Legal Ethics Forum

"It Could Have Been Me, But Instead It Was You"

The Holly Near song is about the Kent State victims and Chilean folk singer Victor Jara, killed by the junta, but I thought of the words lately in another context.

In class, I often begin with a "lawyer's in the news" segment -- a story that illustrates a topic discussed in  class. There are many, because the behavior of lawyers or the profession generates much news, and  doing this brings home the immediacy of the subject. 

Last week, I talked about the $1.5 billion error when a security statement on a GM loan was terminated mistakenly. Monday, I may talk about the lawyers at Bronx Defenders.  See 

http://www.nytimes.com/2015/01/30/nyregion/2-lawyers-in-anti-police-video-knew-of-its-violent-message-report-says.html?_r=0

Thinking about these incidents I realize that I could have made the same mistakes, failed to triple check a document or just assume that another lawyer did so, or (as I imagine) get so caught up in the opportunity to be in (or contribute to) a music video that I fail to explore how doing might hurt my law office or take  precautions. 

In the case of the Defenders,  youth may have something to do with it. I don't know the ages of the two lawyers who facilitated the arrangement. (The head of the office is older, a remarkable and dedicated woman who has spent her life in indigent defense work).

These mistakes are certainly not about character or ability. They are not characterological, as say Stephen Glass's conduct might be seen to be. They are, really, errors at a particular place and time. Yet they can have terrible consequences and not just for the actors. Colleagues and the law office may suffer.

Predictably, the police union called for the lawyers' disbarment, which is ridiculous. But even level-headed politicians piled on, calling for an "immediate shake-up," whatever that means. Besides, the organization's board has already adopted controls and imposed sanctions.

Hard as it is, perhaps, we should  also try to put ourselves in the position of the lawyers in each story. One mistake, not ill-moivated, and your professional life can come crashing down.  I think of times in the first decade of my work as a lawyer when I exercised poor judgment, but nothing came of it. Luck perhaps.

 

Justin Hansford, "The Legal Ethics of Nelson Mandela"

Article. Abstract:

Can a good lawyer also be a good person? In answering in the affirmative, it is helpful to note the legal career of Nelson Mandela — a lawyer — and also a person recognized the world over as being a good person of ethical and moral excellence. The development of Mandela’s professional identity unfolded in the midst of his engagement with the core moral questions that all lawyers must face. Observing Mandela’s engagement with these ethical and moral questions is informative for law students and young attorneys also seeking to lead a professional life in the law that provides inspiration and moral substance. By retelling the story of the development of Nelson Mandela’s professional identity in the law, I hope to demonstrate that a good lawyer can be a good person, as Nelson Mandela was, through the pursuit of a number of different ideals.

Witness preparation (Ted 2) (humor)

 

The trailer for Ted 2 has a riff on witness preparation.

State Bar of California announces members of 2nd Rules Revision Commission

It's a strong line-up. I'm quite optimistic about the quality of the work product. I'd still like us to adopt a soup-to-nuts set of rules like the ABA has, rather than a minimal set of disciplinary rules. Stay tuned ....

Steven Lubet on the BDS Movement

Here is an excellent op-ed by Professor Steven Lubet on the so called BDS movement:

http://www.chicagotribune.com/news/opinion/commentary/ct-israel-northwestern-university-divest-perspec-0129-20150128-story.html

Although I and many other people don't agree with Israel's actions on the West Bank, this effort to single out a US ally for hostile and discriminatory treatment is very misguided.  I assume that university faculty and students administering federal or state government funds are not participating in this or any other similar boycott.

 

"Koch Caucus" convenes near Palm Springs to hear from and choose among candidates for GOP Presidential nomination

At a January 2015 annual winter donor retreat near Palm Springs California, the billionaire brothers Charles G. and David H. Koch unveiled plans to spend and raise from approximately 300 coordinating donors close to $900 million for the 2016 campaign, which will probably be more than the amount spent by either the Republican Party or the Democratic Party  A lot of this money will be raised before the primaries even begin, very likely giving the Kochs and their coordinated group of donors a lot of influence over who the Republican nominee will be.  According to the New York Times, at least five potential presidential candidates were invited to the Koch event this year, “and four attended, including Gov. Scott Walker of Wisconsin. On Sunday evening, three of them — Senators Marco Rubio of Florida, Rand Paul of Kentucky and Ted Cruz of Texas — took part in a candidate forum on economic issues.” 

http://www.nytimes.com/2015/01/27/us/politics/kochs-plan-to-spend-900-million-on-2016-campaign.html?_r=0

For Republican voters who were not invited to attend this gathering, the question is whether a “Koch Caucus” such as this one will effectively replace traditional caucuses and primaries in the states.  By the time candidate selection is formally made, will the outcome be a done deal.  And how credible will the winner of the Koch Caucus be as a candidate with voters in a general election?

Those of us who would like to see a Republican in the White House can only hope that the Soros Caucus or the Steyer Caucus will organize a similar event for the Democrats who will choose a nominee even more out of touch with the concerns of ordinary voters. 

A New Frontier for the Rules of Professional Conduct: Limited License Legal Technicians

On January 8, 2015, the Washington State Supreme Court adopted special rules of professional conduct to govern limited license legal technicians (LLLTs).  The LLLT rules are closely analogous to the rules that govern lawyers, so there is nothing terribly new here substantively.  But the very existence of professional conduct rules for a new class of legal professionals nicely illustrates why our traditional focus on the "law governing lawyers" has become too narrow.  Our field might be more accurately described now as the "law of legal services."   

"Florida Joins the Conversation on Advising Clients to 'Clean Up' Social Media"

Legal Ethics in Motion has a post about a new ethics opinion from Florida analyzing whether a lawyer may advise a client to clean up social media before initiating litigation.

(slightly off topic) Sixth Circuit backs university that denied MD degree because of professionalism issues

The opinion is here. Excerpt:

Authority to decide whether a medical student deserves a degree usually rests with the student’s school. In this unusual case, that did not happen. A federal district court found that Amir Al-Dabagh had proven himself worthy of a diploma and ordered Case Western Reserve University School of Medicine to give him one—disregarding the university’s determination that he lacked the professionalism required to discharge his duties responsibly. Because that lack-of-professionalism finding amounts to an academic judgment to which courts owe considerable deference, we must reverse.

Naming Names in the $1.5 Bilion GM/JPMorgan/Simpson/Mayer Brown Opinion

We've already noted the 2nd circuit's decision this month finding that termination of the UCC-1 filing in connection with the $1.5 billion GM loan was enforceable and that therefore the property securing the loan was no longer secure.

The opinion did not name the lawyers at either firm who failed to catch the error.

But the circuit's earlier opinion in the case -- referenced in the later one -- does name the partners at the two firms who did not recognize the error. It does not name the Mayer Brown associate.

Why name the partners? This is NOT a situation where a lawyer has violated some duty to the tribunal and is called out on it, with the sanction being his name in the opinion. That happens and can be appropriate. 

But why name the lawyers here? It's an awesome power with real world consequences to the lawyers. Perhaps there was a good reason to do so, but I'm unable to think of one.