Legal Ethics Forum

Ron Rotunda lays out a case for Justice Kagan's recusal in the healthcare matter

2012-01-27T13:53:19-05:00

Ron Rontunda's article lays out the case for the notion that Justice Kagan participated in the health care matter when she was Solicitor General. As before, I don't see that case as being made -- that she participated as counselor or adviser in that matter. I would have advised her not to send any of the mails that Rotunda cites, and would have advised her to be very clear with her staff about not sending emails to her about the health care case. She also apparently sat in a meeting where others discussed the case. So, there is some smoke but I don't see any fire yet. I'm curious about the emails that aren't being produced. Your thoughts may vary and please don't be shy to lay out your views politely in the comments.

Deadline looming for ILECV (International Legal Ethics Conference 5) call for papers

2012-01-27T00:26:48-05:00

The ILEC IV at Stanford was a real treat and this year's ILEC V in Banff should be the same substantively, plus the physical beauty of Banff. (Anyone want to do some cycling up there?) The folks running the show -- Richard Devlin and our own Alice Woolley -- send this mesage:

The 5th ILEC will take place in Banff, Alberta on July 12-14 2012. The deadline for the submission of proposals for papers or panels for the conference is January 31, 2012. Proposals need not be elaborate – a brief abstract is sufficient.

We have had many excellent papers and panels submitted so far, and we look forward to receiving more as we approach next week's deadline.

For more information about the conference, or about visiting the Banff/Calgary area, please visit our website at www.ucalgary.ca/ilec5 or contact myself or Richard Devlin (Richard.Devlin@dal.ca), conference co-chairs.

Alice Woolley
--
Alice Woolley
Professor of Law and Director of Admissions
Faculty of Law, University of Calgary
2500 University Drive NW
Calgary, Alberta T2N 1N4

40th Anniversary of Watergate

2012-01-25T15:16:37-05:00

This Friday, January 27, 2012, Chapman Law Review is holding an all day symposium on "The 40th Anniversary of Watergate: A Commemoration of the Rule of Law." There will be a webcast of the symposium on Chapman's website, http://www.chapman.edu/law/ (I will also be one of the presenters).

Interesting empirical article on the role of lawyers, race, and legal advice in personal bankruptcies

2012-01-25T12:15:58-05:00

Article. (h/t: Empirical Legal Studies Blog) Abstract:

We report on racially disparate uses of chapter 13 bankruptcy. Currently, approximately 1,500,000 bankruptcy petitions are filed each year, with about 30% of those petitions being chapter 13 cases. Although chapter 13 can offer some legal advantages for persons seeking to protect valuable assets such as a house or automobile, it generally offers less relief and costs more than the primary alternative available to consumers, chapter 7. The chief feature of a chapter 13 bankruptcy case is a plan under which the debtor must devote all of his or her disposable income to creditor repayment over a 3- to 5-year period. Chapter 7, in contrast, requires only that the debtor turn over all nonexempt assets, with over 90% of chapter 7 debtors having no assets to turn over.

This paper reports on two studies, one using data from actual bankruptcy cases and the other involving an experiment with a national random sample of bankruptcy attorneys. Because the court system does not collect racial data on bankruptcy filers, the first study uses data from the Consumer Bankruptcy Project. Even after controlling for financial, demographic, and legal factors that might favor a chapter 13 filing, African Americans are much more likely to file chapter 13, as compared to debtors of other races. The second study reports on an experimental vignette sent to a random sample of consumer bankruptcy attorneys who represented debtors. The attorneys were more likely to recommend chapter 13 when the hypothetical debtors were a couple named “Reggie & Latisha,” who attended an African Methodist Episcopal Church, as compared to a couple named “Todd & Allison,” who attended a United Methodist Church. Also, attorneys viewed “Reggie & Latisha” as having better values and being more competent when they expressed a preference for chapter 13 as compared to “Todd & Allison,” who were seen as having better values and being more competent when they wanted to file chapter 7, giving them a “fresh start.” Previous research and the results from the present experimental vignette study suggest consumer bankruptcy attorneys may be playing a very important, although likely unintentional, role in creating the racial disparity in chapter choice. Together, the two studies raise questions about the fairness of the bankruptcy system.

Legal ethics odds and ends (January 24, 2012)

2012-01-24T03:29:00-05:00

Lawfare: Fourth Circuit dismisses claims by Jose Padilla.

ABA: Variations in the enactment of 3.8(g)-(h) regarding the prosecutor's duty to assist post-conviction relief.

CNN: Supreme Court won't hear argument about Kagan's non-recusal in healthcare case.

Leagle: Seventh Circuit reinstates malpractice claim. "Mary Bucksbaum Scanlan ("Scanlan") is a current beneficiary of several discretionary trusts. Scanlan brought claims of legal malpractice and breach of fiduciary duty against the trustee and her lawyers. The district court dismissed all of her claims with prejudice and ruled that Scanlan lacked Article III standing because she did not allege facts showing a likelihood that the trusts' corpus were insufficient to pay her discretionary distributions. We reverse and remand."

Faculty Lounge: Is legal education like dental education? (That is, does it need some reinvention?)

