Legal Ethics Forum

Fee Sharing or Not?

Client hires Attorney 1 to represent her in a civil fraud case on an hourly fee basis that we will assume is reasonable.  There is a valid written fee agreement.   As the case nears trial, Client becomes concerned about Attorney 1's lack of trial experience, and enters into a separate, written contingent fee agreement with Attorney 2 to serve as co-counsel on the matter.  Further assume that the contingent fee agreement would also be considered reasonable standing alone.  However, neither fee agreement references the other.  Both attorneys seem fine with the arrangement, try the case together, and obtain a sizeable verdict in favor of Client.  However, after the trial, a dispute arises between Client and Attorney 2 regarding calculation of the contingent fee.

Was this a "fee sharing" arrangement for purposes of Model Rule 1.5(e), or in my case California RPC 2-200 requiring a separate writing and informed client consent?

Hofstra Law Review on Monroe Freedman

The Hofstra Law Review is dedicating at least two special issues to the scholarship of Monroe Freedman.  The first issue has been published (Volume 44(3)) and includes articles by listserv member Brad Wendel and others (link to official site, here).  

The second issue (Volume 44(4)) is forthcoming, and includes what I think is a really terrific article by Bruce Green on "Candor in Criminal Advocacy" (where he makes a helpful and persuasive distinction between ethical duties of honesty vs. candor) as well as an article by me on plea bargaining innocent clients in an unjust system (here). 

As an aside, when I wrote the article, I for the first time sat down and read the bulk of the articles that Monroe published during his life.  I regret not having done so sooner.  He was a wonderful scholar, and while I knew that in the abstract (he was Monroe Freedman, after all) I didn't get it until then. 

In Defense of Judge Turner (sort of)

I have this oped in the Chicago Tribune, about a local judge who's gotten into a lot of trouble (and who has drawn national attention):

Judge Valarie Turner, of the Circuit Court of Cook County, is a very smart person who appears to have done a very dumb thing. While presiding over her call in a Markham courtroom, she allegedly turned her robe and gavel over to a lawyer, who then took the bench and adjudicated a couple of traffic tickets.

That was not quite as crazy as it sounds. The lawyer, whose name is Rhonda Crawford, won the recent Democratic primary in her judicial subcircuit, and she is running unopposed in November for a seat on the court. She was apparently "shadowing" Turner on the fateful day in order to learn more about the job of judging. It would not have been out of line for Crawford to try on Turner's robe, or even to sit on the bench for a bit. But ruling on cases, even if they were only minor traffic offenses, turned the situation into a fiasco.

The story of the faux judge eventually reached the office of Chief Judge Timothy Evans, who issued an order temporarily removing Turner from all judicial duties, pending further investigation. He also suspended Crawford from her current job as a staff attorney for the court.

Evans did the right thing by taking quick action on Turner and Crawford, but the real question is what will happen next.

Assuming that the allegations are true — neither Turner nor Crawford has issued a denial — the two of them violated a slew of ethics provisions that govern both lawyers and judges. They engaged in "conduct prejudicial to the administration of justice" that involved "dishonesty, fraud, deceit or misrepresentation." The defendants on the two tickets were denied the "right to be heard according to law," and might now have to return to court to have their cases reheard by a real judge.

There are separate disciplinary bodies for lawyers and judges in Illinois. Lawyers are governed by the Attorney Registration and Disciplinary Commission while judges are subject to the Judicial Inquiry Board. I believe it is safe to assume that both organizations already have initiated official investigations, and that some penalty is all but certain to follow. The potential range of sanctions runs from formal reprimands to disbarment of Crawford and removal of Turner from the judiciary. Which one should it be?

There is no defense for a judge who turned her bench over to a lawyer, and no excuse for a lawyer who pretended to be a judge, even if only briefly. Nonetheless, I do not think that these offenses should be career killers. Neither Turner nor Crawford acted for personal gain, manifested bias, demeaned litigants or witnesses or otherwise intended to hurt anyone. Although they do appear to have inconvenienced two traffic defendants, they did not commit a grave injustice.

Even thoughtful, hardworking people can make boneheaded mistakes on the spur of the moment, but that does not make them unqualified ever to do their jobs again. If disbarment and removal from the bench were imposed in this case, what would be left for the judicial miscreants — whom we have seen all too often in Illinois — who take bribes, abuse defendants, commit perjury or exploit and harass court staff? There needs to be some calibration in meting out lawyer and judicial discipline, and that means imposing penalties that fit the harmfulness of the offense, even if that does not correspond to the outrageousness or novelty factor.

