Several years ago John Steele regularly contributed a weekly list of “Legal Ethics Items” which I always appreciated reading and, when he was ready for a much-needed break, I picked it up for a while. Posting has become pretty quiet here at the Legal Ethics Forum lately, but in this strange world of coronavirus isolation I'm finding myself looking for the headlines, the scholarship, and the news we would be seeing if everything was not dominated by this massive health crisis and global pandemic. So, at least for a few weeks, I plan to revive the weekly "legal ethics items” post. I hope you find it helpful in the midst of whatever the rest of 2020 holds for all of us. If you have suggestions for items to be included in future posts, please send them along: [email protected]
News
- One Change That Could Make American Criminal Justice Fairer: The system systematically favors prosecutors. Creating a position of defender general would be a step toward righting things. by Daniel Epps, Washington University St. Louis and William Ortman, Wayne State University, The Atlantic, March 16, 2020
- The high demand for lawyers amid the coronavirus pandemic by Lyle Moran, ABA Journal, March 17, 2020
- The Future of Justice in a COVID-19 World by Jordan Furlong, Slaw, March 18, 2020
- Lawyer suspended for boosting law school grades in Williams & Connolly application by Debra Cassens Weiss, ABA Journal, March 19, 2020
- Overcoming obstacles to experiments in legal practice: In Science Magazine, Professors Jim Greiner and Glenn Cohen co-author paper on the value of randomized trials in legal research by Brett Milano, March 19, 2020
- Senators Slam Draft Ethics Opinion on Judicial Membership in ABA vs. Federalist Society by Ed Whelan, National Review, March 20, 2020
Need help turning your Professional Responsibility course into distance-learning?
- CALI lessons on PR topics: https://www.cali.org/category/2l-3l-upper-level-topics/professional-responsibility
- Assorted videos for teaching PR topics: https://contemporaryprofessionalresponsibility.com/?s=video
- International Forum on Teaching Legal Ethics and Professionalism: http://www.teachinglegalethics.org/content/about
Recent scholarship
Ethical Issues with Lawyers Openly Carrying Firearms, 10 St. Mary’s Journal on Legal Malpractice & Ethics (Forthcoming) by Dru Stevenson, South Texas College of Law
Ethical concerns arise when lawyers openly carry firearms to adversarial meetings related to representation, such as depositions and settlement negotiations. Visible firearms introduce an element of intimidation, or at least the potential for misunderstandings and escalation of conflicts. The adverse effects of openly carried firearms can impact opposing parties, opposing counsel, the lawyer’s potential clients, witnesses, and even judges and jurors encountered outside the courtroom. The ABA’s Model Rules of Professional in their current form include provisions that could be applicable, such as rules against coercion and intimidation, but there is no explicit reference to firearms. Several reported incidents with lawyers and firearms have occurred in recent years, and as states liberalize their “open carry” laws, as well as laws about guns in and around courthouses, the issue will arise with increasing frequency. The time has come for an express ethical prohibition of lawyers openly carrying firearms, at least in adversarial contexts. Such a rule could take the form of an amended subsection of the Model Rules, or an addition to the official Comment to the Rules, or even in a formal ethics opinion from the ABA. The ABA has already adopted a well-reasoned and well-supported Resolution urging states to prohibit firearms from courthouses, and it should follow this with ethical guidance for attorneys. In addition, state ethics committees should promulgate similar rules, or issue ethics opinions, discouraging or prohibiting lawyers from openly carrying firearms in adversarial settings.
Lawyer Speech, Investigative Deception, and the First Amendment, by Rebecca Aviel, University of Denver Sturm College of Law and Alan Chen, University of Denver Sturm
It seems unassailable that attorneys must refrain from deception or dishonesty of any kind as a condition of professional licensure. But this principle, one of the foundational norms of the legal profession, may well infringe upon First Amendment rights, at least in certain applications. In this Article, we confront the tension between an attorney’s expressive and associational rights and her professional duty of absolute honesty. We explain that the latter must yield to the former in the unique circumstances presented by undercover investigations, where attorneys work side-by-side with journalists, civil rights testers, political activists, and others who seek to expose information of profound public concern. Deception about the investigator’s identity or purpose is often necessary to obtain access to information that has been deliberately concealed from the public. That attorneys should be permitted to provide counsel, notwithstanding the deceptive element of the investigation, may seem like a surprising conclusion for a profession that pervasively regulates attorney speech and has long assumed that any kind of deception must be categorically off limits for lawyers. Nonetheless, a close examination of rapidly evolving First Amendment principles reveals that lawyers have a right to provide counsel, advice, and supervision to individuals and entities engaged in investigations – even the deceptive kind.
Courts Beyond Judging, Brigham Young University Law BYU Law Review (forthcoming 2021) by Michael Pollack, Cardozo Law
Across all fifty states, a woefully understudied institution of government is responsible for a broad range of administrative, legislative, law enforcement, and judicial functions. That important institution is the state courts. While the literature has examined the federal courts and federal judges from innumerable angles, study of the state courts as institutions of state government — and not merely as sources of doctrine and resolvers of disputes — has languished. This Article remedies that oversight by drawing attention for the first time to the wide array of roles state courts serve, and by evaluating the suitability of both the allocation of these tasks and the various procedures by which they are carried out across the country. In every state, on top of the ordinary adversarial dispute-resolution function that we expect judges to serve, it is state court judges who are charged with administrative functions like approving applications to change one’s name, to enter the legal profession, or to exercise constitutional rights like accessing abortion care without parental knowledge or consent. And it is often state court judges who are charged with or who have taken on a range of legislative and policymaking functions like redistricting and establishing specialized criminal courts for veterans, persons in need of drug treatment, and others. And in some states, it is state court judges who have the law enforcement power to decide whether a prosecutor’s charging choice was a wise exercise of her discretion. These are not mere odds and ends of governing either; weighty interests hang in the balance across the board. In addition to developing this more complete portrait of the state courts — and of important variation in how these roles are structured across the states — this Article examines whether the interests at stake in each context are appropriately served when state court judges handle them. In some arenas, they are, and this Article places these facets of state court practice on firmer theoretical footing. In others, however, there is cause for concern. With respect to these tasks, this Article argues that state court judges need to be better guided by statute and subject to reason-giving and record-developing requirements that would channel their discretion, improve their decisionmaking, and enable more rigorous appellate review. But most important of all, this Article calls for states to make more conscious choices about structuring the roles they assign to state courts, and for scholars to devote more careful attention to these powerful and nuanced institutions.
Misuse of Titles by Former Government Lawyers, 34 Criminal Justice 64 by Peter Joy, Washington University St. Louis School of Law and Kevin McMunigal, Case Western Reserve University School of Law
A number of lawyers associated with President Donald Trump, within and outside of his administration, have faced ethical challenges. While the ethical issues for President Trump’s personal lawyer Michael Cohen have grabbed the most headlines, actions of Acting U.S. Attorney General Matthew Whitaker on behalf of World Patent Marketing, a company the Federal Trade Commission (FTC) accused of bilking millions of dollars from consumers, also raised serious ethical questions. Among these questions are Whittaker’s using his title and position as a former U.S. attorney in Iowa in letters long after he had left that position and adopting and forwarding statements prepared by others in responding to complaints about World Patent Marketing. Is it ethical for a former, high-ranking government lawyer to use his or her title and position after leaving office? May a lawyer adopt, incorporate, and present statements prepared by others as the lawyer’s own work without personally verifying the statements? In this ethics column, we explore these and related questions.