Jack Fernandez, "An Essay Concerning the Indictment of Lawyers for Their Legal Advice"

2012-01-23T10:26:09-05:00

The essay, which is available at White Collar Crime Prof Blog, cites our own Brad Wendel and has some thoughts on recent cases where lawyers were indicted (and one was convicted) for legal advice. The names of the matters may be familiar to our readers -- Lauren Stevens (vindicated), Paul Daugerdas (convicted), the Kansas City health care planning lawyers (vindicated), the "nurses on strike" case, etc.

William Simon, "Authoritarian Legal Ethics: Bradley Wendel and the Positivist Turn"

2012-01-20T19:24:23-05:00

I'm looking forward to reading this article over the weekend. (h/t: Legal Theory Blog) Abstract:

Bradley Wendel's LAWYERS AND FIDELITY TO LAW exemplifies recent pushback against theories of legal ethics that require lawyers to make and act on complex judgments about the justice of their actions. Critics worry that such responsibility threatens either social order or the respect citizens of a democratic polity owe to constituted authority. Wendel elaborates these concerns and develops them jurisprudentially by connecting them to Legal Positivism. In this review, I argue that Wendel’s move toward Positivism leads him to underestimate the extent to which social order and democratic legitimacy depend on informal as well as formal norms and to adopt a utopian attitude toward constituted power. In addition, the book persistently treats as analytical propositions what are in fact empirical assertions for which Wendel has no evidence.

Lawyer for accused police stays the course, draws flak

2012-01-20T10:38:37-05:00

Seattle Times. I'd like to get a little more info on this story, but it seems that the private practice lawyer who was retained to defend three police officers who repeatedly tased a pregnant woman has now sought an appeal that the Chief of Police doesn't approve of. The lawyer, Ted Buck, says a legal ethicist has blessed his conduct. The Chief says an ethics complaint may be lodged. It's hard to judge these things from a distance but does it seem that the party paying the legal fees doesn't like what the lawyer is doing for the client? And don't we have three -- count'em three -- provisions in the Model Rules barring a lawyer from letter a payer/recommender from interfering with the lawyer's best judgment regarding what the true client needs?

A fairly provocative article

2012-01-20T03:02:00-05:00

"For thirty years, American lawyers have labored under an onerous dis-qualification rule precluding them from being 'directly adverse' to a client in a matter unrelated to that on which the client has engaged the lawyer. The rule is ahistorical, idiosyncratic, and has led to anomalous and untoward consequences. It derives from a misconception of the lawyer’s role and duty. It should be abrogated"

David Bussel, "No Conflict."

Announcing the LEF Symposium on Legal Education’s Response to the Economic Realities Facing the Profession

2012-01-19T08:03:00-05:00

I am pleased to announce the upcoming Legal Ethics Forum Online Symposium on Legal Education’s Response to the Economic Realities Facing the Profession.

Over the course of three days, February 6-8, scholars on the legal profession from the United States and around the world will post contributions about the implications of economic pressures on the way we teach our students. We hope that a robust conversation will be sparked as readers weigh in with comments. Be sure to check back frequently during the symposium, as posts will be added regularly over the three days. Our goal is to inspire a meaningful conversation about how we can better serve and prepare our students in light of the economic realities they face.

Confirmed contributors include:

Rakesh Anand (Syracuse)

Anita Bernstein (Brooklyn)

Hannah Brenner (Michigan State)

Ray Campbell (Peking School of Transnational Law)

Paul Campos (Colorado)

Paul Horwitz (Alabama)

David Hricik (Mercer)

Lucille Jewel (John Marshall Atlanta)

Dan Katz (Michigan State)

Renee Newman Knake (Michigan State)

Lisa Lerman (Catholic)

Judith Maute (Oklahoma)

Jim Milles (SUNY Buffalo)

Michele Benedetto Neitz (Golden Gate)

Russ Pearce (Fordham)

Laurel Rigertas (Northern Illinois)

Cassandra Burke Robertson (Case Western)

Rita Shackel (Sydney)

Mitchell Simon (New Hampshire)

John Steele (Santa Clara)

John Varghese (Government Law College, India)

SCOTUS decides mailroom mixup case in favor of criminal defendant

2012-01-18T14:18:21-05:00

The Supreme Court issued an opinion in Maples v. Thomas today, the case involving a death row appeal handled initially by lawyers at Sullivan and Cromwell who left the firm, so never received copies of a critical ruling in the case. Apparently the ruling was returned by mailroom staff unopened to the court, and a clerk put the envelop in a file without doing anything more. And the S&C lawyers never notified the court of their withdrawal.

Writing for the 7-2 majority (Scalia dissented with Thomas joining), Justice Ginsburg observed:

The sole question this Court has taken up for review is whether, on the extraordinary facts of Maples’ case, there is “cause” to excuse the default. Maples maintains that there is, for the lawyers he believed to be vigilantly representing him had abandoned the case without leave of court, without informing Maples they could no longer represent him, and without securing any recorded substitution of counsel. We agree. Abandoned by counsel, Maples was left unrepresented at a critical time for his state post-conviction petition, and he lacked a clue of any need to protect himself pro se. In these circumstances, no just system would lay the default at Maples’ death-cell door. Satisfied that the requisite cause has been shown, we reverse the Eleventh Circuit’s judgment.

