Legal Ethics Forum

Privilege and the White House Counsel

The NYT reports that Mr. McGahn has cooperated extensively with Special Counsel Mueller's team. The story reinforces my impression that Mr. McGahn is doing well in extraordinarily difficult circumstances.

The story implies, however, that the president could have asserted privilege as against the Special Counsel with respect to communications Mr. McGahn had in his capacity as White House Counsel. In re Lindsey suggests otherwise. Since Lindsey the Seventh and Second Circuits have divided on the question whether a state government official may assert privilege as against a federal investigation.  Partly by analogy to control of the corporate privilege in the event of (for example) a special committee investigation, however, Lindsey strikes me as sound.  

 

 

Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility Deadline Sept. 1

Submissions and nominations of articles are being accepted for the eighth 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 submissions limited to those that have a publication date of calendar year 2018. The prize will be awarded at the 2019 AALS Annual Meeting in New Orleans. Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: slevine@tourolaw.edu The deadline for submissions and nominations is Sept. 1, 2018.

SEALS workshops today on Professional Responsibility plus a bonus panel tomorrow on the future of gender equality in the legal profession

If you happen to be at the SEALS Annual Meeting, join us this afternoon for two terrific Professional Responsibility workshops plus a bonus panel tomorrow on the future of gender equality in the legal profession!

Thursday 1:30-3:15 PM

WORKSHOP ON PROFESSIONAL RESPONSIBILITY

Good Lawyers Don't Eat What They Kill: Professional Values and Personal Goals
This panel will discuss Eli Wald and Russel Pearce's forthcoming book entitled "Good Lawyers Don’t Eat What They Kill: A Guide for Reconciling Professional Values and Personal Goals.” Wald and Pearce are preeminent scholars in professional responsibility and the book and this panel will explore their nuanced and contextual approach to legal ethics and lawyering. Wald and Pearce argue that law schools, bar regulators, and the legal profession have been too reliant on an "autonomous self-interest" model, to the detriment of lawyers and the public at large. Wald and Pearce argue for relationally self-interested professionalism, which expands narrow self-interest to include the relationships and contexts that lawyers operate within, to the benefit of the individual, the profession, and the public.

Moderator: Professor Benjamin Barton, The University of Tennessee College of Law

Speakers: Professor Lonnie T. Brown, University of Georgia School of Law; Professor Ellen Murphy, Wake Forest University School of Law; Professor Russell Pearce, Fordham University School of Law

Thursday 3:30-6:30PM

WORKSHOP ON PROFESSIONAL RESPONSIBILITY

Discussion Group: The Ethics of Legal Education

This discussion group picks up where the 2018 AALS Section on Professional Responsibility leaves off on the ethics of legal education. The group addresses the ethical challenges that U.S. law schools have faced during the past decade and considers the path ahead. Topics include accreditation decisions, admissions and scholarship practices, employment issues, for-profit law schools, and how law schools have or have not lived up to their ethical obligations recently. Some of us will have drafts we briefly present and some of us will just come ready to chat.

Moderator: Professor Benjamin Barton, The University of Tennessee College of Law

Discussants: Professor Benjamin Cooper, The University of Mississippi School of Law; Professor Bruce Green, Fordham University School of Law; Dean Matthew Kerns, University of Arkansas at Little Rock, William H. Bowen School of Law; Professor Renee Knake, University of Houston Law Center; Professor Milan Markovic, Texas A&M University School of Law; Professor Carol Needham, Saint Louis University School of Law; Professor Russell Pearce, Fordham University School of Law; Professor Veronica Root, University of Notre Dame Law School; Professor Paula Schaefer, The University of Tennessee College of Law

Friday 1:00 PM-2:45 PM

Perspectives on the Future of Gender Equality in the Legal Profession
This panel focuses on gender and equality throughout the legal profession. Panelists reflect historically about the exclusion of women and minorities, and consider the stories of those who have successfully ascended into positions of leadership and power and those who were overlooked despite their impeccable qualifications. Panelists also examine contemporary practices that disparately impact women and minorities, such as their appointment into academic leadership positions in times of crisis—in a context when these positions require harder work with fewer economic rewards. They speculate about what the future of the profession, creation of federal laws/policies, and judicial decision-making might look like with more diverse representation, and they consider how many of these phenomena exist not just in law, but across other professions.

