[I am posting this memorial notice on behalf of Fred's friend Bruce Green -- BW]

It is with sadness that I report the death of Professor Fred Zacharias on November 8, at the much too young age of 56, after a valiant, months’-long battle with a rare form of cancer.  Fred was a good friend of mine and of many others in the legal ethics community as well as a leader in, and outstanding contributor to, the field. 

Fred was a prolific scholar.  It was my privilege to co-author nine articles with him over the past decade, and that was just a small proportion of his prodigious output.  Fred was happy to tackle, and bring his insights to, virtually any issue in the field, and rarely turned down a chance to contribute to a conference or symposium.  A former defense lawyer, Fred often brought his experiences from practice into his scholarship, while at the same time keeping current on academic writings in order to advance scholarly conversation in the field.  Fred was among the handful of most frequently cited scholars of his generation.

As past chair of the AALS Professional Responsibility Section and regular contributor to the section’s newsletter, Fred sought to advance teaching no less than scholarship.  Having attended many of Fred’s talks at the ABA National Conference and at academic conferences, I can attest that Fred took his role in the classroom as seriously as he took his writing.  He also served the profession with dedication, including as a consultant on the Restatement of the Law Governing Lawyers and on other ALI projects and as a member of his city bar’s ethics committee.  In recognition of his outstanding contributions, Fred received numerous distinctions at the University of San Diego School of Law, where he taught for almost two decades, including most recently as the Herzog Endowed Research Professor and, this summer, as the inaugural holder of the Donald Weckstein Summer Research Professorship.

On a personal note, among the things I most valued in our friendship were Fred’s generosity of spirit and his commitment to friends and family.  Fred is survived by his wife, Sharon, and by his sons, Eric and
Blake, and by his mother, brother and sister-in-law.  Letters of condolence may be sent care of the law school.  I mourn his passing.

-Bruce Green

If the worst year in decades was a 4% drop, is some of the rhetoric about the death of biglaw overblown?  I agree, though, that the way biglaw goes about its business has changed.

(Just as a point of comparison, if all 250 firms were combined, the number of lawyers would be half the number of employees at Nestle, the world's 36th largest company.)

Article here, by Anne Poulin.  Abstract:

This article addresses two types of conflicts of interests that arise in criminal cases: 1) when defense counsel has an employment relation to the prosecutor’s office, and 2) when defense counsel faces criminal investigation or charges. Both these situations threaten both the defendant’s representation and the actual as well as apparent fairness of the proceeding. Yet, only in extreme cases are these conflicts likely to result in a reversal of the defendant’s conviction. As a result, protection of the defendant and the fairness of the process often depends on early intervention, which allows the court to advise the defendant of the risks inherent in counsel’s situation and possibly accept a waiver from the defendant or disqualify counsel if appropriate. 

If defense counsel has an employment relationship with the prosecutor’s office or if counsel faces criminal investigation or charges, the prosecution generally has ready access to the pertinent information, and neither the court nor the defendant is likely to be aware of the problem. Therefore, when a situation exists that may generate one of these two types of conflict, the prosecution must have an obligation to disclose relevant information to the court and the defendant. Imposing the obligation of disclosure on the prosecution will increase the likelihood that courts will be able to address these types of conflict early and appropriately.

There was argument yesterday (Thursday) in the Supreme Court in Pottawattamie County v. McGhee, in which two men who have served 25 years of life sentences are suing two prosecutors in federal court for violating their constitutional rights by coaching  and coercing witnesses to commit perjury at their trial for murder.  The Iowa Supreme Court freed the (now) plaintiffs after finding that the main witness against them was “a liar  and a perjurer.”

Police officers have qualified (not absolute) immunity for fabricating evidence that is later used at trial.  Also, the lawyer for the prosecutors-defendants said that prosecutors who fabricate evidence, but who don’t present it at trial, can be sued.  But he argued that prosecutors who participate in the trial should have complete immunity for both suborning and presenting perjury.

Neal Katyal, a U.S. deputy SG, argued for the U.S. (!) that there is no constitutional right to sue either the police or the prosecutors if they have acted in concert to create and present the perjury.

Justice Kennedy commented that it’s a strange proposition that the more aggravated the tort, the greater the immunity.

Justice Alito expressed concern that liability in a case like this might chill prosecutors in assisting police in investigating cases.

Justice Sotomayor observed that prosecutors are rarely disciplined for misconduct, suggesting that potential civil liability might help to curb such misconduct.

It looks like 5-4, one way or the other.

