Legal Ethics Forum

Spotlight and the role of lawyers

I’ve only seen one of the films nominated for an Oscar this season—Spotlight—and it has haunted me. (Fair warning: spoilers ahead, though the film is well worth viewing even knowing how it unfolds.)

This gripping film recounts the true story of Boston Globe editor Marty Baron’s decision to assign the newspaper’s “Spotlight” team of investigative reporters to examine sex abuse allegations against Catholic priest John Geoghan. The reporters’ interviews of victims and efforts to unseal sensitive court documents eventually led them to what we now know was an extensive cover-up of abuse by the Roman Catholic Church over many years involving not just Geoghan but thousands of priests. (The Globe won the 2003 Pulitzer Prize for Public Service based upon this reporting.) The film features brilliant acting by Michael Keaton as editor Walter “Robby” Robinson, Rachel McAdams as reporter Sacha Pfeiffer, and Mark Ruffalo as reporter Michael Rezendes, among others. Most intriguing to me, however, was the role of lawyers in the film, including Erik MacLeish, who represented numerous abuse victims in securing private settlements, and Jim Sullivan, who defended priests accused of abuse and was a long-time friend of Robby Robinson.

The film raises significant questions about legal ethics and personal morality. How do we reconcile the sanctity of confidentiality and attorney-client privilege against the moral dilemma of knowledge about a client’s outrageous acts? It is one thing to maintain confidentiality in representing someone accused of an isolated crime that occurred in the past, but what if a lawyer has information that could prevent hideous child abuse from occurring in the future?

Robinson repeatedly asks Sullivan to become a confidential source by confirming the names of child molesting priests as the Globe’s list of suspects grows. Sullivan struggles—the film captures this beautifully and painfully—then finally relents, confirming dozens of names on the Globe’s list.

MacLeish obtains settlements for hundreds of victims, all subject to strict confidentiality agreements. His work is critiqued by the reporters as essentially being a cottage industry at the expense of future victims, because the settlements prevent the abuse from becoming public. MacLeish maintains that the short statute of limitations and statutory cap on recovery made settlement the best possible outcome for his clients. Perhaps that is true for the individuals he represented; but what about the children who continued to be abused? Does settlement in a situation like this achieve justice or undermine it? (Read Owen Fiss’s Against Settlement for more on that topic.) Here again, MacLeish faces the moral dilemma of whether or not to reveal confidential information. We learn late in the film that he sent information to the Globe many years before the Spotlight investigation occurred; the Globe failed to follow up on it.

What is the role of lawyers in a massive abuse scandal of this nature? Should there be an exception to client confidentiality protections or attorney-client privilege? Does Model Rule 1.6’s exception for breaching confidentiality to prevent an act that is reasonably certain to result in substantial bodily harm apply here?

This article from the Globe’s Spotlight team reporting on the abuse scandal in 2002 offers some answers while at the same time raising even more questions:

Louis D. Brandeis: An Interdisciplinary Retrospective

On March 31-April 1, 2016, Touro Law Center and the Jewish Law Institute will host a national conference, Louis D. Brandeis: An Interdisciplinary Retrospective. More than thirty judges, lawyers, and scholars, representing a broad range of disciplines and hailing from around the United States, will explore topics that include, among others: Brandeis's groundbreaking work as a lawyer and a scholar; his commitment to his Jewish heritage; his historic appointment to the Supreme Court nearly one hundred years ago; and his jurisprudence on the Court.

The event is open to the public—click here to register.

Kudos to organizer Sam Levine for putting together such an amazing conference—the full agenda follows below. (And a disclaimer—I will be speaking on Friday afternoon. Hope to see you there!)

