Legal Ethics Forum

Susan R. Klein, Aleza S. Remis, and Donna Lee Elm, "WAIVING THE CRIMINAL JUSTICE SYSTEM: AN EMPIRICAL AND CONSTITUTIONAL ANALYSIS"

Excerpt:

Unfortunately, some state and federal prosecutors’ response to Lafler and Frye’s application of the Sixth Amendment right to effective assistance of counsel during the plea stage was to demand the waiver of that right.27 We contend that effective assistance of counsel waivers are unjust and could topple our current plea bargaining system; therefore, the Court and the Department of Justice should not have condoned them.28 In Part II of this essay, we will describe the growth of non-trial-related waivers. We will focus here on two waivers that have not yet been ruled on by the Court: waivers of the due process right to obtain exculpatory evidence as to guilt and punishment and waivers of the Sixth Amendment right to effective assistance of counsel at the plea negotiation stage. In Section A, we offer the results of an empirical project that Professor Klein undertook at the United States Sentencing Commission, counting discovery and habeas corpus waivers. In Section B, we report Defender Elm’s national survey of all waivers contained in federal plea agreements. In Section C, we examine post-Lafler and Frye state and federal case law regarding pre-trial waivers of effective assistance of counsel. In Part III, we argue that effective assistance of counsel waivers are unethical, unwise, and perhaps unconstitutional.

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Scalia and Torture

I have posted an article on Salon about Justice Antonin Scalia's recent comments on torture.  The title is Scalia's Torture Debacle, and the link is here.  Here are the opening paragraphs:

Supreme Court Justice Antonin Scalia cannot bring himself to say that torture is bad, having recently explained the following to Swiss National Radio:

I think it is very facile for people to say ‘Oh, torture is terrible.’ You posit the situation where a person that you know for sure knows the location of a nuclear bomb that has been planted in Los Angeles and will kill millions of people…

You think it’s an easy question? You think it’s clear that you cannot use extreme measures to get that information out of that person?

That is not exactly a sparkling example of moral reasoning.  Sure, it is possible to conceive of an outlandish scenario in which the argument for torture becomes compelling – Would you do it to save 3 million lives?  What about saving 4 million lives and a puppy? – but that tells us virtually nothing about real-world situations involving actual human beings.  Scalia may not realize it, but he has committed the ab uno, disce omnes fallacy:  from one [imaginary] case, learn about every case.

The best that can be said for Scalia is that he has set up an extreme example of the famous Runaway Trolley Problem, first devised by Philippa Foot, in which philosophy students are asked whether they would pull a track switch that will save five innocent lives while killing an equally innocent bystander. As a thought experiment, the Trolley Problem can be used to explore the underpinnings of various moral intuitions, but no one would suggest that it is a meaningful guide for judicial decision making.

"The ‘torture’ memos prove America’s lawyers don’t know how to be ethical"

Alexa Van Brunt, of Northwestern, offers this op-ed at the Washington Post, arguing that lawyers currently are permitted to help clients do whatever they want and that we need to re-write the ethics rules.

In the legal context, this would require the creation of ethical principles that explicitly state that service to the client does not trump duty to the laws and Constitution, and that complicity in acts of torture and other such unlawful abuses would constitute a disciplinary offense—even if done on behalf of the president of the United States.

But don't the ethics rules already dictate that result? As lawyers do their lawyering, they have all sorts of explicit duties to non-clients and to the law. And on the few occasions when lawyers are ethically permitted to disobey legal requirements they must do so in a carefullly circumscribed way.  The closest provision I can find to Van Brunt's characterization is the portion of 1.2(d) that draws a sometimes fine line between advising on legality (ok) and helping a client violate the law with impunity (not ok). The notion that lawyers may solely pursue the client's interests irrespective of the law is a straw man that just won't go away.

Private industry funding state AG's (or, "Get Google!)