Last week George Conk posted an entry on his blog (here) with respect to the New Jersey attorney who has filed a lawsuit claiming that Barack Obama is a "usurper" because he was not born in the United States.  Conk argues that the filing of this lawsuit violates the ethical obligations of the lawyers because it is so obviously without merit.  My starting point was to agree with that, particularly given my general agreement with those who have argued that the conduct of Yoo et al was unethical.  While in this case safeguards of judicial process exist which did not for Yoo, the same basic principle, that lawyers have some obligation to respect legality, comes into play. 

On reflection, though, I have some qualms about the virtues of this position in the birther case.  This is for two main reasons.  First, the problem with the lawsuit in New Jersey is not that it is manipulating the law in some way (at least as I understand it).  The problem is that it is asserting facts that are almost certainly untrue.  I.e., it is clear in law that the President must be born in America; the only question is whether the application of that rule to Obama causes any problems.  There are of course many constraints on the ability of lawyers to bring forward facts that are not true, and the frivolity restrictions on filing lawsuits would probably apply to factually frivolous lawsuits as well as to legally bogus ones.  But I think there might be a need to make some analytical distinctions between those two things - i.e., the nature of what constitutes unethical conduct in the filing of a factually frivolous lawsuit might be different from a legally frivolous one.  I would tend to think one should be more lenient with factual frivolity, if only because often a purpose of litigation is to discover what happened, and to provide access to a far better and more complete factual records than can be obtained otherwise.

Second, and to me more significantly, as a matter of public policy it seems better to have litigation such as this go through the Court.  It seems to me better to have a Court say to a birther, "I've looked at this and you're completely wrong and there is no issue whatsoever with Obama's place of birth" then to have a lawyer say that to a birther in private.  Preventing the court from pronouncing on the matter seems to me more likely to allow the birther movement to simply continue to spread its rumours and stories about the web, without the strong counter argument that the judgment would present.  This may not always be a strong argument for bringing frivolous litigation - private cases don't have the same public significance as Obama's place of birth - but it seems to me to have some weight here. 

Several states are asking whether a lawyer can pay a non-lawyer for each Internet-based client lead that the non-lawyer generates.  Some state bar authorities, most notably Connecticut's, contend that such a payment is an unethical referral fee, whereas other states (e.g., Hawaii) have concluded that it is simply a fee for advertising, which the rules permit.

In my view, lead generation is no different from what you see on the left and right sides of this blog.  You are likely to see ads for lawyers and law firms.  If you click on one of those ads, Google (a non-lawyer) gets a small fee for generating a “lead,” and this blog gets a small fee.  Because Google (and this blog) do not get paid any additional money if the prospective client retains the lawyer, the fee is for advertising, which is ethical, and not for the referral, which would be unethical.   (Carolyn Elefant makes a similar point here.)

The conduct getting all of the attention is the business model of totalattorneys.com, which is slightly different from the Google ads, but not different in any meaningful sense.  An attorney (say a bankruptcy attorney) subscribes to Total Attorneys’ service, totalbankruptcy.com.  If someone comes to the website looking for a bankruptcy lawyer, Total Attorneys identifies the prospective client’s zip code and connects her to an attorney near where the prospective client lives.  That lawyer then pays a fee to Total Attorneys for the lead.  Critically, the lawyer pays the same fee regardless of whether the prospective client decides to hire the attorney. 

I don’t see how Total Attorney's lead generation revenue model is conceptually different from Google's pay-per-click model.  In both cases, a lawyer is paying a fee to a non-lawyer for each lead that the non-lawyer generates.  If Total Attorneys is doing something problematic, isn't Google doing the same thing? 

The Connecticut authorities try to distinguish Google (see pages 10 and 11) primarily on the grounds that the fee paid to Google is small, but I don't see anything in the rules that distinguishes between small referral fees and larger ones.  If there is no such distinction, Connecticut should necessarily prohibit attorneys from advertising through Google.  And if they start to do that, please don't tell them about our blog ads. “Ethics Blog Helps Lawyers Engage in Unethical Conduct” is a headline that we could do without.

Story here.  It's only allegations and charges at this point, but we will try to follow it closely.

(For those of you who remember the Ilan Reich affair, in which Reich, a biglaw associate, pled guilty to criminal insider trading in the Drexel scandal, here's an article about how Reich struggled to turn his life around.)

Official site here.  I'm there, and we've been encouraged to blog or tweet from the conference, in the federal building.  (The security guards were a little surprised that we were allowed to bring electronic equipment upstairs.)  If you have any questions you'd like to ask the judges, please post them.  The point of the conference is to see if the federal judiciary and the media (new and old) can come to terms with each other.  The comments below are my quick paraphrasings of what is being said.