The full opinion is here.

The lack of empirial proof for some of our central claims

2012-01-18T11:20:18-05:00

Following up on Renee's post, I enjoyed this exchange between Justice Scalia and the lawyer arguing the Filarsky case. In particular, they were discussing the claim that lawyers doing investigations on behalf of governmental entities need qualified immunity so that the lawyer will be able to give fearless advice.(h/t: Adam Liptak, at NYT)

The Ninth Circuit has denied lawyers that immunity, leading Scalia to claim that “there’s a lot of bad, cowardly legal advice being given in the Ninth Circuit,” -- but he then quickly added, "I don’t really know that, but you don’t know the opposite, either, do you?”

“I don’t,” said the lawyer.

Isn't that true of a lot of claims we make about the law of lawyering?

SCOTUS considers case involving protections for lawyers

2012-01-18T07:30:38-05:00

Yesterday the Supreme Court heard arguments in Filarsky v. Delia, another lawyering case on the docket this term. At issue is whether qualified immunity extends to a private lawyer hired as outside counsel by local government to conduct an internal affairs investigation.

Early in the oral argument Chief Justice Roberts questioned:

Lawyers--lawyers are not supposed to be cowed by the exigencies of the situation. We're worried in qualified immunity with protecting governmental actors, to make sure they will feel comfortable doing the right thing rather than being intimidated in the situation we had here. Lawyers have that professional obligation in the first place. So why does a lawyer need the--the defense of qualified immunity?

But he then later observed:

Your case highlights, I think is a very good example of why the lawyer ought to have qualified immunity. I mean this is a case where it looks like there's a lot of threatening and bullying going on. … I mean, it seems exactly the kind of situation for which qualified immunity was developed. We want Filarsky to give what he--do what he thinks is the right thing in this situation. We don't want him to be worried about the fact that he might be sued. … Isn't that exactly why we have qualified immunity?

The full transcript is available here.

Undercover Investigations... a Funny tid bit

2012-01-17T17:35:47-05:00

I am hunting for some useful materials for my civ pro class about pre-suit investigations, and I found a great one, except it includes this gem: "The legal investigator should not rely upon pretext or subterfuge except in situations when an honest and straightforward approach will not be effective." No, not making that up.

Back to hunting I go!

Bring back the LLB?

2012-01-17T10:56:54-05:00

That's the argument in this WSJ op-ed. (I've been suggesting that since 2005.)

In this electronic age, should the ABA be freer with its rules and opinions?

2012-01-17T09:38:34-05:00

Carolyn Elephant, at My Shingle, renews the debate in light of New Yorks' "ethics app."

Legal ethics odds and ends (January 17, 2012)

2012-01-17T03:13:00-05:00

Irish Times: "Ex-AG Says Bill Would Undermine Profession." "THE PROPOSED Legal Services Regulation Bill will make the legal profession “subject to indirect supervision and control by the Minister for Justice”, according to former attorney general John Rogers. He had asked why the Government had adopted a policy “to vest such extraordinary controlling power in the Minister for Justice.”

Miami-Herald: "Female Lawyers Making their Own Tracks to Success"

Canadian Lawyer Mag: "Building a new Canadian legal pipleline to the world"

Trinidad Express: "Keep Silk, But Change Criteria"

Money Law: "The Better Angels of Our Profession" "Law professors across the country have reacted rather strongly to the New York Times' series, particularly Segal's article on law faculty hiring and the staff editorial demanding law school reform." (h/t: Tax Law Prof Blog)

Legal Informatics Blog: "Kahana on Computational Law Applications and the Unauthorized Practice of Law"

Legal ethics odds and ends (January 16, 2012)

2012-01-16T11:15:31-05:00

South Carolina Criminal Defense Blog: "When is the victim the prosecutor's client?" Answer: it's not and Indiana may discipline prosecutors who forget that.

Miami Herald: "Stung by a malpractice lawsuit, prominent Miami attorney Dexter Lehtinen has struck back at his former client, the Miccosukee Indian Tribe, by disclosing highly sensitive information about its longstanding tax battle with the federal government.

Law Firm Risk Management Blog looks at tort liability for departing lawyers who improperly recuit firm clients and links to Bill Freivogel's article on how to hire lateral non-lawyers. On that latter point, you might want to read the new opinion by the Los Angeles County Bar Association, No. 524.

Download Ethics_Opinion_524-1

Legal ethics odds and ends (January 15, 2012)

2012-01-15T12:12:01-05:00

California Attorneys Fees: "New York Voids Retainer Agreement Terms Discouraging Clients From Following An Exiting Attorney"

WSJ Law Blog: Allen Stanford's lawyers must continue in the case. (If you teach PR, this might be a good example as to why 1.16(c) exists -- on the eve of trial, judges have the final say over withdrawal, even if the lawyers think it's a permissive or mandatory withdrawal situation.

