Legal Ethics Forum

ABA balancing act: new ethics opinion reconciles the Model Rules and the "Good Practice Guidance" about anti-terrorism gate-keeping

2013-05-24T13:43:51-04:00

The ABA has a new opinion out, No. 463, which isn't so much an ethics opinion as an attempt to reconcile the loyalty and confidentiality provisions of the Model Rules with the 2010-issued Voluntary Good Practices Guidance for Lawyers to...

Herrick K. Lidstone Jr., "The Anatomy of a Legal Opinion"

2013-05-24T03:48:00-04:00

Article. (This article could be useful for PR profs, especially if they're not familiar with opinion letter practice.) Abstract: At some point during their years of practice, most corporate or transactional lawyers will be asked to work on a legal...

W. Bradley Wendel, "Alternative Litigation Financing and Anti-Commodification Norms"

2013-05-24T03:47:00-04:00

Article. Abstract: This paper considers a non-consequentialist argument raised by opponents of alternative litigation financing (sometimes called third-party litigation financing). The objection is that, apart from any effect that this method of funding might have on litigation rates, settlement incentives,...

"How protected should communications between lawyers and a firm’s in-house counsel be?"

2013-05-24T03:30:00-04:00

ABA Journal looks at the pending appellate case on this topic.

sign of the future? "9th Circ. Relieves Broke Law School Grad Of Student Debt"

2013-05-24T00:35:31-04:00

He couldn't pay it back after four years of trying. Now the debt is gone.

Matter of Lawrence: A Case With Important Professional Responsibility Issues

2013-05-23T22:28:10-04:00

The First Department Appellate Division in New York today (May 23) decided Matter of Lawrence, a case that had been up to the N.Y. Court of Appeals, was then remanded for a hearing that was held before former Court of...

The Federal Government and "reporting up" and "reporting out"

2013-05-23T19:41:42-04:00

From a comparative view of the IRS scandal using the legal ethics rules (altho, admittedly, the legal ethics rules don't govern for the most part), two aspects of the IRS scandal stand out: (1) the IRS's duty of candor (as...

Florida Supreme Court backs PDs on right to refuse new cases when caseload precludes diligent, competent defenses

2013-05-23T18:23:07-04:00

Miami-Herald. The court did not rule that such conditions exist at this time and it remanded the matter for a factual finding on that point. Excerpts: "Third-degree felony attorneys often have as many as fifty cases set for trial in...

Stephen Bainbridge, "If Obama was CEO of a public corporation and I was the company's general counsel, would I have told him about an audit of misbehaving employees?"

2013-05-23T13:42:00-04:00

Bainbridge answers "yes." I assume that people in the know did not tell the president because that was in the president's best interests. Once he knows, he's responsible. Better to wait until the IG Report was published, right? Over at...

Judge’s Response to Facebook Message Showed No Bias, According to Appeals Court

2013-05-23T12:35:16-04:00

A judge in Texas appears to have handled an ethics dilemma on Facebook in textbook fashion. The judge was presiding over a criminal case involving defendant William Scott Youkers, who was sentenced to eight years in prison for assaulting his...

Ethics links about the future of the profession (May 23, 2013)

2013-05-23T03:56:00-04:00

Law Technology News: Stanford is a source of innovations in the legal profession. (h/t: ABA Journal) ABA Journal: "Law firm leaders say industry shift permanent, yet don’t list value and efficiency as top concerns" Bernie Burk, at Faculty Lounge, "Proliferation...

Sara Rankin, "The Fully Formed Lawyer: Why Law Schools Should Require Public Service to Better Prepare Students for Private Practice"

2013-05-23T03:45:00-04:00

Article. Abstract: It is now commonly accepted that law schools are graduating students who are under-prepared for practice in the real world. In other words, students that perform adequately in the classroom seem to struggle or suffer — to an...

Round-ups of coverage of IRS issue

2013-05-22T10:14:58-04:00

Tax Law Prof Blog continues to run full daily round-ups of coverage.

