That's the provocative title of this blog post by Professor Jerry Organ, which offers a very thoughtful and clearheaded analysis of the issues many U.S. law schools are currently facing. If you're wondering about the future of legal education, this is a must read.
The proposed LLLT RPC largely resemble the RPC for lawyers in Washington State, which in turn are based on the Model Rules. Several of the proposed LLLT RPC could affect how lawyers in Washington State practice law, including the opportunity for limited non-lawyer ownership of law practices by LLLT partners under proposed RPC 5.9. The cover sheet to these proposed LLLT RPC from the Washington State Bar Association LLLT Board summarizes several of the most challenging or notable issues in these proposed RPC. For more detailed information about the LLLT program in Washington State and its background, see this article.
*Disclosure: I served on the committee of the WSBA LLLT Board that drafted the proposed LLLT RPC, as well as on a committee that has proposed amendments to the lawyer RPC in Washington State to account for the proposed LLLT RPC.
Complaint is below. In the underlying matter, forged documents were the basis for a suit by Paul Ceglia against Facebook and Zuckerberg, alleging that Ceglia owned a huge chunk of Facebook. (Ceglia's in criminal law trouble these days. We previously covered his shenanigans here, here, here, and here.) Article on the new suit at NYT.
In response to this new suit, alleging malicious prosecution and violation of New York's Judiciary Law 487, DLA issued this statment, "Facebook and Mr. Zuckerberg claim that they were damaged in those 78 days, yet a mere 10 months after DLA Piper withdrew from the case and while the litigation was still pending, Facebook went to market with an initial public offering that valued the company at $100 billion."
From a LGL perspective, I find it interesting that in the underlying suit the Kasowitz firm apparently withdrew from representing its client once the proof of the fraudulent documents surfaced. Other lawyers may have taken longer to reach the same conclusion.
A case that started with a letter written by a candidate for judge in Tampa may change how judges seek office nationwide.
The U.S. Supreme Court has agreed to decide whether the First Amendment overrides certain rules that restrict how candidates campaign for judge.
The nation’s highest court accepted an appeal from former Hillsborough County judicial candidate Lanell Williams-Yulee, who was publicly reprimanded by the Florida Supreme Court in May. The state Supreme Court said she violated part of the professional code that governs the conduct of lawyers and judges, including how they campaign for the bench.
The case pits two important principles against each other — freedom of speech and public confidence in the integrity of the courts.
The Texas State Bar Ethics Committee responsible for an opinion finding that law firms should not have any nonlawyer "officers," including chief technology officers, has decided to revisit the opinion. The latest news is here. Our earlier discussion is here.
I hesitated to post this brief from the Coalition to Save Marriage in the Ninth Circuit's litigation over the Nevada statutes, because it alleges that the Ninth Circuit has been stacking the panels in the same sex marriage cases and I have not had time to weigh the proof of that claim. It's a bold claim and I thought I'd pass it along with a huge caveat. "Random" doesn't mean "evenly," as any mathmetician will tell you, and the fact that some judges have handled more of those cases than others is to be expected. (Update: the expert's report is here.)
Earlier this month, I was contacted by a former student of mine, John Matthew Schwietz, who is managing the John Denney for Congress Campaign. Mr. Denney is a candidate for Congress in Minnesota's Sixth Congressional District. They both wanted to design a legally enforceable candidate pledge (I) not to take campaign contributions except from natural persons residing in the district and (ii) if elected, not to lobby back to Congress after serving in Congress. Below is a draft of what such an enforceable pledge -- and contract with a separately established LLC that would be the "enforcer" -- might look like. I am not endorsing any candidates at this time but I hope all candidates for Congress would give this type of arrangement serious consideration.