ABA Journal: "Journalism & Justice: Did Innocence Project Student Reports Get Too Close to Lawyers?

[posted by John Steele]

C.J. Roberts' 2011 Year-End Report

2012-01-13T13:25:39-05:00

Chief Justice Roberts’ 2011 Year-End Report on the Federal Judiciary is addressed to “whether the Judicial Conference’s Code of Conduct for U.S. Judges should apply to the Supreme Court.” There are, of course, some assurances in the Report that the “Justices today use the Code for precisely [the same] purpose” as do lower federal judges, and also that the Justices follow applicable statutes regarding recusal, financial reporting, and the receipt of gifts. But, apart from those disingenuous assurances, there are two items that are worth noting.

The lesser important one is that Roberts says that the Justices “may consult precedent, consider treatises and scholarly publications, and seek advice from other sources, including judicial colleagues and the Judicial Conference’s Committee on Codes of Conduct.” Elsewhere, he also includes the Court’s Legal Office and disciplinary decisions. Unlike Justice Breyer in his testimony before the Judiciary Committee, however, Roberts does not specifically mention seeking approval from an ethics professor.

More important is Roberts’ comment, almost in passing, that “the limits of Congress’s power” to impose recusal, financial reporting, and gift limitations on the Supreme Court (as distinguished from the lower federal courts) “have never been tested.” I believe that if those limits are ever tested, the Court will decide that Congress has no such power regarding the “judicial Power of the United States,” which Article III vests in the “one supreme court” that the Constitution itself creates. And I think that would be the correct decision.

Public Defenders Should Do This

2012-01-13T10:35:16-05:00

R. Allen Stanford’s Houston criminal-defense attorneys filed a motion last night asking Senior U.S. District Judge David Hittner to allow them to withdraw from the case, which is set for trial on Jan. 23. Stanford’s court-appointed attorneys -- Scardino & Fazel partners Ali Fazel and Robert Scardino, solo John Parras and Ken McGuire of the McGuire Law Firm – no longer want to defend Stanford, the former chairman of Houston’s Stanford Financial Group (SFG).

The lawyers allege in their Jan. 11 motion in United States v. Robert Allen Stanford that their investigation is incomplete -- a situation caused in part by “funding constraints” for experts and litigation support. Also, they allege, because Hittner turned down their request for a 90-day continuance, Stanford “will not receive effective assistance of counsel” because they will not be ready for trial on Jan. 23. “Proceeding to trial under these circumstances would result in representation that falls well below the constitutional standard for effective assistance of counsel,” the lawyers allege in the motion. They ask Hittner to allow them to withdraw or to grant them an additional 90 days to prepare for trial and to grant “prior budgetary requests.”

Big News About PR from the NY Court of Appeals

2012-01-12T21:09:35-05:00

The NY Court of Appeals this week adopted new rules for taking the NY bar. Applicants must now have two credits in a class or classes in professional responsibility. The current ABA rule merely requires instruction in PR and related items, but no freestanding class. I expect the ABA will now revisit its rule, which it may have been doing straight along anyway.

The NY rule is not confined to NY. Any applicant must have the credits, wherever they go to law school. So the NY rule is really a national rule. Students from everywhere wish to take the NY bar or will not wish to preclude that option.

This is the only substantive law course in the rules that is required by name. A while ago, the NY Court imposed the same requirement on LL.M. students from foreign law schools who wish to take the NY bar. Now the rule applies to J.D. students, too.

I wrote in support of this change when the rules were under review but I was not entirely confident that it would be accpeted given the national consequences to legal education.

A savings provision will mean that the new rule does not apply to current law students. The first class to which it will apply will be the one that enters in the fall.

This is not the only change. Others appears in the Court's rule 520.3.

Circuit Splits: "Split Over the Right to Effective Counsel in Immigration Proceedings"

2012-01-12T14:04:35-05:00

The Circuit Splits blog has a concise analysis of the split on this issue, with links.

Charles Weisselberg & Su Li, "Big Law's Sixth Amendment: The Rise of Corporate White-Collar Practices in Large U.S. Law Firms"

2012-01-12T13:29:37-05:00

Article. I have seen Chuck Weisselberg present earlier versions of this paper and really enjoyed how he and his co-author Su Li were able to describe the phenomenon (with lots of good stats) and to speculate on its impact. Abstract:

Over the last three decades, corporate white-collar criminal defense and investigations practices have become established within the nation’s largest law firms. It did not used to be this way. White-collar work was not considered a legal specialty. And, historically, lawyers in the leading civil firms avoided criminal matters. But several developments occurred at once: firms grew dramatically, the norms within the firms changed, and new federal crimes and prosecution policies created enormous business opportunities for the large firms. Using a unique data set, this Article profiles the Big Law partners now in the white-collar practice area, most of whom are male former federal prosecutors. With additional data and a case study, the Article explores the movement of partners from government and from other firms, the profitability of corporate white-collar work, and the prosecution policies that facilitate and are in turn affected by the growth of this lucrative practice within Big Law. These developments have important implications for the prosecution function, the wider criminal defense bar, the law firms, and women in public and private white-collar practices.

