Legal Ethics Forum

Brian Tamanaha's Failing Law Schools

The book is available in e- and regular form from the University of Chicago Press, here.  There are several other prior posts about the manuscript and related works here.  His article on the dailybeast.com about how "law schools fudge the numbers" is here.

I must say that the book is a great read -- by that I don't mean it was enjoyable. I've had some grave doubts about this profession and law schools generally for a while, and most of what I read confirmed some of my suspicions.  Some of what he observes is no doubt old news to many people -- that the bottom half of law students essentially subidize the education of the top half, since the top half gets more scholarship money (whatever the need) because LSAT points are what schools need in this age of US News; law professors make a lot of money for little work, relatively speaking (some of the salaries are in the $300,000 and up range, which I can tell you I don't come even close to making!); law schools are controlled by US News but also seek to control it by manipulating everything they can; law school tuition is unsustainable and the cost-benefit to many students is not in favor of attending; there are too many law schools graduating too many law students; the third year of law school is wasted and/or unnecessary; and so on.

 I must have dog-eared every page, but have given it to my wife to read.  I hightly recommend it. It's about 180 pages of text, and an easy 2 hour read.

Supreme Court Update

The Supreme Court's 2010 term opened with five cases involving the law of lawyering on the docket, and we're now up to a total of eleven by my count.  Here are the cases, those decided listed first, then argued but not decided, followed by a list of cases that the Court will hear in the upcoming weeks.

Cases Decided

As I predicted in a post last fall, the Court reversed the Ninth Circuit's finding of ineffective assistance of counsel in Harrington v. Richter, where the defense attorney used vigorous cross-examination and other methods to create reasonable doubt rather than expert testimony and forensic evidence about blood found at the murder scene. (Opinion here.)  On the same day, the Court reversed the Ninth Circuit again and found no ineffective assistance of counsel in Premo v. Moore, where the defense attorney did not move to suppress a coerced confession.  (Opinion here.)  Justice Ginsburg filed a concurring opinion in both cases.  In Harrington, she agreed with the Ninth Circuit that in failing to consult blood experts the defendant's counsel was ineffective, but that the defendant was not prejudiced by this failing.  In Premo, she noted the defendant never declared that, better informed, he would have opted for trial in lieu of taking the plea.  And in yet another reversal of the Ninth Circuit, the Court overturned attorneys' fees awarded  under 42 U.S.C. section 1983 in Los Angeles County v. Humphries.  (Opinion here.)

Cases Argued but Undecided

Connick v. Thompson (Argued October 6) Connick questions the imposition of failure-to-train liability on a district attorney's office.  A jury awarded $14 million to a former death-row inmate who spent 18 years in prison, released after prosecutorial misconduct was revealed.  More details from a previous post here.

Cullen v. Pinholster (Argued November 9) At issue in Cullen is whether defense counsel was ineffective in failing to consult with an additional psychiatrist and more family members to produce sufficient mitigating evidence.

Cases Scheduled for Argument

Ashcroft v. al-Kidd (to be argued 3.2.11) Ashcroft questions the availability of prosecutorial immunity for then-Attorney General Ashcroft's use of the federal material witness warrant as a tool for preventative detention and investigation of terrorist suspects.

Fox v. Vice (to be argued 3.22.11)  Fox involves the award of attorney's fees under a fee-shifting statute in civil rights litigation.  The facts of this case are rather incredible, as the first line from the introduction of the petitioner's brief suggests:  "The plot of this case reads like something out of Grisham.  But the twist is pure Kafka."  Here is the link to the brief, in case you want to read more...

Turner v. Price (to be argued 3.23.11) Turner addresses an indigent defendant's constitutional right to appointed counsel at a civil contempt proceeding that results in his incarceration.  Turner was jailed for failure to pay child support (he had no money to make the payments), and was neither represented by counsel nor advised by the court about his right to counsel.

Missouri v. Frye and Lafler v. Cooper (unscheduled) These cases involve separate appeals but are linked together because they address the same issue:  whether bad advice from a lawyer during plea negotiations may impact a subsequent guilty verdict.  Frye's attorney neglected to inform him about two deals offered by prosecutors before he pled guilty.  Cooper was advised against taking a plea deal by his attorney only to be found guilty. 

US v. Jicarilla Apache Nation (unscheduled) Here the federal government is claiming attorney-client privilege in an effort to withhold information from the Jicarilla Apache Nation Indian tribe about property the government holds in trust on the tribe's behalf. 

"The Ethics of Justice O'Connor Robo-calls"

Analysis at Blog of the Legal Times and SBM Blog (State Bar of Michigan), including quote from Steve Gillers.

Tooting my own Horn: Ethics in Patent Prosecution Published by Oxford University Press

I co-authored it with Drinker Biddle partner Mercedes Meyer, and it's available here.  Here's their blurb:

Patent Ethics: Prosecution serves as an essential guide to the ethical issues arising in the course of the patent prosecution process. By providing relevant rules and case law, it allows practitioners to identify ethical problems before they arise and to address them most effectively when they do. Patent Ethics: Prosecution is the first of two volumes on patent ethics. This treatise is the first of its kind to combine the United State Patent and Trademark Office (PTO) rules with commentary by the authors, which distills the authors' own experience and expertise in patent prosecution into effective practice strategies.

Nearly 400 pages.  The companion volume, on patent litigation, ought to be available in late December or early January.  See post below as to why it's running late!  A great Christmas gift! :-)

Judicial Ethics and Statutory Interpretation

My colleague, Linda Jellum, and I recently finished a book on statutory interpretation. For well over a year, I was completely focused on the competing approaches -- textualism, purposivism, intentionalism, etc. -- and read various judicial views on the appropriateness of each approach.

One thing that really bothered me about a lot of what I read was the impugning of character by textualists of both legislators and judges.  For example, there's a quote that many judges will use about how legislative history involves "looking over the crowd and picking out your friends."  Likewise, there's a suggestion by textualists that anyone who relies on legislative history or purpose is somehow giving themselves room to interpret a statute as she sees fit.  Further, textualists will argue that legislatures "plant" legislative history in order to later bend judicial interpretation.

There's something about all that which bothers me:  it lacks respect, and impugns the character of fellow judges and legislators.  I have no doubt that one can cherry-pick statements from legislative history to support an interpretation, for example, but I also have no doubt that legislative history in the hands of a judge actually seeking "the meaning" of the text is a useful tool.  Likewise, I don't doubt that some legislators may try to "spin" proceedings to get a record that favors their view of the meaning of the text.  But I hardly think that all legislators do, and I certainly don't think that, even if some do, we should throw the baby out with the bath water as a result.

Anyone aware of any writings in this area or other authority?

Legal Research Guide #48

I received a copy of Legal Ethics: A Legal Research Guide (2d ed.) by Lee F. Peoples, an Adjunct Professor of Law and Associate Director for Faculty, Research and Instructional Services of the Oklahoma City University SChool of Law Library, published in 2006 by William S. Hein & Co., Inc.  It's quite a neat little book, collecting both print and electronic sources for ethics research.  Among other things, it has what looks to me to be a fairly comprehensive section on international legal ethics sources.  Way to go, Professor Peoples.