In the wake of the OPR report on John Yoo, we discussed whether the counselor/advisor rule (2.1) was too “thin” or if it might be read holistically.  Little did we know that Paula Schaefer had been nearing completion of this article, “Harming Business Clients with Zealous Advocacy: Rethinking the Attorney Advisor's Touchstone.”  Abstract:

Joseph Collins was a successful business lawyer, with a sophisticated practice at Mayer Brown LLP. In January 2010, Collins was sentenced to seven years in prison for his role in a massive fraud that cost investors millions and sent his client Refco, Inc. into bankruptcy. At sentencing, the judge reportedly stated, “I think this is a case of excessive loyalty to his client.” Collins’ own testimony reflects a lawyer who believed he was zealously representing his client's interests. But in reality, Collins’ conduct was not “loyal” to his client. He contributed to his client’s destruction.

With the Collins example and others, I argue that business lawyers act as zealous advocates to their own clients’ peril. I explain that professional conduct rules are central to the problem. The advisor’s duties are relegated to a single rule that provides scant direction about how to advise. In the absence of direction, lawyers fill in the gaps with zealous advocacy. After examining the problems of the zealous advocacy mantra, I suggest that “fiduciary duty” would be a preferable touchstone for attorney-advisors. While it is true lawyers are already fiduciaries, fiduciary duty is not the focus for most lawyers. I argue that it should be. Using fiduciary duty as a framework, I propose professional conduct rules that would provide direction to business lawyers that is more consistent with their clients’ interests. 

Richard Painter has forwarded this post:

In their rightful condemnation of a thoughtless vilification campaign,
defenders of the DOJ lawyers who previously represented detainees point in
their letter to a famed representation by John Adams “The American
tradition of zealous representation of unpopular clients is at least as old
as John Adams’s representation of the British soldiers charged in the
Boston massacre.”

Nobody could reasonably question John Adams' patriotism because he
represented these clients --Captain Preston and his men -- in what was a
capital case of murder. As I point out in my casebook with Judge Noonan,
however, there were conflicts of interest that compromised the quality of
the representation.

One set of conflicts arose between Captain Preston and his men, who
arguably should have been represented by separate counsel. Captain Preston
could have defended the case by claiming the men fired without his orders.
This conflict was apparent to the men at the time, and they were worried
that Captain Preston’s defense would leave them hanging -- literally. One
of the men, named Kilroy, petitioned for a joint trial with Captain
Preston. If there had been separate trials and separate counsel, it is true
that the men could have defended the case by claiming that Captain Preston
ordered them to fire, subjecting them to court martial if they did not
obey. It turned out that Adams and Quincy represented both Captain Preston
and his men, precluding either of these lines of argument. The case would
have to proceed on the argument that both Captain Preston and his men were
innocent because the crowd had threatened them.

This, however, was difficult because of another set of conflicts. Adams and
his family were very close to the patriots who had challenged the
soldiers’ presence in Boston and who may have instigated the unruly crowd
that allegedly attacked the soldiers. Adams’ co-counsel in the case,
Josiah Quincy had similar conflicts as his brother Samuel Quincy was
employed by the prosecution. For Adams and Quincy to condemn the actions of
the crowd in order to show they were threatening the soldiers would be
difficult without condemning the townspeople in general. The crowd
allegedly included people who were throwing objects at the soldiers, and
some people in the crowd may have been drunk. John’s cousin Sam – a
figure more familiar to 21st Century law students than John – was a
supplier of beer, and after the shooting Sam was actively urging
prosecution of the soldiers.

We are critical in Chapter 7 of our casebook of the strategy that Adams
used at trial to deal with this conflict. First, he may have held back on
evidence prejudicial to the townspeople in order to avoid putting his
fellow Bostonians in a bad light. As one observer, named Hutchison, pointed
out:

"The employing counsel who were warmly engaged in popular measures caused
some of the evidence to be kept back which would otherwise have been
produced for the prisoners. The counsel for the crown insisted upon
producing evidence to prove the menaces of the soldiers preceding the
action, and the counsel for the prisoners consented to it, provided they
might have the like liberty with respect to the inhabitants. After the
evidence had been given on the part of the crown, and divers witnesses had
been examined to shew the premeditated plan of the inhabitants to drive out
the soldiers, one of the counsel, Mr. John Adams, for the prisoners then
declined proceeding any further, and declared that he would leave the
cause, if such witnesses must be produced as served only to set the town in
a bad light. A stop therefore was put to any further examination of such
witnesses, by which means many facts were not brought to light . . . .."