The judges are stressing that they want to learn about new media.  They know it's coming to their nook of the legal system.

Judge Illston: Providing survey of current rules in the N.D. Cal.  Phones are rarely banned in the ND.  We no longer ask you to leave your phone with the marshals.  But once you permit phones, you're permitting cameras.  Judge Illston doesn't prohibit using a laptop to send text back to the office or to the internet.  She occasionally prohibits that if the tapping on the keyboard is too loud.

Peter Scheer (First Amendment Coalition): The ban on broadcasting from federal courts is nationwide and would need to be changed by the judiciary or Congress -- which is likely to happen in the next year or two.  In the meantime, the public isn't learning about important cases the way they should.  We're still in the era of pastel drawings that we call recall from the Watergate era.

Melissa Griffin (SweetMelissa)  Give examples of legal blawgs.

Kelli Sager:  The problem we're facing is that with the shrinking newspapers, we're getting less coverage of the courts.  So the courts can reach out more.

Judge Illston: Our court is working hard to be accessible but we're still learning.  For example, I have a high profile case [i.e., Barry Bonds trial] and we worked to make the system accessible.  But there was a limit on how much room we had to accommodate that.  And we didn't have to face the tough question, "who is a journalist?"  We're adding audio and video systems so people covering the Bonds trial could sit in the building and watch it.  (We're not permitted to broadcast outside the building.)  And we're making other efforts to accommodate the new media.  But we can't be out there policing the process.  

James Bettinger:  How should courts decide who is, and who isn't, a journalist?

Judge Illston:  Here's what happened.  We had people sign up, and so far that's worked fine.  No one was turned away.  

Peter Scheer: "Who's a journalist" comes up only when spots need to be rationed.  There are no official bodies to determine that.  The courts don't want to be in the business of answering that, and shouldn't.  The line drawing should be left to the profession itself.  Maybe if there are too many journalists there, we need to decide [by lottery].  Government shouldn't decide it.

Sager:  Courts often allocate in various ways (type of media; amount of circulation; etc.) and hopefully that will include new media.

Griffin: So far the allocation hasn't been a problem.  Right now the police give the press passes so that they can walk across police lines.  But we need a new way of managing that problem.  We need a way to be certified somehow.  It has to evolve toward that.  We also need to educate new media types about not interfering with the legal process.

Judge Illston: We tried to provide information about the ground rules for covering in the Bonds case.  But the person who walks into court for the first time might not know the rules and we need to address that on a continuing basis.  It's the same issue with jurors.  They need to informed about the rules.  We can do a better job of that.

Bettinger: We've mentioned that fewer reporters from traditional media are covering the courts.  What damage results from that/

Scheer: Mainstream media have been the primary force behind going to court, hiring lawyers, to fight for greater access to public information, to fight gag orders, and the like.  We've all benefitted from that.  In the past many newspapers had monopoly profits to spend on that.  They don't have those resources anymore.  And if newspapers can't hire media lawyers to open up things, who will?  It's a challenge for courts, for people who care about access, etc.

Audience member: The police don't give press passes if they don't like your politics.

Bettinger:  What about jurors?  What kinds of issues do new media raise for you as a judge in a jury trial?

Judge Illston: The first concerns is the jury and making sure that they don't learn anything outside the evidence.  These days, the internet is the main problem.  It's so accessible as a source of information.  It might be someone contacting the juror.  More innocently, it's the juror looking for information about the subject matter of the suit.  It's an effort to sequester the jury.  We rely on their good faith.  Mostly it works.  That's what we tell the jurors.  Next week when I start a new trial, I will instruct the lawyers to tell the witnesses not to try to use the internet to find out what's been said at the trial.  

Sager: I wonder if we don't get too concerned with all that stuff.  Can we really keep all jurors and witnesses from learning anything about the matter?  

Griffin: [Relates anecdote about potential jurors googling and thereby getting out of jury duty!]

Scheer: Pretrial publicity concerns, no matter how great, can be offset by instructions, voir dire, and where necessary sequestration or change in venue.  But pretrial publicity cannot justify closing the trial.

Audience Member: [Can't we get cable in the court room?]

Judge Illston: A court in the First Circuit tried that, and was told not to.

Sager: We're all still trying to get over the OJ Simpson case.  We need to move on; need to find a way to prevent what we didn't like in that case but still keep the court open.

Audience Member: Can we really prevent jurors from accessing the internet for long periods of time?

Judge Illston: So far it hasn't been a problem.

Bettinger: We've seen the Simpson and Peterson cases.  Will greater access bring the courts into disrepute?

