The actual knowledge standard pervades the Model Rules of Professional Conduct and applies to lawyers in all areas of practice, whether transactional, litigation, or criminal. Yet the state of lawyers’ ethical “knowledge” is poor. The Model Rules and the authorities interpreting them do an inadequate job of defining knowledge; of explaining or justifying the use of the knowledge standard in the rules; and of relating the knowledge requirement to, and reconciling it with, other ethical and legal requirements. Drafters of ethics codes are apparently unwilling to do anything about this problem, because lawyers often view the knowledge standard as an important means of limiting lawyer responsibility. The knowledge standard may not provide as much protection as lawyers think, however.
I argue in this Article that given the importance of the actual knowledge standard, the Model Rule drafters need to provide better guidance to lawyers about the meaning of, and reasons for, the knowledge under the Model Rules. First, the Model Rules should expressly incorporate recklessness, or willful blindness, into the definition of “knowledge” or its comment.
Second, the rules and comments should make clear that the knowledge requirement does not negate or limit any duty to investigate or communicate that otherwise exists in the ethics rules or other law, and that the deliberate breach of these duties can be evidence of willful blindness and therefore knowledge. Finally, the drafters should further clarify where a duty to investigate or communicate otherwise exists in comments to rules including a knowledge requirement.
This article addresses a growing imbalance in law school curricula and will be the first to document, through the author’s independent research, the degree to which schools are ignoring a call to cultivate students’ professional formation and ethical decision-making. Two influential studies, one by the Carnegie Institute for the Advancement of Teaching and Learning in Educating Lawyers (Carnegie Report), and the other by the Clinical Legal Education Association in Best Practices for Legal Education (Best Practices Report), agreed on two deficiencies in legal education. One was the lack of lawyering skills course through which students could develop skills be the ready to practice once they leave school. The other, more pervasive critique, was that law schools were failing completely to cultivate students’ professional formation and judgment. A recent ABA Survey of Law School Curricula showed a significant increase in skills and experiential courses. The survey was unclear on curricular efforts in law schools to address professional formation and sound judgment. By independently reviewing the published course offerings of every U.S. law school and tabulating data, the author demonstrates through that his findings show that most law schools are ignoring the recommendation to focus on students’ professional formation and judgment.
Comparing law schools’ response to the recommendation on skills with their lack of response to the recommendations on professional formation shows a clear lack of commitment in most law schools to addressing a deficiency that has significant implications. Both 2007 reports, through empirical studies and investigation, that the degree to which students learn what it means for them to be profession (and not some abstract concept of professionalism in general) has a direct link to the likelihood of effectiveness and satisfaction in practice. The article addresses the reasons that may be causing law schools’ inertia, particularly the perception that teaching in this area is too difficult. The last third of the article provides concrete curricular efforts and teaching methods already employed in some law schools. In addition, the article examines methods from other professional schools and suggests specific methods to adapt these to law schools — teaching methods that have not yet been used, but which should work as well in law school as they do, say, in medical school. Therefore, this article not only provides original data showing that a significant inadequacy in legal education is going unaddressed in most schools, along with clear recommendations for those schools that decide to implement professional formation on how to do so.
As I told the Post, the White House is usually very careful to stay out of specific party matters, particularly DOJ investigations of alleged criminal conduct. I am surprised that the White House would simultaneously hold a forum on the same topic as the DOJ investigation -- illegal on-line drug sales -- and invite companies that are subjects of the investigation to participate. This makes it all too easy for the company to use the White House to alter the course of the investigation.
And Google is a company even the White House will listen to for many reasons, including the fact that Google does not come to Washington empty handed:
Lawyers regularly experience numerous fears endemic to their work. This is not surprising considering that lawyers generally operate in environments that frequently stimulate many fears. Lawyers’ fears can lead them to enhance their performance due to increased preparation and effective “thinking on their feet.” Fear is problematic when it is out of proportion to actual threats, is expressed inappropriately, or is chronically unaddressed effectively. It can lead to sub-optimal and counterproductive performance through paralysis, ritualized behavior, or inappropriate aggression. Some lawyers’ fears unnecessarily prevent them from performing well, producing good results for clients, earning more income, and experiencing greater satisfaction in their work. Lawyers who manage their fears effectively are likely to do better than those who do not manage their fears as well. This article suggests ways that lawyers can take advantage of the benefits of their fears and reduce problems caused by them. It concludes with suggestions for lawyers, legal educators, and bar association officials to promote constructive methods of dealing with fears.
This work is the third in a trilogy of Articles in the area of ethics for arbitration participants. This work completes the trilogy by considering the role of the arbitrator in dealing with ethical violations as they occur. The paper outlines the arbitrator's authority to deal with ethical violations as they occur and must take a more active role as an “ethics enforcer” given the limited judicial review and questionable applicability of perjury and similar criminal laws to the arbitral forum.