Laurel Rigertas, "Post-Watergate: The Legal Profession and Respect for the Interests of Third Parties"

2013-05-22T03:44:00-04:00

Article. Abstract: As a result of Watergate, the legal profession’s reputation was badly damaged. Disciplinary action was taken against eighteen lawyers, which prompted the American Bar Association to focus on improving ethical standards and education for lawyers. Over the subsequent...

Anatomy of a Murder In New York (sort of)

2013-05-21T21:51:30-04:00

The video clip from Anatomy of a Murder in which Paul Biegler (Jimmy Stewart) meets with his client Lt. Frederic Manion (Ben Gazzara) and tells him the legal defenses to homicide before asking what happened is, of course, often used...

IRS official to take the Fifth (and probably wishes she had chosen candor)

2013-05-21T16:36:27-04:00

On a day when Senator Hatch accused a lawyer (Steven Miller) of lying by omission for failing to correct earlier false statements to Congress, we are told that another lawyer (Lois Lerner, whose job at the IRS was apparently not...

Douglas E. Abrams, " Plagiarism in Lawyers’ Written Advocacy (Part 1)"

2013-05-21T04:42:00-04:00

Short article. Abstract: Professor Abrams authors a column, Writing It Right, in Precedent, the Missouri Bar's quarterly magazine. In a variety of contexts, the column stresses the fundamentals of quality legal writing - precision, conciseness, simplicity and clarity. Future columns...

American Bankruptcy Institute issues report on ethics in bankruptcy practice

2013-05-21T03:38:00-04:00

With thanks and a hat tip to Richard Carmody, here are some resources about the ABI's recent report on ethics in bankrupty practice. (It reminds me of the ACTEC gloss on the ethics rules.) The final report: Download Final_Report_ABI_Ethics_Task_Force And...

New California Opinion on Receiving Ostensibly Privileged Document to which Crime Fraud Exception Might Apply

2013-05-21T03:34:00-04:00

California Opinion 2013-188 asks: If an attorney receives from a non-party a confidential written communication between opposing counsel and opposing counsel‟s client, what should the attorney do if the attorney reasonably believes that the communication may not be privileged because...

Bad or Stupid? The Lawyers of the Canadian PM

2013-05-20T22:47:05-04:00

Some of you may know that this has been an interesting week in Canadian politics. There was the allegedly crack smoking mayor of Toronto (to see the video donate at the "crackstarter" campaign on Gawker) and, as well, a story...

DOJ Inspector General's report: US Attorney unlawfully leaked to discredit critic

2013-05-20T13:50:27-04:00

The Inspector General released a report about an unlawful leak by the then-US-Attorney arising out of the "Fast and Furious" snafu. We discussed the matter when it the issue arose, but now the IG report is out. (We've also repeated...

The DOJ briefs opposing the Florida and Kentucky ethics opinions on IAC waivers -- and the Virginia opinion

2013-05-20T11:00:38-04:00

To follow up on a prior post, below are the DOJ briefs asking that the Florida and Kentucky opinions on IAC waivers be vacated. And here is the Virginia opinion, LEO 1857 (which strikes me as overreaching, even though my...

Recent Conference on the OLC Torture Memos

2013-05-20T03:54:00-04:00

[Tigran Edlred passes along this news.] For those with a continuing interest in the OLC torture memos (which have been discussed extensively on LEF), you might be interested in a recent symposium hosted by the New England Journal on Criminal...

Bruce Green, "Federal Criminal Discovery Reform: A Legislative Approach"

2013-05-20T03:04:00-04:00

Article. Given that this is the 50th anniversary of Brady, and given all the inadequacies we've seen in the DOJ's exercise of that duty, isn't it time for a legislatve solution? Abstract: In general, discovery is far narrower in federal...

Why Not Plant the IRS Question with the Congress?

2013-05-19T11:32:42-04:00

After reading the WSJ round-up of testimony about the planted question by the IRS, I have to wonder: if Lois Lerner and Steve Miller spent time that week carefully planting a question for the ABA conference as a vehicle to...