Scheer: No.  People have more respect when they see how the courts work.  The oral argument in the Prop 8 case is a good example.  People listening realized that law isn't just political fiat; it was a legal matter.  People didn't think it was fixed the way politics are.  People would see that a branch of government actually decides on the merits sometimes.  That will redound to the benefit of the courts and the system generally.

Sager: Whatever you think of the Simpson case, you'd be wrong to think that the cameras made the difference.  Now think about the Oklahoma bombing case, a case run expertly by an experienced judge.  That one was televised via closed circuit proceedings and it didn't affect anything, and the public should have seen that.  If they had, they would have admired the courts more.

Audience Member: How might the policy be changed?

Scheer: It's a policy of the federal judiciary and the judges who administer those rules (the Judicial Conference) aren't as easily addressed as regulatory bodies are.  The Jud Conf is sensitive to Congress on issues like this, and it's come up in Congressional hearings.  The conventional wisdom was that the SCOTUS needed to change its views, and Justice Souter was anti-cameras.  That may have changed things.  [Chief Justice Roberts doesn't like the idea.]

Amazing video.  Stories here and here (with a nod to Reason blog).  (If this doesn't get Monroe's blood boiling, I don't know what will.)  At the subsequent hearing the deputy could not explain his conduct except to suggest that he seized the document because it was proof of a crime.  But the judge would not hold the deputy in contempt unless the deputy could defend himself by discussing what he saw on the document -- and because the document was privileged, the deputy was forbidden to discuss the contents unless the defendant waived the privilege.  The defendant wouldn't waive, and so the judge didn't hold the deputy in contempt.  (If I were the judge I would have!)

Two more lawyering cases will be argued at the Supreme Court today.  Wood v. Allen raises an issue certain to resonate with new lawyers and those who supervise them:  whether an attorney's inexperience may constitute ineffective assistance of counsel.  Pottawattamie County v. McGhee tests the doctrine of prosecutorial immunity where two prosecutors secured false testimony and introduced it at trial.  The ABA Journal offers an interesting summary here. 

For those of you tracking the Court's heightened interest in the law of lawyering this term, my latest count is ten cases.

This is big.  In the much discussed Qualcomm matter, where the federal court referred six lawyers (including two second-year associates) to the state bar for possible discipline, it now appears that the outside lawyers will blame the client for misleading the lawyers.  Some observers (myself included) have expected that defense to be raised -- and I eagerly await the court's ruling on it.  

I will post more analysis as it become known but for now want to mention one angle: the "disaggregation" of larger legal representations.  Increasingly, we are seeing corporate clients break up the legal representation into functional pieces and then farm out the functions to various providers, including lawyers.  To some degree this is old news.  And is certainly makes economic sense, given the costs of high-end legal services.  But in this era of electronic discovery and outsourcing, the dangers for the client and outside counsel have increased.  I had predicted that Qualcomm might usher in an era of increased danger for in-house counsel who manage large litigations. Perhaps at the Qualcomm hearing, set for January 2010, we will get some answers.

Interesting note topic.  Abstract:

In many cases, municipal attorneys defend both a  municipality and a municipal official against § 1983 claims. Some defenses available to the two types of defendants are incompatible and may give rise to conflicts of interest. This Note analyzes the problems associated with these conflicts of interest. The Note categorizes and describes the strengths and shortcomings of existing approaches to addressing these conflicts. Finally, it proposes a hybrid approach that may better address conflicts of interest in municipal dual representation.

Co-blogger Alice Woolley poses that Jeopardy-like riddle in this article.  The piece raises some of the same themes as Bill Simon's recent article (discussed last week), but with a notably different slant.  Here's the abstract:

There is such a right, according to the Arizona Supreme Court.  (See also here and here.  The opinion is here.) 

The issue is a bit different from the legal ethics version of the problem that we have long debated (i.e., whether lawyers can look at the metadata in an opponent's electronic documents).  The Arizona Supreme Court addressed whether the public has a right to see the metadata contained in electronic versions of public records, which might reveal (for example) whether a lobbyist drafted a particular report or memorandum.

I don't know much about public records law, but this sounds like the right answer to me.  If a document is a public record, the public should be able to find out who authored the document, who edited it, when it was created, etc., assuming that the information is embedded in the public record itself.

Thanks to former student, Adam Holland, for alerting me to the story.

