My current project analyzes the responsibility of lawyers for the financial crisis through their involvement in the preparation of offering documents for mortgage-backed securities and related financial products.
Although not the main focus of the project, my research has made me skeptical of non-lawyer providers of legal services. It is possible, as some have claimed, that "sophisticated" clients do not need the protection of MR 5.4 and other conduct rules and should be able to retain firms that are not owned by lawyers to complete legal work. But the Model Rules are not solely concerned with client protection. They are also concerned with fostering compliance with the law.
As is now widely-known, one of the chief causes of the financial crisis is that many mortgage loans were extended to borrowers who realistically had no capacity to repay. This was generally not disclosed to individuals who invested in MBS and related products.
Lawyers were integral to the securitization process but had very little role in assuring that loans were fit for sale to investors. Instead financial institutions would hire so-called due diligence firms to examine a sampling of the mortgage loans they planned to acquire from an originator. These due diligence firms would generally provide two weeks training to their reviewers and pay them $30-$40 an hour. The firms themselves would receive a flat fee of $150 for each reviewed mortgage file. Not surprisingly, reviewers were instructed to spend no more than an hour per file so as to maximize the due diligence firms' profits. One of the largest firms, Clayton Holdings, saw its revenue climb from $19 million in 2000 to $239 million in 2006. See generally Robert Kolb, The Financial Crisis of Our Time, 209-211 (2011).
From one perspective, due diligence firms could be seen as a massive success story. They fill a niche that is not currently being met by traditional law firms. After all, what financial institution would want to pay BigLaw associates hundreds of dollars an hour to look through mortgage files? But the reviews undertaken by due diligence firms were very cursory, and on the few occasions where reviewers did raise concerns, they were overruled by their supervisors or a financial institutions' business personnel. There were few negative consequences until the real estate bubble crashed and almost decimated the global financial system.
The point is not that only lawyers are capable of conducting due diligence. Indeed, in certain circumstances, accountants and other professionals may be better-equipped. But lawyers have ethical responsibilities that non-lawyers do not. They are supposed to, for example, "exercise independent professional judgment and render candid advice" and seek to deter their clients from committing fraud.
Perhaps part of the success of non-lawyer providers of legal services can be explained by the fact that they are less hamstrung by ethical obligations in completing legal and quasi-legal tasks. If a client is intent on a particular course of conduct, why hire lawyers who might be inclined to raise uncomfortable questions about mortgage fraud and responsibilities to investors and seek to stop the conduct in question?
This article considers the state of the justice gap and briefly reviews the national conversation about the use of “unbundled” legal services,” noting the tension between the ideal of full scope legal representation for low-income litigants facing serious legal challenges — like the loss of a home or the loss of parental rights —, and the practical, fiscal, and structural realities impeding full scope representation. It describes several innovative efforts to address the justice gap through law school post-graduate programs that provide continuing support for pro bono representation with a focus on CUNY Law’s programs. Most notably, the article describes the Launch Pad for Justice (“LaunchPad”), a project of CUNY Law’s Community Legal Resource Network (“CLRN”). In partnership with the New York State Unified Court System’s access to justice efforts, CUNY Law’s CLRN created a structure to support the provision of supervised, limited scope representation to low-income, self-represented litigants in housing court and elsewhere.
In a study released Wednesday, California's high court ranked first in the nation in the way state supreme courts handle financial disclosure and conflict-of-interest rules for individual justices, earning a C as 43 states received an F for failing to take adequate steps to avoid financial conflicts.
California's Supreme Court received particularly high marks for making financial information readily available to the public, the result of a move last year by the state's Fair Political Practices Commission to require all of the state's judges to post their financial information online. Some judges around the state had opposed the requirement, but it helped separate California from other less open states.
We've changed some settings on the blog to combat spam. The technique has worked (much less spam), but it is also preventing some legitimate comments from being posted. If you have such a problem when commenting, you should ensure that you do not include any information about yourself other than your name and email address (e.g., do not include a link to your web bio, etc.) in the box underneath your comment.