Waiving IAC claims (and a bleg for sources, committee opinions, etc.)

2013-05-19T11:10:44-04:00

Rick Underwood's comment to an earlier post highlighted a hot issue that I'm trying to get a better handle on: the enforceabilty of a waiver of IAC claims by an accused. I found this law review article by Nancy King...

Josh Bowers, "Lafler, Frye, and the Subtle Art of Winning by Losing"

2013-05-19T03:47:00-04:00

Article. Abstract: In its recent decisions, Lafler v. Cooper and Missouri v. Frye, the Court recognized defendants’ rights to effective assistance of plea-bargaining counsel. Counter-intuitively, however, it is the government that may come to benefit most from the Court’s rulings...

OJ Simpson's lawyer fights back (to claims of ineffective assistance of counsel)

2013-05-18T15:40:14-04:00

News story here. Talk Left has views. There have been recent opinions by the ABA and the DC Bar about the ethics of responding to a former client's claim that you rendered ineffective assistance of counsel. UPDATE. In the comments,...

"Viewpoint: Court Struggles to Regulate Attorney Blogging"

2013-05-18T12:41:03-04:00

Richard Zitrin offers this op-ed.

"Wal-Mart's whistle-blower problem: Public revelations trump privilege"

2013-05-18T03:44:00-04:00

Alison Frankel, at Thomson Reuters, has the story. Read the whole thing but here's a key excerpt: "Attorney-client privilege confers powerful protection over confidential corporate documents. But according to a ruling Thursday by Chancellor Leo Strine of Delaware Chancery Court,...

Rob Bejesky, "An Albatross for the Government Legal Advisor Under MRPC Rule 8.4"

2013-05-18T03:05:00-04:00

Article. Abstract: Rule 8.4 of the Model Rules of Professional Conduct requires lawyers to impart honest representations of the law and candid legal advice. Rebuke roused due to advisory opinions furnished by government attorneys who offered an unchecked vision of...

IRS scandal: where were the IRS and WH lawyers?

2013-05-17T13:16:00-04:00

UPDATE(5/17): the New York Times is now reporting that the general counsel of the Treasury was informed in 2012, before the election, of the Inspector General's investigation. I have the same questions about that lawyer (as well as IRS and...

Are You Heading to the ABA-CPR Conference in San Antonio?

2013-05-17T12:16:45-04:00

Alberto Bernabe passes on this news about meet-ups there. For those of you planning to attend the upcoming ABA National Conference on Professional Responsibility in San Antonio, I would like to let you know of two activities organized by the...

Why Was a Senior Advisor to the Secretary of State also Working for a Political Intelligence Firm?

2013-05-17T10:40:24-04:00

According to this story, Secretary of State Clinton’s closest advisor at the State Department, Huma Abedin changed her status to part time and became a special government employee (SGE) when she went on maternity leave (this is understandable, particularly when...

"Class Action a la Francais?" Is American-style litigation heading to la belle France?

2013-05-17T03:40:00-04:00

McGuire Woods notes that the French are considering allowing a form of class action that is far less robust than we have here in the USA. Still, it seems that some American plaintiffs lawyers are eyeing a chance to go...

Leslie C. Levin, Christine Zozula & Peter Siegelman, " A Study of the Relationship between Bar Admissions Data and Subsequent Lawyer Discipline"

2013-05-17T03:01:00-04:00

Article. Abstract: The research reported here uses information from the admissions files of lawyers admitted to the Connecticut bar from 1989 to 1992 to compare those who were disciplined with those who were not disciplined. It analyzes information reported during...

Key Amendment Introduced by Minnesota State Representative David FitzSimmons Protects Churches and other Religious Organizations from Frivolous Lawsuits

2013-05-16T15:22:44-04:00

Just because a lawsuit is weak – with no precedent to support it – does not mean a plaintiffs’ lawyer won’t try to bring it. It is a miscarriage of justice when any defendant must spend money defending a frivolous...