This student article is based upon the well-known hypothetical -- the Karen Horowitz Dilemma -- penned by our own Stephen Gillers and included in his textbook.  The hypo generates great classroom discussions about the relative importance of winning a case for a client and combating prejudice.  Abstract

Is it ethical for a law firm to remove a lawyer from a case because a jury might be prejudiced against that lawyer? What if considering the attorney’s demographic identity would maximize the client’s chances of litigation success? This Note explores the tension between the duty of zealous advocacy and the anti-discrimination principles within the legal profession. It concludes that current ethical rules governing litigation tactics do not meaningfully guide firms in deciding which principle should triumph in the context of staffing cases. Without guidance from the Model Rules of Professional Conduct or the Model Code of Professional Responsibility, law firms may engage in practices that can severely limit litigation opportunities for attorneys with attributes that have been historically discriminated against. The Note proposes ways that the legal profession might regulate conduct pertaining to attorney’s identity-baggage in litigation.

That's the title of a new article by Columbia's Bill Simon.  This is the abstract:

Much recent academic discussion exaggerates the distance between plausible legal ethics and ordinary morality.  This essay criticizes three prominent strands of discussion: one drawing on the moral philosophy of personal virtue, one drawing on legal philosophy, and a third drawing on utilitarianism of the law-and-economics variety. The discussion uses as a central reference point the “Mistake-of-Law” scenario in which a lawyer must decide whether to rescue an opposing party from the unjust consequences of his own lawyer’s error.  I argue that academic efforts to shore up the professional inclination against rescue are not plausible.  I conclude by recommending an older jurisprudential tradition in which legal ethics is more convergent with ordinary morality.  

You can download the article here.

Kevin Michel's new paper is here.  Abstract:

In 2008, nearly half of all United States public companies commissioned outside counsel to conduct at least one internal investigation. The corporation, government officials, courts, shareholders and the public rely on investigative reports in assessing matters of unquestioned importance – allegations of material wrongdoing against the corporation. This article asks whether the internal-investigation entails a special commitment to the truth. There is reason for concern. While the American legal system has long presumed that the clash of adversaries is the best guarantor of truth, the investigator stands alone, implicitly asking us to accept her unilateral efforts as trustworthy. The investigator, however, is retained and compensated by the corporation that is the subject of the allegations – raising troubling questions about loyalty, accountability and conflicting objectives. 

The article begins by asking which internal investigations pose special concerns about truth and reliability. From the attorney-ethics rules, corporation law and statutory obligations, it develops two categories of investigations that warrant the imposition of special truth standards: the reliance investigation – an investigation delivered to a third party; and a duty investigation – an investigation undertaken to satisfy a corporate duty of inquiry. 

The article next identifies the core commitment of reliance and duty investigations: to provide as nearly as practicable an accurate account of the facts, the legal standards and their application. This, in turn, raises the question of what it means to be accurate in a legal inquiry, given the interpretative range of most legal matters. The article looks to philosophy, jurisprudence and historiography – disciplines that have struggled with questions about truth and objectivity – to explain and refine the accuracy standard. Accuracy, the article contends, is not only a viable standard to guide the investigation, it warrants commitment to a series of procedural truth standards proposed herein that substantially enhance the prospects of an accurate account – independence, sufficient inquiry, evidentiary reliability, and professional judgment. Despite the emphasis of lawmakers and courts, independence alone is not enough; it is only one of the procedural truth standards that serve the core substantive standard – accuracy. 

The truth standards require attention to: conflicts relating to investigator's role, client commitments that blur truth seeking and client protection, the scope and depth of the investigation, the reliability of the evidence gathered, questions of emphasis in developing a narrative account, adherence to professional standards of interpretation in forming legal conclusions, and client-imposed constraints on the reporting of investigation results. The standards also have important implications for the degree of certainty claimed by the report, the obligations of investigators when they cannot satisfy the truth standards, and the tort obligations of investigative counsel. Even more important, a deeper understanding of the investigative role will increase the prospects that those who receive and rely on investigative reports – the corporation, courts, shareholders, the government and the public – will have the benefit of an accurate account.

Dave Hoffman at Concurring Opinions posted this, about an interview with David, Martin, the criminal defense counsel for the since-executed Cameron Todd Willingham.  Since the execution, arson experts have argued that the original arson report relied upon theories that were discredited just before (or about the same time) as the trial.  The matter has received a lot of attention recently, and is often presented as a case where an innocent man was executed.  I don't want to get into the innocence question, but rather want to ask whether the defense counsel violated any ethical rules in the interview.  Texas's confidentiality rule is here.