Welcome to Laurel Rigertas

2012-01-11T12:19:39-05:00

The post below is from our newest blogger, Laurel Rigertas, who teaches PR (and torts and lawyering skills) at Northern Illinois. Welcome, Laurel!

Illinois ARDC authorized to prosecute UPL

2012-01-11T11:21:35-05:00

In December 2011 the Illinois Supreme Court authorized the Attorney Registration and Disciplinary Commission to investigate and prosecute UPL. Previously the Illinois State Bar Association had primarily taken that role upon itself. http://iln.isba.org/blog/2011/12/07/ardc-granted-authority-investigate-prosecute-unauthorized-practice-law

Supreme Court reverses conviction in Smith v. Cain

2012-01-11T10:57:48-05:00

The Supreme Court reversed Juan Smith's conviction in an 8-1 decision yesterday (opinion here). The case involved prosecutorial misconduct out of the District Attorney's office in Orleans Parish. The prosecution failed to turn over a detective's notes that contained conflicting statements by the sole eye-witness. (You might recall that the same DA's office was involved in Connick v. Thompson, where last term the Court overturned an $14 million jury award granted to Mr. Thompson after he was acquitted having served 18 years in prison, 14 on death row).

Roberts wrote the opinion, observing:

Under Brady, the State violates a defendant’s right to due process if it withholds evidence that is favorable to the defense and material to the defendant’s guilt or punishment. See 373 U. S., at 87. … We have explained that “evidence is ‘material’ within the meaning of Brady when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Cone v. Bell, 556 U. S. 449, 469–470 (2009). A reasonable probability does not mean that the defendant “would more likely than not have received a different verdict with the evidence,” only that the likelihood of a different result is great enough to “undermine[] confidence in the outcome of the trial.” Kyles v. Whitley, 514 U. S. 419, 434 (1995).

Adam Liptak (NYT) offers more details here.

The no-contact rule and drafting an agreement for your client to give to the opponent

2012-01-10T09:16:58-05:00

Legal Profession Blog has news of a censure handed down in Wyoming in a case where a lawyer drafted changes to a settlement agreement and gave them to the client in the expectation that the client would deliver the changes to the opposing party outside the presence of counsel. Isn't that the very behavior -- or extremely close to it -- that might be pemitted by the new ABA opinion? It had been my view that the ABA opinion would not play well across the country. We'll see. As noted previously, the ABA may be rethinking that opinion (11-461).

Legal ethics odds and ends (January 9, 2012)

2012-01-09T10:08:08-05:00

Legal Profession Blog: The Supreme Court of Georgia will review a controversial ethics opinion on the role of lawyers who represent children and also serve as guardian ad litem. There are links and more at LPB.

Attorney Malpractice Blog: "When Is Your Attorney not Your Attorney?" Union lawyers can't be sued for malpractice for representing union-member-grievants. Grievants can sue only the union itself, for breach of the duty of fair representation. (Is that the universal approach? I hadn't been aware of that doctrine.)

John Flood: "Is the Axis of Legal Education Shifting East?" Flood looks at the international aspects of legal education.

Law of Criminal Defense: "Iowa - 30 day suspension for criminal defense lawyer withdrawing fee from trust before earning and not keeping client advised."

California Lawyer's article on Tom Frankovich (a lawyer who brings many small ADA claims)

2012-01-09T09:45:39-05:00

Article here. Depending on your point of view, Frankovich is a champion for legal rights or a serial abuser of the legal process. Interesting look at a very strong personality -- for example, in the article he curses a dead judge and defends his receipt of 80% of the client's recovery.

Justice Breyer defends SCOTUS on ethics and recusals

2012-01-07T23:54:40-05:00

AP news account. I was glad to hear that when it's a tough ethics issue, he calls an ethics prof for advice.

No vehicles in the park

2012-01-07T16:40:41-05:00

I've been trying to work in some statutory interpretation into my ethics class, and when I passed this sign while cycling to work I knew I had to snap a pic. As you can plainly see, "no vehicles in the park" isn't just a hypothetical. One phrase in California's ethics rules that's useful for playing the game of core-meaning-vs-peripheral-meaning is the phrase in our doing business with a client rule (3-300): "A member shall not enter into a business transaction with a client; or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client, unless each of the following requirements has been satisfied . . ."

Economists adopt conflict of interest disclosure rules

2012-01-07T15:02:55-05:00

At Roger Pielke's blog.

"In Europe, Debt Crisis Raises Questions about Regulating Lawyers"

2012-01-06T09:39:44-05:00

Wall Street Journal Law Blog has news that the big bar associations are objecting to bail-out plans in Europe that would give regulators more control over the legal profession. John Flood isn't as worried.

Legal ethics odds and ends (January 6, 2012)

2012-01-06T03:01:00-05:00

JD Journal: Orrick wins a battle in the war over claims by the estate of the Coudert Brothers firm. Claims by the estate of a defunct law firm -- claims over the "unfinished business" that moved to other firms -- are a complicated business. Several others biglaw firms are fending off post-Coudert claims as well.

Volokh: "Does the First Amendment Protect Your Right to Speak for a Living?"

