Legal Ethics Forum

Andrew Napolitano Explains Attorney-Client Privilege UPDATED

The former judge and current Fox News legal analyst explains his view of attorney-client privilege as it applies to Michael Cohen:

 

 

 UPDATE:  If the embed isn't working, try this link: https://www.youtube.com/watch?v=CDp_g4e_2WQ 

Or this one: http://video.foxnews.com/v/5771429217001/?#sp=show-clips

When Presidents Lawyer Up

Here is my essay on The Conversation (coauthored with Brian McGinty) about Lincoln’s choice of counsel, in comparison to Trump’s:

When presidents lawyer up: A brief history

April 11, 2018 6.46am EDT

President Trump’s difficulty finding lawyers who will represent him in his current legal troubles tells us much about his leadership style and the advice he is willing to accept.

Some of his lawyers have resigned. Others – including such well-known Republicans as Theodore Olson and Dan Webb – have declined to represent him. At least one of Trump’s attorneys has ended up needing a lawyer himself.

The formal explanations of why lawyers have chosen not to represent Trump have included various business and client conflicts. But attorneys are often unwilling to take on a client who has a reputation for disregarding legal advice and freezing out, if not outright firing, lawyers who disagree with him.

Other presidents have had much better access to counsel in their times of troubles, in part because they stood to be far better clients, and in part because they valued professional ability over political allegiance.

What Nixon and Clinton shared

Both Richard Nixon and Bill Clinton turned to decidedly nonpartisan attorneys when they were facing impeachment.

During the Watergate investigation, Nixon was represented by James St. Clair, who had become famous in 1954 when he confronted, and ultimately humiliated, Republican Sen. Joseph McCarthy at the congressional hearings that helped end McCarthy’s career.

St. Clair had also represented an opponent of Nixon’s Vietnam policy, Yale Chaplain William Sloane Coffin, against charges of conspiring to interfere with the draft.

Clinton likewise retained an attorney better known for his legal savvy than his politics when he chose Robert S. Bennett. Bennett had earlier represented Caspar Weinberger, President Ronald Reagan’s secretary of defense, during the Iran-Contra scandal. Bennett had also served as counsel to a Senate ethics committee investigating five senators – four of whom were Democrats – for taking improper favors from the banker Charles Keating.

After being impeached, Clinton survived in office. Nixon resigned before he could be impeached. But they both had the benefit of dispassionate legal advice uninfluenced by political considerations.

Lincoln’s legal crisis

Abraham Lincoln, whom many consider our greatest president, had been a successful trial lawyer before his election. Despite his own considerable abilities, he often called on legal advisers to help him make important decisions, including some who were independent of his administration. Lincoln’s outside attorneys were not always his political supporters, but he listened to them anyway.

In the spring of 1861, Lincoln was facing an unprecedented crisis. Confederate forces had begun the Civil War when they fired on Fort Sumter on April 12, only five weeks after inauguration day. The president responded by calling up 75,000 new federal troops.

To reach Washington, D.C., from the north, however, the recruits had to pass through Maryland – a state that had not seceded, but which was otherwise a hotbed of Confederate sympathizers. On April 19, a militia regiment from Massachusetts was intercepted by a rioting mob on the streets of Baltimore, leaving four soldiers and 12 civilians dead.

Even more ominously, members of the Maryland militia, including a wealthy landowner named John Merryman, burned railroad bridges and cut telegraph lines, preventing other Union troops from reaching Washington.

Lincoln believed that emergency measures were necessary to arrest the saboteurs. His impulse was to suspend the writ of habeas corpus, which allowed those arrested to immediately challenge their detention before a federal court. Suspension would normally have required congressional action, but Congress was in recess and would not reconvene for months. And Lincoln was unsure of his constitutional authority to suspend the writ on his own.

Outside counsel for Lincoln

Secretary of State William Seward and Attorney General Edward Bates supported the suspension. But Lincoln was not satisfied with in-house advice.

He then consulted Reverdy Johnson, a prominent Baltimore lawyer with a national reputation as a Supreme Court advocate.

