Legal Ethics Forum

When is the top ten legal ethics stories coming out?

I've gotten some inquiries about the list for 2014. I'm about halfway through and hope to have it posted tomorrow or the day after.

When is it unreasonable to deny an RFA? (Crowe v. Tweten)

Strictly speaking, this unpublished decision isn't about ethics, but it is about what's reasonable for a litigator and party to deny. The litigation was a challenge to the reformation of a family trust, and some of the children alleged that the dying mother's signature had been forged. When asked in an RFA to admit case-depositive facts (e.g., that the signature had not been forged), the plaintiffs replied,"Denied." Following a bench trial in favor of defendant, defendant sought proof-of-cost legal fees. The trial court denied the motion but the appellate court dug through the evidence and partially reversed. On remand, the legal fees could be seven figures. (Who will pay for that? Counsel or client?) I was particularly intrigued by the way the court weighed and sifted the evidence. The case was unpublished but it could affect the practice of pro forma "Denied" responses to RFAs. (h/t: the terrific California Attorney's Fees Blog)

Download E058311

Letter to ABA President on State Attorneys General and MR 3.8

Below is the text of the letter -- discussed in today's New York Times -- that I wrote to the ABA President about state attorneys general and other prosecutors who discuss pending matters at political fundraisers.  I suggest an amendment to the Model Rules to prohibit the practice.

 

William C. Hubbard

President, American Bar Association

December 20, 2014

Dear Mr. Hubbard:

          I read with dismay, two articles in the New York Times, both reporting in detail about state attorneys general who allow political considerations, and campaign contributions, to influence prosecutorial decisions:

Eric Lipton, Lawyers Create Big Paydays by Coaxing Attorneys General to Sue, New York Times, December 18, 2014

Eric Lipton, Lobbyists, Bearing Gifts, Pursue Attorneys General, New York Times, October 28, 2014

Needless to say, the notion of political considerations, particularly campaign contributions, influencing prosecutorial decision making, it antithetical to justice.  The American Bar Association has specifically weighed in on this issue, saying in its Criminal Justice Section Standards for Prosecutors:

(f) A prosecutor should not permit his or her professional judgment or obligations to be affected by his or her own political, financial, business, property, or personal interests.

Standard 3-1.3 Conflicts of Interest

Unfortunately this standard is not enough to curtail the types of politicized prosecution decisions described in the New York Times articles.  The ABA needs to set forth in its Model Rules of Professional Conduct clear rules prohibiting prosecutors from co-mingling political functions, particularly fundraisers, with conversations about official matters.

I ask that you urge the ABA to amend Rule 3.8 of the Model Rules of Professional Conduct (Special Responsibilities of Prosecutors) to contain a new provision stating:

“A prosecutor shall not while attending a partisan political event, whether a fundraiser for candidates for public office or any other event, discuss pending cases or investigations in which the prosecutor is participating in or is likely to participate in his official capacity. This prohibition extends to conversations between the prosecutor and persons the prosecutor meets at a political event for a period of at least seven days after the event, or one year after the event if the other person mentions the political event in the course of his or her post-event conversations with the prosecutor.  This prohibition also extends to conversations between prosecutors and any person who has within the past year discussed with the prosecutor his or her campaign contributions that could directly or indirectly affect the prosecutor’s chances for election or reelection to public office.  Prosecutors are responsible for arranging for other lawyers in their offices to communicate with persons whom they cannot communicate with under this rule if communications with such persons are necessary to carry out the work of their office.”

Given the gravity of the issues raised by the New York Times stories, and the importance of these issues to the integrity of the legal profession, I hope you will give this suggestion serious consideration and forward it to persons within the ABA who can implement the suggested change to the Model Rules.

I would be happy to discuss this issue with you further at your convenience.

Sincerely,

/s/

Richard W. Painter

S. Walter Richey Professor of Corporate Law, University of Minnesota

Fellow, Harvard University, Safra Center for Ethics (2014-15)

(612) 626-9707

"When, if ever, should law clerks betray their bosses?"

Will Baude, at Volokh, discusses a new novel about a law clerk who is asked by her judge not to reveal a jurisdictional defect. Baude uses 5.2 to analyze the issues. As I recall, the Federal Judicial Center discusses the ethics of clerking in a pamphlet (Maintaining the Public Trust) that assumes that clerks are governed as "judicial employees" under the The Code of Conduct for Judicial Employees and by other law specified at pp. 2-3 of the pamphlet. I suppose that both bodies of law could apply.

(The discussion brings to mind two kerfuffles about clerks and confidentiality: one about the book Closed Chambers and the other about the SCOTUS clerks who gave interviews about the Bush v. Gore decision to a journalist who published the story in Vanity Fair.

[edited after publishing to change "5.3" to "5.2," and to add the full name of the Code for judicial employees.]

