Legal Ethics Forum

Monetization of FOIA requests?

Story at Overlawyered about allegations that lawyers have turned an FOIA practice into a monetized practice for extracting legal fees. (We've seen monetized practices dealing with all sorts of litigation. It usually ends poorly for the lawyers.)

Andrew M. Perlman, "The Twenty-First Century Lawyer's Evolving Ethical Duty of Competence"

This just reached me via SSRN and although we might have discussed it before, here is Andy's article. Abstract:

Just twenty years ago, lawyers were not expected to know how to protect confidential information from cybersecurity threats, use the Internet for marketing and investigations, employ cloud-based services to manage a practice and interact with clients, implement automated document assembly and expert systems to reduce costs, or engage in electronic discovery. Today, these skills are increasingly essential, and many lawyers want to know whether they are adapting quickly enough to satisfy their ethical duty of competence. This short article describes several relevant recent changes to the Model Rules of Professional Conduct and identifies new skills and knowledge that lawyers should have or develop.

The CIA's Lawyers

The Senate Intelligence Committee has released its long-awaited report on the CIA's coercive interrogation program.  The report concludes, as has been widely suspected, that the CIA used torture, misrepresented the results of the program, and frequently misled Congress and the Executive. 

This revelation will be of some interest to those interested in the role of lawyers in the torture program:

Lawyers in the CIA’s Office of Legal Counsel argued that “states may be very unwilling to call the U.S. to task for torture when it resulted in saving thousands of lives [and that]torture was necessary to prevent imminent, significant, physical harm to persons, where there is no other available means to prevent the harm.”

In the terms of the former claim, CIA lawyers were poorly positioned to determine the diplomatic implications of torture techniques, even assuming that such considerations could justify violating U.S. obligations under the Convention Against Torture (CAT).  The CIA lawyers should have deferred to their counterparts at the State Department, who have far more expertise in diplomatic matters and had opposed abusing detainees and designating them as "enemy combatants."     

In terms of the latter claim, the CIA lawyers were essentially setting forth a necessity defense.   The problem with this defense is that it is explicitly rejected by the CAT, and, in any event, would not justify any of the acts undertaken by the CIA.  Here the CIA should have deferred to, or sought guidance from, DOJ prosecutors who had far more experience with enforcing federal law (the CAT is part of U.S. law pursuant to 18 U.S.C. 2441).  Of course, they likely would have been informed that the necessity defense was a major stretch.   

Assuming that the current administration wishes to "look forward, not backward," how might we go about ensuring that i) agency lawyers do not view their responsibilities solely in terms of their agencies and ii) lawyers cooperate better cross agencies?

 

The ethics of governmental civil litigators: the Moonlight Fire case

This is a huge case and a very useful one for people who want to think about whether government litigators have a higher calling than private practice litigators. The procedural posture has become complicated but, in a nutshell, following a huge wildfire, both state and federal litigators sued Sierra Pacific on the theory that they caused the fire. After settling with the feds, SP turned around the state case and inflicted massive discovery sanctions against the state. (Disclaimer: the state court judge who made the rulings, the Hon. Leslie Nichols, is in my Inn of Court and I know him collegially.)

Now pending in the Eastern District of California is a motion to undo the settlementon the basis of fraud, which motion is buttressed with a declaration from a former federal litigator who worked on the case. The DOJ has asked the court to DQ all the lawyers for SP. The DOJ isn't blinking on the issue of alleged discovery misconduct. If there was misconduct, wouldn't government lawyers have a duty to step forward and remedy that?

For an introduction to the matter, see Seeking Justice. The motion to void the settlement:

Download PA Rule 60(D) motion-c

The key declaration:

Download Wright-Decl-c-MOONLIGHT-FIRE

The DQ motion:

Download 2014-11-17_US Motion Disqualification of Counsel and Ancillary Relief

"Ninth Circuit rejects constitutional challenge to Arizona's 'admission on motion' rule"

Hat tip: How Appealing. Ninth Circuit decision below. Excerpt from Summary:

The panel affirmed the district court’s summary judgment
in favor of justices of the Arizona Supreme Court in an
action challenging Arizona Supreme Court Rule 34(f), which
describes how experienced attorneys can be admitted on
motion to the State Bar of Arizona.

Rule 34(f) permits admission on motion to the Arizona
Bar for attorneys who are admitted to practice law in states
that permit Arizona attorneys to be admitted to the bars of
those states on a basis equivalent to Arizona’s, but requires
attorneys admitted to practice law in states that do not have
such reciprocal admission rules to take the uniform bar exam
in order to gain admission to the Arizona Bar.

The panel held that plaintiffs established Article III
standing based on injuries suffered by plaintiff Alison Girvin,
a member of the State Bar of California, who took and failed
Arizona’s uniform bar exam and was unable to practice as an
Arizona attorney.

The panel held that plaintiffs failed to establish that the
Arizona Rule is unconstitutional on Fourteenth Amendment,
First Amendment, or Privileges and Immunities Clause
grounds. The panel therefore rejected plaintiffs’ claims that
the Arizona Rule discriminates against attorneys admitted to
the bar in states that do not have reciprocity with Arizona.

The panel further held that the Arizona Rule (1) does not
favor Arizona’s in-state citizens over out-of-state citizens;
and (2) is a reasonable time, place, and manner restriction
that serves a substantial government interest. The panel held
that any negative impact on interstate commerce stemming
from the Arizona Rule was mitigated by the existence of
alternative means of admission to the Arizona Bar. Finally,
the panel affirmed the district court’s order denying
plaintiffs’ motion to amend their complaint under Fed. R.
Civ. P. 15(a) to join a John Doe plaintiff.

Download National Association for MJP

Judge Richard Posner on Legal Ethics

A recent interview of Judge Richard Posner included the following exchange:

Question: Insofar as the teaching of legal ethics is concerned, is teaching the rules of professional responsibility and the cases interpreting them enough in your opinion? Or should some significant attention be devoted to familiarizing law students with some of the great works of the Western Philosophical tradition? – say, to Plato’s Gorgias or Aristotle’s Rhetoric (see here at p. 1924)

Posner:  I don’t consider instruction in legal ethics an important part of legal education. Aristotle’s Rhetoric is pertinent to the rhetorical dimension of legal practice, rather than to legal ethics. Gorgias can be read as critical of lawyers’ tricks, though there were no lawyers as such in fourth century b.c. Athens.

The first sentence of Judge Posner's answer is certainly provocative.  How would you respond? 

Prosecutor Fails to Get Indictment of Cop in Staten Island

In officer Daniel Pantaleo's killing of Eric Garner, the Prosecutor failed to get an indictment on any charge.

The coroner had found death  by homicide

There is a video of Pantaleo holding Garner in a choke-hold

     Garner can be heard repeatedly gasping, "I can't breath."

     Pantaleo and all of his colleagues at the killing testified for hours on his behalf

     Garner's crime was a minor, non-violent one - selling individual cigarettes without charging the tax.

Is anyone surprised?

Law school deans demand statistical transparency (about bar passage)

When the shoe is on the other foot: law deans want transparency about the dropping bar passage rates. Story at JD Journal.

The Supreme Court of California extends deadline for appointment of new rules revsion commission

We had expected that the new rules revision commission would be chosen by November 26th, but it looks like the process has been extended for five weeks or so.

"Teaching Ferguson" at Behavioral Legal Ethics blog

Molly J.W. Wilson has posted Teaching Ferguson at Behavioral Legal Ethics blog. The blog post quotes some of the points of view explored in Monroe's recent post about Ferguson.