Second, Adams found a way of condemning the crowd without condemning the
townspeople of Boston, or at least the elements with which his family and
Quincy’s family were associated. He portrayed the crowd as outsiders and
appealed to juror prejudice in his closing argument when he describes the
crowd as "a motley rabble of saucy boys, negroes and mulattoes, Irish
[t]eagues and out landish jack tarrs." Referring to Crispus Attucks, one of
the persons killed, Adams said, "[s]upposing in this case, the Mulatto man
was the person made the assault, suppose he was concerned in the unlawful
assembly, and this party of soldiers endeavoring to defend themselves
against him, happened to kill another person who was innocent...." There
was no evidence in the record that Attucks in particular threatened anyone.
Adams compensated for not "putting the town on trial" by blaming the
incident on a portion of the town, including persons of Irish and African
descent. Then, as now, prejudices run deep in Boston. Adams won his case.
He had managed his conflict of interest by playing the race card.

The lesson to be learned from the Boston Massacre trials is that conflicts
do matter. Although Adams still should have accepted the representation –
he and his co-counsel Quincy may have been the only lawyers in Boston with
the courage to do so – the conflicts of interest were real and some of
those conflicts arose because of Adams’ loyalty to the Patriot cause.
Those conflicts had a genuine impact on the representation. He won
acquittals, but at a cost.

The types of conflicts that would have been more pertinent to the current
controversy over DOJ lawyers apparently did not occur. They would have
occurred if Adams had represented Captain Preston against the government
and then joined the government's prosecution of the men who took or were
supposed to take orders from Captain Preston. It would not matter if
Captain Preston and his men were detained in separate jails or tried in
separate trials. Adams’ subsequent representation of the government would
have been wrong. An arguably more remote – but still genuine -- conflict
would have arisen if another group of soldiers under the same command as
Captain Preston – and acting on similar instructions from British
military superiors -- had shot and killed some colonists somewhere else. It
would still have been improper for Adams to be employed by the prosecution.
He could, for example, have learned from Captain Preston some details about
what precisely the orders from British military superiors were that
soldiers in these situations were acting upon and the extent to which
soldiers who fired upon crowds were acting without authorization. Based on
information he learned from his prior client, he could have penetrated deep
into a subsequent defense case built upon at least this premise and
probably others as well.
   

In a letter to the New York Times today, Richard Painter, my friend and co-author on a law review article, argues that lawyers in the Justice Department who had represented accused terrorists in private life should not work on terrorism matters - apparently at all - at Justice. They "should work on other matters."

Why? Because the "government has stated that most of these people are acting in concert, and that information obtained from interrogating one detainee has led to the apprehension of others." In effect, having worked for one, a lawyer will have worked for all because the terrorists act in concert.

It may be that Richard means only that the lawyers cannot represent the U.S. "in its effort to detain, interrogate, or try"  any alleged terrorists. That would not exclude policy work that is not specific to any investigation, trial, ec. But the last line - "they should work on other matters" - suggests Richard is saying they may not even work on terrorism-related  policies apart from specific matters.

Richard is identified as a law professor at Minnesota and chief White House ethics lawyer 2005-2007, bolstering his credibility on these issues.

I think Richard is wrong in so far as he is saying that because terrorists are all "acting in concert," we should treat all terrorists as if they were one client for conflict purposes, without further inquiry into the relationship in fact between cases.

 And I believe he is certainly wrong in then concluding, as I read him to say, that the Justice Department lawyers may not now have any role whatsoever in terrorism policy or matters at Justice.

If Richard means only that this is what the Department's policy "should be," not what it must be and not what the conflict rules require, then his letter has a very different focus and is much weaker. But I don't read it that way.

[CO-EDITOR's UPDATE: In the comments below, Richard Painter was kind enough to respond to Steve Gillers's post.]