Although long having a reputation for imposing the most restrictive rules in the nation on lawyer advertising, Iowa gradually removed most of these restrictions over the decades. Until 2013, however, there were notable exceptions: a continuing instruction that information about lawyers, legal services, and legal fees be presented in a “dignified” fashion; a strict prohibition on claims by a lawyer about a level of quality or ability; and rigorous controls on the sound and visual content of broadcast media advertising. Now those specific restrictions have been replaced by (more uniform) language based on the American Bar Association’s Model Rules of Professional Conduct. In doing so, the Iowa Supreme Court more directly connected the ethics rules on lawyer advertising to the public interest in preventing deceptive or misleading messages.
The Authors, both of whom have served on drafting committees for the Iowa Rules of Professional Conduct, describe the 2013 revisions to the regulations governing communication by lawyers about legal services, with a particular focus on the elimination of the vague standard of “dignity” in lawyer advertising, the removal of the ban on making claims about a level of quality or ability in a lawyer’s reputation, and the lifting of stringent restrictions on advertising through electronic media.
At the recent conference on Psychology and Lawyering at UNLV Law School, many of us discussed our common interest in how behavioral science informs ethical dimensions of law and legal practice. Because we want to continue these discussions as part of a larger conversation, we have decided to set up a new blog, entitled Behavioral Legal Ethics (a phrase coined by Jennifer Robbennolt and Jean Sternlight in their wonderful article of the subject). The goal is to engage in a wide-ranging discussion about the intersection between behavioral science, law and ethics.
The conversations will appeal to anyone interested in the ways in which empirical psychological research can inform questions about how legal institutions and practices encourage ethical behaviors in legal and non-legal actors. The blog will also touch on the expressive function of laws and policies in shaping attitudes about morality in society. For example, early posts have focused on ways to teach behavioral legal ethics in law school, the failure of the Supreme Court to recognize the behavioral impact of its decision in McCutcheon v. Federal Election Commission, some of the behavioral questions raised by the Dewey & LeBoeuf implosion and recent scholarship of interest (as well as an April Fools offering!).
We hope the blog will become a virtual meeting place for anyone with an interest in behavioral ethics and the law. If you would like to learn more, please feel free to contact any of us. And, of course, we hope you visit the blog at: http://behaviorallegalethics.wordpress.com/
John Steele deserves a great deal of the credit for his frequent posts that keep this blog lively on a daily basis. Thank you, John!
Thanks also to all of this blog's contributors, who regularly post great content that keeps me (and I'm sure many others) informed about cutting edge issues in our field.
Most importantly, thanks to all of our regular readers for stopping by and offering thoughtful comments. We are fortunate to have so many loyal, expert readers. The blog wouldn't be worth the effort without you.
I'm blogging from Golden Gate University, where the State Bar of California is having its 18th Annual Statewide Ethics Symposium. It's a nice turnout.
The key note speaker, Jim Brosnahan, will present, "Utopian Legal Ethics in 2020." He'll being by takling about the "client riots of 2018." Should be good.
Right now we're talking about conflicts. As you might know, California is almost unbearably behind the times because of its antiquated, inadequate ethics rules, and perhaps nowhere is that failure more acutely manifested than in our uncertainties about conflicts.
Brosnahan's talk is funny, clever and insightful. I wish I could capture it all.
Lots of blogs have been commenting on the new employment data for the class of 2013. The news isn't good but the recent grads already knew that. Only 57% of the grads are employed long-term, full-time in jobs requiring a JD, and that number includes grads who were forced to a hang a shingle upon graduating. Another 7% got clerkships
If you want to see the percentages, by school, for students employed FT, LT, in JD-reqd jobs that aren't newbie solo practitioners, there is a page at Law School Transparency. In general, I recommend LST stats over the stats from anywhere else. (As several appellate courts have held, as a matter of law one cannot reasonably rely upon what law schools say about their stats!)
There is some heated disagreement in the blawgosphere about so-called "JD advantaged" jobs. I tend to be a skeptic about that stat.
The ABA summary is here. The ABA's site for numbers at each school is here.
I've been covering this case for a long time. Animal rights groups sued the Ringling Bros. circus for alleged animal abuse. As was posted earlier, the circus won and along the way was able to demonstrate that the way the animal rights groups paid its key witness and answered discovery about that key witness was deeply troubling -- troubling enough that the group settled with the circus for $9 million about how it litigated. Now the circus is seeking its attorneys fees and has submitted a $25 million petition. More at National Law Journal.