Conference Agenda

Thursday, March 31

8:30 am—Breakfast and Welcome

Patricia E. Salkin, Dean and Professor of Law, Touro Law Center
Samuel J. Levine, Professor of Law and Director of the Jewish Law Institute, Touro Law Center, Conference Organizer

9:00 —10:40 am--Brandeis and the Public Good

William E. Nelson, Weinfeld Professor of Law, New York University School of Law--Moderator

Barry Cushman, John P. Murphy Foundation Professor of Law, University of Notre Dame--Brandeis and Due Process

Kenneth Elzinga, Professor of Economics, University of Virginia/ Micah Webber, Trinity Fellow, University of Virginia-- The Curse of Bigness and Contemporary Antitrust Policy: Brandeis and Market Concentration

Joel K. Goldstein, Vincent C. Immel Professor of Law, Saint Louis University School of Law-- Brandeis's View of Civic Duty

Lance Liebman, William S. Beinecke Professor of Law, Columbia Law School-- The U.S. Labor System: From Brandeis 1916 to U.S. 2016

10:45-11:45 am--Brandeis and Privacy

Joan Foley, Kermit Gitenstein Distinguished Professor of Health Law & Policy, Touro Law Center--Moderator

Erin K. Coyle, Assistant Professor of Manship School of Mass Communication, Louisiana State University-- Sunlight and Shadows: Brandeis and the Balance Between Government Transparency and Personal Privacy

Susan E. Gallagher, Associate Professor, Political Science Dept., UMass Lowell --Privacy, Publicity, and Power: Historicizing the "Right Most Valued by Civilized Men”

Mark A. Graber, Jacob A. France Professor of Constitutionalism, University of Maryland Carey School of Law--Right to Privacy from Olmstead to Obergefell

11:50 am -12:50 pm—--Brandeis and Lawyering (I)

James Altman — Bryan Cave -- Moderator

Robert F. Cochran, Jr. --  Director, The Herbert and Elinor Nootbaar Institute on Law, Religion, and Ethics and Louis D. Brandeis Professor of Law Louis Brandeis and Lawyer Advocacy

Randy Lee, Professor of Law at the Commonwealth Law School of Widener University—Brandeis and Professionalism

Susan Saab Fortney, Professor, Texas A&M University School of Law--Collaborative Divorce: What Might Louis Brandeis Say About the Promise and Problems?

1:00-1:45 pm--Lunch

1:45 – 3:05 pm--Brandeis and Lawyering (II)

Bruce Green, Stein Professor, Fordham University School of Law--Moderator

Anita Bernstein, Anita and Stuart Subotnick Professor of Law, Brooklyn Law School---Good Enough for a Brandeis Brief

John Dzienkowski, John F. Sutton Chair in Lawyering and the Legal Process, University of Texas School of Law-- Contributions of Louis Brandeis to the Modern Law of Lawyering

Judith A. McMorrow, Professor of Law, Boston College Law School--Brandeis and Globalization of Legal Services

Katherine A. Helm—Attorney, Simpson Thacher & Bartlett LLP -- Brandeis as a Lawyer

3:10—4:30 pm--Brandeis and the Courts (I)

Rodger Citron, Associate Dean, Touro Law Center--Moderator

Jeremy Kessler-- Brandeis, Douglas, and Constitutional Avoidance

Robert Pushaw, James Wilson Endowed Professor, Pepperdine University School of Law-- Reviving Justice Brandeis's Approach to Standing

Steve Winter-- Brandeis and the Administrative State

Larry Zacharias, Professor emeritus, University of Massachusetts-Amherst —From Winfield to Tompkins: Brandeis and the Railroad Workers' Cases

4:35—5:20 pm—Brandeis and the Courts(II)

Patricia E. Salkin, Dean and Professor of Law, Touro Law Center--Moderator

Judge Rick Haselton, Senior Judge, Oregon Court of Appeals—Brandeis and Judicial Process

Judge Kermit V. Lipez, Judge, U. S. Court of Appeals for the First Circuit

5:30 pm—Reception-- Judaica Collection

Introduction - Samuel J. Levine, Professor of Law and Director of the Jewish Law Institute, Touro Law Center; Conference Organizer

Remarks-- Hasia R. Diner, Paul S. and Sylvia Steinberg Professor of American Jewish History, New York University—Brandeis, the Great Jewish Migration, and Progressivism

Friday, April 1

9:00 am—Breakfast

9:30—10:30 am -- Keynote and Jewish Law Institute Spring 2016 Distinguished Lecture: 

"Destabilizing the Business-Profession Binary: Louis Brandeis on Professionalism and Identity" presented by Russell G. Pearce, Professor of Law; Edward & Marilyn Bellet Chair in Legal Ethics, Morality, and Religion, Fordham University School of Law