Noeleen G. Walder, Media Watch, 03-15-2010

In rejecting the bulk of New York's content-based restrictions on attorney advertising, the U.S. Court of Appeals for the Second Circuit today held that a ban on the use of nicknames like "Heavy Hitters" or client testimonials about pending cases violates the First Amendment.

The circuit also held that preventing lawyers from employing special effects or portraying a judge in an ad did not "materially advance" the state's interest in prohibiting misleading speech.

"The speech that Defendants' content-based restrictions seeks to regulate—that which is irrelevant, unverifiable, and non-informational—is not inherently false, deceptive, or misleading. Defendants' own press release described its proposed rules as protecting consumers against 'potentially misleading ads,'" the panel wrote in Alexander v. Cahill, 07-3677-cv, 07-3900- cv.

The ruling primarily affirms the July 2007 decision by Northern District Judge Frederick J. Scullin (NYLJ, July 24, 2007) 

The appellate panel disagreed with Judge Scullin in finding that one provision of the rules, which bars ads from portraying a "fictitious law firm" or "the use of a fictitious name to refer to lawyers not associated together in a law firm" was "actually misleading" and not entitled to First Amendment protection.

The panel also upheld a portion of the rules requiring attorneys to wait 30 days after accidents before targeting advertising to solicit personal injury clients.

The rules, which went into effect on Feb. 1, 2007, and are codified in New York's Code of Professional Responsibility at 22 NYCRR §1200, were adopted by the four state Appellate Divisions and challenged by Alexander & Catalano, a Syracuse-based personal injury firm, as well as Public Citizen Inc.

The circuit opinion was written by Judge Guido Calabresi and joined by Judge John M. Walker Jr. Judge Sonia Sotomayor was the third member of the panel before being elevated to the U.S. Supreme Court last year.

Thanks to Neil Wilson at The Court for highlighting this issue.

 Last week the Supreme Court of Canada issued a decision holding that the government of the Northwest Territories was not negligent when it failed to close down a mine in the midst of a long and violent strike involving the use of replacement workers. A striker had ultimately entered the mine and planted a bomb, which detonated, killing 9 miners.  The Court held (2010 SCC 5) that while the Government owed a duty of care, and had had the legal authority to shut down the mine given the known and clear safety issues that had arisen, it was not negligent in failing to do so because it had relied on a legal opinion that it lacked that legal authority.  The fact that the legal advice was wrong - and it appears badly wrong - was not relevant.  The Court said:

But in the context of allegations of negligence against those responsible for regulating mine safety, the fact that this advice was received and acted on cannot be dismissed, as the trial judge did, as being of "no consequence” (para. 834). This advice goes precisely to the issue of whether the government took reasonable care in deciding not to close the mine. It will rarely be negligent for officials to refrain from taking discretionary actions that they have been advised by counsel, whose competence and good faith in giving the advice they have no reason to doubt, are beyond their statutory authority: see, e.g., Dunlop v. Woollahra Municipal Council, [1981] 1 All E.R. 1202 (P.C.), at p. 1209; Stafford v. British Columbia, [1996] B.C.J. No. 1010 (QL) (S.C.), at paras. 78‑81.  In the context of this case, the opposite view leads to alarming results, as the trial judge's holding here demonstrates. The effect of the trial judge's holding is that officials may be found to have acted negligently by refraining from taking action that they believed in good faith and on the basis of reputable, professional legal advice, to be unlawful.  In other words, the law of negligence would require the inspectors to take action which they believed abused their powers.  This cannot be the law. There is no argument advanced on behalf of the appellants that it was unreasonable for officials to rely on the advice received or that they did not seek or rely on it in good faith.

Article here.  Abstract:

This symposium article examines the fiduciary duties of law firm associates. After applying agency principles to the firm-associate relationship, the article analyzes specific duties and discusses cases involving alleged breaches of fiduciary duties by associates. It explores associate duties in the current legal, organizational, and socio-technological environment in which associates practice. The article closes with observations on the importance of firm principals considering the effect of firm culture on associate attitudes and conduct.