Deal With The District
A Legally Enforceable, Money Back-Guaranteed Ethics Contract for Better Government
PURPOSE AND AGREEMENT
I _______________ AS CANDIDATE FOR CONGRESS IN THE _____DISTRICT OF [STATE], AND LATER, IF ELECTED, AS A MEMBER OF THE UNITED STATES HOUSE OF REPRESENTATIVES (“PROMISOR”), AGREE TO TRULY HOLD MYSELF ACCOUNTABLE TO MY CONSTITUENTS BY MAKING LEGALLY ENFORCEABLE MY CAMPAIGN PROMISES AND SUBJECTING MYSELF TO THE BELOW ANTI-CORRUPTION PROVISIONS AND PENALTIES NOT CURRENTLY ENFORCEABLE AGAINST OR APPLIED TO ANY CANDIDATE FOR OR MEMBER OF CONGRESS.
IN ORDER TO MAKE THESE PROMISES LEGALLY ENFORCEABLE, I SHALL ENTER INTO A LEGALLY BINDING CONTRACT WITH [NAME OF STATE FOLLOWED BY DISTRICT NUMBER LLC] [E.G. MINNESOTA SIXTH LLC] (“MINNESOTA SIXTH”), A MINNESOTA LLC ESTABLISHED FOR THE SOLE PURPOSE OF ENFORCING THIS CONTRACT, PROVIDING THAT MINNESOTA SIXTH HAS, AT ITS OWN EXPENSE, INVESTIGATED MY INTENT TO ABIDE BY THESE PROMISES, AND BELIEVES I WILL ABIDE BY THESE PROMISES AND THAT, IF I BREAK ANY OF THESE PROMISES, I AGREE TO PAY TO MINNESOTA SIXTH, OUT OF MY PERSONAL FUNDS, LIQUIDATED DAMAGES AS SET FORTH BELOW.
AS PROVIDED IN ITS ARTICLES OF ORGANIZATION, FOR ANY SUCH RECOVERY MINNESOTA SIXTH RECEIVES FROM ANY CANDIDATE OR MEMBER FOR BREACH OF CONTRACT, AFTER PAYING ALL APPLICABLE EXPENSES AND TAXES, MINNESOTA SIXTH SHALL DISTRIBUTE ALL REMAINING AMOUNTS RECOVERED TO CHARITIES THAT SERVE, PRINCIPALLY, THE INTERESTS OF THE PEOPLE OF THE SIXTH DISTRICT. THE ARTICLES OF ORGANIZATION OF MINNESOTA SIXTH SHALL PROVIDE THAT ITS MANAGING MEMBERS SHALL ALL BE RESIDENTS OF THE DISTRICT WHO ARE COMMITTED TO THE PRINCIPLES SET FORTH IN THIS AGREEMENT.
Prohibitions and Promises -
1. No Conflict of Interest Campaign Contributions. Promisor shall not intentionally and directly solicit or Knowingly Accept any campaign contributions that create a conflict of interest (“COI Contributions”) with Promisor’s duty to represent, exclusively, the people of the District Promisor represents.
2 Lifetime Ban on lobbying Congress. Promisor agrees to self-impose and adhere to a lifetime ban on Lobbying back to any member or staff of the United States House of Representatives or Senate for compensation after serving any congressional term.
3. Definitions and Terms -
Knowingly Accept means to expressly accept or Impliedly Accept any contribution of any legal tender.
Impliedly Accept means to spend or cash any contribution, or to fail to expressly reject any contribution within 90 days of its receipt.
Express rejection may be made in any manner reasonably calculated to give notice to donor and the public.
COI Contributions are campaign funds donated to Promisor by any political party, Political Action Committee (PAC), labor union, for-profit corporation, Special Interest Group, or any individual not residing in the State of Minnesota who is not also a Family Member of Promisor.
Special InterestGroups are industry or advocacy associations or groups that focus on particular issues, or any other group that seeks through its contributions to influence legislation.
Family Member means any family member or immediate relative as defined by the Office of Personnel Management under 75 C.F.R. § 33491 (2010).
Lobbying shall have the same meaning as set forth in the Lobbying Disclosure Act of 1995 as amended.
4. Penalties/Damages in the Event of Breach.
Section 1. Promisor must pay out of Promisor’s personal funds, liquidated damages to Minnesota Sixth in the amount of twice the amount of the contribution in question, and furthermore, if elected, Promisor must pay liquidated damages in the amount of Promisor’s entire congressional salary for Promisor’s term as Member.