Lawyer disqualification is commonly feared — as a “strategic,” “tactical,” and “harassing” “potent weapon” depriving clients of their trusted counsel of choice. Although disqualification comes with costs, fundamental misunderstandings fuel this common fear. This Article finds that disqualification is a uniquely effective remedy for lawyer misconduct and makes the following contributions to the law and practice of lawyer disqualification: (1) an exhaustive study surveying disqualification cases and refuting the common misconception that disqualification motions are uncontrollably on the rise and uncontrollably bad; (2) an accessible analysis of lawyer disqualification doctrine that permits lawyers and judges to begin assessing common disqualification questions efficiently and comprehensively; and (3) specific suggestions for practical improvements, including cost-shifting, legal presumptions, and better procedures in disqualification proceedings.
Diane Karpman's new Ethics Byte artcle, in which she discusses block billing and other billing issues.
We have a new case in California suggesting that block billing is not per se improper. My pupillage group at my Inn of Court did a presentation on this, and used these examples as part of the materials. We asked the Inn members to vote on the propriety of these examples, focusing on possible block billing, adequacy of descroption, and other factors that might undermine confidence in the bill:
Block Billing and Adequacy of Description
Doe vs. ABC Corp.
Date: November 2013
Description of Services: Research and drafting of motion for summary judgment; multiple conferences to plan strategy; draft ex parte application to exceed page limitation; travel to court for ex parte; draft letter to client re denial of ex parte application; numerous emails to and from opposing counsel and client representatives re trial strategy; extensive legal research re potential writ on page limitation issue; attention to filing deadlines; travel to Palo Alto to meet with expert; prepare billing statement.
Total Attorney Time: 147.85 hours
Total Amount Due: $68,125.50
Doe vs. ABC Corp.
Date: November 2013
11/12/13: Research and draft ex parte application, travel to court; hearing on same; phone call with client re outcome of ex parte; confs with associates and paralegals re trial strategy and delegation of tasks; emails to and from opposing counsel; phone calls to and from opposing counsel
Time: 9.5 hours Billing: $3,800
11/12/13: Meet with senior partner; legal research and drafting of motion for summary judgment; emails; telephone confs; correspondence
Time: 12.0 hours Billing: $3,600
Doe vs. ABC Corp.
Date: November 2013
11/12/13: Research and draft ex parte application (5.5), travel to court (0.4); hearing on same (0.6); phone call with client re outcome of ex parte (0.2); confs with associates and paralegals re trial strategy and delegation of tasks (1.3); emails to and from opposing counsel (0.6); phone calls to and from opposing counsel (0.7)
Time: 9.5 hours Billing: $3,800
11/12/13: Meet with senior partner (1.0); legal research and drafting of motion for summary judgment (8.0); emails (1.0); telephone confs (1.0); correspondence (1.0)
I hadn't realized that the ABA can fine law schools this way. TIL.
Rutgers-Camden got popped $25k for admitting applicants who had not taken the LSAT but had taken the GREs, MCATs, or GMATs.
I'm all for following rules, and it appears that rules were deliberately broken. But is using the GREs such an awful idea? (h/t: ABA Journal) Shouldn't schools be free to use those three tests if they care to?
The ban on solicitation by attorneys in ABA Model Rule of Professional Conduct 7.3, and its state counterparts, has generally been used to prevent ambulance chasing by plaintiffs’ attorneys. However, a recent New York decision has raised the possibility that a defense lawyer could be disciplined for solicitation when offering his services to a non-party witness employed by a corporate defendant, even when doing so for no additional fee. The court in Rivera v. Lutheran Medical Center, referred a prominent national law firm to the Departmental Disciplinary Committee and disqualified the firm from representing several current and former employees of the law firm's client, a hospital. The law firm had offered its services to several witnesses in a pending civil employment discrimination matter. The court found this to be solicitation in violation of the New York Code of Professional Responsibility, disqualified the firm, and referred it for disciplinary prosecution.