Moderator: Professor Becky Jacobs, The University of Tennessee College of Law

Speakers: Professor Hannah Brenner, California Western School of Law; Professor Renee Knake, University of Houston Law Center; Professor Carla Pratt, Washburn Law School

Kris Kobach Should Recuse in the Kansas Republican Primary Recount

[Cross-posted from The Faculty Lounge]

Last Tuesday's Republican primary in Kansas has the two candidates for governor separated by fewer than 200 votes, out of over 300,000 cast, with all precincts reporting.  There are still some absentee and provisional ballots to be counted, but it seems certain, as the New York Times reports, that the race is headed for a recount.  As the sitting Kansas secretary of state, however, Kobach himself will be in charge of supervising the recount. The conflict of interest is glaring and hardly needs to be pointed out: Kobach's own political interests are directly at stake in a process superintended by his office.

Remarkably, Kobach has announced that he has no plans to recuse himself, as reported in the Kansas City Star:

“The recount thing is done on a county level, so the secretary of state does not actually participate directly in the recount,” Kobach said at a campaign event in Topeka after initial results showed him winning by fewer than 200 votes.

“The secretary of state’s office merely serves as a coordinating entity overseeing it all but not actually counting the votes,” Kobach said, contending that his role puts him at arm’s length from the actual recount.

 Kobach evidently has no sense of either chutzpah or irony. The chutzpah is apparent in his argument that "overseeing" and "coordinating" the recount gives him no potential advantage or influence over the outcome. The irony is palpable, given Kobach's long-standing insistence that there has been massive illegal voting at the county level, including in Kansas.  

 

It appears that no Kansas law requires Kobach's recusal, but the Kansas City Star has nonetheless called for him to step aside to protect the appearance of fairness.  Jeb Bush did just that in 2000, when he announced that he would play no role in the Florida recount that ultimately gave his brother the presidency.  In this instance, Kobach's interest is even more direct than was Jeb's.

 

In any case, there are only two possible interpretations of the secretary of state's role in the recount:  either he has some involvement in it or he doesn't.  In the first case, he obviously must recuse himself.  In the second case, there is no reason that he shouldn't.  It is axiomatic in our judicial and political system that no person should be a judge in his own cause, or even appear to be. As the Kansas City Star pointed out, "any perceived involvement by Kobach in a recount could further damage the voters’ confidence in the outcome and faith in the state’s election system."

 

What is Kobach trying to prove?

 

Biennial IAOLE Deborah Rhode Prize Submissions Due August 17

From the International Association of Legal Ethics -- Call for Submissions

Submissions are now invited for the Biennial IAOLE Deborah Rhode Prize for the best legal ethics paper by an early career scholar.

The Deborah Rhode Prize for Early Career Scholars was established by the International Association of Legal Ethics in 2015, and named after the Association’s first President, Professor Deborah L. Rhode of Stanford Law School. The inaugural competition was won by Sarah Winsberg, a JD/PhD student at the University of Pennsylvania, USA, for her essay “Attorney ‘mal-practices’: an invisible ethical problem in the early American republic”. The published version can be found in Legal Ethics, vol 19(2), pp.187-2016 (2016).

Submissions are invited on any topic that meets the mission of the international journal Legal Ethics*. Papers must be no more than 10,000 words in length; previously unpublished work, and written in or translated into English. To be considered, papers should be uploaded to the Legal Ethics online submission portal by Friday, 17 August 2018. Please include on the first page of your submission a clear statement that the paper is to be considered for the Deborah Rhode prize and that the author is an early career scholar**.

The winning paper will be announced and prize presented at ILEC VIII. The author will have the opportunity to present the paper at ILEC VIII on a special panel. The paper will be guaranteed publication in Legal Ethics.

*The mission of Legal Ethics is stated as follows:

1. “Legal Ethics is an international and interdisciplinary journal devoted to the field of legal ethics.
2. The journal provides an intellectual meeting ground for academic lawyers, practitioners and policy-makers to debate developments shaping the ethics of law and its practice at the micro and macro levels.
3. Its focus is broad enough to encompass empirical research on the ethics and conduct of the legal professions and judiciary, studies of legal ethics education and moral development, ethics development in contemporary professional practice, the ethical responsibilities of law schools, professional bodies and government, and jurisprudential or wider philosophical reflections on law as an ethical system and on the moral obligations of individual lawyers.”

** ‘Early career scholars’ include those who are up to 5 years post-PhD; those with normally no more than 5 years employment in an academic teaching and/or research position, or those who can make a case that they fit in the early career category for other reasons.