Legal Ethics Forum

U.S. v. Hastert: Some Legal Questions as the Press Gets Ahead of the Story

It seemed pretty obvious when news of the indictment broke that Dennis Hastert was paying to cover up sexual misconduct with a minor, although we could not say male or female. Various press reports told us indirectly what editors thought - indirectly, to avoid risk of libel -  referencing Hastert's work coaching wrestling and with the Boy Scouts. Am I the only reader who thought of Jerry Sandusky?

But the next questions were: Did Hastert's victim still have a claim he could bring? And would demanding payment  for silence be extortion, a word the press, including the  Times, has now used.

Regarding the limitations period in Illinois on child sexual abuse, as I read the statutes, it could be as long as 20 years after the child reaches 18. So the incident could have been as long ago as the mid-80s, depending on the age of the child at the time. The payments began in 2010. 

Hastert worked with the Boy Scouts for 16 years but I don't know when that ended.

Hastert left his teaching and coaching job in 1981 and was elected to the House in 1987. 

The WSJ says that the limitations period on any sex offense "decades ago" would likely have run. But that conclusion is premature.

As for extortion: If the child, now and adult, hired a lawyer and threatened to sue, as many have for harm arising from the sex abuse, and the lawyer settled for  $3.5 million, which Hastert was in the process of paying when indicted, that surely would not be extortion. We would call that a settlement. (For all we know, maybe the victim did hire a lawyer.)

The WSJ quotes a Northwestern law professor calling the victim a "blackmailer." But this  word is also not supported by what we now know. People have settled claims for sex abuse. They are not therefore blackmailers, or extorters. 

So if the victim did not hire a lawyer and did the same thing on his own, surely it doesn't turn into extortion. (Maybe the victim is himself a lawyer.) 

What if the limitations period had already run when the victim demanded compensation? In some of the church sex abuse cases, the church settled with a confidentiality agreement even when the claim was time barred. The apparent motive is to avoid publicity. 

Last question: Why didn't Hastert report the demand to the law enforcement and deny the allegation? Two possibilities, maybe both: He anticipated that if the story broke, more victims would emerge. Often,  there is more than one victim of such a crime. Or maybe the victim had incontrovertible proof -- letters, pictures, tape recordings. 

Ethics On The Run

My review of Alice Goffman’s On The Run: Fugitive Life in an American City was posted today on The New Rambler Review (an online journal edited by Eric Posner, Adrian Vermeule, and Blakey Vermeule).  As you will see, I am extremely critical of the book – especially on ethics issues – despite the raves from luminaries in the world of social science. 

You can read the entire review here. 

I have copied a few key paragraphs below, which will allow you to get an idea of the whole thing:

Alice Goffman’s widely acclaimed On the Run: Fugitive Life in an American City has drawn more positive attention than almost any sociology book in recent years.  The success of the book led to a lecture tour of at least twenty sociology departments and conferences.  Her TED talk, which was often interrupted by applause, has had nearly 700,000 views.  A careful reading of On the Run, however, leaves me with vexing questions about the author’s accuracy and reliability.  There are just too many incidents that strike me as unlikely to have occurred as she describes them.  One must try to keep an open mind about such things – especially regarding someone as obviously brilliant and dedicated as Goffman – so readers may disagree with me about the extent of her embellishments.  In any event, there is a bigger problem.  As I will explain below, Goffman appears to have participated in a serious felony in the course of her field work – a circumstance that seems to have escaped the notice of her teachers, her mentors, her publishers, her admirers, and even her critics.

*

 There is another reason for concern about the hospital story.  Elsewhere in the book, Goffman explains that many of her subjects refused to seek medical attention, or visit sick or injured friends, for fear that their names would be run by the cops.  While it is understandable that the police might check out the emergency room for patients with gunshot wounds, I believe it is an urban legend that they likewise screen all patients and visitors in every ward.  I found no one else who ever heard of such a routine practice.

By validating the rumor, however, Goffman has now embedded it in ethnographic lore, and it could well be accepted as fact by sociology and social work majors.  If repeated uncritically by future social workers in urban areas, this could have the ripple effect of further discouraging young African-American men from obtaining necessary medical care, which would be a shame.

*

 Taking Goffman’s narrative at face value, one would have to conclude that her actions – driving around with an armed man, looking for somebody to kill – constituted conspiracy to commit murder under Pennsylvania law.  In the language of the applicable statute, she agreed to aid another person “in the planning or commission” of a crime – in this case, murder.  As with other “inchoate” crimes, the offense of conspiracy is completed simply by the agreement itself and the subsequent commission of a single “overt act” in furtherance of the crime, such as voluntarily driving the getaway car.