This decision has been criticized by members of the practicing bar, some of whom had assumed it was appropriate for corporate defense counsel to offer their services to current or former employees or non-party witnesses. Moreover, the Rivera decision sets up a potential conflict with other principles of modern corporate practice. For example, recent authorities have held that a corporation, under some circumstances, is obligated to furnish a free defense to a current or former corporate employee in the context of a criminal investigation. In circumstances in which a corporation is legally obligated to offer a defense to a former or current employee, is a lawyer proscribed from making the phone call to offer her services?
American Lawyer Media. (h/t: Legal Whiteboard) I looked at this years ago when a few companies made news by hiring new grads. I can't say whether or not we actually have a trend. (If students could studyt law undergrad at their state universities, I imagine lots of them would get law jobs inside corporations (for modest salaries) and could spend a year or two deciding whether they liked law enough to go back for a specialized LLM. Over at Law School Cafe, Deborah Merritt is blogging about teaching law as an undergrad degree.)
If having dinner with a bunch of legal ethicists is your idea of fun, this is the post for you.
Stephen Gillers and I are organizing a dinner in New York on Friday, January 3rd at 6:30 p.m. in connection with the AALS Annual Conference. If you are interested in joining us, send me an email no later than Monday, December 23.
Entry-level hiring by large law firms is notoriously inefficient and would seem to be ideally suited to technological disruption. Yet, according to Law Technology News (h/t Taxprof), JD Match, a company that purports to match law firms with law students, apparently only has seven law firms and 6,000 users registered on its site. One of JD Match's founders is Bruce McEwan, the man behind Adam Smith, Esq and the author of Growth Is Dead: Now What? Law Firms on the Brink. Mr. MacEwan's co-founder acknowledged in the LTN piece that JD Match overestimated BigLaw's appetite for change.
JD Match is hardly the only hyped product that has failed to change the legal industry. Bill Henderson called Washington and Lee's third year curriculum "the biggest legal education story in 2013" and claimed that "W&L is tooling around in a Model-T while the rest of us rely on horse and buggy.” As Alice Wooley noted in this space before, however, the program has not improved the employment prospects of W&L students. The employment rate actually fell from 2011 to 2012.
Both JD Match and W&L's 3L curriculum are worthwhile endeavors, and perhaps they both need time to win over a change-adverse industry. But for every successful disruption of an established market, there are likely many more examples of ballyhooed new entrants failing. We tend to remember and lionize the former but quickly forget the latter.
As I found out while working on a new article, the CEO of Washington Mutual Bank had his employees read Who Moved My Cheese? andaspired to transform how people obtained mortgages. WaMu became the largest commercial banking failure in U.S. history in large part due to its reliance on exotic mortgages.
Now that disruption has become the ultimate buzzword in legal circles, it might be worthwhile to not only pay attention to successful examples of innovation but failed ones as well. Everyone knows about Moneyball's effect on baseball, but there is a reason that Hollywood does not make movies about certain NFL teams' adoption of the Fun-N-Gun and Randy Ratio.
Do you have questions about when a law firm can use the "of counsel" title or similar designation? This updated FAQ on the NY City Bar website should answer many of those questions (at least for New York law firms).
Here are some of the questions we try to answer:
Q. Under what circumstances may a lawyer or law firm enter into an “of counsel” relationship with another lawyer or law firm?
Q. Is an “of counsel” attorney required to be compensated by any particular method?
Q. May a New York law firm designate as “of counsel” a New York lawyer who resides and practices overseas?
Q. How are conflicts imputed among “of counsel” lawyers and law firms?
I hope the FAQ is helpful. We are working on expanding on the FAQ section to include many more practical topics, such as retainer agreements, conflict waivers, billing, and more. Any suggestions for topics are welcomed.
In the American criminal justice system, you have the right to an attorney. And if you cannot afford an attorney, one will be appointed for you.
That's not the case if you're a defendant in U.S. immigration court. Immigration proceedings are civil matters, and the Constitution does not extend the right to court-appointed attorneys to immigrant detainees.