As has been broadly reported in the law press, the 2nd Circuit has certified to the NY Court of Appeals the question: What does the word "office" mean in the statute requiring NY lawyers who reside in an "adjoining state" to have an office in NY in order to practice there. By contrast, NY lawyers who reside in NY need not have an office. They can practice at their kitchen table. Schoenefeld lives and practices in NJ and has refrained from taking a NY matter for fear of violating this law. So she challenged it.
The Circuit's opinion implies that any "office" more demanding than a mail drop or an agent for service would have problems under the Privileges and Immunities Clause. Indeed, the state's lawyer urged the court to read the statute to require only a mail drop or agent. But lower NY courts had seemed to demand a real office (the bricks and mortar kind) and the state Court of Appeals had never addressed the question. So certification made much sense.
If the state court says only a mail drop is required, which is my bet, then one must next ask whether the statute can legitimately restrict NY practice to lawywers admitted in NY but who reside in a non-adjoining state. Lawyers living in Maine, New Hampshire, Maryland, Delaware, Washington D.C. and parts of Virginia may be closer to NY than lawyers living in western Pennsylvania, an adjoining state.
Indeed, today, who cares where the lawyer lives so long as there is an agent for service in NY? The Supreme Court's Piper decision rejected an in-state residence requirement to join the New Hampshire bar, without limiting its holding to residents of adjoining states (although Piper lived a mere 400 yards away in Vermont).
It should not matter where the lawyer resides, although for matters in litigation local courts might require local counsel in the event of an emergency. (Really? A lawyer from Buffalo can appear in state court in Queens without local counsel, so why not a NY lawyer resident and officed in Connecticut?)
Thus does the illogic of our fractured regulatory structure get pulled apart on strand at a time. Oh, it was once logical, but that claim began to unravel some forty years ago.
Article. This short article is well worth reading. It explores why the Model Rules don't have any rule directly requiring honesty to clients. It also proposes that this language be added to MR 1.4
A lawyer shall not knowingly make a false statement to a client and shall make disclosures to a client necessary to avoid misleading the client.
As a fiduciary and officer of the court, a lawyer owes others a duty of candor. Recognizing this fundamental duty, the ABA Model Rules of Professional Conduct includes specific rules demanding truthfulness by lawyers in their communications with the court, third parties encountered in the course of representing a client, jurors, attorney admission and disciplinary bodies, and even members of the general public. The Model Rules protect just about everyone from false or misleading statements by lawyers — oh yes, except for clients. Surprisingly, the long-standing duty of absolute candor and truthfulness to clients finds no expression in the ABA rules governing the legal profession.
This Essay surveys the genesis and content of the Model Rules defining a lawyer’s duty of truthfulness to the court, third parties, and the public. Next, the Essay examines possible explanations for the absence of a Model Rule declaring a duty of candor to clients. Finally, an amendment to Model Rule 1.4 is proposed requiring truthful communications by lawyers to their clients.
To guide legal educators and law students in responding to challenging markets both for entry-level employment and for applications to law schools, this article analyzes empirical research on the competencies that legal employers, the profession itself, and clients are looking for in a new lawyer. The article advances the proposition that law schools can build on an existing strength of helping each student develop knowledge of doctrinal law, legal analysis, legal research, legal writing and oral advocacy to do better at helping each student develop additional important competencies (and have evidence of those competencies) that legal employers, the profession, and clients and value, particularly the professional formation (professionalism) competencies.
The article reviews a number of useful surveys, including the Harvard Law study that John Steele recently described, which asked Biglaw lawyers to identify the law school courses students should take.
One of the limitations of the Harvard Law study is that it focused on Biglaw rather than looking at the entire universe of legal employment outcomes for law graduates. For that reason, I was particularly interested in Professor Hamilton's discussion of a 2012 survey by the National Conference of Bar Examiners. Nearly 1,700 recent graduates from a wide range of practice settings took the survey. This is a rich dataset, but a couple of findings were notable.
Top Knowledge Domains
Out of more than 80 "knowledge domains" surveyed, recent law graduates found the following 15 to be the most valuable:
Rules of Civil Procedure
Other Statutory and Court Rules of Procedure
Rules of Evidence
Statutes of Limitation
Rules of Professional Responsibility and Ethical Obligations
Document Review/Documentary Privileges
Rules of Criminal Procedure
Personal Injury Law
(See pages 312-314 for the full list.) Regular readers of this blog will be pleased to see "professional responsibility" at number 8.
Skills and Abilities
Out of more than 30 "skills and abilities" surveyed, recent law graduates ranked these as the 15 most important:
Paying Attention to Details
Using Office Technologies (e.g. email and word processing)
We might debate whether "Office Technology" should be taught in law school rather than picked up in practice (as some of us discussed extensively in the comments to this earlier post), but it seems to me that young lawyers now need many technological competencies that weren't necessary only a decade or two ago. My own view is that law schools should ensure that their graduates have the necessary skillset to compete in a rapidly evolving and increasingly challenging legal marketplace, and teaching technological competence should be an important part of that effort.