Last year, a former Toyota in-house lawyer, Dimitrios Biller, brought a well-publicized wrongful termination action against Toyota (here and here).  At the time, the publicity was focused on Biller's claim that Toyota had failed to turn over damaging information in the context of rollover litigation. 

Here's a story just published at cnn.com that concerns the potentially devastating information that Biller appears to have about the company's litigation practices more generally.  (Thanks to Suffolk's Jeff Lipshaw for sending me the link.)  According to sources quoted in the story, Biller's information reveals that Toyota was aware of more problems with its vehicles and for a longer period of time than the company has acknowledged.

What caught my eye, however, was this section of the story concerning Biller's conduct:

So why, if Biller knew a judge had ordered all information produced, didn't he produce it? He said he tried but was stopped by a superior who told him, "You have to protect the client at all costs."

"Even if that includes," Biller asked, "committing criminal acts or violating the law?"

The answer, Biller said, was yes.

Did he break the law? "No, I did as much as I could as a lawyer for a client to not break the law," he said. "I wrote e-mail after e-mail, memo after memo, explaining the legal obligations Toyota and its affiliates needed to fulfill."

Biller suggests that he didn't break the law (and presumably the ethics rules) because he did everything he could to get Toyota to do the right thing.  But we know from Rule 5.2(a) that Biller cannot defend himself by saying that he was acting at the direction of a superior. 

From what I can tell, Biller was working on these cases and assisting with the discovery process.  If so, several rules are implicated here, including Rule 1.2(d).  Here are some notable comments concerning that rule:

[9] Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client's conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.

[10] When the client's course of action has already begun and is continuing, the lawyer's responsibility is especially delicate. The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See Rule 1.16(a). In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like. See Rule 4.1.

Comment [9] appears to favor Biller, because he did not help Toyota to engage in any wrongful conduct.  But comment [10] and Rule 1.16(a)(1) would have required Biller to withdraw or quit once Toyota refused to disclose documents that Biller believed that the company was legally required to produce.   Rule 1.13 and perhaps SOX are also applicable here. 

As an ethics matter, how exactly should Biller have proceeded? At what point, would he have been ethically required to quit his job at Toyota or, at the very least, withdraw from handling any litigation where he thought that documents were being inappropriately withheld?

Critics of Liz Cheney's silly campaign have emphasized that lawyers should not be criticized for representing unpopular clients.  For example, ABA President Carolyn Lamm cites ABA Model Rule of Professional Conduct 1.2(b), which states that a "lawyer’s representation of a client does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”

In my view, the issue is a bit more complicated.  Although it is certainly true that a lawyer's representation of a client does not -- and should not -- be considered an endorsement of the client's views or behavior, I don't think we can say that a lawyer's client selection decisions are completely devoid of value judgments, particularly in the pro bono context.  The problem with Liz Cheney's ads is not that they make value judgments about the so-called "al-Qaeda 7;" it's that they make the wrong value judgments. 

We should explicitly acknowledge and embrace the idea that lawyers who represent unpopular clients are endorsing a particular set of values.  Those values happen to include (among others) safeguarding foundational procedural protections, the need for quality representation in an adversarial system, and ensuring that the government pursues its important work within the bounds of the law.  Lawyers who endorse those values should be praised, not criticized.  In fact, those lawyers are ideally suited to work in a government department that is supposed to be committed to the cause of justice. 

Liz Cheney, therefore, is right about one thing: the work of the "al-Qaeda 7" lawyers does reflect their value judgments.  By criticizing those lawyers, however, Liz Cheney is really criticizing the values that those lawyers embraced.  And by criticizing those values, which are so foundational to America's system of justice, Liz Cheney (ironically) is the one who appears to be endorsing anti-American ideals.   

Predictably (yes, I'm referring to our commenter extraordinaire, Patrick O'Donnell), Liz Cheney's attacks on the DOJ lawyers who formerly represented detainees have generated a large backlash, including from conservative members of the bar, in defense of the role of lawyers.  Today, we have a front page NYT story; an op-ed from former Attorney General Michael Mukasey urging people not to condemn either today's DOJ lawyers or the ones who worked there during the Bush administration for representing their clients; a more sharply partisan piece by Marc Thiessen; and a reply from David Luban at Balkinization arguing that his criticism of the torture memo lawyers was legitimate and Cheney's attack is illegitimate.  Quote of the day, by John Yoo, regarding the DOJ lawyers, "What's the big whoop?"  Yoo suggested that disagreement with the Obama administration's stance on terrorism should be channeled into policy and political opposition.

