Legal Ethics Forum

Former Judge Using Title in Court (as a Witness)

Richard Underwood (University of Kentucky) has asked me to pose the following query:

A former student (now a defense lawyer) asked me what to do when the plaintiff’s lawyer uses a fact witness who is a former judge who wants to be called “Judge.” . I told the lawyer to address the problem to the trial judge. My lawyer asked the trial court to have the witness and the plaintiff’s  lawyer not use the title “Judge” during Q and A. The trial judge referred the issue to the former judge/witness! I guess it’s a “Judge Club” thing.  Naturally the witness wanted to be called “Judge”, and the plaintiff’s lawyer referred to the witness as “Judge”  all through the trial. (Why am I not surprised?)

I think this may be a problem out there in lawyer land. I certainly think that the use of “Judge” is inappropriate in this context. Indeed, I am not in favor of former judges using such an honorific in any context. Would you mind raising this question on LEF? I found some authority in Delaware to the effect that a litigant/lawyer should not use the title “Judge,” but I have not found any opinions dealing with a witness who is a former judge. Admittedly, I did not have much time to search.

This is not the first time I have encountered this problem. A very good former trial judge and former state  Supreme Court Justice used to play “expert” for plaintiff’s lawyers in insurance bad faith cases, and the titles were used at trial. I thought that that was inappropriate too (for all kinds of reasons).

Our Ethics Committee (I have not been on it for years) will not answer questions about “another” lawyer’s conduct, and our Judicial Ethics Committee will not answer questions from lawyers (only questions from other judges).

I suspect that this may be a “Southern” thing, but I may be wrong.

Any thoughts?

Contingent Tuition As A Means of Access

I've had a few conversations lately about law schools that accept students with relatively low test scores and grades, and at which a noticeable percentage of students may drop out or be dismissed after the first year.  Sometimes the practice is justified as providing students a shot at becoming a lawyer that they otherwise would not have in our grade and test-obsessed world.  The phrase "access school" or "opportunity school" gets used.

If access and opportunity are the key concepts, shouldn't tuition at such a school be contingent on the student's success?  In legal practice, "access" would typically be associated with a contingent fee.  Charging full freight would not be considered an "access" move.  Charging full freight would be considered a signal that the prospects of success did not justify a contingent arrangement.  

Tuition could be made contingent either through refunds or through tiers, in which first year tuition was very modest, and second and third year tuition increased to offset the difference.

Food for thought. 

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Update: My friend Bernie Burk pointed out that Akhil Amar and Ian Ayres floated a proposal similar in spirit several years ago.  

Call for Papers: New Voices in Professional Responsibility—Works in Progress Session AALS Annual Meeting, New Orleans, LA, Thursday, January 3, 3:30-4:45 pm

The AALS Section on Professional Responsibility has extended the deadline for submissions to September 17, 2018.

Call for Papers: New Voices in Professional Responsibility—Works in Progress Session

AALS Annual Meeting, New Orleans, LA, Thursday, January 3, 3:30-4:45 pm

The Professional Responsibility Section is pleased to host a works in progress session during the 2019 Annual Program. Papers selected will be presented at the session along with commentary from a scholar in the field. Papers can be on any professional responsibility topic from professors with seven years or less of full-time teaching experience. Submitted drafts should be near completion with the expectation that they will be submitted for publication during the spring law review submission cycle.

Papers should be submitted to Melissa Mortazavi, via email at [email protected], no later than September 17, 2018, with the subject line: PR Works in Progress.

Kavanaugh and the Duty of Candor

As is now widely known, Brett Kavanaugh received information stolen from Democratic staffers while working in the Bush White House in 2003.  Some of Kavanaugh's emails can be found here. While Kavanaugh has testified repeatedly that he had no knowledge of the theft, he failed to disclose during his previous nomination hearings that he had received some of the  information. One of the authors of the memos stolen by Kavanaugh's former colleague, Manuel Miranda, has written that Kavanaugh should be impeached.

Much of the discussion about Kavanaugh and the "memogate" episode has focused on whether Kavanaugh should have known that the materials had been stolen and whether he subsequently perjured himself in this 2006 exchange with Senator Kennedy. 

I am more interested in whether Kavanaugh i) had a duty to be candid in his nomination hearings and ii) he might have violated this duty. 

Model Rule 3.3 is not the correct framework for analyzing Kavanaugh's testimony since he was not an advocate appearing before a tribunal. We should probably expect judges vying for lifetime appointments to aspire to a higher standard of candor except in situations where they would have to precommit themselves to certain rulings.  Nevertheless, it may be useful to ponder how a judge (or disciplinary board) would react to a counsel who responded to questions about stolen documents in the way that Kavanaugh did.

As far as I understand Kavanaugh's defenders, because he did not actually receive the stolen memos but rather only information from them, including nearly verbatim drafts, he did not mislead the Senate when he told Kennedy in 2006 that "I didn't know about the memos or see the memos that you're describing."  

The problem with this lawyerly parsing is that Kennedy asked Kavanaugh to assess his actions during memogate.  Kennedy did not have the benefit of the recently released emails, but he knew that Kavanaugh worked at the White House at the time and was close to Miranda.  For Kavanaugh to tell Kennedy that the premise of the question was wrong and that he did not receive the memos is misleading under the circumstances because Kavanaugh omitted the crucial fact that he did receive much of their contents.  See MR. 3.3 cmt. 3. One can understand why Kavanaugh would want to omit this fact - it could have led to a whole line of questioning concerning why he did not suspect that Miranda illegally obtained much of the information that he sent to Kavanaugh and others.  Because of the omission, this discussion has occurred only in the context of the Supreme Court nomination and at a time when memogate is regarded mostly as a historical oddity. 

Supreme Court nominations have become remarkably partisan affairs, but lawyers, regardless of their ideologies, should criticize disassembling by members of our profession. Instead I have seen the testimony characterized as "true," "accurate," and "honest" on one side and "perjury" on the other. But one can criticize Kavanaugh's ethics without believing that he committed a crime just as one can acknowledge that Kavanaugh should have been more forthcoming in his previous testimony while maintaining that he is qualified to sit on the Supreme Court.