There is a first amendment right to petition the government for redress of grievances. But at what point might it cross the line for private industry to fund state AG's for the purpose of attacking competitors? The recent leak of emails from Sony raises the issue because we have a clearer picture of how the MPAA is aggressively and systematically urging state AG's to go after Google and is "seeding" stories with the media to buttress the investigations. Stories at Tech Dirt, The Verge, and related story at New York Times.

Radek Goral, "Justice Dealers: The Ecosystem of American Litigation Finance"

Article. Abstract:

People litigate for various reasons. Some want to right wrongs, others – make precedents. But most, at least in the civil realm, sue to protect economic interests; and they are motivated by pragmatic considerations rather than abstract notions of justice. One fruit of the mercantile approach to civil litigation is the nascent market where third parties provide financing for litigants (or their lawyers) and profit from a successful resolution of the funded claims. Through the lens of a third-party funder, justice is a mass-market commodity, and its value depends on laws of men and laws of probability alike.

The ways of litigation funders create multiple points of tension for the legal process and its participants, and laws on the book offer little guidance on how third-party interests should be treated. Resulting procedural and ethical dilemmas have stirred a debate among scholars who rushed to offer conflicting opinions and advice. Critics demand that litigation investing be banned, calling it a travesty of justice that turns courts into casinos. Enthusiasts want the practice formally recognized, asserting that it levels the playing field for weaker parties.

The discussion on litigation financing does not lack vigor; but it does lack hard facts. Drawing from first-hand empirical data on the practice of litigation funding in the United States, this paper explains how the market for legal claims actually works. First, I describe the entire ecosystem of actors who apply the logic of asset management to uncertainties of individual lawsuits – litigants; litigators; funding companies and their investors; and their “entourage” providing additional, specialized services. Then I segment the market and explore different strategies of third-party investing. Finally, I list American litigation funders and group them based on what they do.

Based on the descriptive findings, I claim that modern civil litigation engages multiple, often undisclosed stakeholders with complex financial motivations. I argue that such interests should be recognized by the legal system as legitimate and ultimately regulated. The first step in that direction should be making sure that third-party involvement in a dispute is disclosed.

Susan Swaim Daicoff, "Lawyer, Form Thyself: Professional Identity Formation Strategies in Legal Education, Professional Responsibility, and Experiential Courses"

Article. Abstract:

Professional identity formation as a learning objective in law school may appear to be nontraditional and perhaps even innovative. It is likely not a new concept, but at least has not traditionally been an explicit goal of legal education. In informal discussions among law professors, these ideas often emerge: law students develop their professional identities either in their families of origin or through life experiences prior to law school and therefore any such characteristics are set, ingrained, and perhaps immutable; law students develop their professional identities through interactions with supervisors during summer clerkships and after graduation -- “on the job” so to speak; or, finally, professional identity is an unteachable, untrainable, and intangible concept and law professors are unable to address it.

More on that Harvard B-School prof's battle of words with a restaurant

Some people have sent me the story of the Harvard B-school prof who got into a series of sharply worded emails with a restaurant that he felt had overcharged him. (Details at Overlawyered.) In the exchange, the prof (who has a law degree) balked, citing the no-contact rule, when the restaurant owner mentioned that he had consulted a lawyer. Can any of our Massachusetts readers enlighten us: when the lawyer in a principal in the dispute, can the lawyer directly contact a represented opposing party?

Amy Salyzyn, "What If We Didn’t Wait?: Canadian Law Societies and the Promotion of Effective Ethical Infrastructure in Law Practices"

Article. Abstract:

Canadian law societies primarily regulate lawyer behaviour by responding to complaints made against individual lawyers. Although this complaints-based regime is necessary, in particular to address cases of lawyer misfeasance or extreme incompetence, it is limited in its ability to target a significant determinant of ethical lawyer conduct: the presence of institutional policies, procedures, structures and workplace culture within a law practice that help lawyers fulfill their ethical duties. Given the importance of these formal and informal measures — referred to collectively as “ethical infrastructure” — this article explores whether and how law societies might become more active in promoting effective ethical infrastructures within Canadian law practices.