UPDATE: Follow this link to George Conk's blawg and watch Jon Stewart's interview of Marc Thiessen on this topic:

http://blackstonetoday.blogspot.com/2010/03/jon-stewart-tangles-with-marc-thiessen.html

In another string, I reiterated my position that the Bar has not done an adequate job of explaining the importance of the lawyer's role in fulfilling the constitutional rights of all of us.  I welcomed the criticism by the Liz Cheney group because it might induce that kind of public explanation.  That is happening.  Prominent lawyers, including Kenneth Starr, have published a letter saying in part:

"As attorneys, former officials, and policy specialists who have worked on detention issues, we consider these attacks both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications."  They added that "the American tradition of zealous representation of unpopular clients goes back at least as far as John Adams' defense of British soldiers accused of killing colonists in what became known as the Boston massacre.”

Also, the Association of the Bar of the City of New York said that it “unequivocally condemns these attacks as an assault on our nation's most fundamental values and traditions and on the very notion of the rule of law itself.  It is fundamental that all persons no matter how unpopular have a right to representation by counsel and that lawyers have a duty to provide such representation and to do so on a pro bono basis where such persons cannot afford counsel."

In addition, American Bar Association President Carolyn Lamm, issued the following statement:

"Individuals and organizations conducting a witch hunt in order to name names of Department of Justice lawyers who earlier represented Guantanamo detainees are showing a profound disregard for a fundamental tenet of our justice system and our Constitution: that anyone who faces loss of liberty has a right to legal counsel."

Lawyers in Practice: Ethical Decision Making in Context

Cyberspace is already full of excellent commentary about the torture memos, so I've been reluctant to add another two cents.  I was struck, however, by John Yoo's recent live Q&A at the Washington Post's web site, where he said the following:

Many people have wondered how much of Yoo's legal advice was shaped by the particular environment in which he found himself after the 9/11 attacks.  For example, I previously speculated that contextual forces, such as those that existed at that time, may have affected Yoo's objectivity and the quality of his advice.  It had been my understanding (correct me if I'm wrong) that Yoo had not previously acknowledged that possibility, but the quote above implies that the high pressure context may have affected his analysis, at least to some degree.   

Of course, none of these observations, even if they are accurate, necessarily tell us whether Yoo should be disciplined.  They do illustrate, however, the importance of understanding how situational forces affect lawyer behavior.  In recent years, legal ethics scholarship (like a lot of legal scholarship) has drawn on insights from behavioral psychology, and the torture memo controversy offers a useful backdrop for studying how some of those conceptual insights intersect with the practice of law.

I was reading an article in the NYT about a new book on the Spitzer scandal (here) , written by his former employer/mentor/friend/employee Lloyd Constantine.  The book details various incidents about Spitzer's downfall, and details of conversations with the then Governor at the time the prostitution scandal came to light.  The review then says this:

While researching confidentiality in the Rules and the Code for another reason, I came upon this textual issue.

As we know, the text of the self-defense exception in the Rules is and was meant to be broader than the text in the Code. For example, it allows revelation of client confidences not only for defensive purposes but also to establish a "claim." So an in-house lawyer can sometimes use confidential information to prove discrimination by an employer  or to prove retaliatory discharge. 

The Rules also allow revelation of confidences "to respond to allegations in any proceeding concerning the lawyer's representation of the client." It does not say the lawyer has to be a party or counsel in the proceeding.

But the word "proceeding" is limiting.

What if the lawyer's work is attacked outside a tribunal, say in the press, by the (now former) client or others? Can the lawyer defend with confidential information? It would seem not as the text reads.

But the Code language, though it focuses on defense only, not claims (except for claims for fees), allows a lawyer to reveal confidences "to defend himself...against an accusation of wrongdoing." It is not limited to a "proceeding," unless we read the word "accusation" to mean a "formal accusation" or something like that, which is not self-evident.

