Legal Ethics Forum

David Boies, Alan Dershowitz, and an alleged conflict

I had missed this story, but Bernie Burk's post at The Faculty Lounge alerted me to it. Long story short, there is a litigation brought by a woman against the federal government and the woman's complaint made extraordinary allegations -- vehemently denied -- about Alan Dershowitz, who is not a party in the case. The Boies firm now represents the woman and Dershowitz claims that the firm has a conflict because one of the lawyers there apparently reached out to him and suggested that he might represent Dershowitz regarding the woman's suit. The facts are still murky, but from news accounts (possibly behind paywalls) it appears that at the time the Boies lawyer made the soft feeler to Dershowitz the firm already represented the woman. Dershowitz may have sent the Boies letter a memo marked confidential. Of course, MR 1.18 comes to mind (and for California lawyers the Flatt case comes to mind) and the rule has a special, limited imputation provision. Maybe more facts will come out and perhaps we'll see a motion to disqualify -- one that will have standing issues (because Dershowitz isn't a party in the litigation), intervention issues, what counts as "adverse," 1.18 issues, confidentiality, and imputation issues. (There's also a "no contact" issue about who can grant consent to speak to a represented party -- the lawyer or the client.) A great exam question, really.

After Dershowitz made his claim, the Boies firm responded:

Mr. Dershowitz’s assertion that the Firm is somehow conflicted is false. Mr. Dershowitz has never been a client of the Firm. He never gave the Firm any confidential information. He was never asked to give the Firm any confidential information. He never even met in person with any Firm lawyer. In his brief exchange of emails and telephone calls with a lawyer at the Firm who is a personal friend, he was told that there were a number of obstacles to the Firm representing him in any capacity. The meeting to discuss a possible representation was cancelled when an initial conflicts check revealed the Firm’s representation of Ms. Roberts.

Mr. Dershowitz’s recent complaint that David Boies has not discussed the controversy with Mr. Dershowitz despite their past cordial relations is not false, but it is disingenuous. Mr. Dershowitz has never sought in any way to speak to Mr. Boies about this subject. Moreover, Mr. Dershowitz’s counsel have, as Mr. Dershowitz knows, demanded that all Boies, Schiller & Flexner lawyers not communicate with Mr. Dershowitz directly.

Dershowitz responded:

I leave it to your readers and the bar to judge whether Boies Schiller is guilty of a conflict of interest. The email exchange will prove that two partners solicited my business, asked me to send them legal materials; agreed to “review” the materials; opened, read and responded to a highly confidential legal memo clearly marked lawyer-client confidential. Indeed after reading my highly confidential memo, they sent me an email providing me with additional authority to support the arguments made therein. Under the law, these actions—especially their decision to open, read and reply, to a confidential email clearly marked lawyer-client privilege—precludes them from serving as counsel adverse to me with respect to the very matters covered in my confidential memo.  .  .

I would be happy to discuss this matter with David Boies and I waive any requirement that he speak to me only through counsel.

Which prompted this reply from the Boies firm:

Mr. Dershowitz selectively and misleadingly describes what happened. If he wishes to release all of the exchanges between him and his counsel and Boies, Schiller & Flexner, those exchanges will demonstrate that Mr. Dershowitz’s claim of any attorney client relationship is frivolous.

Boies Schiller is willing to release those exchanges if Mr. Dershowitz is. Those exchanges will demonstrate among other things that the particular memo Mr. Dershowitz refers to was not sent at the request of Boies Schiller and, in any event, contains no confidential information, but only what Mr. Dershowitz was saying publicly.

To which Dershowitz sur-replied:

The Boies firm is playing unethical games, asking me to release the very lawyer- client confidential memo they never should have opened or read unless they were representing me. I am happy to release the part that says it is a lawyer- client confidential memo but obviously not its content. Nor should they release or threaten to release my confidential memo.

Their claim that my memo contains nothing "confidential" is a blatant lie. It is twice marked "lawyer client privilege confidential " and was sent only to my legal team. Without disclosing its confidential contents I am comfortable disclosing that I described how we could set a litigation "trap for them." If that is not confidential I don't know what is! I have been substantially prejudiced because I can [no] longer use this litigation tactic as a result of them opening and reading my confidential memo.

[edited since posting]

New Ethics Opinion on Internet-Based Trust Account Scams

Internet scams against lawyers are showing up in the news lately. Just a few days ago, the ABA Journal reported on a man who admitted to scamming $2.5 million from 38 law firm bank accounts. In a new ethics opinion, the Professional Ethics Committee of the New York City Bar Association explains how these scams work, offers tips on how to identify and avoid these scams, and explains the ethical obligations that arise when a law firm either suspects or learns it has been the victim of a scam.