Section 2. Promisor must pay out of Promisor’s personal funds liquidated damages to Minnesota Sixth in an amount equal to Promisor’s entire earnings to date as a Member plus the agreed upon amount of Promisor’s first year salary as lobbyist.
Signed: _______________________ Date
Note: this document is a pledge to be signed by the candidate. The contract with the LLC is to have substantially similar language and is to be signed by both the candidate and a managing member of the LLC and shall state the consideration provided by the LLC to the candidate including the LLC’s efforts conducted at its own expense to ascertain the candidate’s intent to comply with the pledge, to explain the pledge to the candidate and his or her staff and to the public, and the LLC’s ongoing efforts to ascertain compliance with the pledge by all candidates in the district who sign it.
I've been skeptical that we'd see much innovation from law schools, but lots of people in the blawgosphere are talking about Elon's new plan: a seven semester, reduced price JD with a mandatory "lab experience with practicing attorneys." Story at ABA Journal and elsewhere. Given that it's students will be job hunting in North Carolina a half year before other NC-based students, will this put competitive pressure on rivals?
Most prosecutors are hard-working, honest and modestly paid. But they have accumulated so much power that abuse is inevitable. As [Justice] Jackson put it all those years ago: “While the prosecutor at his best is one of the most beneficent forces in our society, when he acts with malice or other base motives, he is one of the worst.”
A new report suggests that the State's Office of Lawyer Regulation is failing the public (h/t Lawyerist). Of particular concern is the large backlog of grievances. According to the report:
[T]he workload demand increased from 1,896 new grievances in fiscal year 2007 to 2,677 in fiscal year 2012, an increase of 40%. During the past two years, OLR has reduced the number of pending formal investigations by 150. This year, funds were budgeted for further reduction in the caseload . . .
For those of you tracking the story, the two letters are must reading. Excerpt from the court's letter:
The second Commission should be directed to complete its work and submit all proposed rules for final consideration by the court no later than March 31, 20 17. In developing the charge for the second Commission, the drafters should be guided by the four policy considerations provided in the first Commission's Charter. The court strongly urges that the second Commission begin with the current CRPC and focus on revisions that are necessary to address developments in the law, and that eliminate, where possible, any unnecessary differences between California's rules and those used by a preponderance of the states. The second Commission should also be guided in its task by the principle that the CRPC's historical purpose is to regulate the professional conduct of members of the bar, and that as such, the proposed rules should remain a set of minimum disciplinary standards. While the second Commission may be guided by and refer to the American Bar Association's Model Rules of Professional Conduct when appropriate, it should avoid incorporating the purely aspirational or ethical considerations that are present in the Model Rules and Comments. Comments to the proposed rules should be used sparingly and only to elucidate and not to expand upon the rules themselves. California's Code of Judicial Ethics provides one model for the use of commentary in the adoption of a set of rules.
Is it just me, or do you find those dictates to be somewhat in tension with each other? That is, if you're guided by the ABA Model Rules you don't end up with a set of minimum disciplinary rules. And if your goal is to eliminate differences with the approach taken by the majority of other states, can you really just write a set of minimum disciplinary rules? If the current rule 1-100 already says that ethics opinions should be consulted and that lawyer may consult national standards (i.e., the Model Rules), and if our current set of rules is a minimal set, isn't it the case that California lawyers are frequently using the Model Rules to fill the many gaps in our rules? (Take a look at the Vapnek treatise and see how many times it cites the ABA sources because we have nothing clear in California.)
The facts that led to the downfall of Durham North Carolina’s district attorney, Mike Nifong, are well documented. In essence, Nifong continued to prosecute three Duke University lacrosse players for an alleged rape, even after he became aware of evidence that showed that DNA tests exonerated each defendant. The public outcry was unprecedented when it learned of his persistence in prosecuting these students. Moreover, in an astounding display of temerity, the attorney general for the State of North Carolina took over the case from Nifong and immediately called a press conference to drop all charges against the Duke lacrosse players. Eventually, the outrage over Nifong’s actions led to his rather swift suspension and the eventual revocation of Nifong’s license to practice law in North Carolina.