ABA Journal: "Stanford Investors Sue Proskauer, Chadbourne, and Ex-Partner Sjoblom in Texas State Court"

California Lawyer: "When criminal defendants attack their trial lawyers’ competence"

BNA: "Lawyer May Be Liable to Former Firm in Tort for Improper Efforts to Recruit Firm's Client"

Stephen Glass's Catch-22?

2012-01-04T10:12:38-05:00

Since September, we've been following the efforts of disgraced journalist Stephen Glass to gain admission to the bar -- and following the energetic efforts of the State Bar of California to keep him out. The case has attracted lots of attention and this article from American Lawyer Media gives the lowdown on the high-powered appellate lawyers, Jon Eisenberg and Kent Richland, on Glass's side. (Glass's trial counsel, Arthur and Susan Margolis, remain very much on Glass's team.) An excerpt from Glass's brief:

"Here is the [admission] committee's logic." [] Glass should not be admitted to the practice of law until he re-establishes himself in journalism; Glass can never re-establish himself in journalism; therefore Glass should never be admitted to the practice of law. Joseph Heller would smile."

Hot Coffee Documentary

2012-01-04T08:58:43-05:00

I highly recommend a DVD documentary on tort reform, titled Hot Coffee. The first 14 minutes of the DVD are essential classroom showing by anyone teaching tort reform, or, for that matter, by anyone teaching professional responsibility or trial advocacy. It can be purchased at www.newvideo.com for $29.95.

In DC this week? Here are some must-attend programs at AALS

2012-01-04T07:38:46-05:00

I hope to see many of our LEF readers at AALS this week. There are a lot of panels and events related to the legal profession this year. Here are some highlights:

Thursday, Jan. 5 8:45AM-5:15PM. Workshop on the Changing Legal Profession and Effect on Law Schools. This is an extensive program filled with numerous panels and a luncheon event devoted to a host of isssues facing the profession and legal education. According to AALS over 500 have signed up to attend. A detailed explanation of the Workshop's purpose along with a list of sessions and times follows the jump.

Friday, Jan. 6 10:30AM-12:15PM. PR Section Program: Does the First Amendment Protect Attorney Advice, Assistance and Representation? The panel will be moderated by Peter Joy (Washington University), and the featured speakers are Adam Liptak (New York Times Supreme Court Correspondent) and David Udell (Cardozo Law, Director of the National Center for Access to Justice). There will are also two papers selected from a call--David McGowan (San Diego) will discuss his paper, Lawspeech, and I will discuss my paper, Democratizing the Delivery of Legal Services. Here is the description from the AALS program:

This program explores the intersection of First Amendment rights of lawyers and clients when faced with government attempts to limit attorney advice, assistance, and representation. A series of Supreme Court cases, some of them decided very recently, raise significant questions about the constraints on government attempts to limit lawyers in providing advice and legal services to clients. Issues to be explored include: Legal Services Corp. v. Velazquez and legal advice and advocacy as protected speech; how Citizens United intersects with NAACP v. Button; implications of Holder v. Humanitarian Law Project on limiting lawyer's advice in other areas; Milavetz v. United States and issues of forced speech and disclosure requirements in connection with the delivery of legal services; and other First Amendment implications for the practice of law including lawyers' use of social media, advertising, and criticism of the judiciary.

Details on over a dozen sessions and events at Thursday's Workshop can be found after this jump.

From the Program for the AALS Workshop on the Future of the Legal Profession and Legal Education: Changes in Law Practice; Implications for Legal Education.

Major changes in the legal profession raise important questions about the future of legal education. These changes in the legal profession reflect both long term trends, such as increasing globalization and cross-border practice, advances in technology, and a shift from internal to external sources of regulation and policing of professional misconduct, and recent developments, such as a worldwide economic recession and a global political situation that has heightened both national security and civil liberties concerns. In turn, these changes raise important questions about the future, not only regarding how law will be practiced and what professional skills our students will need, but also how law schools will operate and how professionals dedicated to legal education will teach and otherwise conceive of their missions.

Among the questions these many developments raise: What new or different kinds of training will the law schools of the future need to provide? How can law schools better serve students seeking to develop critical skills in the areas demanded by changes in legal practice, including advanced problem identification and problem solving, entrepreneurism, legal judgment, creativity, and complex case management? How can and should law schools respond to critiques from both practitioners and educators (such as in the Carnegie Foundation report) urging an expansion in the range of cognitive skills addressed through legal education and a broadening of the scope of law school pedagogy beyond traditional methods?

A second set of questions focuses on changes in the legal academy: What innovations are currently underway in law schools to respond to changes taking place in the legal profession and in legal education? How will projected changes in the economics of the legal profession affect law students’ priorities and law schools’ budgets? Most fundamentally, what could and should members of the legal academy be doing to plan for the future in response to the many changes currently underway and to be expected in the near future in both the legal profession and in legal education?

The 2012 AALS Annual Meeting Workshop will take up these and other related questions. This one-day workshop aims to stimulate thought and the sharing of ideas throughout the legal academy about the many interrelated issues raised by change in both the legal profession and legal education. Participants will have the chance to hear from expert observers and to offer their own ideas, in frank and open exchanges featuring a wide range of perspectives and approaches.