Johnson had represented Maryland in the United States Senate from 1845 to 1849, and he had served as U.S. attorney general under President Zachary Taylor. Most significantly, Johnson was a Democrat who had opposed Lincoln’s election in 1860.

Johnson had also represented the slaveholder in the Dred Scott case, which resulted in a notorious opinion by Chief Justice Roger Taney, holding that African-Americans had “no rights which the white man was bound to respect.” Lincoln despised the Dred Scott decision and called it part of a conspiracy to make slavery a national institution.

If anyone was likely to disagree with Lincoln, it was Reverdy Johnson. But the president still sought him out for advice.

As it turned out, Johnson strongly supported Lincoln’s efforts to save the Union from the secessionists, telling the president that it was his “obvious duty” to arrest saboteurs, and that suspending habeas corpus would be “perfectly constitutional.”

Lincoln issued the suspension on April 27.

On May 25, John Merryman was arrested by federal troops for burning railroad bridges in Maryland and imprisoned at Baltimore’s Fort McHenry. Merryman’s attorneys immediately petitioned Chief Justice Taney, then hearing cases in Baltimore, for a writ of habeas corpus to free their client.

Informed of Lincoln’s suspension of habeas corpus, Taney held that only Congress could suspend the writ. He pointedly ordered Merryman’s jailers to bring their prisoner before the court, which is precisely what a writ of habeas corpus prescribes.

Lincoln, and therefore the jailers, simply ignored Taney’s demand, and Merryman remained in military custody. Lincoln again consulted with Johnson, who reiterated his support for the suspension of habeas corpus and wrote a long legal opinion explaining his reasoning.

Published in Washington’s leading newspaper, the National Intelligencer, the opinion backed up Lincoln’s own statement on the suspension of the writ: “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?”

Johnson did not agree with every order that Lincoln gave. He was critical of the decision to arrest men suspected of treason and subject them to trial before military tribunals.

After Lincoln was assassinated, Johnson represented Mary Surratt, who was tried, convicted and hanged for conspiring with John Wilkes Booth to murder the president. Lincoln himself would no doubt have encouraged Johnson to accept the Surratt case. He understood how good lawyers worked, and he was not afraid to seek advice and counsel from those who disagreed with him.

Brian McGinty is the author of The Body of John Merryman: Abraham Lincoln and the Suspension of Habeas Corpus (Harvard University Press 2011)

Here is my essay on The Conversation (coauthored with Brian McGinty) about Lincoln’s choice of counsel, in comparison to Trump’s:

When presidents lawyer up: A brief history

April 11, 2018 6.46am EDT

President Trump’s difficulty finding lawyers who will represent him in his current legal troubles tells us much about his leadership style and the advice he is willing to accept.

Some of his lawyers have resigned. Others – including such well-known Republicans as Theodore Olson and Dan Webb – have declined to represent him. At least one of Trump’s attorneys has ended up needing a lawyer himself.

The formal explanations of why lawyers have chosen not to represent Trump have included various business and client conflicts. But attorneys are often unwilling to take on a client who has a reputation for disregarding legal advice and freezing out, if not outright firing, lawyers who disagree with him.

Other presidents have had much better access to counsel in their times of troubles, in part because they stood to be far better clients, and in part because they valued professional ability over political allegiance.

What Nixon and Clinton shared

Both Richard Nixon and Bill Clinton turned to decidedly nonpartisan attorneys when they were facing impeachment.

During the Watergate investigation, Nixon was represented by James St. Clair, who had become famous in 1954 when he confronted, and ultimately humiliated, Republican Sen. Joseph McCarthy at the congressional hearings that helped end McCarthy’s career.

St. Clair had also represented an opponent of Nixon’s Vietnam policy, Yale Chaplain William Sloane Coffin, against charges of conspiring to interfere with the draft.