The indignation over Nifong’s conduct was well justified. Not only did he violate numerous ethical standards of the North Carolina state bar, he violated two of the bedrock ethical principles of a government lawyer, early termination of meritless proceedings and full disclosure.
But, beyond Nifong and the higher ethical duty imposed on criminal government lawyers, this article examines whether there exists a comparable higher ethical duty upon civil government lawyers to cease litigation and provide full disclosure.
This article concludes that a government attorney in a civil proceeding has the same ethical obligation to fully disclose and cease meritless litigation as the government attorney in a criminal proceeding.
In today’s era of relying on whistleblower tips as critical sources of fraud disclosure, the role of attorneys as whistleblowers has become increasingly muddled. The Securities and Exchange Commission has adopted rules under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank”) allowing whistleblowers to collect bounties, or rewards, in exchange for information. Although Dodd-Frank generally excludes attorneys from eligibility for bounties, the statute provides exceptions making it possible for lawyers to blow the whistle and cash in on confidential client communications in certain circumstances. This Article will examine the SEC’s rules under Dodd-Frank, which incorporate by reference provisions from the Sarbanes-Oxley Act of 2002 (“SOX”) requiring attorneys to reveal client confidences in certain instances. This incorporation by reference results in a glaring inconsistency between the two statutes, as SOX was enacted at a time when whistleblower bounties were not yet available. This Article will suggest that lawyers who collect bounties have an obvious conflict of interest offending state ethical rules governing professional responsibility. This Article will highlight recent litigation supporting this argument, specifically the Second Circuit’s decision in Fair Laboratory Practices Associates v. Quest Diagnostics, which held that lawyers violate their ethical duties when using confidential client information to bring lawsuits under a related whistleblower statute, the False Claims Act, which also allows bounties. In light of these concerns, this Article will supplement existing whistleblower research by suggesting that attorneys are an improper fit for the bounty model. Rather, this Article proposes that attorneys are better suited to reinforce the goals of the “structural model,” a defining feature of SOX that was first explored by Professor Richard Moberly as a method of encouraging internal whistleblowing to challenge corporate cultures of silence in the face of fraud.
John posted the news that the work of the Rules Revision Commission appears to have come to naught. One did not expect rapid wholesale approval, of course, but I for one did not expect this.
Substantive comment should await further information, but now is a good time to say "thank you" to the members of the Rules Revision Commission. They worked very hard for a very long time and the bar should be grateful for their work. They identified and discussed openly issues that need discussion, they were always thoughtful in their work, and they generally tried to move our rules in what I think is the right direction.
So: Thank you. I am sorry it appears to have ended this way.
Apparently the high court wants California to stick with a spare list of quasi-penal disciplinary rules rather than adopt the ABA-style approach. Daily Journal article below. What so you readers? (Note: the RRC worked for over a decade, I believe. The new commission will be created by Thanksgiving.)
Although the U.S. Supreme Court as far back as the 1981 case of Wood v. Georgia identified the inherent conflict of interest that exists when an employer controls its employee’s counsel, until now, no uniform solution has existed to protect the employee’s rights in these situations.
Currently, a single attorney, as in Wood, may often represent both the corporation and the corporation’s employees. The employer can control the employee’s defense because agency law recognizes only that the interests of the principal — the employer — are at stake. Under agency law, the employer controls the defense because it may ultimately be liable for payments to a third party on the employee’s behalf.
But a corporation’s control over its employee’s defense creates conflict of interest problems for the attorney representing both entities. Under Rule 1.7 of the ABA’s Model Rules of Professional Conduct, "a lawyer shall not represent a client if the representation involves a concurrent conflict of interest." This Rule, however, is too often and too easily waived with a corporation and its employee in the perceived interest of economies of scale and ease of representation. And, until now, there has been no good test for exactly when the attorney’s conflict of interest between the corporation and the employee comes to a head.