But a new pilot program in New York City is trying to change that with the nation's first government-funded public defender service for immigrants facing deportation. Launched earlier this month, the New York Immigrant Family Unity Project provides poor immigrant detainees with court-appointed attorneys from the Bronx Defenders and Brooklyn Defender Services.
When Northern Kentucky lawyer Patrick Moeves was convicted in 2010 of stealing thousands of dollars and forging a state senator’s name, Moeves’ clients were left out on a limb.The clients were unable to retrieve their files from Moeves’ Fort Wright office because his landlord padlocked the door for failure to pay the rent. Many others found the money they paid Moeves was gone. They were then left with no lawyer when Moeves was disbarred.
Cloud computing raises numerous ethical issues that can confound and confuse even the most sophisticated lawyer. A new report by the Small Firm Committee of the New York City Bar Association discusses the practical, economic and ethical implications of using the cloud. A section of the report contains a round-up of the various ethics issues that lawyers should consider before using the cloud. The main thrust of the report is that lawyers must take reasonable steps when using cloud services to ensure that they comply with their ethical obligations, including the duties of confidentiality, competence, supervision, communication, and record-keeping. In addition, the report contains a number of suggested guidelines, including:
Use reliable and established cloud providers
Perform your own due diligence on cloud providers
Review provider contracts
Focus on key contractual terms, such as ownership of data, back-up practices, data storage, locations, access to data, security, breach notifications, subpoena notices, and more
Get client consent, where appropriate
Understand the technology to the extent reasonable
Ensure that data stored in the the cloud is encrypted
Establish data management policies and procedures
The ultimate conclusion is that cloud computing is ethically permissible, but lawyers must exercise reasonable care when using the cloud.
This story in the Wall Street Journal about the FTC's crackdown on a small non-profit association brings back memories of Goldfarb v. Virginia (i.e, in both cases, ethics codes contained provisions affecting price). The article is has a strong anti-FTC viewpoint, but for me the matter brought to mind Adam Smith's famous quote: "people of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices."
Well into the story we learn that the FTC wanted the non-profit group to hire an antitrust compliance monitor who was a lawyer -- bringing to mind the recent articles Veronica Root has written about the new monitor-client relationship.
The trustee liquidating failed New York law firm Dewey & LeBoeuf LLP filed a $21.8 million complaint Wednesday against two of the firm's leaders, former Executive Director Stephen DiCarmine and former Chief Financial Officer Joel Sanders.
The complaint outlines a number of alleged financial irregularities at the firm—whose management is the focus of an ongoing criminal investigation—including $1.2 million loans to Mr. DiCarmine and Mr. Sanders. The suit seeks to claw back lavish compensation packages the pair received in the years leading up to Dewey's 2012 collapse.
According to the complaint, filed in bankruptcy court in Manhattan, "payments under the Employment Contracts to DiCarmine and Sanders totaled $15,900,000 over six years—with an opportunity for unlimited discretionary bonuses—an astronomically generous arrangement for law firm administrators, and far in excess of the reasonably equivalent value of the services contracted for or provided."
I illustrate those unethical and unconstitutional policies and practices with actual cases defended by prosecutors’ offices and with public statements by prosecutors’ offices (including the U.S. Dept. of Justice). Professor Maclean refers to those cases and public statements as “a few anecdotes.” He then claims – with no empirical evidence at all – that most prosecutors “selected their prosecutorial career path to do good works, to serve the public, to seek justice, and to protect the defendant as much as the victim and society.”
