Legal Ethics Forum

Nominations Sought for Fred Zacharias Memorial Prize

This message is from Professor Sam Levine:

Submissions and nominations of articles are being accepted for the sixth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  To honor Fred's memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2015.  The prize will be awarded at the 2016 AALS Annual Meeting in New York City.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center.  The deadline for submissions and nominations is September 1, 2015.

Preet Bharara, Naomi Buchwald, and an Astonishing Slur

Readers of James Stewart's New York Times column this morning, headlined "Trepidation as Bharara and Judges Trade Barbs" may have been astonished, as I was, at this paragraph:

"But the most damage may have been done last summer. At what has been described as a freewheeling, off-the-record roast for a departing prosecutor, Mr. Bharara referred to Judge Naomi Buchwald, who had just presided over his office’s first loss of a major insider trading case, as “the worst federal judge” he’d ever encountered. Several of Judge Buchwald’s fellow jurists were at the party."

First, Judge Buchwald, whom I've known for decades, is a careful, thorough, honorable, and meticulous lawyer and judge. There is no basis for what Bharara said. He has to learn how to lose without bitterness, or if he cannot, then to  suppress the bitterness.

Second, how could Bharara say something so stupid even if he believed it, which he claims he does not? It was a "stab at humor" is how Stewart characterizes Bharara's  explanation to others. On what planet and in what context can that statement possibly be funny?

Elsewhere  Stewart writes that by calling the Second Circuit's opinion reversing insider trading convictions "dramatically wrong," Bharara "further inflam[ed] some judges." While it would have been politic to drop the adverb, appeals briefs and appellate courts often say the equivalent about lower court opinions. And judges often say much worse about a lawyer's argument.

I'm a Bharara fan. I think his public statements have been mostly appropriate. His investigation of Albany is the best chance the state has had in a long time to clean up Albany's utterly shameful legislative behavior. 

 

Eric Goldman & Angel Reyes III, "Regulation of Lawyers’ Use of Competitive Keyword Advertising"

North Carolina gets called out. Article. Abstract:

Lawyers have enthusiastically embraced search engine advertisements triggered by consumers’ keywords, but the legal community remains sharply divided about the propriety of buying keyword ads triggered by the names of rival lawyers or law firms (“competitive keyword advertising”). This Essay surveys the regulation of competitive keyword advertising by lawyers and concludes that such practices are both beneficial for consumers and legitimate under existing U.S. law—except in North Carolina, which adopted an anachronistic and regressive ethics opinion that should be reconsidered.

Redacted v Redacted: A Pennsylvania Nonprofit's Whistleblowing Lawyer

Lizzy McLellan of the Legal Intelligencer has written an article about a fascinating lawyer-whistleblower case now pending before the Pennsylvania Supreme Court. 

The General Counsel of a nonprofit organization apparently believed that the organization's assets were being unlawfully diverted.  According to redacted filings available on the Pennsylvania Supreme Court website [go to http://www.pacourts.us/courts/supreme-court/court-opinions/ and search for "145 MAP 2014"], the General Counsel disclosed allegedly confidential information to Pennsylvania's Attorney General, and that office apparently opened an investigation of the organization.  During that investigation, the General Counsel continued to represent the organization, allegedly negotiating with the government "on behalf of the targets on whom she had purported to blow the whistle."  She also filed her own complaint against the organization, but the nature of that complaint -- like many of the details of this case -- are under seal.  

Among the issues in this case are:

• whether this General Counsel complied with Pennsylvania's (pre-Sarbanes-Oxley version of) Rule 1.13 by seeking a second opinion or going up the organizational ladder;

• whether she violated Pennsylvania's Rule 1.6 by disclosing confidential information to the Pennsylvania Attorney General;

• whether Pennsylvania's common law fiduciary-exception to lawyers’ confidentiality duty (allowing a lawyer for a private trust to disclose information to the trust’s beneficiary) also allows a lawyer for a nonprofit charitable organization to disclose information about wrongdoing to Pennsylvania’s Attorney General;

• how a government office should handle apparently confidential information that it receives from a lawyer-whistleblower.