Mismatch Between Curriculum and Goals. . . . [A]lthough changes in the delivery of legal services have made competence in the use and management of law-related technology important, only a modest number of law schools currently include developing this competence as part of the curriculum.
I expect that the "modest" number of schools offering training in this area is likely to increase overthe next few years. In the meantime, law schools taking a lead in this area will give their students a competitive advantage.
Story at the Lehigh Valley Morning Call and Philly.com. (h/t: ABA Journal) I've covered this before, but the underlying event that makes it interesting for our readers is that more than one PSU official testified that they were represented by the PSU General Counsel when in fact they were not (or arguably were not). If you read MR 1.13, you'll see that it's important to inform the institutional client's agents about client identity when the matter might be adverse to the agent. I'm not saying the GC failed to do that; I'm just saying it's alleged that she failed.) Excerpt from the Morning Call article:
Charges that former Penn State University President Graham Spencer conspired to hide Jerry Sandusky's crimes are the result of prosecutorial misconduct, Spanier's lawyer alleges in a lawsuit asking a federal court to dismiss the case.
As the state attorney general's office worked to build a case against Sandusky in 2011, Chief Deputy Attorney General Frank Fina failed to raise an alarm when Spanier testified before a grand jury under a mistaken belief that Penn State General Counsel Cynthia Baldwin represented him, the suit says.
Later, when Baldwin testified before the grand jury in October 2012, Fina strayed beyond limits set by a judge and questioned Baldwin about confidential conversations with Spanier, violating his right to keep them secret, the suit alleges.
Baldwin's testimony formed the basis for a charge that Spanier committed perjury by lying in his earlier testimony before the grand jury and was the linchpin of the state's case against him.
On December 5, 2013, a preeminently honorable man, perhaps the most admired in the world, passed away. That man was Nelson Mandela, and he was a lawyer.
Mandela’s surpassing prominence came not from writing a groundbreaking law review article, or from dazzling court watchers with a brilliant closing argument in a high profile trial (save the historic “speech from the dock” that he gave at his own). Mandela’s singular gift to civilization – his inspiration and leadership of South Africa’s peaceful transition from Apartheid rule to multi-racial, constitutional democracy – will not be known by most people as the provision of a “legal service.” Indeed, relatively few among the millions who revere Mandela will perceive the formidable legal mind at work behind his history-making achievements. But as much as anything, it was Mandela’s mastery of the lawyer’s art that enabled him to build a case that changed the world.
Mandela was a lawyer’s lawyer. And his story is a lesson to all that living the lawyer’s life, at its best, engenders the skills and character traits that can empower people to make a difference in their community, their nation, and beyond.
And who cares if the limit on gifts made to individual campaigns remains intact for the moment. The donor who is rich enough can give the max to every GOP or Democrat candidate and the national committee will make sure the money goes where it is needed.
Throw this on top of the Court's decision in Citizens United, and elections are clearly a spectator sport for the rest of us. I am a Republican just as I am a Red Sox fan and a Twins fan, but along with 99.9% of Americans I have no role in playing the game or in choosing who plays. Our role is to watch and cheer.
This opinion -- dated April 2- was one day too late.
For 10 days, Monica R. Kelly and her American law firm’s aviation lawyers have stalked the dim hallways of the Lido Hotel here to make their pitches to relatives of passengers aboard missing Malaysia Airlines Flight 370.
They tell the families that a court in the United States could potentially award millions of dollars per passenger in a lawsuit against the Boeing Company, which built the missing jet, a Boeing 777-200. In a hotel suite, Ms. Kelly uses a model of a Boeing 777 to show families how the plane might have malfunctioned....
Ribbeck Law has sent six employees to Beijing and six to Kuala Lumpur where families of passengers have gathered in hotels. Rival firms have also been contacting families.
If this fact pattern were on the Multistate Professional Responsibility Exam, most students would jump at the answer, "This conduct involves impermissible in-person solicitation under Rule 7.3."
There must be a better answer, because it seems highly unlikely to me that the law firms mentioned in the story would want to talk with the New York Times about ongoing violations of the rules of professional conduct.
I see a few other explanations: (1) There is far more nuance to what the lawyers are doing (e.g., the lawyers are not initiating in-person contact with potential clients and are instead offering legal briefing sessions at the request of families); (2) Choice of law considerations mean that Rule 7.3 does not apply here; (3) This is an April Fool's joke for legal ethicists perpetrated by the New York Times; and (4) None of the above.