I also relied on a 2001 computerized study by Fred Zacharias showing that there have been only 100 federal and state disciplinary cases against prosecutors in the previous century. Maclean responds that the reality of sanctions today is “starkly different,” noting that from 2001 to 2012, at least thirty prosecutors have been disbarred or forced to resign and retire. However, Maclean’s supporting footnote shows that at least half of those cases involve conduct that have nothing to do with the subject of my article, which is improper prosecutorial conduct directed against criminal defendants. Rather, Maclean’s cases include conduct such as obtaining controlled substances by deceit; embezzling funds from the Connecticut Association of Prosecutors; conviction of criminal extortion; conviction of “sexual impositions on staff members” of his office; conviction for extortion; soliciting, accepting, and extorting bribes to fix criminal cases (4 different cases); prosecuting a judge without probable cause; sexually assaulting two women under color of law; embezzling traffic fines for personal use; practicing as a prosecutor without a license; distributing over $42,000 in witness vouchers to unauthorized persons; and repeatedly stealing cocaine from an evidence locker and replacing it with flour.
It's possible that there has been some increase in disciplinary proceedings against prosecutors – prompted in major part by Innocence Projects that have exposed prosecutorial abuse – and if so, it is a welcome development. But it hardly justifies the kinds of ethical and constitutional abuses of defendants’ rights that I have documented, and which show little if any signs of diminishing.
There is a general rule in California barring the assignment of a cause of action for legal malpractice. In this case, we recognize a narrow exception to that rule. Specifically, a cause of action for legal malpractice is transferable when (as here): (1) the assignment of the legal malpractice claim is only a small, incidental part of a larger commercial transfer between insurance companies; (2) the larger transfer is of assets, rights, obligations, and liabilities and does not treat the legal malpractice claim as a distinct commodity; (3) the transfer is not to a former adversary; (4) the legal malpractice claim arose under circumstances where the original client insurance company retained the attorney to represent and defend an insured; and (5) the communications between the attorney and the original client insurance company were conducted via a third party claims administrator.
White Mountains Reinsurance Co. of Am. v. Borton Petrini, LLP, C071365, 2013 WL 6181126 (Cal. Ct. App. Nov. 26, 2013)
Article. (Note: this is a very short article that collects citations from a variety of states.) Abstract:
CUMIS Counsel or independent defense counsel is a term that comes from the seminal conflict of interest case in California, Navy Federal Credit Union v. Cumis Ins. Society Inc. This case holds that a liability insurance carrier must pay for independent counsel and not use its own selected counsel where coverage issues are reserved that create a conflict of interest between the carrier and the policyholder.
This article sets out the current law regarding a conflict of interest in a reservation of rights context in New York, Texas, California, Michigan, Ohio, Indiana, Illinois, Minnesota, Wisconsin, Kentucky, Tennessee, Connecticut and Massachusetts.
A number of ethical issues arise for an attorney advising a client who has received a reservation of rights letter from its liability insurance carrier. The case law of the 50 states differ widely. However, an attorney in all jurisdictions who advises a client has an ethical obligation to educate that client as to his rights, obligations, conflicts and risks in demanding cumis counsel or choosing his own attorney.
For reasons that will soon be obvious, I'm doing this post in Arial font.
Hat tip to Eric Goldman, who carries a story about a hearing examiner whose Facebook rants about registered sex offenders (and about using the Arial font) led to a re-hearing for an offender. Excerpt of the rants:
a. “it’s always awkward when I see one of my pervs in the parking lot after a hearing”; b. he (the hearing examiner) “likes taking motions under advisement, but gets greater satisfaction denying them”; f. he “can’t trust someone who drafts a letter in arial font!”; g. he “thinks attorneys should know that arial font is not appropriate for motions” followed up with “I might be biased. I think arial is inappropriate for most things”; i. he “had to lay some smack down on some crazy attorney!!”; k. The entry above was followed by: he “just sat through a 2.5 hour direct examination! Hearings generally last an hour”; l. he “is off to jail for the day! Let’s hope he doesn’t get shanked”;
I recently re-read David Luban's review of Brad Wendel's Lawyers and Fidelity to Law, in which Luban comments that academics of roughly my generation have an abiding concern with moral pluralism and tend to criticize moral philosophers for giving too little weight to the political dimension of legal choices and roles.