10:45--11:45 am--Brandeis and Judaism

Ajay Mehrotra, Executive Director & Research Professor, American Bar Foundation--Moderator

Felice Batlan, Professor of Law and Associate Dean of Faculty, IIT Chicago-Kent College of Law--Legal Progressives and the Work of Brandeis's Wife and Nieces

Rabbi Meir Soloveichik--Brandeis, Zionism and Judaism

Adam Winer, J.D. Candidate, NYU School of Law (Class of 2018)

12:00 – 12:50 pm—Keynote Luncheon Address: 

"The Legacy of Louis Brandeis and the Nature of American Constitutionalism" presented by Edward A. Purcell, Jr. Joseph Solomon Distinguished Professor, New York Law School

1:00--2:30 pm – Brandeis and Free Speech

Kent Greenawalt—University Professor, Columbia Law School -- Moderator

Vincent Blasi, Corliss Lamont Professor of Civil Liberties, Columbia Law School---Brandeis's Understanding of the Freedom of Speech: Individual Right or Collective Good?

Elizabeth Todd Byron, J. Graham Brown School Social Studies Department Chair, Louisville, Kentucky-- A Progressive Mind: Louis D. Brandeis and the Origins of Free Speech

Renee Knake, Foster Swift Professor of Legal Ethics and Professor of Law, Co-Director, Kelley Institute of Ethics & the Legal Profession, Michigan State University --SCOTUS Decisions on Lawyer Speech

Frederick M. Lawrence, Senior Research Scholar, Yale Law School-- LDB's Free Expression Jurisprudence

The Third Circuit got it right in 1993: Investors who put their trust in Donald Trump’s promises had all the warning signs right in front of them

Perhaps the bond holders didn’t read the prospectus.  Perhaps they were too “uneducated” to read it. Perhaps they knew the warning signs and wanted to assume the risk anyway.   Trump said that he was confident that the bond holders would be paid back, but there were many reasons to believe they wouldn’t be paid back. 

The warnings signs included extremely high leverage in the deal (about 90% debt; only 10% equity); the risky business enterprise (an enormous casino called the Taj Mahal) and the promise of an outsized return (about 5% higher yield than quality corporate bonds).  

Whatever the reason, these investors made their decision and the Court told them that they had to live with it.   Choices have consequences.  Case dismissed.

http://www.casebriefsummary.com/in-re-donald-j-trump-casino-securities-litigation/

What are the warning signs now?

New Issue of Georgetown Journal of Legal Ethics

The Georgetown Journal of Legal Ethics has published its first issue of Volume 29.   Contributors include Cassandra Burke Robertson, Carrie Menkel-Meadow, and Mitt Regan.  The issue also includes two articles on access to justice and deregulation, one by Nick Robinson, and one by yours truly.

GJLE will also be hosting a symposium on "Remaining Ethical Lawyers in a Changing Profession" on March 18, 2016.  I cannot attend, but the program looks fantastic.  

Congratulations to the editors of Volume 29 for continuing GJLE's proud tradition.  

The liberal POTUS + SCOTUS plan for campaign finance reform and what conservatives can do to stop it

Polling data is clear:  voters of all ideological viewpoints see our corrupt system of campaign finance as a serious problem, a problem of both law and ethics.  And voters want change.

Liberals offer a plan for change: elect a liberal president, and a liberal Senate, and that will assure one or more additional liberal supreme court justices.  With the reversal of Citizens United -- the most unpopular Supreme Court decision in recent memory -- the problem will be solved.  Even if it isn't solved (it wont' be) liberals will get a lot of other things they want.  Angry voters only need to give the go ahead in November.

Political conservatives can put their head in the sand and deny there is a problem, at least until the first Wednesday in November when they will wake up to realize that there is a problem.   Or they can propose -- and insist that Congress enact -- solutions that withstand constitutional scrutiny under the Supreme Court's existing case law.   There is a lot that Congress can do, and political conservatives should be leading the charge to make sure it is done now, before the alternative -- the POTUS + SCOTUS plan -- swings into action.

http://www.nytimes.com/2016/02/03/opinion/the-conservative-case-forcampaign-finance-reform.html

http://ethics.harvard.edu/richard-painter-taxation-only-representation-conservative-conscience-and-campaign

http://www.amazon.com/Taxation-Only-Representation-Richard-Painter/dp/1939324122

 

Some will say that I am politicizing this issue.  It has always been political.   The question is whether either side -- or people in the middle -- will take this troubling legal and ethical problem seriously.  Or will we allow politicians to use it, and the campaign finance system, to their advantage while the American people stand on the sidelines?