The New York Times is not particularly funny, so I'm reasonably certain that (3) is not right. That leaves (1), (2), and (4). I suspect that (2) is the answer and that the Times did not report the sequence of interactions between the lawyers and families because it wasn't especially relevant to the story. Am I overlooking any other obvious explanations? Again, I'm not in any way suggesting that the law firms are doing anything wrong. I'm just curious to know the answer.
That's the title of Ed Whelan's post at National Review Online, accusing Second Circut Judge Guido Calabresi of improperly speaking out about a pending case -- a case where Calabresi wrote the very opinion under review by the SCOTUS. (By coincidence, this weekend at the APRL conference I moderated a terrific panel (if I say so myself) on that very topic, with Charlie Geyh, Mark Harrison, Dana Remus, and the Hon. Stephen Reinhardt.)
Our readers may recall that Judge Calabresi was previously admonished by the Second Circuit for improper remarks at an ACS conference. Here's one of the passages in Calabresi's interview I would have counseled him not to say:
Now, I would not be surprised if the Supreme Court reversed us, for any number of reasons. And that would be too bad.
Here's an excerpt from Whelan's post:
The pending Supreme Court case of Town of Greece v. Galloway, which was argued in November, presents the question whether a town’s practice of allowing volunteer private citizens to open board meetings with a prayer violates the Establishment Clause.
Despite the fact that the case remains pending, Second Circuit judge Guido Calabresi, who wrote the opinion under review, has somehow seen fit to offer extensive public comments—in the form of an edited interview—about the case. Among other things, Calabresi seeks to defend his ruling (including by emphasizing the ideological diversity of the panel), says that it “would be too bad” if the Court reverses it, identifies what he thinks is the “closest question in our case,” and rejects the notion of a “non-sectarian prayer.”
I've been meaning to post something about Judge Posner's independent fact finding and investigation in a recent case, so here's a link to Josh Blackman's post about it. (The case dealt with salary for time spent putting on and taking off clothes and equipment at a plant. Judge Posner had his law clerks put on the clothes themselves and timed the process.)
On the one hand, it seems horribly wrong for an appellate judge to do his own investigation. On the other hand, isn't that exactly how any reasonable human being would evaluate the disagreement between the respective counsel about how long the process took?
Raleigh News Observer. (h/t: ABA Journal) In California, the lawyer would use the narrative technique rather than tell the judge about the client's perjury. Excerpt:
One of the brothers accused in a series of burglaries and violent home invasions took the stand in his own defense Wednesday and claimed someone else – a man of similar size and features – was responsible for the crimes.
Jahaad Marshall, 27, testified against the advice of his attorney, a strategy that prompted Deonte Thomas, the Raleigh lawyer representing him, to rise before the judge and ask to be removed from the case.
Thomas also told Judge Henry Hight while jurors were out of the room that he believed Marshall was committing perjury on the stand.
This Article explores the underappreciated role that agency insiders play in directing outside oversight of their employer agencies and, in turn, manipulating agency policy development. Specifically, the Article defines, documents, and evaluates the phenomenon of “soft whistleblowing” — an agency employee’s deliberate, unsanctioned, substantive, and instrumental disclosure of nonpublic information about issues of policy. This phenomenon is ubiquitous but has received no systematic attention in the academic literature.
As the Article demonstrates, agency employees regularly engage in soft whistleblowing to congressional staff, journalists, and agency watchdog groups, in an effort to bring outside pressure to bear on their employer agencies to shift policymaking direction. The phenomenon results in a high-volume, employee-generated flow of information out of agencies. This flow has significant implications for the distribution of policymaking power within agencies and for the direction and efficacy of agency oversight. For example, the Article posits that soft whistleblowing empowers those agency professionals whose codes of ethics encourage some information disclosure (engineers are one example), while disempowering agency lawyers, whose code of ethics all but forbids unsanctioned disclosures about their client agencies’ activities. With respect to outside oversight, soft whistleblowing increases agency transparency, and strengthens congressional oversight, but undermines so-called “presidential administration.” Consequently, the activity likely serves a keel-like function, keeping the agency on a relatively steady policymaking course in the face of shifting political winds.
I'd rather not have our Assembly be the one to add the requirement, but neither our Bar nor our Supreme Court seems inclined to do it -- so it's better it's done by someone than by no one. Here's the bill.