I think this observation is fair as far as it goes but, speaking only for myself, I'd add one more: Skepticism about the payoffs to lawyering that seeks to advance a general moral view, such as proper treatment of the poor or criminal defendants.
A few days ago I came across a 1985 lecture by Anthony Amsterdam concerning legal education. Download Prof. Amsterdam - AGA's Cambridge Speech It is well worth reading now. It is available elsewhere on the Internet but it is not easy to find unless you are looking for it. As we have been discussing the future of legal education, I thought it might be useful to post here.
We covered this story when the motion was filed, so here's news from Blog of the Legal Times that Williams & Connolly survived the DQ motion filed in a dispute over ownership of a small business involving the son of one of W&C's most famous litigators.
I'm aware of legal ethics courses that use litigation/trial scenarios to teach the course experientially. Is anyone aware of courses where the students are given hypos and asked to offer ethics advice in writing or in mock counseling sessions to lawyers facing dilemmas in a variety of settings? I was speaking to a PR prof who is planning such a course and it struck me as a terrific idea. I would be interested in seeing any syllabi (and in posting them too).
U.S. Senators who won two-way races, got their own jobs by majority vote. Most other elected officials were chosen by majority vote. Most legislatures conduct their business by majority vote unless constitutional provisions specify otherwise. The Founders knew how to require a supermajority vote in the Senate -- for example for treaties or impeachment -- but majority vote in both houses of Congress is the norm for everything else.
But for a long time Senators have manipulated Senate rules to empower the minority by allowing filibusters, including of civil rights legislation, of President Bush's highly qualified judical nominees and now of President Obama's nominees. As the public became more and more disgusted with obstructionism in Congress, the Senate finally decided this week that for some matters, including confirming judges, to go back to majority rule.
There is not much that is "nuclear" about that. If the Senate wants to informally agree upon its own supermajority rule for confirming judges, there are plenty of ways to do so, as I discuss in this article with Michael Gerhardt.
From the recent conference, here's a 90 minute video. (Unfortunately, the volume is very low. You may need good headphones to follow the discussion.) In general there is a critical, political, libertarian orientation to common types of regulation of the profession (e.g., CLE). I particularly enjoyed the comments by Tom Morgan, especially around the 56 minute mark where he discusses the opposition to national regulation. The official description:
In 1990, the Supreme Court unanimously held that an integrated state bar association, which all lawyers licensed in a state must join, could not use the compulsory dues paid by its members to pursue political or ideological activities unrelated to regulating the legal profession or improving the legal system. Keller v. State Bar of California, 496 U.S. 1 (1990). The Court explained, "[T]he extreme ends of the spectrum are clear: Compulsory dues may not be extended to endorse or advance a gun control or nuclear weapons freeze initiative; at the other end of the spectrum petitioners have no valid constitutional objection to their compulsory dues being spent for activities connected to disciplining members of the Bar or proposing ethical codes for the profession." Id., at 15-16.
In the nearly 25 years since the Court decided Keller, the entities empowered to promulgate ethical rules binding on the lawyers practicing in a state have imposed a variety of regulations, some of which are more closely and clearly related to the regulation of the legal profession than others. Requirements like continuing legal education and contributions to client security funds are generally seen to fall within the scope of permissible regulation. The imposition of mandatory diversity training in Minnesota and a requirement that law students perform a specified number of hours of pro bono work as a condition to their becoming licensed to practice in New York look different.
Should state regulation of the bar be limited to imposing rules whose purpose is the protection of client interests? Or, can the regulators impose rules designed to make lawyers "better" people in the belief that "better" people will better serve their clients? How far can the organized bar go in "proposing ethical codes for the profession?" To what extent do programs like mandatory diversity training and requiring law students to perform a specified number of pro bono hours serve the interests of clients?
The Professional Responsibility & Legal Education Practice Group hosted this panel on "Regulation of the Legal Profession in the 21st Century: Should Professional Regulation Favor Social Policy over Client Protection?" on Saturday, November 16, during the 2013 National Lawyers Convention.