Most importantly, in criminal cases, the traditional interpretation that the cause of action is solely the corporation’s intrudes onto Sixth Amendment protections for individual employee defendants. The Sixth Amendment to the U.S. Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to. . . have the Assistance of Counsel for his defence." The U.S. Supreme Court has interpreted the Sixth Amendment to require effective assistance of counsel, including the "correlative right to representation that is free from conflicts of interest" for the defendant.
In a recent interview with Jeffrey Rosen of The New Republic, Justice Ruth Bader Ginsburg was asked “when you think about your constitutional legacy, who’s your model?” In response, she named John Marshall, the first John Marshall Harlan, Louis Brandeis, Oliver Wendell Holmes, and Thurgood Marshall. She also added “another justice, one who didn’t serve very long, six years, I think, was Justice Curtis, who wrote a fine dissent in the Dred Scott case.” Justice Benjamin Robbins Curtis did indeed write a blistering dissent in Dred Scott – and he resigned in disgust shortly afterward – but his overall record on slavery was nothing to be proud of.
Touro College - Jacob D. Fuchsberg Law Center has posted a nice bibliography about legal education reform, with embedded links. It collects lots of useful stuff if you're into that topic. (h/t: Faculty Lounge)
Illinois Supreme Court Justice Lloyd Karmeier took a rare step last week when he rejected a request to recuse himself from the court’s review of the long running legal battle over “light” cigarette labeling — he explained why.
In a 16-page order filed Wednesday, the same day the court announced it would again hear arguments in Sharon Price v. Philip Morris, Karmeier discussed the reasoning behind his refusal and addressed the plaintiffs’ allegations he voted to overturn the $10.1 billion verdict against the tobacco company in 2005, the year after it funneled donations to his campaign for the high court.
In regards to the plaintiffs’ allegation the cigarette maker “was responsible for ‘bankrolling’ my election to this office 10 years ago,” Karmeier said campaign records show his 2004 campaign “received no money whatever from [Philip Morris], its affiliates, or any of its employees.”
While they tried to link Philip Morris to the political action committees of the Illinois Chamber, the Chicagoland Chamber and Illinois Civil Justice League’s JUSTPAC, Karmeier contends the records just don’t support the plaintiffs’ claims.
“According to the materials presented in connection with this matter, neither movant nor any of its affiliates contributed any money to either JUSTPAC or the Chicagoland Chamber PAC in 2003 or 2004,” the order states. “In 2004, Altria Corporate Services, an affiliate of respondent, apparently did contribute $20,000 to the Illinois Chamber PAC.”
Even if Illinois Chamber PAC’s donated the entire $20,000 to his campaign, Karmeier said he wouldn’t have known about it and it would have represented “only 0.4 percent of the total $4.8 million raised in support of my campaign.”
There is a widely held belief that legal negotiations are confidential in that communications made during those discussions may not be introduced in subsequent legal proceedings. However, this first major analysis of the primary vehicle responsible for providing this protection – Federal Rule 408 and related state laws – demonstrates how this is no longer true. Rather, relatively few legal negotiations today are covered by the rules, and the federal and state courts have carved out significant exceptions that render the rule a virtual nullity. This is especially problematic modern legal negotiation emphasizes significant disclosure of sensitive information. This article explains how we got to this point, and offers a theoretical framework for regulating alternative dispute resolution processes like legal negotiation that ultimately resolves the problem by shifting the Rule 408 categorical analysis to a simple two-part test: whether the settlement discussion evidence is necessary to prevent undue hardship, and whether it is otherwise unavailable. While current Rule 408 analysis generally leads to the admission of legal negotiation evidence, the proposed analysis provides a principled and pragmatic approach for balancing the fundamental tension between the confidentiality needs of legal negotiation the information needs of public adjudication.
(This post, by Amy Salyzyn, is an abbreviated version of a longer article with the same title that appears in Vol 42:4 Hofstra Law Review. Full citations appear in the original article)
Broadly speaking, positivist accounts of legal ethics share a view that the law owes its normative content to its ability to solve coordination problems and settle moral controversies. This view of the law, in turn, informs a particular view of the lawyer as governed in her actions by the legal entitlements at issue, as opposed to, for example, considerations of morality or justice writ at large.