On that last issue, appellants assert that in this case, the government office "did not shield itself; worse still, [it] did not even spot the issue. [It] has no policy regarding dealing with attorneys as whistleblowers and in fact actively pursued [REDACTED] documents [REDACTED] before issuing its subpoenas."

 

Legal Risk: Definition, Management and Ethics

Readers of this blog might be interested in the executive report from a study I am leading. It looks at legal risk practices in large corporates here in the UK.  It can be found on SSRN and UCL's webpages.

The report raises key questions about the role of in-house lawyers in balancing commercial and professional considerations; the readiness of in-house lawyers for the complex leadership and management tasks involved in legal risk management; and the extent to which professional ethics are embedded within those teams.

KEY FINDINGS INCLUDE:

• There was no shared sense of the correct approach to legal risk. 

• The in-housers we spoke to were not always clear or confident about their approach, or the best approach, to legal risk management

• There is a clear divide between those who take a, ‘I know it when I see it’ approach to legal risk and those who deliberately applied systems, foresight, thematic and strategic thinking around legal risk.

• Those interviewees with the most developed systems seemed most likely to see cultural dimensions to legal risk, with some emphasising the need to be authentically committed to the spirit as well as the letter of the law as part of a business commitment to compliance, legality and business ethics.

• There is a need for in-house teams to reflect on the extent to which processes of legal risk engage rigorously in assessment, mitigation, communication, monitoring and overall evaluation of legal risk management. Many of our interviewees did not have well developed approaches to each of these elements of a risk strategy.

• Some aspects of risk management may lead to overconfidence and approaches to mitigation which shift risk from the company to third parties, with the potential to raise questions about the appropriateness of this in certain circumstances.

• There is the potential for risk management to change risk appetite by altering perceptions of, and appetites for, risk. In general, risk management increased the appetite for risk because it increased confidence that risk was both understood and manageable. This opens up for debate the question: is risk management as robust as such confidence suggests?

• Objectivity and independence are necessary for risk assessment to be accurate and useful to the business but are in tension with the pressures on in-house lawyers to be commercial team players. These tensions are both overt and implicit. There are overt pressures and implicit biases at work which may sometimes undermine objectivity.

• Appetite for legal risk involves accepting, even welcoming, tolerance for conduct which may be, or even may be likely to be, unlawful. This is sometimes in tension with the professional obligation to promote the rule of law and the guidance to solicitors that they must treat the public interest in the administration of justice as definitive of conflicts between professional obligations.

• Such tensions also impact on corporate interests: there are relatively recent, serious conduct risk examples of allegations involving lawyers in and/or instructed by Standard Chartered Bank, the News of the World, Barclays, The Times newspaper, BNP Paribas and General Motors.

• The extent and nature of these public interest facing obligations are neither understood, nor well-articulated in professional practice generally, nor in-house practice in particular.

 A significantly more detailed academic piece is in train.

Would you defend before the Supreme Court laws that made it practically impossible for your large corporate clients to transfer married employees to half the states in the Union?

The New York Times seems to have missed this point.   There are plenty of lawyers in small and medium sized firms that don’t represent large corporations.  And those lawyers are perfectly capable of defending marriage laws that are inconsistent with laws in other states.  It is obvious from the quality of the briefing of the marriage case that both sides have access to excellent lawyers.    

Law firms, marriage, and moral accountability

In yesterday's NYT, Adam Liptak notes that no major law firm will touch the SSM cases before the Supreme Court.  The explanations offered in the article by firm leaders and industry observers fall into three categories: 1) the issue is so controversial that taking on the representation will impact a firm's attorney recruiting, client retention, and staff morale; 2) firms recognize that there are no meritorious arguments against SSM; and 3) as Michael McConnell puts it, there is a powerful desire to "crush dissent" on the issue of SSM.

Explanation #2 appears to me to be a non-starter. Whether or not SSM is wise as a matter of policy or morally compelled as a matter of justice, I have a hard time believing that the issues surrounding its constitutional status are so one-sided that a firm would see no good-faith basis for litigation. There is, I believe, something to be said for explanations #1 and #3.

I'm reluctant to condemn categorically what's happened here, as we can easily fall into the trap of disclaiming any moral accountability for the cases and causes to which lawyers lend their efforts.  I believe that, at least in civil cases, lawyers bear some responsibility for the choices they make in client selection.  (I have explored these ideas more deeply here and here.)