Mr. Scott Johnson, Co-Founder and Contributor, Power Line Blog
Mrs. Margaret A. Little, Partner, Little and Little and Director, Pro Bono Center, The Federalist Society
Prof. Thomas D. Morgan, Oppenheim Professor of Antitrust and Trade Regulation Law, The George Washington University Law School
Prof. Alan B. Morrison, Lerner Family Associate Dean for Public Interest/Public Service, The George Washington University Law School
Moderator: Hon. David R. Stras, Associate Justice, Minnesota Supreme Court
I highly recommend this post by Above the Law's "Anonymous Partner."
For all of the talk of disruption in the legal services market and how companies that may or may not be running afoul of unauthorized practice of law rules are eating Big Law's lunch, as Anon Partner notes, the biggest threat to BigLaw's viability is that many current BigLaw partners have different values than those who preceded them. They are generally less interested in the long-term success of their firms and are increasingly reluctant to pass on business or retire. While it is not surprising that senior partners do not want to forsake their shares of firms' profits, the reality is that low partner productivity is the main reason for Biglaw's tepid performance, as I have noted previously. With unproductive lawyers in the senior ranks, there is also less room for firms to hire lawyers who can be groomed to be future leaders.
I don't pretend that there is an easy solution to this problem, but most efforts to confront the "new normal" have little to say about the responsibilities of those who have done very well in the profession.
With a hat tip to Prawfsblawg, here is a new article about reassignment of matters to trial judges -- a topic that's received a lot of attention in the stop-and-frisk litigation. Head to Prawfsblawg for Toby Heytens's comments. Abstract:
This article is about something federal courts of appeals have done for more than 50 years and more than 600 times. That thing is reassignment, a practice where a reviewing court returns a case to a lower court for further proceedings while also directing that those proceedings be conducted by a different trial judge. Drawing on an examination of the local rules and informal reassignment practices of every federal circuit and district in the United States, as well as an original dataset of 668 decisions in which reassignment was ordered, this article represents the first scholarly examination of when reassignment happens, who orders it, and how it is ordered. More broadly, this article uses reassignment as a way to explore the various ways that appellate courts can seek to control trial judges and influence trial court outcomes. It also discusses what reassignment can teach us about notions of judicial impartiality and neutrality, as well as familiar debates about whether legal tests are better expressed through rules or standards and the extent to which it is desirable for judges to give reasons for their decisions.
I'm in Abu Dhabi at the moment as a member of the Global Agenda Council on the Rule of Law for the World Economic Forum's Annual Summit on the Global Agenda. One item we are taking up is the creation of a checklist for corporate CEO's to encourage their engagement in coordinated governance initiatives and rule of law values. Working on this project reminded me of a post I wrote here a few years ago, Ordinary Injustice, Checklists, and the Court's Focus on Bad Lawyering. In that post, I reflected upon books by Amy Bach (Ordinary Injustice) and Atul Gawande (The Checklist Manifesto), and I asked whether there are checklists that might be useful for the legal profession. Your comments generated a number of examples: due diligence, limited scope of representation agreements, e-discovery, and criminal defense services. So LEF readers, I come to you again asking for suggestions, this time not for checklists to improve our lawyering but for checklists to improve awareness of the rule of law. Thoughts?
The state's highest court has overturned the conviction of a Bethel man who was sentenced in 2010 to six years behind bars for allegedly molesting an 8-year-old girl.
Specifically, Maguire claimed the prosecutor acted improperly by repeatedly asserting during her rebuttal closing argument that both Maguire and his defense lawyer at the trial, Norman Pattis, were asking the jury to "condone child abuse," that Maguire's testimony was "coached," and that the defense strategy was a game of "smoke and mirrors."
I was surprised to hear that the SCOTUS will be considering the continuing viability of the fraud on the market theory of viability. (Forbes; amicus brief of SEC Commissioners and professors urging reversal of Basic v. Levinson) Setting aside the wisdom of overruling a 25-year-old precedent, it sure would have a huge impact on a significant segment of the legal profession.