Because the positivist account grounds a theory of legal ethics in respect for the law, it seems safe to assume that the law governing lawyers is properly viewed as playing a central role in this account. Stated otherwise, the same "fidelity to law" (to use Brad Wendel’s term) that lawyers must exhibit when, for example, interpreting tax codes to advise clients on structuring financial transactions is presumably also required when a lawyer is interpreting how the rules of professional conduct apply to her situation.
What has not been given much attention to date is how the law governing lawyers is different from other types of law. The law governing lawyers does not simply have the status of law (and therefore, assumes a central role in the positivist account), it also addresses the same subject matter — the proper bounds of lawyer behavior — that legal ethics theory itself purports to address. As a consequence, two of the "typical" questions or challenges lobbied at positivist accounts of law — what to do when: (1) following the law leads to unpalatable outcomes; or (2) the law at issue contains moral or discretionary terms — give rise to some outstanding questions in the case of positivist legal ethics theory.
With respect to the first query, a number of other commentators have already observed that positivist legal ethics theory doesn’t seem to have a clear answer to the question of what should happen in circumstances where strict adherence to the law governing lawyers might result in a significant injustice (see, for example, discussion in Andrew B. Ayers, “What if Legal Ethics Can’t Be Reduced to a Maxim?” and David Luban, “Misplaced Fidelity”). Is there an escape valve? If there is one, in what circumstances des it come into play?
(Cross posted, with some changes, from The Faculty Lounge)
John E. Cook served as John Brown's advance man and spy in Harper's Ferry, and he was initially one of only seven raiders who was not either killed or captured when the insurrection failed. He managed to reach Chambersburg, Pennsylvania, where he was apprehended by bounty hunters. Returned to Virginia for trial, Cook was represented by the Copperhead Democrat Daniel Voorhees, who claimed that Cook had been duped by John Brown, and thus based his defense on a ringing affirmation of slavery.
Voorhees's trial work was highly professional from the perspective of advocacy, although shameful in its premise. But Voorhees was not Cook's first lawyer. When he was captured in Pennsylvania, Cook had been briefly represented by Alexander McClure, an ardent abolitionist who took a very different approach to the case. McClure was far more principled than Voorhees concerning human rights, but with much less adherence to legal ethics.
Story at Philly.com about the federal efforts to catch a suspected crooked state court judge through the use of a phantom arrest and staged criminal case. Query: is it ethical for a federal lawyer to participate in that? (h/t: How Appealing)
Interesting interview at Vox with Robin Feldman about the US Supreme Court's efforts to rein in the Federal Circuit. Here is Feldman's recent essay.The expansion of patent rights under the Federal Circuit strikes me as a case of unconscious institutional bias -- that is, the Federal Circuit increased its own importance through its rulings. I don't doubt the good faith of the judges, but we're all human.
I find this story interesting, from Cincinnati.com about Ohio's law to eradicate falsehoods during political campaigns, because it highlights the different regimes we have for truth-telling. Short version of the issue: politicians have some license to lie during campaigns, don't they? And public interest groups too, right? I'm not defending that; I'm just trying to describe it accurately.
You sometimes see stories like this WaPo story (also Independent), about lawyers who are killed because of their support of human rights or the rule of law. Is there an organization like Amnesty International that writes letters and creates publicity for lawyers? (I should note that I saw one blog post saying she was not killed, but I have decided to rely upon the WaPo story.)
In a new and provocative book, Rob Vischer has challenged the neutral partisan conception of the lawyer and the legal profession’s reductive presumption that all clients wish to pursue atomistic self-interest irrespective of the consequences to others. Vischer’s use of the teachings of Martin Luther King, Jr. and of Christian theology as a foundation for an alternative, and richly relational, account of law practice is both inspiring and effective.
To debunk the presumption that clients seek narrow self-interest, which the book argues is a powerful component of the neutral partisan conception, Vischer compellingly asserts that clients are relational beings often interested in pursuing objectives that take into account the impact of their conduct on other parties and the community. The book’s main contribution is its development of a practical relational account of law practice pursuant to which lawyers can both represent clients loyally and follow a relational ethic. Based on Dr. King’s teachings regarding human dignity, agape, personalism, justice and Christian realism, Vischer puts forward a vision of law practice that calls upon lawyers to treat clients and themselves as subjects in a partnership and to offer counseling to clients that does not shy away from engaging the hard moral dimensions of the clients’ conduct.