The Workshop will involve a series of discussions organized around two plenary sessions. The first plenary will be held in the morning and is entitled “Changes in the Legal Profession and Regulation.” Featuring experienced observers of the profession, including both practitioners and law professors, this plenary will explore and link together the many facets of change currently underway, addressing topics including developments in large firm practice, public interest, practice, legal regulation, legal education, and regulation of legal education. A second plenary, to be held in the afternoon, is entitled “Innovations in Legal Education,” and will focus on legal education and innovations currently underway that respond to the changing conditions of law practice or point the way towards the future of legal education in other respects.

After each plenary session, workshop participants will be invited to choose among a range of concurrent sessions that will explore in more depth particular aspects of the general themes raised by the plenary sessions. These sessions will include both morning and afternoon panel discussions on innovations in teaching, which will feature some invited speakers and some speakers selected from proposals submitted in response to an AALS Request for Proposals (RFP) seeking descriptions of innovative teaching currently taking place. Another panel will focus on innovative work of many kinds currently being done at the intersections among teaching, scholarship and service, and will also include speakers selected through a RFP.

Other concurrent sessions will address topics related to changes in the legal profession, such as globalization, access to justice, technological innovation, innovations in delivery of law and law-related services, and government lawyering, with time reserved for audience discussion. Still other sessions will focus on subjects related to legal education, including the innovations in teaching and scholarship panels already mentioned, as well as a session on financing and organizing law schools of the future. Participants especially interested in either “side” of the interrelated subjects of change in the legal profession and change in legal education should find ample choices to pursue the topics of most interest to them during both the morning and afternoon concurrent sessions.

» Welcome and Introduction (8:45am - 9:00am)

» Plenary Session: Changes in Legal Profession and Regulation (9:00am - 10:00am)

» Concurrent Session: Globalization (10:45am - 12:00pm)

» Concurrent Session: Government Lawyering (10:45am - 12:00pm)

» Concurrent Session: Innovation in Delivering Legal and Law Related Services (10:45am - 12:00pm)

» Concurrent Session: Teaching Innovations (10:45am - 12:00pm)

» Concurrent Session: Technological Innovation in Practice and Education (10:45am - 12:00pm)

» AALS Workshop on the Future of the Legal Profession and Legal Education: Changes in Law Practice: Implications for Legal Education Luncheon (12:00 pm - 2:00 pm)

» Plenary Discussion (10:00am - 10:30am)

» Refreshment Break (10:30am - 10:45am)

» Plenary Session: Innovations in Legal Education (2:00 pm - 3:15 pm)

» Refreshment Break (3:15pm - 3:30pm)

» Concurrent Session: Access to Justice (3:30pm - 5:15pm)

» Concurrent Session: Innovations at the Intersection of Scholarship, Teaching and Practice (3:30pm - 5:15pm)

» Concurrent Session: Organizing and Financing Law Schools (3:30pm - 5:15pm)

» Concurrent Session: Regulation of the Legal Profession and the Academy (3:30pm - 5:15pm)

» Concurrent Session: Teaching Innovations (3:30pm - 5:15pm)

"Conflict case a circus "

2012-01-04T03:01:00-05:00

Canadian Lawyer Magazine: "It took the U.S. legal system 15 weeks to convict Conrad Black of fraud charges, the majority of which were overturned by the U.S. Supreme Court. It will take the Law Society of Upper Canada almost two years to decide whether or not Black’s lawyers, Beth DeMerchant and Darren Sukonick of Torys LLP, were in a conflict of interest when they advised him and his companies on the non-compete agreements at the centre of his criminal charges."

Alice Woolley, "Regulation in Pratice"

2012-01-03T15:00:05-05:00

Article. (h/t: Patrick O'Donnell's comment in an earlier thread) Abstract:

This paper tests Harry Arthur's theory that Canadian law societies engage in an "ethical economy," in which they use their regulatory powers only in high reward/low risk cases - i.e., where the practitioner is less likely to resist their authority and the offence is morally unambiguous. Analyzing reported cases from 2009 in British Columbia, Alberta, Saskatchewan, Manitoba and Nova Scotia the paper concludes that Arthurs' description still accurately characterizes regulation by Canadian law societies. The paper then conducts a case study of law society and court cases related to one Canadian lawyer, Anthony Merchant, to assess whether the ethical economy is inevitable, or whether a different approach to lawyer regulation can and should be undertaken.

"The Problem With Immigration Lawyers and How to Fix It, Part 1"

2012-01-03T03:06:00-05:00

I don't know much about this blog or author, but the post offers a very critical look at the quality of lawyering in the immigration law field and it has a link to an interesting study, available below, launched by a judge on the Second Circuit.

Download NYIRS_Report Immigration Lawyers

Adam Zimmerman, "The September 11 Victim Compensation Fund (Redux?)"

2012-01-03T03:01:00-05:00

At Prawfsblawg, Adam Zimmerman discusses the 9-11 related funds, including some comments about attorneys fees.