So what's the answer? And what should be the answer? I can certainly imagine situations where my reputation can be more seriously harmed in a news story than by what someone says in court in passing.

Paul Caron reports on the NALP data showing that hiring is way down -- although the numbers vary some by region and area of practice.  When the firms were flush, summer hiring was often seen as a tentative permanent hire 2-3 years in advance, which was a crazy way to do business.  My guess is that firms are hiring much closer to "just in time" now, which means we're seeing a huge accumulation of law students without clear plans for the future.

Yet, we're hearing that law school applications are up and we know that new law schools continue to open.  We've all been wondering if there is a law school bubble and, if so, whether it will pop or deflate.

Related news: are there jobs in-house?

... is apparently the name being given by Liz Cheney's group Keep America Safe to unnamed Justice Department lawyers who represented detainees before joining the DOJ.  (Hat tip TPM)  As our own Stephen Gillers points out, allegations of a conflict of interest are entirely bogus.  Unless the lawyer participated personally and substantially in the same matter while in private practice, there is no conflict of interest if that attorney works on detainee issues in the Justice Department -- see MR 1.11(d).  But everyone who knows anything about the law of lawyering knows that.  The point of this line of criticism is not to raise a technical conflict of interest issue, but to question the patriotism of lawyers who represent accused terrorists.  In this way it is reminiscent of the attack by Deputy Defense Secretary Charles "Cully" Stimson, during the Bush Administration, on law firms who represented detainees pro bono.  Stimson recommended that corporate clients fire law firms whose lawyers did pro bono work for detainees.  Interestingly, the suggestion was not only a flop (to my knowledge, no clients retaliated against their firms for doing detainee representation) but provoked clear condemnation from the right and the left.  Charles Fried, for example, wrote an op-ed in the Wall Street Journal reminding readers, for the umpteenth time, of the honorable tradition of lawyers representing unpopular clients. 

Evidently Cheney and other conservative media outlets (e.g., the Weekly Standard, the National Review, Michelle Malkin) think the critique will have some traction this time.  I have no idea why they think this, unless the allegation of a conflict of interest gets people's attention.  So, just to be clear (and to underscore Gillers's point), there is no conflict of interest here -- this is a pure guilt-by-association argument. 

 The Ethics Across the Profession Initiative at University of the Pacific - McGeorge School of Law (directed by Paul Paton) is presenting a symposium entitled Judicial Ethics and Accountability:  At Home and Abroad.  The symposium will consider the following themes:

What does it mean to be an ethical judge? How can judges preserve independence yet remain accountable? After a year in which a new Justice was confirmed to the Supreme Court, a Supreme Court decision offered the potential to transform judicial elections across the country, sanctions were considered for judges because of their internet postings and activities, and politicians in California blamed the judiciary for the cost of government business, this Symposium will consider issues of ethics, accountability and independence for the judiciary in America and internationally. Domestic experts will be joined by members of the judiciary and international tribunals for a wide-ranging and timely set of discussions of pressing issues, reflecting on recent events and charting the way forward.

Panels will address these subjects, among others:

Confirmed speakers include scholars, lawyers, and judges from the U.S. and abroad. 

This will be of limited interest to those outside California, but I had an interesting conversation today and wanted to post something having no possible connection to the OLC memos, so here goes:

Suppose you represent a client in a civil case and the client perjures himself at his deposition.  You remonstrate but he doesn't care.  Under the CA rules you may not disclose his perjury. Now suppose you are heading to trial and the client gives every indication of planning to repeat his perjury.  You remonstrate; he doesn't care.  You go to the judge and say "for ethical reasons I want out."  The judge says "no."  You remonstrate some more; same result. 

May you put on the case and allow the client to testify in the narrative (as we do out here), avoiding any use of the perjured testimony, or is that procedure only applicable to criminal cases?  I had thought it would be OK to use the narrative approach in a civil case (so long as the court played ball with the narrative testimony, but that is probably discretionary), but some pretty well-informed people think otherwise. 

My view was that the ethical prohibition is on introducing or using the false testimony and that prohibition applies equally to civil and criminal cases; the criminal part is relevant only insofar as it heightens significantly the accused's interest in testifying.  I think the text of the rules point this way but I don't believe I have seen this come up on the civil side in CA. 