The lawyer is presumably motivated at least in part to rebut the implicit allegation that he should have knocked out the arson report against his client and should have saved his client's life.  But there's no malpractice or discipline claim against the lawyer, so I can't conclude that he is justified by (c)(5) or (6).  (Under the ABA approach to that exception, the comments provide that a lawyer can defend herself even before formal claims or charges are filed, but Texas doesn't have similar comments.  And my intuition -- unburdened by research at this point -- is that the public embarrassment of the recent media coverage is not enough to trigger the ABA's preventative disclosure anyway.)  

Even if we apply the broad duty of confidentiality, some of what the lawyer said is common place following a noteworthy trial; he said, for example, that the prosecutor introduced this evidence or that evidence against my client.  He suggested that the arson report wasn't the only evidence that was introduced.

The lawyer repeatedly emphasizes that he conducted tests that inculpated his client.  I can't think of why the lawyer would be entitled to reveal that to the world.  It relates to the representation and is detrimental to the client.

But much of the interview consists of the lawyer attacking the validity of a new report and arguing that the report was biased and based upon distant, second-hand knowledge of the case.  That part of the lawyer's comments don't fit easily into a breach of confidentiality, do they?  

The dynamic is the one that sometimes occurs when a capital defendant asserts ineffective assistance of counsel and the lawyer defends herself.  I assume that there is case law and secondary literature on that issue.  Here, of course, the lawyer can't say that he has been accused by his client of ineffectiveness.

What do you all think?  (One of my thoughts is that Anderson Cooper needed to be better prepared.)

At Northwestern University, the Innocence Project has submitted evidence, including videotapes of witnesses’ testimony, exonerating Anthony McKinney, who has been in prison since his conviction in 1978.  This evidence was obtained by various students in the Innocence Project over a three-year period.  The issue of McKinney’s innocence is being considered by a judge.

We know that investigators can affect evidence, including witness testimony, in subtle and not-so-subtle ways.  On that theory, the prosecutors have subpoenaed the students’ investigative memoranda, e-mail messages, notes of interviews with witnesses, and the students’ class grades.  The prosecutors’ suspect that the students received better grades for obtaining exonerating information, and that the students therefore had an incentive to skew the evidence.  Accordingly, the information that the prosecutors seek should be made available to the court.

I’m inclined to think that the prosecutors have a point.  They know, better than most people, how arrest quotas, clearance rates, and convictions can affect the careers of police and prosecutors, providing an incentive to influence evidence supporting convictions.  A decision supporting the subpoenas in this case, therefore, could be an important precedent on behalf of defendants in criminal cases.

The NYT reports today on the recantation of charges of rape and torture by a woman in W.Va.  Six people pleaded guilty and are serving long sentences.

The prosecutor explained that he offered the plea agreements because he was skeptical of the alleged victim’s testimony.  Her story “grew and changed,” he said, and “we stopped relying on anything she said.”

When the prosecutor disbelieves the testimony of the alleged victim, who is his only eye witness, isn’t the proper course to dismiss the charges rather than to offer a plea?

I’m no fan of Bernard Kerik, but I’m wondering about the propriety of the revocation of his bail, and his imprisonment, on the judge’s finding that he had leaked information to the public that the judge had ordered sealed.  It seems clear from the report in the NYT that the judge didn’t revoke Kerik’s bail because he is a flight risk.  Rather, it looks like a punishment for contempt of court for conduct outside the courtroom.  If so, did the judge charge Kerik with contempt, and was there a hearing to establish contempt?

I just returned home from the just finished and entirely fantastic Hofstra Law conference organized by co-blogger Roy Simon, "Power, Politics and Public Service: The Legal Ethics of Lawyers in Government".  On the last day of the conference Robert Mundheim presented a paper  "A Treasury of General Counsel Experience: The (First) Chrysler Bail-Out, the (First) Iranian Hostage Negotiations, and Some 'Salomonic' Wisdom".  In his talk he discussed the difficulty for organizational lawyers in determining who is the client, and whose interests can legitimately be pursued in the provision of legal advice.

This paper caused me to reflect on the nature of loyalty as a lawyerly obligation.  Because (thought I) loyalty in the context of legal ethics (and ethics generally) is asserted as a moral principle, as something that one owes to one's client as a matter of obligation (the lawyer's) and right (the client's).  Yet loyalty is also something that a person feels, it is an emotional response to people, places and things with whom one has a relationship.  I feel loyalty to a sports team, for example, although it is difficult to see any modern sports franchise as being the proper subject of obligation or right (especially the dreadful teams I've always supported - go Canucks!).