Should be a good program. Jim Brosnahan will give the keynote. Held in San Francisco. Details here. Program:
Schedule of Events 8:30 - 9:30 a.m. Registration
9:30 a.m. - 9:45 a.m. Welcoming Remarks Wendy Wen Yun Chang: Chair, Committee on Professional Responsibility and Conduct Rachel Van Cleave: Dean, Golden Gate University School of Law Luis J. Rodriguez: President, State Bar of California
9:45 a.m. - 11:15 a.m. Defending a Charles Ponzi or Bernie Madoff This panel explores ethical issues that arise when lawyers represent clients alleged to be involved in financial fraud or other illegal behavior. Panel attorneys litigate actions brought against lawyers accused of participating in or aiding and abetting their clients’ activities. Ethical issues include client confidentiality, the duty to withdraw, options to report up or out, and conflicts between individuals acting for the client. Scott B. Garner: Moderator; Vice-Chair, Committee on Professional Responsibility and Conduct; Partner, Morgan, Lewis & Bockius LLP, Irvine Jennifer A. Becker: Member, Committee on Professional Responsibility and Conduct; Partner, Long & Levit LLP, San Francisco Joy A. Kruse: Partner, Lieff Cabraser Heimann & Bernstein, San Francisco Sean SeLegue: Partner, Arnold & Porter LLP, San Francisco John R. Sheller: Partner and Leader of Lawyers for Professionals Department, Hinshaw & Culbertson LLP, Los Angeles
11:30 a.m. - 1 p.m. Complex Conflicts Issues Deciphered This panel will examine complicated questions confronting lawyers in scenarios involving advance consents and non-waivable conflicts. Both subjects arise in various contexts, including conflict clearance in obtaining and retaining clients, potential discipline, disqualification, and claims for malpractice or breach of fiduciary duty, and require thoughtful and deliberate navigation. William K. Mills: Moderator; Member, Committee on Professional Responsibility and Conduct; Partner, Parker Shumaker Mills LLP, Los Angeles Dan L. Carroll: Partner, Downey Brand LLP, Sacramento Robert K. Sall: Shareholder, Sall Spencer Callas & Krueger, Laguna Beach Michele K. Trausch: Partner, Hanson Bridgett LLP, San Francisco
1 p.m. - 2 p.m. Lunch & Keynote Address
Lunch: 1 p.m. - 1:40 p.m.
Keynote Address 1:40 p.m. - 2 p.m. "Utopian Legal Ethics in 2020" James J. Brosnahan, Senior Trial Counsel, Morrison & Foerster LLP
2 p.m. - 3:30 p.m. Trial Ethics: Don't Risk Your Soul to Win a Point This panel of seasoned trial attorneys will examine ethics issues that are unique to trial. Those issues include identifying the sometimes fuzzy line between ethical and not when: dealing with witnesses; producing (or not producing) evidence; jury selection (including discrimination and the use of social media); references to non-existent or inadmissible evidence; asserting an unsupported position; client perjury; appealing to the jury’s passions and prejudices and other issues for closing argument; and communicating with jurors before, during and after trial. Alison P. Buchanan: Moderator; Member, Committee on Professional Responsibility and Conduct; Shareholder, Hoge, Fenton, Jones & Appel, Inc., San Jose Wendy Wen Yun Chang: Chair, Committee on Professional Responsibility and Conduct; Partner, Hinshaw & Culbertson, LLP, Los Angeles James J. Brosnahan: Senior Trial Counsel, Morrison & Foerster LLP, San Francisco Hon. Peter H. Kirwan: Judge, Santa Clara County Superior Court, Complex Civil Department Allen J. Ruby: Partner, Skadden, Arps, Slate, Meagher & Flom LLP, Palo Alto
3:45 p.m. - 5:15 p.m. "Disruptive" Ethics? Innovative Models of Providing Legal Services This panel will examine the ethical issues that arise as the practice of law takes new forms and expands traditional boundaries. Innovative models for providing legal services blur the lines between law firms and their clients, or challenge the very idea of what a law firm is and how legal services should be provided. Outsourced legal services, national virtual law practices, companies offering online legal forms and “panel attorney” consultations, and online crowd-sourced legal directories that match up potential clients and lawyers all pose new ethical questions for lawyers to consider and issues to deal with. Merri A. Baldwin: Moderator; Member, Committee on Professional Responsibility and Conduct; Shareholder, Rogers Joseph O’Donnell, San Francisco Chas Rampenthal: General Counsel, LegalZoom, Los Angeles R. Amani Smathers: Innovation Counsel, ReInvent Law Laboratory at Michigan State University John J. Steele: Sole Practitioner, Palo Alto
This is not the first time I've read that lawyers (even lawyers at the largest and most sophisticated law firms) are sometimes the weakest link in a company's data security chain. Another way of thinking about this is that lawyers may be able to satisfy their ethical obligations fairly easily under newly adopted Rule 1.6(c), but cybersecurity is an increasingly important client relations issue, particularly for law firms with clients who have high value confidential information.