Thoughts, CA mavens?

DM

LEF readers may (or may not) be interested in a new blog I've helped launch titled Law, Religion, Ethics: A multi-faith dialogue.  The "ethics" will likely focus more on philosophical and theological understandings more than the ABA version, but with legal ethics scholars such as Bob Cochran, Russ Pearce, Sam Levine, and Marie Failinger in the mix, we may even bring the Model Rules into the conversation from time to time.

Interesting post by Ann Althouse on how commenting on blog posts that mention accidents.  Can any readers confirm if lawyers use that technique to get clients?

UPDATE: Eric Turkewitz, of New York Personal Injury Law Blog, has these thoughts on "attorney solicitation 2.0.

I'm still working through the draft reports, responses by Yoo and Bybee, and final report released by the Justice Department last Friday.  But for now I wanted to comment on what I think is the most important aspect of this whole controversy -- namely, whether or not we believe the law is capable of possessing (relatively, or moderately) determinate meaning apart from what a clever lawyer can make it mean.  I would talk about "objectivity" but for some reason that term gives everyone the heebie-jeebies; I don't mean anything mysterious by it, however, only that there is something apart from the interpreter (lawyer, judge, scholar, critic, et al.) that makes a legal interpretation better or worse.  In other words, legal objectivity is what we presuppose when we argue that a court or lawyer got it right or wrong in its reasoning.  I don't think this is mysterious, because this is what I and my colleagues do all the time when we teach class or grade exams.  If we didn't believe that law could have meaning apart from what interpreters wanted it to mean, then teaching and grading would be a charade -- an exercise of raw power dressed up as something more noble.  Anyhow, that's what I think is important in the torture memos controversy:  Do we believe it's possible to judge the arguments of Yoo and Bybee with reference to something other than first-order policy preferences or political ideology? 

Readers are probably rolling their eyes right now -- didn't we hash this out in the 80's and 90's?  Haven't we had enough of CLS and Stanley Fish telling us that the law wishes to have a formal existence (whatever that means)?  As I've argued, however, the debates over legal indeterminacy have come back in connection with the torture memos, only with the sides reversed.  Now it's the left that wants to claim that the law can have moderately determinate content apart from the efforts of interpreters, and it's the right arguing that we can't really say that a lawyer is distorting or twisting the law because, well, the law can be made to mean pretty much anything at all. 

This was feeling all very down-the-rabbit-hole to me, and then I read Jack Balkin's post on the "hall of mirrors" quality of the OPR report.  Balkin at least returns to his crit roots, with his argument that the debate over the soundness of the Yoo/Bybee arguments has an endlessly self-referential quality:

Balkin is right that legal argument is rarely conclusive.  But this is the problem with the term "objectivity" -- people take it to be making a stronger claim than we need.  Objectivity in legal argument doesn't mean conclusiveness.  It doesn't mean that one is forced to agree with a conclusion, under pain of being deemed irrational for failing to agree.  But this is no different from the problem of objectivity in ethics (that is, moral philosophy, not legal ethics).  An ethical argument need not compel assent in order to be objective; it merely must make reference to standards that exist beyond the mind of the judging subject.  The more moderate claim of objectivity here is simply that there are things which lawyers can use to evaluate the arguments of Yoo and Bybee, other than political ideology or client interests. 

On this subject, Scott Horton has an interesting take on David Margolis.  Horton argues that Margolis (who, arguably, watered down the OPR report to eliminate the conclusion of unethical behavior by Yoo and Bybee) isn't motivated by conventional left/right, Democratic/Republican ideology.  Rather, he is a government lawyer through and through, and is thus marinated in the Justice Department's beliefs that government lawyers should not be bound by state rules of professional conduct.  More broadly, Horton argues, Margolis "represents a culture of craven clientalism in which lawyers are not the champions of the law but instruments in the hands of their employers, dedicated to getting them the results they want."