Judge Turner has served honorably since 2002, without any previous hint of misconduct. Her reassignment from judicial duties — sometimes called commitment to "judge jail" — has already humiliated her. I believe a reprimand, or at most a short formal suspension, would be more than enough to get the point across and to make sure that nothing similar will ever happen again.

Attorney Crawford's position is trickier, as she will be subject to attorney discipline (currently) and judicial discipline (if she wins in November). Unlike Turner, she does not have an extended record of public service, so there is no good way to evaluate her long-term sensibility. Was the recent episode an aberration, or does it tell us something important about her judgment? Her ultimate discipline probably ought to correspond to Turner's — meaning at most a short suspension from the bar, during which time she could not serve as a judge, even if elected — but the voters can also have their say by getting behind someone for a write-in campaign.

What Turner and Crawford did was head-shakingly wrong; it cannot be ignored or excused. But this is not a case that demands an end to their legal careers.

Conviction of lawyer upheld for parking client's illicit money in her account; Repeated offering of perjury by prosecutor in grand jury proceeding (and not disclosing it despite Brady) is harmless error

For the PR teachers out there, here's a three-fer. (h/t: Ninth Circuit Blog, which has interesting and spirited commentary) Appellate law is sometimes just a bucket of white paint. Will the State Bar step in?

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/18/15-10034.pdf

 

Tom Baker & Rick Swedloff, "The Mystery of Mutual Insurers in Lawyers Professional Liability Insurance"

An interesting article (that perhaps only law firm management wonks will love). Abstract:

Large law firms in the U.S. rely heavily on lawyers-only mutual insurers to manage their malpractice risks. Yet, under classic economic theory, mutual insurers should not be able to compete with stock insurers, at least absent a market failure. Mutuals have less access to capital and thus less ability to spread risk. Also, mutuals demand much more law firm partner time. Our research into the lawyers’ professional liability (LPL) insurance market makes three contributions. First, while we find evidence consistent with the traditional explanations for mutual insurance — market failures related to moral hazard and adverse selection and a problem with long-term contracting, we also provide a new autonomy explanation. Many lawyers, and presumably other professionals, perceive that mutual insurance promotes professional independence in the face of the social control imposed by liability and insurance. Second, we crack open the windows on a secretive aspect of law firm risk management, revealing the variable, hybrid nature of LPL mutual insurance arrangements. Third, we reframe the scholarly understanding of the relationship between organizational forms. The corporate law and insurance literature typically views mutual and stock insurers solely as competitors. We show that they also play complementary roles, as all of these mutual insurers engage extensively with commercial insurers through reinsurance or excess insurance. At least in this context, mutual insurance is not an alternative to stock insurance, but rather a way to manage access to the powerful risk distributing potential of stock insurance. Indeed, the availability of mutual insurance may favorably affect the behavior of stock insurance companies even outside of their relationships with the mutual insurers. Accordingly, our research suggests that lawyers’ participation in their mutual insurers provides benefits not only to their firms, but also to the legal profession.

 

 

What do female Olympians and Supreme Court justices have in common? Apparently the media can't stop focusing on their husbands (or lack of them)

The headlines and tweets in recent days about the media's gendered coverage of female Olympians are strikingly similar to findings from a media study I conducted with Professor Hannah Brenner on the gendered coverage of female Supreme Court nominees.  (Remember the headlines when Obama nominated Justices Kagan and Sotomayor?  "Then Comes the Marriage Question" was one of many in this vein...)

Vox offers a critique of the Olympics coverage here:  Women are crushing it at the Rio Olympics, but the media keeps focusing on their husbands. For a summary of our media study on Supreme Court nominees, click through the slides below and read our article.

 

Rethinking Gender Equality in the Legal Profession’s Pipeline to Power: A Study on Media Coverage of Supreme Court Nominees from Renee Knake

Being scandalized, legal ethics, and Donald Trump

I wanted to follow up on Steve Lubet's post about what happens when you are scandalized by Donald Trump (or by anything else for that matter).

Justice Ginsburg, Trump's former lawyer, and now Prof. Laurence Tribe have crossed the ethical boundaries because, well, Trump is a bad man after all. (Isn't that an exception under 1.6(b)?) Tribe has been unable to establish that he has implied or express consent to reveal that he was having a consult with Trump, and given that Tribe's recent suggestion that Trump may have committed treason, it appears that Tribe's tease about Trump was intended to be embarrassing or detrimental.

That's the trouble with being scandalized by someone and not being sufficiently self-aware to regain self-control. As an added bonus, Tribe mistakes confidentiality for privilege -- a mistake we've seen before (that time from a legal ethics prof no less) and will see again no doubt. But it's a mistake you'll make less often if you keep your mouth shut. The PR profs out there might want to use this kerfuffle as an exercise for students to think through the difference between a confidence and a privileged communication.  Take away: if Trump drives you to behave below your own standards, step back and count to ten.