The book’s relational framework could gain even greater traction if it offered reasons for practicing relationally not embedded in Christian theology. For example, Vischer’s anthroreligious belief that we are all created as relational human beings leads him to indicate that if institutional, competitive and ideological barriers to relational practice were removed, lawyers and clients would inevitably act more relationally. The cultural dominance of atomistic individualism, however, suggests that even with barriers removed, lawyers and clients will need some additional persuasion before adopting relational perspectives. Similarly, the book’s grounding of relationality in agapic love neglects the potential application of more open-textured concepts, such as mutual benefit, that might conceivably appeal more broadly to lawyers who do not share Vischer’s theological convictions.
The doctrinal literature on ineffective assistance of counsel typically begins with the 1932 Supreme Court case of Powell v. Alabama. This symposium contribution goes back farther, locating the IAC doctrine’s origins in a series of state cases from the 1880s through the 1920s. At common law, the traditional agency rule held that counsel incompetence was never grounds for a new trial. Between the 1880s and the 1920s, state appellate judges chipped away at that rule, developing a more flexible doctrine that allowed appellate courts to reverse criminal convictions in cases where, because of egregious attorney ineptitude, there was reason to think the verdict might have been different with a competent lawyer. In 1932, the Supreme Court drew upon this line of state cases when it ratified the emerging doctrine in Powell. The persistence of similar complaints of unfair trials across very different time periods, and despite much ostensible doctrinal change, suggests that the inequities of the American criminal justice system are structurally embedded in the adversary process more than they are a function of the specifics of the current iteration of right-to-counsel doctrine. As such, this history lends support to arguments for criminal justice reform that emphasize the need for systemic legislative and policy change rather than merely doctrinal tinkering.
The Alternative Business Structures Working Group of the Professional Regulation Committee provided Convocation with Alternative Business Structures and the Legal Profession in Ontario: A Discussion Paper, and through the paper, is seeking comments from the professions, the public, and other interested parties on the subject of ABS. The deadline for submissions is December 31, 2014. The Law Society has not yet decided whether ABS should be permitted in Ontario. Based on input received, the Working Group’s dialogue with lawyers and paralegals will continue and will help it determine what actions to take, if any, on the issue. Further research on the legal services marketplace may be required. Discussion paper. Full report. More information
(Cross posted from The Faculty Lounge, with some additions and changes)
As reported by Inside Higher Ed, Assistant Professor Steve Cicala, an economist at the University of Chicago, has decided to boycott the University of Illinois over the trustees’ recent decision against hiring Prof. Steven Salaita. In a letter to Chancellor Phyllis Wise, Cicala explained that he would not be presenting a previously scheduled talk at the university’s Chicago campus because she had failed to resist the “influence of donors on faculty speech.”
Perhaps because he is an economist, Cicala seems fixated on the presumed impact of money on Wise’s (and the trustees’) decision. He made nine references to donors, donations, contributions, or funds in his eight paragraph letter, although with no actual specifics. In support of his claim that Wise had simply caved in to financial pressure, Cicala linked to a packet of Wise’s emails that had been released pursuant to the Illinois FOIA.
Being a law professor rather than an economist, I thought I would take a look at the empirical evidence, instead of relying on assumptions or modeling.
The NYT has a front page report this morning that Maurice Greenberg, the former AIG CEO, has a class action against the US -- arising from the allegedly "onerous nature of the US rescue" of the company -- that is scheduled to go trial next week and which is funded in part by wealthy Wall St. friends, who will get a "cut of any damages."
Yet the Chamber of Commerce and others are fighting to prevent individuals and "small plaintiffs" with claims against companies from selling an interest in their claims. These are claims they might not be able to fund on their own because of the cost or because of a need for cash in their personal lives (rent, doctors, food).