THAT is why this is an important issue for legal ethics.  The biggest thing that's wrong with the standard conception of legal ethics (otherwise known as the "zealous advocacy" position that all lawyers and law students seem to fall back on reflexively) is that it makes client interests, rather than the client's entitlements (legal rights and obligations), the baseline for assessing lawyers' conduct.  (Shameless plug:  My book arguing against this position is coming out this summer with Princeton University Press.)  Margolis is really nothing more than the guardian of the standard conception, residing within the Justice Department.  In a way this is comforting -- there's no nefarious plot by conservatives to exonerate Yoo and Bybee.  But in a way it's profoundly troubling, because it suggests that the problem is an attitude toward law, and our ethical responsibilities, which is shared by most lawyers.

The title of this post refers to legal (in)determinacy, and that is of course the linchpin of any argument against Margolis's view.  One would have to establish that there is sufficient determinacy in the law that it's possible to point to a position in one of the memos and conclude that it is insufficiently well grounded in law (or, but only if this were a position asserted in litigation, in a good faith argument for the extension, modification, or reversal of existing law).  This is the point where Balkin can't quite be a crit.  He wants to reject the idea of certainty in legal argument (which I do as well), but he also wants to hold on to something that looks like . . . objectivity!  Here is what is says:

Plausibility and reasonableness make sense as evaluative standards only if they are fleshed out with reference to something other than the attitudes of the interpreter.  Yoo and Bybee believed their arguments were plausible.  But they weren't, and that's the problem.  How do we establish this?  At this point, legal ethicists as a whole have to kind of get off the stage, and allow room for international and criminal law experts, executive-power con law types, and others with expertise in the relevant substantive legal subjects to evaluate the arguments in the memos.  Among prominent commentators, David Luban (int'l humanitarian law), Scott Horton (law of warfare), and Jack Balkin (con law) have this expertise, but I really don't.  My contribution, such as it is, is methodological.  My point is that legal ethics requires a certain attitude toward law and client interests, namely that the lawyer's duties of competent and diligent representation, as well as duties of candor and independence, are all calibrated with reference to the legal entitlements, not the interests, of clients.  As for what those entitlements are, that's a question for the experts.

Thanks to John Steele for posting Tom Morgan's new paper, based on a forthcoming book, titled The Last Days of the American Lawyer.  It's a must-read for anyone who cares about the future of legal practice and legal education. (And if you're not in that group, why are you visiting this blog?)  He writes:

[T]he interaction of law with increasingly complex economic and social issues will make distinctively legal questions less common and make many of the skills that we stress in law schools less relevant.  Rather than needing professionals whose understanding of law dwarfs their understanding of the substantive issues faced by clients, the world will require legally-trained persons to be more fully integrated into the substantive challenges tomorrow's clients face.  That reality may require that more persons, not fewer, have some legal training, but the training of most people will almost certainly not be today's three year graduate program designed to produce an all-purpose legal generalist.

As for professionalism?

[W]hile many of the characteristics attributed to professionals -- integrity, loyalty, keeping confidences, and a commitment to serve the client effectively -- present highly praiseworthy traits to which any moral person should aspire, those characteristics are ultimately those of individuals, not groups.  It is individual lawyers -- and non-lawyers acting both alongside and in competition with lawyers -- that we hope will act in ways traditionally called "professional."

I think throwing in the towel on professionalism as a meaningful concept that attaches to one's status as a lawyer -- rather than a set of attributes available for cultivation by any individual -- is likely to bring Morgan's vision of the future closer to reality by making lawyers less distinct from other service providers.  There is a role for trust here -- and trust beyond the contracted-for trust -- that must be a distinctive attribute of the lawyer-client relationship, and cautions against equating the practice of law with every other market-driven, globalized "business."  I'm working to develop that idea in a current project.  That said, read the paper!

I just thought this was interesting and so will pass it along. In my Internet law course this morning, we were talking about downloading songs, movies, etc.  The students, to a person, stopped downloading when they started law school because the consequences to them went up -- the risk of getting caught was still low in their view, but the practical consequences to the bar examination process made the costs outweigh the benefit.  They had made the same conclusions about speeding, driving after drinking, and other topics. 

Interestingly, when I asked whether it was because of a greater sense of morality or professionalism instilled into them by law school, they did not think so, attributing it instead to becoming more conservative (i.e., risk averse).

Anyhow, I thought it was an interesting discussion worth passing along for that reason alone.