Legal ethics odds and ends (January 1, 2012)

2012-01-02T18:20:20-05:00

USDC for the District of Columbia awards over $1 million in fees to the successful plaintiffs in the Heller case about the Second Amendment. Blog coverage at Blog of the Legal Times. [edited]

Herald Tribune (Sarasota, FL): FDIC sues law firm for alleged malpractice (where the client was a bank).

JD Journal: E-discovery provider acquired for $70 million. (There's a lot of money in e-discovery.)

Wisconsin Lawyer: State Bar president wants to restore confidence in the state's judiciary. They've been pretty dysfunctional up there and I wish them well as they seek to restore some normalacy.

Miami Herald: Holland & Knight practice group eliminates hourly billing.

Goodwin v. O'Donnell (New Jersey, via Leagle): Law firm wins legal malpractice case based upon allegation that arbitration turned out to be more expensive and slower than was advised. Said the court, "Here, there was no legal duty on the part of defendant to refrain from recommending arbitration inasmuch as our State's strong public policy favors this alternative means of dispute resolution, EPIX Holdings Corp. v. Marsh & McLennan Companies, 410 N.J.Super. 453, 471 (App. Div. 2009), particularly in matrimonial matters, Faherty v. Faherty, 97 N.J. 99, 105-06 (1984). A fortiori, no reasonable jury could find the requisite breach of duty in defendant's recommendation of arbitration as a speedy and inexpensive course of action to pursue."

Interesting interview with IBM's GC regarding non-lawyer ownership of firms

2012-01-02T05:46:33-05:00

He's against it. Big time. The interview is here.

Chief Justice Roberts responds to recusal issues

2012-01-01T03:01:00-05:00

It's getting wide coverage. Here's the LA Times account and the one from SCOTUS Blog. Chief Justice Roberts' take, in the annual report at the link below, is similar to Justice Stevens' (in comments after he retired) and Justice Breyer's.

Download CJ-2011-annual-report-12-31-11

Latest Rakoff v. SEC v. Citi Opinion: Worth A Read

2011-12-31T08:31:20-05:00

Here it is:

http://www.scribd.com/doc/76796383/122911rakoff

Having taken aim at the SEC, Rakoff has now turns a bazooka toward its lawyers and Citi's lawyers, too, accusing all (but more so the SEC) of "seemingly...materially misleading" statements to him and to the Circuit.

The words "seemingly" and "appears" in the opinion softens it (but not by much). Still, maybe what I should say is that Rakoff has taken aim at the lawyers but has not pulled the trigger (yet).

"Seemingly" may also explain why the court's order ("sanction" won't do here) is simply to keep the lower court informed of whatever papers are filed with the higher court.

Beyond warning the lawyers, the important goal of Rakoff's opinion is to tell the Circuit his side of the story because, as he notes, the parties are in accord before the Circuit. No one is up there to correct omissions or misstatements. Rakoff, who will now be on notice of all filings, stands ready to do that with supplemental orders.

Opinion on attorneys fees awarded in litigation over Second Amendment

2011-12-31T08:11:59-05:00

Lots of news accounts and blogs have been mentioning the award of attorneys fees in the Heller litigation over the meaning of the Second Amendment. In a 65-page decision (which doesn't read nearly that long because of the font, double-spacing, and margins), the judge awarded the prevailing lawyers about 1/3 of what they had requested, netting them just over $1 million. The decision is very "inside baseball" in that the judge chooses between two different matrices that purport to show market rates for that kind of complex federal litigation. It might be useful for a PR class.

Download Heller Attorneys Fees

ABA reconsidering Op 461? (scripting your client's talking points with opposing party)

2011-12-29T21:38:20-05:00

ABA Journal says that the ABA's ethics committee is reconsidering its opinion 11-461, explicating the no-contact rule. The opinion had said that a lawyer may suggest that her client approach the other side directly (I agree with that), may script talking points for the client (a closer call, but one I agree with, if the talking points don't aim to get the other side's privileged information), and may even draft a contract or settlement agreement that the client will try to get the opponent to sign (which makes me squirm). According to the article, the APRL listserv discussion was a catalyst in convincing the ABA committee to take a second look.

"Do Military Commission Defendants Have a Sixth Amendment Right to Counsel?"

2011-12-29T18:53:08-05:00

Steve Vladeck, at Lawfare, looks at the issue.

ABA Commission on Ethics 20/20 Summary

2011-12-29T10:52:21-05:00

For those of you who have been following the Commission's work from afar (or not at all), you might find this document to be useful. It offers a summary of the Commission's work to date, including a brief description of each of the Commission's proposals, white papers, and recommendations. The document also contains links to the current versions of the Commission's work product.

The ABA House of Delegates will be voting on the majority of the Commission's proposals in August 2012. (The rest will be considered in February 2013.) The Commission has received valuable suggestions during its tenure from many sources, but it is especially important for the Commission to get feedback now, given that the Commission has to finalize its proposals in the near future.

The readers of this blog are particularly likely to offer helpful suggestions, so I hope you'll take some time to review the Commission's work and to submit your comments via this email address before the end of January.