An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and then become integrated with the practice of law. Attorney competence related to litigation generally requires, at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, i.e., the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a given matter and the nature of the ESI involved. Such competency requirements may render an otherwise highly experienced attorney not competent to handle certain litigation matters involving ESI. An attorney lacking the required competence for the e-discovery issues in the case at issue has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues can also result, in certain circumstances, in ethical violations of an attorney’s duty of confidentiality, the duty of candor, and/or the ethical duty not to suppress evidence.
One of the foundational principles of legal ethics is that the lawyer owes an obligation of undivided loyalty to the client, and no other interests or relationships can be permitted to interfere with the lawyer’s exercise of independent professional judgment on behalf of the client. The strongest non-consequentialist doctrinal objection to third-party litigation funding is that it may compromise the lawyer’s independence. Yet this argument cannot be made in too strong a form, because lawyers are already permitted to enter into relationships or have interests that present a prima facie risk to the lawyer’s independence. In the United States, two such situations are the representation of plaintiffs in contingent-fee financed litigation and the representation of insured defendants by lawyers compensated, and substantially controlled, by liability insurers. Both of these situations present conflicts of interest that are mitigated for the most part not by formal rules of professional conduct but by other legal and non-legal sources of constraint. In the insurance defense context, many apparent conflicts are mitigated by doctrines within insurance law that limit the extent to which insurers can act self-interestedly at the expense of the insured. Regarding contingent-fee representation, market mechanisms are entrusted with the role of regulating the size of fees, while agency and tort principles regulate the conduct of lawyers representing plaintiffs in contingent-fee matters. These comparisons show that third-part litigation finance should not be condemned categorically as compromising the lawyer’s independent judgment. Rather, the acceptability of third-party finance should be dependent upon the extent to which the relationship between the funder and the recipient of funding is regulated to mitigate the risk of self-interested behaviour on the part of the funder.
Defense lawyers whose clients are sentenced to death are virtually guaranteed to be accused of ineffective assistance of counsel. The question is how they will respond. On one hand, lawyers alleged to be ineffective are obligated under Guideline 10.13 of the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases to continue to safeguard the interests of their former clients, a duty that includes full cooperation in appropriate legal strategies chosen to pursue the ineffectiveness claim. On the other hand, lawyers who are accused of ineffectiveness often react defensively to the allegation, reflexively viewing the claim of poor performance as an attack on their competency and reputation. To date, there has been no systematic attempt to understand how these tensions are mediated and resolved.
To fill this gap, this article explores the psychological dimensions of how lawyers can be expected to respond to allegations of ineffectiveness. Relying on empirical research into “motivated reasoning” – a phenomenon that describes the many ways in which people unconsciously seek out, interpret and recall information in a manner that is consistent with their pre-conceived wishes and desires – it argues that motivation can be expected to play a dominant role in how lawyers respond to alleged ineffectiveness. Further, because motivation exercises its power implicitly, efforts to encourage compliance with the obligations set forth in Guideline 10.13 must take into account the subtle psychological forces that influence behavior. Simply put: motivation matters.
A lawyer may counsel a client regarding the validity, scope, and meaning of Colorado constitution article XVIII, secs. 14 & 16 and may assist a client in conduct that the lawyer reasonably believes is permitted by these constitutional provisions and the statutes, regulations, orders, and other state or local provisions implementing them. In these circumstances, the lawyer shall also advise the client regarding related federal law and policy.
At first blush, this Comment seems wholly unnecessary. After all, if pot is legal in Colorado, why shouldn't lawyers be permitted to advise businesses manufacturing and selling it there?
As Anita Bernstein points out in this excellent post and as the Colorado Bar notes in this recent ethics opinion, the answer is that many aspects of the industry violate federal law. This conflict puts lawyers in a difficult spot in light of the prohibition in Rule 1.2(d) against assisting clients with conduct the lawyer knows to be unlawful. (Arizona, Connecticut, and Maine also have noted the problem and essentially concluded that there is more gray here than black and white.)
The new Comment cotinues to finesse the issue in the last sentence by saying that "the lawyer shall also advise the client regarding related federal law and policy." I take this to mean that the lawyer is permitted to represent businesses in the pot industry, but should advise them regarding the possible repercussions of their businesses under federal law. There are a lot of devils in these details, but Colorado lawyers appear to have more freedom than they did before the adoption of this new Comment. (Interesting side question: what if a lawyer licensed in another state advises a business selling pot in Colorado? Rule 8.5(b) issues abound, particularly for lawyers whose states of licensure, e.g., New York, have not adopted Model Rule 8.5.)
Another potential problem is that Comments are advisory, not authoritative. Comment  in the Model Rules and the Colorado Rules says the following:
The Comment accompanying each Rule explains and illustrates the meaning and purpose of the Rule. The Preamble and this note on Scope provide general orientation. The Comments are intended as guides to interpretation, but the text of each Rule is authoritative.