Clinton likewise retained an attorney better known for his legal savvy than his politics when he chose Robert S. Bennett. Bennett had earlier represented Caspar Weinberger, President Ronald Reagan’s secretary of defense, during the Iran-Contra scandal. Bennett had also served as counsel to a Senate ethics committee investigating five senators – four of whom were Democrats – for taking improper favors from the banker Charles Keating.

After being impeached, Clinton survived in office. Nixon resigned before he could be impeached. But they both had the benefit of dispassionate legal advice uninfluenced by political considerations.

Lincoln’s legal crisis

Abraham Lincoln, whom many consider our greatest president, had been a successful trial lawyer before his election. Despite his own considerable abilities, he often called on legal advisers to help him make important decisions, including some who were independent of his administration. Lincoln’s outside attorneys were not always his political supporters, but he listened to them anyway.

In the spring of 1861, Lincoln was facing an unprecedented crisis. Confederate forces had begun the Civil War when they fired on Fort Sumter on April 12, only five weeks after inauguration day. The president responded by calling up 75,000 new federal troops.

To reach Washington, D.C., from the north, however, the recruits had to pass through Maryland – a state that had not seceded, but which was otherwise a hotbed of Confederate sympathizers. On April 19, a militia regiment from Massachusetts was intercepted by a rioting mob on the streets of Baltimore, leaving four soldiers and 12 civilians dead.

Even more ominously, members of the Maryland militia, including a wealthy landowner named John Merryman, burned railroad bridges and cut telegraph lines, preventing other Union troops from reaching Washington.

Lincoln believed that emergency measures were necessary to arrest the saboteurs. His impulse was to suspend the writ of habeas corpus, which allowed those arrested to immediately challenge their detention before a federal court. Suspension would normally have required congressional action, but Congress was in recess and would not reconvene for months. And Lincoln was unsure of his constitutional authority to suspend the writ on his own.

Outside counsel for Lincoln

Secretary of State William Seward and Attorney General Edward Bates supported the suspension. But Lincoln was not satisfied with in-house advice.

He then consulted Reverdy Johnson, a prominent Baltimore lawyer with a national reputation as a Supreme Court advocate.

Johnson had represented Maryland in the United States Senate from 1845 to 1849, and he had served as U.S. attorney general under President Zachary Taylor. Most significantly, Johnson was a Democrat who had opposed Lincoln’s election in 1860.

Johnson had also represented the slaveholder in the Dred Scott case, which resulted in a notorious opinion by Chief Justice Roger Taney, holding that African-Americans had “no rights which the white man was bound to respect.” Lincoln despised the Dred Scott decision and called it part of a conspiracy to make slavery a national institution.

If anyone was likely to disagree with Lincoln, it was Reverdy Johnson. But the president still sought him out for advice.

As it turned out, Johnson strongly supported Lincoln’s efforts to save the Union from the secessionists, telling the president that it was his “obvious duty” to arrest saboteurs, and that suspending habeas corpus would be “perfectly constitutional.”

Lincoln issued the suspension on April 27.

On May 25, John Merryman was arrested by federal troops for burning railroad bridges in Maryland and imprisoned at Baltimore’s Fort McHenry. Merryman’s attorneys immediately petitioned Chief Justice Taney, then hearing cases in Baltimore, for a writ of habeas corpus to free their client.

Informed of Lincoln’s suspension of habeas corpus, Taney held that only Congress could suspend the writ. He pointedly ordered Merryman’s jailers to bring their prisoner before the court, which is precisely what a writ of habeas corpus prescribes.

Lincoln, and therefore the jailers, simply ignored Taney’s demand, and Merryman remained in military custody. Lincoln again consulted with Johnson, who reiterated his support for the suspension of habeas corpus and wrote a long legal opinion explaining his reasoning.

Published in Washington’s leading newspaper, the National Intelligencer, the opinion backed up Lincoln’s own statement on the suspension of the writ: “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?”

Johnson did not agree with every order that Lincoln gave. He was critical of the decision to arrest men suspected of treason and subject them to trial before military tribunals.