Eliminate the 'C' Grade in Law School?

2013-05-16T14:26:15-04:00

Professor Joshua M. Silverstein at the University of Arkansas at Little Rock argues yes in his article, A Case for Grade Inflation in Legal Education. The article has been reported in the Wall Street Journal Law Blog and the ABA...

random thoughts about scandals (e.g., the AG recused but no written record?)

2013-05-16T12:35:20-04:00

Attorney General Eric Holder testified that he was recused from the leak investigation that ended up gathering telephone records about AP reporters, but that there is no writing to memorialize the recusal. Are there any experts out there who can...

Nora Freeman Engstrom, "Attorney Advertising and the Contingency Fee Cost Paradox"

2013-05-16T04:56:00-04:00

Article. Abstract: It has long been taken as gospel that attorney advertising drives down the cost of legal services. The Supreme Court assumed it when first permitting attorney advertising in the landmark First Amendment case, Bates v. State Bar of...

CIA looking for ethics counsel

2013-05-16T03:57:00-04:00

Job description here. (h/t Lisa Lerman) Excerpt: The Office of General Counsel is seeking a highly qualified Ethics Counsel at the GS-13 to GS-15 level to join its exciting and challenging legal practice. The ethics practice at CIA provides the...

Citi: "Law firm managing partners express weakened confidence"

2013-05-16T03:19:00-04:00

Thomson Reuters carries the story. Excerpt: "Even as the overall economy strengthened in March and April, law firm managing partners expressed increasing pessimism about their firms' financial prospects, according to a new survey by Citi Private Bank. The survey ....

Internal investigations, Inspectors General & the Benefits of Accountability

2013-05-15T20:29:30-04:00

Since last Friday, we've all heard that the IRS targeted Tea Party groups for more intense scrutiny of their applications for tax-exempt status. There have been innumerable news stories. Congressional committees are holding hearings on the issue. The Attorney General...

Ethics: SF Giant (Affeldt) voluntarily fixes contract error that gave him $500k too much

2013-05-15T19:33:34-04:00

Yahoo Sports. San Francisco Giants player Jeremy Affeldt voluntarily corrected a clerical error in his contract and thereby reliniquished $500k. Affeldt says that lawyers told him he could easily hold onto the windfall, but he simply couldn't take the money....

Josh Bowers, "Two Rights to Counsel"

2013-05-15T16:54:00-04:00

Article. Abstract: This forthcoming essay argues that there is not one constitutionally recognized right to counsel, but two. There is a right to legal counsel and a right to extralegal counsel. The right to legal counsel applies principally to the...

Reduce Student Loans

2013-05-15T12:16:18-04:00

The interest rates on federal student loans will double this July if Congress doesn't take action. Fortunately, Senator Elizabeth Warren has introduced legislation that would provide a one-year fix to the impending doubling of students' rate by setting the student...

Profile of Ted Frank, who challenges fee awards in class actions

2013-05-15T03:23:00-04:00

The digital version of The American Lawyer carries a profile of Ted Frank, who has built a practice area of objecting to fee awards. Frank blogs at Point of Law.

IRS scandal: why reveal at the ABA conference? (The answer isn't flattering to the IRS)

2013-05-15T00:06:12-04:00

UPDATE (5/17): The day this story broke, one week ago, it struck me as odd and troubling that the IRS revealed the news at an ABA conference. I had private correspondence about that over the weekend and made a post...

Of Lawyers and Journalists: The AP Subpoenas

2013-05-14T21:20:09-04:00

Lawyers and journalists -- law and journalism -- have much in common. Obligations to the truth. Reliance on experts. Right to be heard. Etc. Right now we see the media's outrage at DOJ's subpoena of the phone records (home, cell,...

When is a lawyer's demand letter really just extortion? (again)

2013-05-14T13:46:44-04:00

ABA Journal carries the story about an appeal of a ruling that a lawyer's demand letter was extortion. The briefing is here and here. (We've carried lots of stories on this general topic over the years. Law is a low-grade...