 

 

Cruz Must Recuse

I have a piece on CNN.com explaining that Ted Cruz should recuse himself from Senate Judiciary Committee hearings on President Obama's eventual nominee to the Supreme Court.

Here is the gist of his conflict of interest:

Cruz's claim to "natural born" United States citizenship has been questioned (bombastically) by Donald Trump, and (very seriously) by a number of highly respected legal scholars, including Harvard's Lawrence Tribe and the University of Chicago's Eric Posner.

It is far from a given that Cruz is constitutionally qualified to be president, and his status, if nominated, is sure to be challenged in court.

Such a case would ultimately reach the U.S. Supreme Court, which gives Cruz a unique stake in filling the current vacancy. If Cruz were to remain an active member of the Judiciary Committee, he would actually have a chance to interrogate -- and to vote upon -- his own potential judge.

You can read the whole essay here.

ABA adopts Model Regulatory Objectives for the Provision of Legal Services

At yesterday's Midyear Meeting, the ABA House of Delegates adopted Resolution 105, Model Regulatory Objectives for the Provision of Legal Services.  This resolution is a product of the ABA Commission on the Future of Legal Services. (Disclaimer, I am a Reporter for the Commission, and fellow LEF blogger Andy Perlman is the Commission's Vice Chair.)  Coverage from the ABA is here, the ABA Journal is here, and the American Lawyer is here. For information on the purpose of regulatory objectives generally, see Laurel Terry's seminal work on this topic, and for more background on the development of the ABA Model Regulatory Objectives specifically, see the Commission's Report.

Here is the resolution in full:

RESOLUTION

RESOLVED, That the American Bar Association adopts the ABA Model Regulatory Objectives for the Provision of Legal Services, dated February, 2016.

ABA Model Regulatory Objectives for the Provision of Legal Services

1. Protection of the public
2. Advancement of the administration of justice and the rule of law
3. Meaningful access to justice and information about the law, legal issues, and the civil and criminal justice systems
4. Transparency regarding the nature and scope of legal services to be provided, the credentials of those who provide them, and the availability of regulatory protections
5. Delivery of affordable and accessible legal services
6. Efficient, competent, and ethical delivery of legal services
7. Protection of privileged and confidential information
8. Independence of professional judgment
9. Accessible civil remedies for negligence and breach of other duties owed, disciplinary sanctions for misconduct, and advancement of appropriate preventive or wellness programs
10. Diversity and inclusion among legal services providers and freedom from discrimination for those receiving legal services and in the justice system

FURTHER RESOLVED, That the American Bar Association urges that each state’s highest court, and those of each territory and tribe, be guided by the ABA Model Regulatory Objectives for the Provision of Legal Services when they assess the court’s existing regulatory framework and any other regulations they may choose to develop concerning non-traditional legal service providers.

FURTHER RESOLVED, that nothing contained in this Resolution abrogates in any manner existing ABA policy prohibiting non lawyer ownership of law firms or the core values adopted by the House of Delegates in Resolution 10F, adopted on July 11, 2000.

(Cross-posted at Professional Responsibility: A Contemporary Approach.)

 

 

New Study on Substance Abuse and Depression Among Lawyers

A new study of lawyers from 19 states reveals the extent of substance use and depression.  From the study's abstract:

Attorneys experience problematic drinking that is hazardous, harmful, or otherwise consistent with alcohol use disorders at a higher rate than other professional populations. Mental health distress is also significant. These data underscore the need for greater resources for lawyer assistance programs, and also the expansion of available attorney-specific prevention and treatment interventions.

We have a long way to go in training happy, healthy, and ethical lawyers.  

Fortunately, most state bars have outstanding lawyer assistance programs.  The current President of the State Bar of Texas offers his personal story of recovery here.