 

Here is the digest of the opinion:

An attorney who discovers that he is the target of an Internet-based trust account scam does not have a duty of confidentiality towards the individual attempting to defraud him, and is free to report the individual to law enforcement authorities, because that person does not qualify as a prospective or actual client of the attorney. However, before concluding that an individual is attempting to defraud the attorney and is not owed the duties normally owed to a prospective or actual client, the attorney must exercise reasonable diligence to investigate whether the person is engaged in fraud.  In addition, because Internet-based trust account scams may harm other firm clients, a lawyer who receives a request for representation via the Internet has a duty to conduct a reasonable investigation to ascertain whether the person is a legitimate prospective client before accepting the representation. A lawyer who discovers he has been defrauded in a manner that results in harm to other clients of the law firm, such as the loss of client funds due to an escrow account scam, must promptly notify the harmed clients.

 

 

Disclosure: I am the Chair of the NYCBA Professional Ethics Committee, which issued the opinion.

Politics and SCOTUS recusals

We've had lots of discussion about the desirability of having the SCOTUS adopt an ethics code. (Most recently, Steve Lubet posted in favor of the new bill in Congress.) I thought I'd pass along this story not because I agree with the protesters but rather because I wanted to highlight some of the politicized attacks we do see -- and would see more of if we open the door. Here's a story from The Hill about demands that Justices Ginsburg and Kagan recuse themselves from participating in the same sex marriage cases because they presided over same sex marriages. (I am curious and have not been able to track it down, but did the Justices preside over marriages where the legislature had enacted SSM? Were they marriages in the states where the issue was currently being litigated and headed to the SCOTUS?) In my experience over the years, we've seen these sorts of attacks from the left and the right.

SCOTUS upholds Florida limitations on campaign solicitation by judges

Opinion in Williams-Yulee v. Florida Bar is here. Excerpt from the syllabus:

The desirability of judicial elections is a question that has sparked disagreement for more than 200 years, but it is not the Court’s place to resolve that enduring debate. The Court’s limited task is to apply the Constitution to the question presented in this case. Judicial candidates have a First Amendment right to speak in support of their campaigns. States have a compelling interest in preserving public confidence in their judiciaries. When the State adopts a narrowly tailored restriction like the one at issue here, those principles do not conflict. A State’s decision to elect judges does not compel it to compromise public confidence in their integrity. Pp. 16–22. 

CJ Roberts and the Supreme Court Ethics Act of 2015

(Cross posted on The Faculty Lounge)

With one glaring exception, every judicial system in the United States has adopted some version of the Code of Judicial Conduct – and they did not have to be coerced into doing it.  The outlier, of course, is the United States Supreme Court, which has steadfastly resisted promulgating any rules of ethics, ever since the concept first arose in the 1924, under the leadership of Chief Justice Taft.  Sen. Chris Murphy (D-CT) thinks that the situation is ridiculous and he recently introduced a bill that would require the Supreme Court to adopt written ethics rules within 180 days of the law’s enactment.  Importantly, the proposed Supreme Court Ethics Act does not specify the content of the necessary code, leaving that to the Court itself.  “There is absolutely no reason why Supreme Court justices shouldn't be subject to the same code of conduct as all other federal judges,” said Murphy in a press release, adding that the law would “make the court more accountable and more transparent.”  Co-sponsor Rep. Louise Slaughter (D-NY) agreed, explaining that “it doesn’t make sense that members of the highest court in the land are the only federal judges exempt from the code of conduct.”

Rep. Slaughter went on to detail some of the many times a justice’s ethics have been questioned in recent years, predictably focusing on the alleged faults of the conservative majority, some of whom, she said, had “allowed their names to be used to promote political fundraisers.”  In fact, however, complaints about Supreme Court justices are bi-partisan.  Fox News host Bill O’Reilly, for example, has called for Justices Kagan and Ginsburg to recuse themselves from this week’s argument in the gay marriage case, claiming that they are compromised because each has officiated at a same-sex wedding. 

None of that is going to matter to Chief Justice John Roberts, however, who regards all such questions as outside interference.  In response to an earlier version of the proposed Supreme Court Ethics Act, he flatly rejected the idea that his court, or the public, would benefit from written rules. 