Story at Law Firm Risk Management Blog. Former Director of the FBI, Robert Mueller, now at WilmerHale has been tapped to head up the investigation but that firm previously represented the NFL on some matters. I see the issue as one about public confidence in the results of the investigation rather than an ethics breach.
Here's an eye-opening chart that maps public perceptions of various professions on a scatter plot of perceived competence vs. perceived warmth/trustworthiness. Lawyers are way off the curve, but at least they think we're competent, so we have that going for us, which is nice. The result brings to mind Veblen's comment about lawyers, pointing out our barbarian astuteness but tracing that to our ability to pull off or prevent chicanery as the matter may require:
“Employments fall into a hierarchical gradation of reputability. Those which have to do immediately with ownership on a large scale are the most reputable of economic employments proper. Next to these in good repute come those employments that are immediately subservient to ownership and financiering,—such as banking and the law. Banking employments also carry a suggestion of large ownership, and this fact is doubtless accountable for a share of the prestige that attaches to the business. The profession of the law does not imply large ownership; but since no taint of usefulness, for other than the competitive purpose, attaches to the lawyer's trade, it grades high in the conventional scheme. The lawyer is exclusively occupied with the details of predatory fraud, either in achieving or in checkmating chicane, and success in the profession is therefore accepted as marking a large endowment of that barbarian astuteness which has always commanded men's respect and fear.”
Credit: Susan Fiske, Princeton University, Woodrow Wilson School of Public and International Affairs
For nearly eighty years, courts have offered stirring rhetoric about how prosecutors must not strike foul blows in pursuit of convictions. Yet while appellate courts are often quick to condemn prosecutorial trial misconduct, they rarely provide any meaningful remedy. Instead, courts routinely affirm convictions, relying on defense counsel's failure to object or concluding that the misconduct was merely harmless error. Jerome Frank summed up the consequences of this dichotomy best when he noted that the courts' attitude of helpless piety in prosecutorial misconduct cases breeds a deplorably cynical attitude toward the judiciary.
Cognitive bias research illuminates the reasons for, and solutions to, the gap between rhetoric and reality in prosecutorial misconduct cases. This article is the first to explore theories of cognition that help explain the frequency of prosecutorial misconduct and the ways that it likely affects jurors and reviewing judges more than they realize. As a result, the article advocates for sweeping changes to the doctrine of harmless error and modest changes to the doctrine of plain error as applied in prosecutorial misconduct cases. These solutions will help courts abandon their attitude of helpless piety, clarify the currently ambiguous law on what behavior constitutes prosecutorial misconduct, encourage defense counsel to raise timely objections to misconduct, and reverse convictions when misconduct may well have affected the outcome of the case but affirm when the misconduct was trivial.
The suggestion in this ABA Journal article is that the firm was afraid of losing clients. Quinn Emanuel has stepped in. Quinn, of course, is successful and not afraid to signal their aggressive litigation skills.
I recall that during the prosecution of George Zimmerman for the homicide of Trayvon Martin, the Florida prosecutors filed a probably cause affidavit that omitted exculpatory and explanatory facts. At the time I wondered if Florida procedure and ethics rules permitted that -- a question I never learned the answer to. It seemed to me that the Florida prosecutor knew that the "murder two" charges she wanted to pursue were not obtainable from a grand jury becuase they just weren't warranted.
Now comes a Washington Post article about the grand jury investigation into the homicide of Michael Brown in Ferguson, Missouri, reporting that the grand jury is receiving all the information that investigators have received and that the process is "atypical." Our readers know that the ethics rules sometimes permit and sometimes forbid lawyers from offering just their side of the story. Here's what a local criminal defense lawyer has to say:
Susan W. McGraugh, a criminal-defense lawyer and a professor at the Saint Louis University School of Law, said that the approach is allowed under the law and that prosecutors sometimes use it in high-profile cases.
“The prosecutor may want cover, which they can get by sharing the responsibility with the grand jury,” McGraugh said. “So when the public reacts to what does or does not happen, they can go back to the fact that the grand jury played a large role in the decision. They can say, ‘We let these jurors, who are your peers, hear what witnesses had to say. This was their decision.’ ”