Ensuring effective ethical infrastructures within law practices seems self-evidentially good: we want lawyers to work in environments that facilitate compliance with their ethical duties. It is less obvious, however, that it would be a good thing for law societies to regulate the ethical infrastructures of Canadian legal practices. Decisions about a practice’s ethical infrastructure, like what policies and procedures to put in place, are typically thought to fall to private ordering and the decisions of law firm managers (influenced by insurer and client demands) rather than to the domain of public regulators like law societies. Indeed, many Canadian lawyers are likely to be suspicious of proposals to add an additional layer of regulator involvement in their practices.

What justifies regulatory intervention in this area? The case presented in this article for expanded law society involvement in the ethical infrastructures of Canadian law practices is three-fold: (1) there are reasons to believe that these infrastructures could, as a general matter, be improved; (2) this improvement would, in turn, lead to improved outcomes in relation to lawyers’ ethical duties; and (3) current law society regulatory efforts are not optimally situated to assist with this improvement. Stated otherwise, law societies should become more involved in the ethical infrastructures of Canadian law practices because neither the market nor current regulatory efforts are effectively addressing this important aspect of law practice.

Colin G. James, "The Habits of Emotion: Legal Education as Performance Enhancement"

Article. Abstract:

The cognitive dominance of legal education is a product of the narrow imagination of law schools and the conservative expectations of the corporatized profession. One consequence, it can be argued, is the failure of law schools to educate students for the actual work demands they will experience in practice. Law schools might defend by saying their role is to teach doctrinal law subjects, and PLT providers train graduates for legal practice. The problem is that until recently, neither institution has responded to research confirming the poor mental health status of many law students and lawyers. In recent years the Wellness Network for Law, in association with the Tristan Jepson Memorial Foundation, has initiated a series of conferences and publications designed to improve awareness and promote strategies for improving the mental health of law students and lawyers. This growing discourse has highlighted the importance of emotions, among other things, and the role awareness of emotions could play in legal education and PLT, as well as in legal practice.

This paper connects the research on emotions with recent research on habits. It proposes that existing models of emotional intelligence have limited worth because they don’t inform ways to change unproductive or destructive responses to difficult and stressful situations. Law students for example may develop habitual responses to stressful situations that are unhelpful, such as denial, procrastination or self-medication, and develop destructive attitudes associated with depression, self-doubt, imposter syndrome, and a shift from core intrinsic motivating values to extrinsic values associated with poor mental health. The paper concludes with strategies for promoting positive habits for law students that may not only build resilience but enhance performance in a difficult profession.

Kincannon Suit Against South Carolina Bar for Violating First Amendment Right to Engage in Offensive Public Discourse

This is older news, but I was discussing this case and civility regulation in my First Amendment and Lawyer Regulation seminar last week, and I didn’t see anything posted here about it and wondered what others thought. Todd Kincannon, the former executive director of the South Carolina Republican Party, is suing (as of July 2014) the South Carolina Commission on Lawyer Conduct for allegedly threatening to discipline (he indicates disbar) him for outrageous and offensive writing and tweets dealing with national political and social issues. Although the allegations of the complaint are vague (attached at the bottom of this article), it appears that his writings to which the South Carolina Bar object as uncivil and unethical are entirely political commentary about public figures or national issues. While Kincannon's tweets are extremely offensive (see here), the writings appear to have no relationship to his practice of law or to his competent or ethical handling of actual cases for clients.  While I have my own views, I would appreciate others’ thoughts on the First Amendment aspects of this case and of civility regulation overall.  Constitutionally, can the bar discipline you for making offensive tweets and political commentary--even extremely offensive comments with racial and sexist overtones--that have no relationship to your actual practice of law?