After Lincoln was assassinated, Johnson represented Mary Surratt, who was tried, convicted and hanged for conspiring with John Wilkes Booth to murder the president. Lincoln himself would no doubt have encouraged Johnson to accept the Surratt case. He understood how good lawyers worked, and he was not afraid to seek advice and counsel from those who disagreed with him.

Brian McGinty is the author of The Body of John Merryman: Abraham Lincoln and the Suspension of Habeas Corpus (Harvard University Press 2011)

Here is my essay on The Conversation (coauthored with Brian McGinty) about Lincoln’s choice of counsel, in comparison to Trump’s:

When presidents lawyer up: A brief history

April 11, 2018 6.46am EDT

President Trump’s difficulty finding lawyers who will represent him in his current legal troubles tells us much about his leadership style and the advice he is willing to accept.

Some of his lawyers have resigned. Others – including such well-known Republicans as Theodore Olson and Dan Webb – have declined to represent him. At least one of Trump’s attorneys has ended up needing a lawyer himself.

The formal explanations of why lawyers have chosen not to represent Trump have included various business and client conflicts. But attorneys are often unwilling to take on a client who has a reputation for disregarding legal advice and freezing out, if not outright firing, lawyers who disagree with him.

Other presidents have had much better access to counsel in their times of troubles, in part because they stood to be far better clients, and in part because they valued professional ability over political allegiance.

What Nixon and Clinton shared

Both Richard Nixon and Bill Clinton turned to decidedly nonpartisan attorneys when they were facing impeachment.

During the Watergate investigation, Nixon was represented by James St. Clair, who had become famous in 1954 when he confronted, and ultimately humiliated, Republican Sen. Joseph McCarthy at the congressional hearings that helped end McCarthy’s career.

St. Clair had also represented an opponent of Nixon’s Vietnam policy, Yale Chaplain William Sloane Coffin, against charges of conspiring to interfere with the draft.

Clinton likewise retained an attorney better known for his legal savvy than his politics when he chose Robert S. Bennett. Bennett had earlier represented Caspar Weinberger, President Ronald Reagan’s secretary of defense, during the Iran-Contra scandal. Bennett had also served as counsel to a Senate ethics committee investigating five senators – four of whom were Democrats – for taking improper favors from the banker Charles Keating.

After being impeached, Clinton survived in office. Nixon resigned before he could be impeached. But they both had the benefit of dispassionate legal advice uninfluenced by political considerations.

Lincoln’s legal crisis

Abraham Lincoln, whom many consider our greatest president, had been a successful trial lawyer before his election. Despite his own considerable abilities, he often called on legal advisers to help him make important decisions, including some who were independent of his administration. Lincoln’s outside attorneys were not always his political supporters, but he listened to them anyway.

In the spring of 1861, Lincoln was facing an unprecedented crisis. Confederate forces had begun the Civil War when they fired on Fort Sumter on April 12, only five weeks after inauguration day. The president responded by calling up 75,000 new federal troops.

To reach Washington, D.C., from the north, however, the recruits had to pass through Maryland – a state that had not seceded, but which was otherwise a hotbed of Confederate sympathizers. On April 19, a militia regiment from Massachusetts was intercepted by a rioting mob on the streets of Baltimore, leaving four soldiers and 12 civilians dead.

Even more ominously, members of the Maryland militia, including a wealthy landowner named John Merryman, burned railroad bridges and cut telegraph lines, preventing other Union troops from reaching Washington.

Lincoln believed that emergency measures were necessary to arrest the saboteurs. His impulse was to suspend the writ of habeas corpus, which allowed those arrested to immediately challenge their detention before a federal court. Suspension would normally have required congressional action, but Congress was in recess and would not reconvene for months. And Lincoln was unsure of his constitutional authority to suspend the writ on his own.

Outside counsel for Lincoln

Secretary of State William Seward and Attorney General Edward Bates supported the suspension. But Lincoln was not satisfied with in-house advice.

He then consulted Reverdy Johnson, a prominent Baltimore lawyer with a national reputation as a Supreme Court advocate.