Indeed, those who applaud the unwillingness of law firms to step up to defend prohibitions on SSM might look to an earlier era of professional ethics as a guide. David Hoffman’s Resolutions, considered by some to be the nation’s first legal ethics code, included the bold statement: “I am resolved to make my own, and not the conscience of others, my sole guide. What is morally wrong cannot be professionally right.” George Sharswood’s Ethics considered it “an immoral act to afford that assistance, when [the attorney’s] conscience told him that the client was aiming to perpetrate a wrong through the means of some advantage the law may have afforded him.”  According to the 1908 Canons of Professional Ethics, the lawyer “advances the honor of his profession and the best interests of his client when he renders service or gives advice tending to impress upon the client and his undertaking the exact compliance with the strictest principles of moral law.”

The inconsistency, of course, is that law firms are not routinely declining other controversial causes, even those that conflict with emerging social norms, nor are they giving even lip service to the existence of accountability to extralegal norms, much less to "the strictest principles of moral law." I'm not suggesting that we should return to the rhetoric of the 1908 Canons (which, I suspect, was empty rhetoric more often than not), just that there is precedent for the notion that lawyers should be morally accountable for the decisions that they, and their clients, make.  Will the SSM cases mark the beginning of an era in which firms, perhaps echoing themes from the Corporate Social Responsibility movement, make client selection decisions that are shaped by moral commitments? 

If our "Hobby Lobby" moment of morally engaged business organizations is going to extend to large law firms and the choices they make regarding the clients they'll serve, this could be a healthy development for the profession and broader society.  If, as I suspect, this is more about firms' unwillingness to court controversy on a rapidly strengthening social norm even when there are important constitutional issues to be resolved, this could be an ominous development for our profession's long tradition of providing a voice for unpopular causes. 

DC appellate court: prosecutors' 3.8 disclosure duties are broader than Brady

News at White Collar Crime Prof Blog. This is big news, isn't it? Key excerpt from the appellate decision (uploaded below):

This matter comes before us upon the Report and Recommendation of the Board on Professional Responsibility (“the Board”). The Board recommended that a 30-day suspension be given to Andrew J. Kline (“Kline”) after finding that Kline violated Rule 3.8 (e) of the District of Columbia Rules of Professional Conduct (“Rule 3.8 (e)”). Rule 3.8 (e) prohibits a prosecutor in a criminal case from intentionally failing to disclose to the defense any evidence or information that the prosecutor knows or reasonably should know tends to negate the guilt of the accused. Bar Counsel takes no exception to the Report and Recommendation of the Board. Kline argued, inter alia, that he did not violate Rule 3.8 (e) because his ethical duties are coextensive with the duties imposed under Brady v. Maryland, 373 U.S. 83 (1963). Specifically, Kline relies on the “material-to-outcome” standard recognized by the United States Supreme Court in Brady’s progeny to argue that a prosecutor cannot violate Rule 3.8 (e) unless there is a reasonable probability that the information or evidence withheld made a difference in the outcome of the trial. We hold that Kline’s interpretation of Rule 3.8 (e), which incorporates a retrospective materiality analysis, is not the appropriate test for determining whether a prosecutor has violated Rule 3.8 (e). We also hold that Bar Counsel proved by clear and convincing evidence that Kline intentionally failed to disclose information in violation of the rule. However, we conclude that given the confusion regarding the correct interpretation of a prosecutor’s obligations under the rule, sanctioning Kline would be unwarranted.

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David Yosifon's podcasts

David Yosifon does podcasts on corporate social responsibility, and the most recent podcast is, "Like Uber for Lawyers: The Ethics of Avvo."  Check it out.

 

Slager's Attorney Withdraws After Video Surfaces

Here is an interview with the lawyer who represented the South Carolina police officer who shot Walter Scott regarding his decision to withdraw after the video surfaced.  Does the lawyer say too much in this interview?  I infer from the interview that after he saw the video he decided his client had lied to him and he couldn't work with him.  That would appear to be a valid reason to withdraw, but is it revealing client confidences if that is what his statements are implying? It seems like "I have withdrawn my representation and have no further comment" would be a better approach.  Article here