure with Senate Majority PAC’s methods: “They were calling Obama donors who we had long relationships with and making asks that annoyed the donors.”