The new Comment offers a lawyer considerable cover, especially given that it was adopted by the Colorado Supreme Court, but it is by definition not "authoritative." So while the new Comment may give Colorado lawyers somewhat more comfort when advising businesses in the pot industry, there are still many murky issues that will need to be resolved in the years ahead.
Steve mentioned the Pennsylvania Supreme Court's opinion in In re Thirty-Third Statewide Investigating Grand Jury, --- A.3d ---- (2014), which joins other courts in rejecting a privilege assertion by a state agency in response to a grand jury subpoena. This line of cases has always seemed sound to me, but the Pennsylvania court's rationale seems to me unpersuasive and possibly counterproductive. The Court holds that the "real" client of a government lawyer (either employed by the government or outside counsel--see fn 5) is "the public." As the Court puts it:
But, where the agency itself, its employees and officials, are being investigated by the Commonwealth itself, in grand jury proceedings, through the office of the chief enforcement officer of the Commonwealth, due to suspicion of wrongdoing, it is crucial to be mindful that the actual client of the agency's lawyers in such circumstances is the public. It follows that the only proper manner of considering the privilege in these circumstances is that the client citizenry has impliedly waived the attorney-client privilege that might otherwise shield from revelation evidence of corruption and criminal activity.
Perhaps it is that I come to such issues from the background of the Garner doctrine but this way of phrasing the problem always seems to me self-defeating. "The public" is too hetergenous to have decided anything, and on any important question some portion of the public could likely be found to support or criticize any decision, with the result that lawyers either are free to do what they please or can do nothing right. Neither option seems useful to me.
It would be simpler, and more consistent with organizational principles, simply to say that when the attorney general investigates an agency he or she may speak for the state and reverse the agency's decision to assert privilege. That construction leaves undecided the question of subpoenas to independent agencies, but that issue does not appear to have been present in this case, and in any event cannot be decided by reference to the notion of "the public" as client. The Pennsylvania Supreme Court had such an argument before it but chose to adopt the more diffuse rationale. It seems to me the weaker ground.
Gibson Dunn is about to release the review the Christie administration requested. The legislature and the U.S. Attorney can and should now subpoena Gibson's entire file, not merely what it chooses to release.
There are three reasons that companies (or politicians) under suspicion hire their own lawyers to conduct a review. But there's a price and not just money. The reasons are:
It's good public relations ("we want to get to the bottom of it").
It allows the organization to stay ahead of or at least even with government investigators (grand jury, legislature) -- to learn what they'll learn.
And the client can claim privilege to protect the secrecy of what the lawyers discover if strategy so requires.
Here, Governor Christie cannot assert privilege or work product protection for the Gibson work. He is not a private client; the state is and paid for the work. The state, via the administration, chose to release a great deal of it, waiving privilege for the rest.
And, perhaps most important, several courts, state and federal, most recently the Pennsylvania Supreme Court, have held that a government entity cannot assert privilege to avoid a grand jury subpoena seeking attorney-client communications. (As for work product, the client itself stated that the work was done for purpose of release, not in anticipation of litigation.)
Gibson would of course have had to preserve every piece of paper and document it generated or has in its possession. To have destroyed any would violate obstructions of justice statutes. See, e.g., 18 U.S.C. 1503 and 1512.
Loss of privilege also means the lawyers can be required to answer questions about their communications with those they interviewed.
The number of amicus curiae briefs filed at the Supreme Court is at an all-time high. Most observers, and even some of the Justices, believe that the best of these briefs are filed to supplement the Court’s understanding of facts. Supreme Court decisions quite often turn on generalized facts about the way the world works (Do violent video games harm children? Is a partial birth abortion ever medically necessary?) and to answer these questions the Justices are hungry for more information than the parties and the record can provide. The consensus is that amicus briefs helpfully add factual expertise to the Court’s decision-making.
The goal of this article is to chip away at that conventional wisdom. The trouble with amicus facts, I argue, is that today anyone can claim to be a factual expert. With the Internet, factual information is easily found and cheaply manufactured. Moreover, the amicus curiae has evolved significantly from its origin as an impartial “friend of the court.” Facts submitted by amici are now funneled through the screen of advocacy. The result is that the Court is inundated with eleventh-hour, untested, advocacy-motivated claims of factual expertise. And the Justices are listening. This article looks at the instances in recent years when a Supreme Court Justice cites an amicus for a statement of fact. It describes the way the brief, rather than the underlying factual source, is cited as authority and the failure of the parties to act as an adequate check. I challenge this process as potentially infecting the Supreme Court’s decisions with unreliable evidence, and I make suggestions for ways to reform it. It is time to rethink the expertise-providing role of the Supreme Court amicus and to refashion this old tool for the new purpose to which it is currently being used.