David Freeman Engstrom, "Private Enforcement's Pathways: Lessons from Qui Tam Litigation"

Article. Abstract:

How does making law through private lawsuits differ from making law by other means? That question is especially important where legislators deputize “private attorneys general” as statutory enforcers, from antitrust and securities to civil rights and consumer protection. Yet legal scholars have not offered sustained theoretical or empirical analysis of how private enforcement efforts evolve over the life of a regulatory regime and, in turn, shape the elaboration of legal mandates. This Article begins filling that gap by sketching a pair of competing accounts of “private enforcement’s pathways.” The Article then tests these accounts using original data drawn from a growing and increasingly controversial litigation regime that is fueling intense debate about the quantity, quality, and public control of private enforcement efforts: qui tam litigation under the False Claims Act (FCA). Examining some 6,000 qui tam lawsuits since 1986, the analysis rejects the claim, common among private enforcement’s critics, that the regime’s recent growth constitutes an inefficient “gold rush” of private enforcement activity. Yet the data also support the concern that entrepreneurial private enforcers will relentlessly press law’s boundaries, exploiting regulatory ambiguities in industry-wide lawsuits that public-minded prosecutors would reject, thus driving law down interpretive pathways it would not travel if enforcement was in purely public hands. Mapping private enforcement’s pathways in this way offers fresh perspective on longstanding debate about the merits and demerits of private enforcement of public law, and the complex relationship between litigation and democracy, in the FCA context and beyond.

ABA Ethics 20/20 Changes Are Reviewed by NY State Bar Committee on Standards of Attorney Conduct

The New York State Bar Association's Committee on Standards of Attorney Conduct ("COSAC") has finished reviewing the Ethics 20/20 changes to the ABA Model Rules of Professional Conduct, and has sent a 45-page report to the NY State Bar's House of Delegates recommending which ABA changes should be adopted in New York (many with significant modifications).  COSAC eagerly seeks comments from lawyers, judges, and professors from New York and across the country -- post them here or send them to [email protected]. 

Download 20-20 REPORT TO NYSBA REVISED 12.23.14 (FINAL FOR PUBLICATION & DISTRIBUTION) on COSAC responses to ABA Ethics 20-20 amendments

Google strikes back (at Mississippi AG). Justice for sale to competitors?

I previously posted about the revelations that Sony had been promoting the efforts of state attorneys general to attack Google. Now Google has struck back, filing a suit in federal court in Mississippi to enjoin the efforts of the attorney general there. I assume that there will be FOIAs aplenty all across the country. The fallout from this should prove illuminating.

 

Structural Change and Law Schools

In its recent piece on dropping law school enrollment, the New York Times suggests that we are not merely witnessing a market correction.  Rather, prospective students are astutely observing a structural shift in the legal market.  

The Times quotes Paul Campos for the proposition that "People are coming to terms with the fact that this decline is the product of long-term structural changes that are not just going away."  Of course, Professor Campos does not offer any examples of structural change other than LegalZoom and outsourcing  to India, which some already believe is giving way to inshoring.  

Bill Henderson claims later in the article that law schools "continue to train people in the artisan craft of lawyering that is in decline."  This is, of course, a reiteration of Richard Susskind's familiar point that law is increasingly becoming commoditized, and law schools should prepare for this future.  However, contrary to Prof. Henderson's claim, law schools have been innovating and some are preparing for a Susskind world, even though this appears to have not provided these schools with a comparative advantage. 

If we are in the midst of a structural shift, one would expect to see some evidence of it other than declining law school enrollment. However, as noted previously in this space, empirical research has found that lawyers' earning premium actually increased in the aftermath of the  recession.  Moreover, the total number of jobs claimed by law school graduates has risen in the last two years.  And most recently, Citi projected 5% growth in BigLaw profits in 2015.  

None of this is to minimize the changing nature of the legal market, but the problem with the Times' article is that it engenders fear about alternative legal service providers and outsourcing even though, in my estimation, they pose very little threat to lawyers and may actually complement their work.  Similarly, while there are some very good reasons to avoid going to law school (lack of interest in the law is the best reason), no one should be deterred by the fear that he or she will have to relocate to India to find work or that society will replace prosecutors with mini-Watsons.   

New California ethics opinon about bankruptcy (non)conflict

ISSUE: If an attorney represents an individual as a debtor in a simple, no-asset Chapter 7 bankruptcy filing, while simultaneously representing one or more of the individual’s creditors in unrelated matters, is the attorney required by rule 3-310(C)(3) to obtain informed written consent from both parties?

DIGEST: Simultaneous representation of a debtor in a simple, no-asset Chapter 7 bankruptcy filing and that debtor’s creditors in unrelated matters does not create adversity triggering the informed written consent requirement of rule 3-310(C)(3), provided that the engagement is limited and certain intake procedures are employed to ensure that the Chapter 7 proceeding in which the attorney is involved is an in rem proceeding that focuses on the orderly distribution of the debtor’s assets and the discharge of debts.

Download CAL 2014-191 [12-0004]

Lawyers and the PI's they hire

Amazing story at Daily Pilot and the OC Register about private investigators who were allegedly way, way out of bounds in their efforts to tail politicians who were opposed by a police union -- and about the law firm, on retainer to the union, that hired the PI's. It's alleged that the PI's planted a tracking device on the politician's truck and called in a fake DUI on another one.

So far there isn't definitive proof that the law firm was complicit in that, but the story certainly raises the issue of a lawyer's responibility for acts of the lawyer's agent. And then there's this coded email from the PI to the lawyers:

“Tell them I went rogue and (you) had no idea and you immediately fired me,” wrote Christopher Joseph Lanzillo, a private investigator and former Riverside police officer, in a coded text message to an attorney for the union.

(h/t: Overlawyered)