Johnson had represented Maryland in the United States Senate from 1845 to 1849, and he had served as U.S. attorney general under President Zachary Taylor. Most significantly, Johnson was a Democrat who had opposed Lincoln’s election in 1860.

Johnson had also represented the slaveholder in the Dred Scott case, which resulted in a notorious opinion by Chief Justice Roger Taney, holding that African-Americans had “no rights which the white man was bound to respect.” Lincoln despised the Dred Scott decision and called it part of a conspiracy to make slavery a national institution.

If anyone was likely to disagree with Lincoln, it was Reverdy Johnson. But the president still sought him out for advice.

As it turned out, Johnson strongly supported Lincoln’s efforts to save the Union from the secessionists, telling the president that it was his “obvious duty” to arrest saboteurs, and that suspending habeas corpus would be “perfectly constitutional.”

Lincoln issued the suspension on April 27.

On May 25, John Merryman was arrested by federal troops for burning railroad bridges in Maryland and imprisoned at Baltimore’s Fort McHenry. Merryman’s attorneys immediately petitioned Chief Justice Taney, then hearing cases in Baltimore, for a writ of habeas corpus to free their client.

Informed of Lincoln’s suspension of habeas corpus, Taney held that only Congress could suspend the writ. He pointedly ordered Merryman’s jailers to bring their prisoner before the court, which is precisely what a writ of habeas corpus prescribes.

Lincoln, and therefore the jailers, simply ignored Taney’s demand, and Merryman remained in military custody. Lincoln again consulted with Johnson, who reiterated his support for the suspension of habeas corpus and wrote a long legal opinion explaining his reasoning.

Published in Washington’s leading newspaper, the National Intelligencer, the opinion backed up Lincoln’s own statement on the suspension of the writ: “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?”

Johnson did not agree with every order that Lincoln gave. He was critical of the decision to arrest men suspected of treason and subject them to trial before military tribunals.

After Lincoln was assassinated, Johnson represented Mary Surratt, who was tried, convicted and hanged for conspiring with John Wilkes Booth to murder the president. Lincoln himself would no doubt have encouraged Johnson to accept the Surratt case. He understood how good lawyers worked, and he was not afraid to seek advice and counsel from those who disagreed with him.

Brian McGinty is the author of The Body of John Merryman: Abraham Lincoln and the Suspension of Habeas Corpus (Harvard University Press 2011)

ILEC 2018 Melbourne Call for Proposals due July 31, 2018

International Legal Ethics Conference VIII
Legal Ethics in the Asian Century

6-8 December 2018
Melbourne

Proposals for presenting a paper or panel at ILEC VIII are cordially invited. Presenters are encouraged to submit papers within one of the following streams:

1. Technology, Legal Ethics and Society
2. Interdisciplinary and Empirical Approaches to Legal Ethics
3. Philosophy and Legal Ethics
4. Regulation of the Profession(s)
5. Ethics and Legal Education
6. Globalisation and Legal Ethics
7. Legal Ethics and Access to Justice

The Conference will be organised into sessions of 90 minutes each. Normally, three to four papers will be presented in any one session.

Proposals for a paper should include a title and abstract of between 100 and 300 words. Please also include your name, institutional affiliation (if any) and up to six keywords describing your topic.

Alternatively, a proposal for a Panel involving discussion or other formats will be considered. If you are proposing a panel, please state the title of the panel, with a brief description, together with the names of the panellists presenting. Where possible, we would encourage panel proposals to be submitted with the full set of abstracts appended.

Proposals should either indicate the stream in which the paper or panel is to be presented or clearly identify an alternative theme within which the proposal sits. We will seek to accommodate alternative themes where viable.

In order to accommodate as large and diverse a group of presenters as possible, participants are requested to submit no more than two proposals.

The deadline date for proposals is July 31, 2018.

Proposals should be submitted by email to [email protected] with the subject heading “ILEC8 paper proposal.

Magistrate Judge criticizes lawyer's overheated rhetoric in Oracle - HP case

Painful if short opinion. 