And I wonder if part of the reason lawyers run into ethical problems is when either their moral obligation of loyalty and their emotional experience of loyalty end up in tension, or when their moral obligation of loyalty and their emotional experience of loyalty end up too closely intertwined.  So that an organizational lawyer runs into problems when he feels loyalty to one set of people or interests, but his actual moral obligation is to another set of people or interests, but a family law lawyer may run into problems when his emotional loyalty heightens his moral obligation of loyalty to the point where it blinds him to counter-vailing moral obligations such as respect for legality.

Which in turn makes me wonder whether some of the problems for organizational lawyers could be assisted by helping to enhance the emotional connection between those lawyers and the interests they are properly supposed to represent.  I am thinking of, e.g., ensuring that in-house counsel have contact with the board of directors from time to time, even socially.  I am less sure how one could disrupt the emotional loyalty where it tends to create excessive zeal, except through the conflict rule (here at least) which directs the lawyer not to act if excessive personal commitment impairs her judgment.

Anyone else have any thoughts?

I was recently a panelist at the Association of Corporate Counsel's annual conference, and someone in the audience posed an interesting hypothetical. 

Imagine that in-house counsel is conducting an internal investigation and speaks with an employee whose conduct may have been unlawful.  The employee does not have her own counsel, so the in-house lawyer makes clear to the employee that the lawyer represents the company and not the employee herself. So far, so good. 

But now let's imagine that the employee is reluctant to speak with the lawyer.  The lawyer then says to the employee, "You are subject to the company's employment policies, which require you to speak with me about this matter." 

Several audience members were convinced that such a statement was both commonplace and ethically permissible.  It was my position that such a statement, which appears to be giving legal advice to an unrepresented (and potentially adverse) party regarding her obligations under the employment policy, could be unethical under Rule 4.3.    What do you think? 

In the prosecution of Rod Blagojevich, federal prosecutors have complained to the judge that the former governor is tainting the jury pool with pretrial publicity, and have asked for a gag order.  (NYT, 10/2009).

What gall!  Almost a year ago, U.S. Attorney Patrick Fitzgerald held a news conference that succeeded in convicting Blagojevich without due process.  (The same Fitzgerald was commendably scrupulous in avoiding pretrial publicity in the Scooter Libbey case.)  Fitzgerald announced on television that Blagojevich was guilty of a "staggering" level of corruption, and that he had engaged in a “political corruption crime spree.”  Since then, Blagojevich has exercised his First Amendment right to try to defend himself against the criminal conviction that has already taken place, at least in the news media and in the minds of the public.

As belatedly recognized in Model Rule 3.8, in language adopted from the American Lawyers Code of Conduct (1980), Fitzgerald’s conduct was unethical.  – Any bets on the likelihood of disciplinary action against Fitzgerald?

News stories here and here suggest that the Fifth Circuit is deciding whether there is an irrebuttable presumption that a departing lawyer gained all of his prior firm's confidences.  There's only one sane way to rule on that issue. I know that the federal appellate courts rarely get DQ issues these days, and I've heard the conventional wisdom that fewer and fewer federal judges have a deep understanding of private legal practice, so I hope that the Fifth Circuit has the resources to understand what's at issue here.

Perhaps apropos of Brad's recent post regarding the teaching of morals in law school, Fordham Law School's Stein Center for Law and Ethics has just released the film Red State/Blue State: Lawyers, Politics & Moral Counseling (available along with a teacher's guide at www.law.fordham.edu/redstatebluestate).  This film is based on Professor Russell Pearce's earlier article The Legal Profession as a Blue State: Reflections on Public Philosophy, Jurisprudence, and Legal Ethics, 75 Fordham L. Rev. 1339 (2006) (available here on SSRN).  Both reject the profession's "neutral partisanship" and "non-accountability" tenets in favor of lawyers bringing a stronger sense of their own moral views into their practices.

Red State/Blue State follows up on Pearce's earlier venture into film, Revitalizing the Lawyer Poet: What Lawyers Can Learn from Rock and Roll, which offered a critique of legal professionalism.  Though I have taken issue with the substance of the views expressed in the ealier film (see here), I greatly admire Pearce and his colleagues at the Stein Center (including Director Bruce Green) for expanding the boundaries of traditional legal scholarship and employing new and varying forms of media to enrich the discussion of these important issues in the law school classroom and beyond.  For what it's worth, my own views are much more in line with those expressed in Red State/Blue State than with those expressed in the earlier film.

Finally, the film includes on camera interviews with many luminaries from the field of legal ethics - must see viewing for the readers of this blog.

Well done Russ.

Steve B.