 

Georgetown Journal of Legal Ethics is looking for submissions

Michael Frisch sends along news that the journal is looking for submissions. 

Professional Ethics in the Age of Trump

[Cross-posted from The Faculty Lounge]

Some supporters of Justice Ruth Bader Ginsburg argued that her recent condemnation of Donald Trump was a justified departure from the usual standards of judicial ethics, explaining that Trump represents a unique threat to democracy that calls for special measures.  Justice Ginsburg herself reconsidered, however, and retracted her comments after a few days.  “Judges should avoid commenting on a candidate for public office,” she said. “In the future I will be more circumspect,”

Now the same set of issues is playing out among psychiatrists and psychologists.

As reported in the New York Times yesterday, some psychotherapists are pushing to reconsider the decades old “Goldwater Rule,” which says that “it is unethical for a psychiatrist to offer a professional opinion [about an individual] unless he or she has conducted an examination and has been granted proper authorization for such a statement.”  The rule was prompted by events during the 1964 presidential election, when more than 1000 psychiatrists called Sen. Goldwater psychologically “unfit for office.” According to The Times, one doctor branded him “a dangerous lunatic.”

The Goldwater Rule was relatively uncontroversial until this year’s election, as Donald Trump has proven to be a “seemingly irresistible” target for some psychotherapists who are appalled at the prospect of his election.  One mental health specialist referred to Trump’s “malignant narcissism,” and over 2000 mental health specialists have signed a Manifesto Against Trumpism. (The Manifesto does not offer a diagnosis.)

According to Dr. William Doherty, a psychologist at the University of Minnesota,” the departure from the Goldwater Rule is justified by the circumstances.  “Yes, for me this is an exception,” he told The Times. “What we have here is a threat to democracy itself.”

This is an unfortunate trend.  As much as I hope that Donald Trump loses the election as thumpingly as possible, I also believe that the Goldwater Rule serves an important ethical principle that should not be compromised.  Remote and second-hand diagnoses are unreliable and potentially harmful, and they are just as likely to be informed by political preferences as by clinical judgment.  It turned out, for example, that Barry Goldwater was quite stable, and he ended his career as a champion of gay rights within the Republican Party.

And of course, the tables can be turned.  Donald Trump has recently challenged Hillary Clinton’s mental health.  Conservative websites, including the Drudge Report, have diagnosed her with everything from depression to Parkinson’s disease, with support from Dr. Mark Siegel of NYU, who watched a videotape of Clinton slipping on some stairs and suggested that she suffers from “post-concussion syndrome.”

And let’s not forget Dr. Bill Frist who, when serving as Senate Majority Leader, diagnosed Terry Schiavo on the basis of a videotape. 

I am not saying that physicians should stay out of politics.  Many have shown significant leadership – from Howard Dean to Rand Paul to Jill Stein.  I just don’t want to see Ben Carson claiming that Hillary Clinton has shown the symptoms of a cerebral aneurism or a subdural hematoma.

Professional ethics exist for reasons that have nothing to do with politics, and they should therefore be respected without regard to partisan advantage.  Once the ethics rules are abandoned – even in what is seen as a compelling case – both sides will feel free to weigh in, and the only result will be damage to the ethics standards themselves. We would not want to see lawyers disclose confidences, or priests violate the sanctity of the confessional, simply because they think a particular election is uniquely important. That is why federal judges need to stay out of politics and doctors need to reserve their diagnoses for people whom they have actually examined.      

The American people are capable of making electoral choices without the extramural political opinions of judges or the second-hand diagnoses of psychotherapists. 

Backlash to MR. 8.4(g)

The ABA House of Delegates recently adopted Model Rule 8.4(g), which reads:

It shall be professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

Although MR 8.4 previously prohibited discrimination on these grounds in the course of representing a client (via a comment), 8.4(g) is substantially broader.  Professor Volokh critiques the rule and its Constitutionality here.  His colleague, Professor Bainbridge, claims that the rule is a product of political correctness.  The drafting committee anticipated some of these concerns and pointed out that more than twenty states already contain anti-discrimination language in their ethics codes.

While I believe this is a very worthwhile debate, 8.4(g) is unlikely to be enforced absent egregious misconduct (even assuming states choose to adopt it).  Lawyers generally take a very broad view of "legitimate advocacy," and the Rule contains a mens rea component. With lawyers not infrequently stealing from and cheating their clients, most state bars will have little interest in policing their members' speech, especially in contexts unrelated to their representation of clients.  Nevertheless, it would not be surprising to see some lawyer or group of lawyers challenge the Constitutionality of these anti-discrimination rules. Stay tuned.