Kentucky Supremes nix the "appearance of impropriety" standard in DQ case

A reader has alerted me to this case, which appears to hold that "the appearance of impropriety" is the wrong standard under Kentucky law for conflicts and disqualification. Good. As I tell my students, the problem with that standard is that just about everything done by the opposing lawyer appears improper to the other side. The standard is too malleable, even if it's still a good standard as applied to judges and third party neutrals. Excerpt:

But this Court is not so bound, except by the force of stare decisis. And this Court has concluded that disqualification based on an appearance of impropriety is inappropriate under the existing Rules of Professional Conduct. It is telling that the appearance-of-impropriety standard does not appear in those rules, except in commentary condemning its use and noting that it has been deleted from the rules. SeeSCR 3.130-1.9 Sup. Ct. Cmt. 5 (2009). Although this Court has previously upheld the use of that standard in deciding lawyer disqualification questions in Lovell, 941 S.W.2d at 469 , the standard must now be rejected. Disqualification under that standard is "little more than a question of subjective judgment by the former client." SCR 3.130-1.9 Sup. Ct. Cmt. 5. In essence, all the former client has to do is claim discomfort with the subsequent representation to create the appearance that something untoward is going on and thus that there is an appearance of impropriety. Moreover, "since 'impropriety' is undefined, the term 'appearance of impropriety' is question-begging." Id. Even if impropriety is the same as an actual conflict, there should be something more substantive than just a possible conflict before disqualification takes place.

Carolyn Elefant on Eric Goldman's new article about lawyers and competitive keyword searching

If you're at the firm of Able & Baker, may you design your website so that people searching for the competitive firm of Charlie & Delta will be led to your site? Carolyn Elefant discusses the article from Eric Goldman that we previously posted. So far, only North Carolina seems to bar that practice. 

Congressional Bill Would Require the Supreme Court to Adopt Ethics Code

The story is here.

Ethics and Law School Employment Numbers Redux

I thought that the ABA's new reporting requirements had effectively ended the debate over law school employment numbers.  However, Michael Simkovic's recent defense of the old reporting standards has sparked much commentary. 

I do not read Simkovic to be defending the aggressive recruiting of students using highly selective employment data, let alone outright fabrication.  Rather he argues that the mere presentation of summary information (e.g., counting students employed in any capacity as "employed" or reporting the median salary of a class) is not misleading and is consistent with the federal government's own reporting of employment data.  Using the federal government's methodology also allows for comparisons between individuals who graduated law schools and those who did not.

Andrew Perlman and others have analogized from Model Rule 7.1 to assess law schools' dissemination of summary employment numbers in this space.  If MR 7.1 is the correct framework, the key question is whether a reasonable prospective student would misunderstand the summary numbers or form an unjustified expectation based on them.  Simkovic would say no.  His detractors would say yes.

I'd advise against strictly applying  MR 7.1 or other advertising rules to the reporting of employment outcomes.  This is not because law schools should be held to lower standards than lawyers. Rather, just as honest reporting of results obtained for former clients can be misleading, so can honest reporting of employment numbers.  The question we need to ask is whether it is nevertheless worthwhile to encourage the reporting of more data, even if it might mislead some prospective students.

Prospective law students who applied in 2014-2015 and may enroll in 2015-2016 likely examined class of 2013 employment numbers (2014 numbers will be available very soon).  But a great deal will change by the time this cohort enrolls and graduates.  The national and local economy could be significantly stronger or weaker.  There may be more or less demand for legal assistance.  The law school in question could gain or lose prestige, and its career services office could have more or less resources.  Presumably none of the foregoing considerations should lead the ABA to prohibit law schools from reporting employment outcomes for fear that they will not predict future outcomes.

Moreover, the more specific the data, the higher the risk that some prospective student will unwisely rely upon it.  Knowing the likelihood of obtaining some type of employment may not be particularly helpful, but at least the number will not vary much from year to year and will allow a student to have a rough sense of his or her odds of obtaining some employment.  Compare this to law schools reporting the number of their graduates employed by large law firms.  If a law school honestly reports in 2013 that 10 out of 100 graduates went on to work in BigLaw, a prospective student might reasonably assume that he or she has a very good chance of working in BigLaw if he or she is at the top of his or her graduating class.  But what if three of the 2013 BigLaw lawyers obtained their positions largely on the basis of connections, and another two had PHds in the hard sciences that made them more attractive to large law firms? If we take the analogy to MR 7.1 seriously, shouldn't law schools, at minimum, provide additional information about the individuals who obtained these desirable positions? Would law schools even know which characteristics allowed these individuals (and the five others) to obtain these positions?

Commentators have begun to levy charges of shoddy ethics merely because they disagree with how some individual or organization has presented the available employment data.  Even assuming a particular presentation makes employment prospects seem brighter than they are, prospective law students can now easily find  corrective information.  Indeed, I suspect that the obsession with short-term employment numbers has made a legal career seem riskier than it actually is (the 2015 and 2016 employment numbers may have the opposite effect).  Unfortunately, one of the inevitable consequences of disseminating more information is that it can confuse as well as clarify.  We should not pretend otherwise while reserving our ire for those who act in bad faith.

 Update: Read this for a sense of how ugly the debate over law school employment has become.  

" ... so much of what the adversary process calls for could be construed as obstruction."

A Ninth Circuit en banc panel reverses the obstruction conviction of Barry Bonds for a rambling answer. More at White Collar Crime Prof Blog and the WSJ Law Blog.