From: High Court Justices Doubt Lawyers Should Be Paid Extra for Winning, Tony Mauro, The National Law Journal, October 15, 2009

Justice Alito on the quality and honesty of trial judges:

“Justice Samuel Alito Jr. said he was ‘very troubled’ by the notion of a judge taking 4-plus million dollars from the taxpayers of Georgia and giving it as a bonus to the lawyers in the case for good performance. ‘It seems totally standardless,’ Alito said. ‘I see a great danger that trial judges are going to use this as a way of favoring their favorite nonprofit foundation or their favorite cause or their favorite attorney.’”

And Chief Justice Roberts on the unimportance of trial lawyering skills, including fact investigation and developing a theory of the case:

“Chief Justice John Roberts Jr. even challenged the premise behind fee enhancements: that better lawyering can achieve better results.  ‘The results that are obtained are presumably the results that are dictated or commanded or required under the law,’ Roberts said. ‘It's not like, well, you had a really good attorney, so I'm going to say the law means this ... but if you had a bad lawyer, I would say the law says this.’”

Tony Mauro, The National Law Journal, October 14, 2009

Lawyer competence was the topic of the day at the U.S. Supreme Court on Tuesday, as justices heard two cases involving claims of ineffective assistance of counsel that violated the Sixth Amendment.

In one, a lawyer's flawed advice exposed his client to deportation. In the other, the defense lawyer in a capital case called his client sick and twisted during a closing argument, and minimized mitigating evidence that might have helped avoid the death penalty.

In the first case, Padilla v. Kentucky, a lawyer told his client Jose Padilla, a permanent resident alien arrested for drug trafficking, that pleading guilty as part of a plea agreement would not expose him to deportation. That advice was flat wrong.

Padilla sued in 2004, claiming ineffective assistance that deprived him of his constitutional rights. But the Kentucky Supreme Court ruled that incorrect advice on matters that are collateral to the criminal case don't make out a case of ineffective assistance under the Supreme Court's Strickland v. Washington standard.

Most U.S. Supreme Court justices seemed wary of expanding the definition of ineffective assistance to include flawed advice on matters beyond the actual criminal case the lawyer is handling.

"We have to decide whether we are opening a Pandora's box here," said Justice Antonin Scalia, who said flawed advice about the effect of a guilty plea on child custody could be another issue defendants would raise.

Justice Stephen Breyer also said, "The world is filled with 42 billion circumstances" that could trigger ineffective-assistance claims for other reasons.

Stephen Kinnaird of Paul, Hastings, Janofsky & Walker, arguing for Padilla, said deportation is "so severe and so material" that the Court could limit its ruling to advice in that area. "The lawyer has the distinct duty to assess the advantages and disadvantages of the plea."

Deputy Solicitor General Michael Dreeben told the Court that a criminal defense lawyer does not have a constitutional duty to advise his client about immigration law, but if he or she does and does so incorrectly, "the lawyer has used his professional skills to undermine a personal decision that belongs to the defendant alone."

The Padilla case is being tracked by immigrant rights advocates who say thousands of immigrants have been put in jeopardy by poor legal representation and advice. "Every day, immigrants are advised to give up their rights and plead guilty to charges that subject them to lifetime exile," said Benita Jain, co-director of the Immigrant Defense Project.

The second case argued Tuesday was Smith v. Spisak. Frank Spisak Jr. was convicted of murdering three people at Cleveland State University in 1983. During trial, Spisak testified of his Nazi past and showed no remorse for the murders during his trial. He claimed insanity, but was found guilty. At the sentencing stage his lawyer's task was to present mitigating evidence, but instead he emphasized the "clearly horrendous" aggravating circumstances. He even suggested his client did not deserve mitigation and would never be rehabilitated, arguing, "He is demented, and he is never going to be different."

Ohio Attorney General Richard Cordray, trying to knock down the notion that the closing argument amounted to a constitutional deprivation, told the Court that in fact it represented a "coherent strategy" to appeal to jurors' humanity and ask them to spare his client, as demented as he might be.

Scalia apparently agreed, calling it a "brilliant closing argument" aimed at jurors who were unlikely to be sympathetic toward Spisak. "The technique that counsel used to try to get mercy for this fellow was the best that could have been done."

Breyer also seemed reluctant to judge whether the argument was constitutionally flawed, stating, "Since there is a lower court that seemed to find this adequate, how can I sit here and say it wasn't?" Spisak's lawyer before the high court, Michael Benza of Chagrin Falls, Ohio, said, "I have been litigating capital cases since 1993. I have never seen a closing argument like this."

One indicator of how bad the closing argument was came in a brief filed in the case by a group of law professors who are experts on trial advocacy. They told the Court of their "considerable dismay" with the fact that the state of Ohio cited their treatises in arguing that the trial lawyer's strategy was legitimate.