Download Oracle order

California 22nd Ethics Symposium (live blogging)

Opening comments by Michael G. Colantuono: California now has a non-unified bar. 

Case update: 

Los Angeles County Board of Supervisors v. Superior Court (2017) 12 Cal.App.5th 1264 [219 Cal.Rptr.3d 674]: did the Court of Appeal effectively over-rule the Supreme Court of California's holding in Los Angeles County Board of Supervisors v. Superior Court (2016) 2 Cal.5th 282 [212 Cal.Rptr.3d 107]? The high court introduced some novel concepts involving assertions of attorney client privilege and appeared to require courts weighing assertions of ACP to review materials in camera -- a process that in California had never been allowed. The high court also appeared to created the "heartland of the privilege" doctrine out of whole cloth. On remand, the Court of Appeal protected the ACP in the old-fashioned way. (To be clear: the pointed summary of the high court's opinion reflects my criticism of that ruling.)

Tucker & Ellis v. Sup. Crt. (Nelson) (2017) 12 Cal.App.5th 1233 [220 Cal.Rptr.3d 382]. Work product belongs not to the individual lawyer but rather to the law firm where that lawyer worked. 

California Self-Insurer’s Security Fund v. Superior Court (2018) 19 Cal.App.5th 1065 [228 Cal.Rptr.3d 546]: under some unusual facts, a screen was used to prevent what appeared to be a side-switching DQ.

Flake v. Neumiller & Beardslee (2017) 9 Cal.App.5th 223 [215 Cal.Rptr.3d 277]: The statute of limitations began to run when the firm appeared to end the representation by correspondence and by filing a motion to withdraw -- and not as of the date that the motion to withdraw was formally granted. Will this ruling cause mischief down the road?

Judges Searching the Internet for “Background Information”

Justice Sotomayor’s perusal of a litigant’s website has received some attention. Of greater concern should be trial judges who gather case or party-related facts from extrajudicial sources.

For example, a federal judge, presiding over a case in which a zoo was accused of mistreating animals, researched anonymous online reviews of the zoo. In denying the zoo’s recusal motion, the judge held that “[t]here is no prohibition against a federal judge’s access to the Internet to obtain background information regarding the subject of a case before the Court.”

Remarkably, the judge created an “internet background research” exception to the general rule prohibiting a judge’s independent factual research in a case. To be sure, the judge did not condone obtaining background information from non-internet sources. He certainly would not consider securing background information by interviewing friends or surveying visitors as they left the zoo. The judge confined the “background research” exception to information gleaned from the Internet.

Why should a judge’s search for background information be limited to the internet? Certainly, anonymous internet reviews are less reliable than information obtained through other investigatory methods. Internet research, however, has two undeniable benefits over “boots on the ground” research–anonymity and not having to leave one’s easy chair.

Two strategies might help reduce the misuse of the internet by federal judges

First, the U.S. Judicial Conference should amend the judicial code for lower court federal judges to bar independent fact research. Most state judicial codes include such a prohibition. For some unexplained reason, the federal judicial code does not.

Second, the real danger created by independent research is that it allows judges to rely on information without giving the parties an opportunity to contest the relevancy or accuracy of the information. Requiring a judge who intends to gather case or party-specific information to notify the litigants and allow them to object to the judge’s plan, will minimize this danger. If no party objects or the judge overrules an objection, then the parties should be given another opportunity to challenge the information uncovered by the judge on relevancy and accuracy grounds. So, the judge hearing the case alleging the zoo’s mistreatment of animals would notify the parties that he intends to research online reviews of the zoo for “background information.” The parties could object or agree. If the judge reviews online critiques, the parties would be privy to the posts considered by the judge and permitted to contest the posts’ relevancy and accuracy and, if appropriate, present evidence concerning the partisan interests of the authors of the comments.

Federal Rule of Evidence 201(e), governing judicial notice, sets forth this procedure. But the procedure should apply whenever a judge seeks extrajudicial information whether the purpose is judicial notice, “background information,” or some other rationale for sidestepping the adversary process.