I sent the relevant paragraphs from On the Run to four current or former prosecutors with experience in Pennsylvania, New York, New Jersey, and Illinois. Their unanimous opinion was that Goffman had committed a felony.  A former prosecutor from the Philadelphia District Attorney’s office was typical of the group.   “She's flat out confessed to conspiring to commit murder and could be charged and convicted based on this account right now,” he said.

*

Medical students are taught to do no harm.  Law students are instructed that they may not assist a client in the commission of a crime.  The analog for ethnography students ought to be equally straightforward: if a subject asks you for help in a murder plot, just say no.

This review is part of a longer project on the ethics of ethnography.

What does "structural change" mean?

For several years we've been discussing whether the legal profession is undergoing structural change. But what do we mean by that phrase? For me, the key issue is whether the profession will continue to earn supra-competitive profits. As one example, those of us who have been practicing 25 years have seen what has happened to insurance defense work. When I started out in the mid-1980s, insurance defense was a solid path for lots of lawyers to make partner and make good money. Over time, the market undercut those earnings. Is something similar happening to solos and even the high end of practice?

Here is an article by Ben Barton looking at those issues. And here is a post by Deborah Merritt commenting on the new Altman Weil survey. Both of them indicate to me that we're going to see continued erosion. Notice that even if law schools return to a semblance of normalcy in two years or so, if the market outcomes are very different then the profession will have undergone structural change. 

"Lawyers circling lawyers in frenzied Facebook ownership flap"

Story at ArsTechnica. Excerpt:

A New York state judge earlier this month decided that as many as nine lawyers from various high-profile law firms who represented Ceglia must defend Zuckerberg's lawsuit. That decision came weeks before a federal appeals court said that Ceglia was "an individual who has repeatedly demonstrated total disregard for our judicial system."

Back to Zuckerberg's lawsuit targeting Ceglia's attorneys: New York Supreme Court Judge Eileen Rakower ruled that Zuckerberg's lawsuit against the lawyers "adequately alleges" that the lawyers from firms like DLA Piper, Milberg, and Lippes Mathias Wexler Friedman "knew that the contract in issue in the Ceglia Action was forged."

These lawyers being sued by Zuckerberg's lawyers didn't just roll over and die, however. They appealed the decision Monday. Among other things, they said Ceglia passed a lie detector test.

Judges May “Encourage” Pro Bono Legal Services

[This post is from Ray McKoski.]

Today, the ABA issued Formal Opinion 470 advising that a judge may author a letter encouraging lawyers to participate in pro bono legal service programs.  While the casual observer might not see an issue with such a laudable endeavor by a judge, it took the Committee on Ethics and Professional Responsibility ten well-written pages to explain why the judge’s letter did not violate the ABA Model Code of Judicial Conduct. Part of the problem is that Rule 3.7(B) of the ABA Model Code does not permit judges to “solicit” attorneys to provide free legal services but only permits judges to “encourage” lawyers to provide such services. This limitation is curious because Rule 3.7(A)(3) of the ABA Model Code authorizes judges to personally solicit lawyers to join the ABA and other bar associations. It is especially difficult to understand the rationale for allowing the solicitation of bar association members but not pro bono attorneys since, according to Opinion 470, offices funded by the Legal Services Corporation turned away 944,000 people in one year due to a lack of resources.

The ABA needs to amend Rule 3.7(B) of the Model Code by replacing the word “encourage” with the word “solicit” so that Rule 3.7(B) reads: “A judge may solicit lawyers to provide pro bono publico legal services.” If nothing else, this amendment will place the poor and bar associations on equal footing in the eyes of the ABA’s judicial code.

Private law firm's use of AG's letterhead presents question of fact under debt collection law

In a case where a law firm's use of the state Attorney General's letterhead was allegedly a violation of debt collection laws, the Sixth Circuit has reversed the trial court's summary judgment for the law firm and has sent the case back to the trial court to resolve a disputed question of fact. Link below. (I wonder if in the future firms will seek indemnity up front.) Excerpt:

Plaintiffs Pamela Gillie and Hazel Meadows appeal the district court order entering summary judgment in favor of Defendants Eric A. Jones; the Law Office of Eric A. Jones, LLC (“Jones Law Office”); Mark J. Sheriff; Sarah Sheriff; and Wiles, Boyle, Burkholder & Bringardner Co., LPA (“Wiles Law Firm”). Plaintiffs brought this action under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., alleging that Defendants utilized a deceptive, misleading, or false representation or means in attempting to collect consumer debts Plaintiffs owed to entities owned and operated by the State of Ohio. The Attorney General intervened on behalf of Defendants, asserting that the alleged misrepresentation—consisting of sending debt-collection notices on the Attorney General’s letterhead—was not a misrepresentation at all and was, in fact, authorized by the Attorney General. The district court found that Defendants were exempt from FDCPA coverage as “officers” of the State of Ohio; and that, in any event, their use of the Attorney General’s letterhead did not violate the FDCPA. For the reasons set forth below, we VACATE the summary judgment in favor of Defendants and REMAND this case to the district court for further proceedings consistent with this opinion. 

http://www.ca6.uscourts.gov/opinions.pdf/15a0087p-06.pdf

Andrew Perlman is the New Dean at Suffolk!

Suffolk University Law School today announced the appointment of Andy as its new Dean. Congratulations, Andy.

More on Tribe as scholar and advocate (sincerity matters "somewhat")

We've recently discussed Laurence Tribe's dual roles as advocate and scholar. Tim Wu has this piece in the New Yorker, which takes some interesting stances on the issue. Here's a passage where Wu starts to lose me, beginning with that "somewhat." Notice, too, the tension between arguing that Tribe should not advocate unless it's for people who aren't being adequately heard and the assertion that, “Were Professor Tribe’s name not attached to [the views], no one would take them seriously.” If Tribe believes in his position and if his advocacy is the only reason anyone takes the argument seriously, then that's all to the good, right?

Should Tribe be let off the hook if he sincerely believes his positions? That surely matters somewhat. It would be much worse, as an academic, to simply sign one’s name to views not really held, in exchange for money. But for work to be considered in the public interest, it ought to be, at least in part, on behalf of clients who are in some way underrepresented, or present views that would not be heard. This is true of some of Tribe’s work; but in much of it he is empowering the powerful. Tribe usually buttresses the work of corporate defense attorneys, as in the arguments he has made against net neutrality. In the Peabody Energy case, his constitutional arguments, including the idea that the regulation of carbon is an unconstitutional “taking,” are well-worn anti-regulatory bromides. As two of his Harvard colleagues wrote, “Were Professor Tribe’s name not attached to them, no one would take them seriously.”

Motion to DQ State's Attorney for Baltimore, Marilyn Mosby, from Freddie Gray prosecutions

UPDATE: The motion is below. These statements by the State's Attorney are a cornerstone of the motion. 

"To the people of Baltimore and the demonstrators across America I heard your call for 'no justice no peace" Your peace is sincerely needed as I work to deliver justice on behalf of this young man . . . [T]o the youth of the city. I will seek justice on your behalf. This is a moment. This is your moment. Let's insure we have peaceful and productive rallies that will develop structural and systemic changes for generations to come. You're at the forefront of this cause and as young people, our time is now."

I can't find the motion yet, but here's a news story. You may recall that after the Ferguson and Staten Island homicides of Michael Brown and Eric Garner there was some discussion about whether local prosecutors had conflicts of interest or were otherwise poor choices for prosecutions of local police. I've seen some criticisms from Alan Dershowitz and others about the timing and substance of Mosby's charging decision, and we can expect more discussion of that moving forward.

Download Freddie-gray-case-officers-motion-to-dismiss

Pamela Geller Is Not "Morally Responsible" for the Terrorist Attack in Texas

(Cross posted from The Faculty Lounge)

I have an article at The New Republic, explaining that Pamela Geller is morally wrong in her denigration of American Muslims,  but not morally responsible for the recent attack on her cartoon exhibit.  In this, I take issue with Noah Feldman's recent oped, in which he makes the case for her moral culpability.

My piece is here.  Opening paragraphs are below:

Pamela Geller, president of the American Freedom Defense Initiative, is a nasty-hearted Islamophobe. But should she be blamed for the recent armed attack on her cartoon exhibit in Garland, Texas, in which two gunmen were killed and a police officer was wounded? Writing for Bloomberg View, Harvard law professor Noah Feldman opined that she may be “morally culpable,” on the theory that she probably hoped to “provoke violence.” Feldman has erred badly here. 

Although Feldman begins by condemning the terrorists, he quickly cautions his readers not to be “distracted” by either the crime or the First Amendment; the real question, he argues is whether Geller was “morally right or wrong” to stage an event featuring offensive caricatures of the Prophet Mohammed. But it's Feldman who's been distracted, by Geller's long history of repulsive anti-Islam activism (for example, her despicable campaign to prohibit the so-called “ground zero mosque”). Blaming her, even partially and conditionally, for an act of terror stretches moral reasoning beyond the breaking point.