Rule 8.4 of the Model Rules of Professional Conduct requires lawyers to impart honest representations of the law and candid legal advice. Rebuke roused due to advisory opinions furnished by government attorneys who offered an unchecked vision of the Commander in Chief authority, sanctioned illegal detentions and interrogations, and slighted human rights abuses on combatants, suspected terrorists, and innocent detainees. Professor John Yoo confronted much controversy for his memoranda written while serving as Deputy Assistant Attorney General in the Department of Justice Office of Legal Council. Yoo was criticized by academia, sued by a former detainee, subject to a prolonged investigation by the U.S. Department of Justice Office of Professional Responsibility, and faced advocacy for disbarment and penalties at U.C.-Berkeley Law School. Yoo surmounted these challenges, but Spanish prosecutors brought criminal charges for war crimes against Yoo and five other Bush Administration legal advisors. The appeal is currently pending before the Spanish Supreme Court. Combining the obligations of Rule 8.4, fundamentals of democratic governance, and this case study, this article offers a five-point inquiry into the details of the relationship between the attorney-advisor and government-client and the intentions for rendered advice. The work emphasizes that legal consultation to a government-client can have such a reverberating impact on taxpayers and require prolonged sacrifice from citizens that certain considerations should elevate the due diligence of the government. Salient variables include the notoriety and acceptance of the advisor’s preexisting legal positions on issues in question, whether the advisor knew guidance on essential policy questions would be used to substantiate government actions or was to be employed for initial cogitation, whether the substance of the legal opinions would be expected to attain accord from the legal community, and whether consultation would fail a common-sense test that could subject government officials to criminal or civil liability.
UPDATE(5/17): the New York Times is now reporting that the general counsel of the Treasury was informed in 2012, before the election, of the Inspector General's investigation. I have the same questions about that lawyer (as well as IRS and WH lawyers): was there a demand for legal compliance, was there "reporting up," and were any documents created? I also wonder if President Obama shouldn't waive privilege so we can all get to the bottom of this.
UPDATE (5/18): The story is still developing but it now appears that the lawyer who was prompted to ask the planted question at the ABA conference did not know the answer and was surprised at Lerner's answer. If that's true, think about how rotten that was: set up a colleague to ask what will become a notorious Q-and-A when she assumed it was just an ordinary question at an ordinary conference and would be answered with the same, ordinary answer the IRS had been giving Congress and the public for some time. Now, unfortunately, when that lawyer's name pops up here or there it will be associated with the IRS's deceptive scheme. When a federal agency has been falsely answering a persistent, urgent question from Congress, the agency should report the truth directly to the Congress rather than scheme to create a ruse (and use an unwitting accomplice) only when the truth is going to come out anyway. That's active concealment of bad conduct. (Btw, someone mentioned in the comments that Lerner is a lawyer.)
As the IRS scandal unfolds, it's interesting to watch for references to the lawyers. I have not seen any evidence that any lawyers did anything wrong. But knowing how lawyers are supposed to act makes me wonder what role, if any, they played in leaving a document trail or in demanding compliance with law or in "reporting up." The Inspector General's timeline has three references to "chief counsel" inside the IRS who had early meetings about the targeting, but those could be references to the office of chief counsel. Still, the references suggest that some IRS lawyer knew of the targeting a long time ago. Was that lawyer aware of the testimony the IRS officials had been giving Congress? Was there a "reporting up"? Was there a demand that the agency comply with law? (Note, too, that lawyers may give advice about political factors, under MR 2.1. Did any lawyer give that kind of advice, along the lines of, "at a minimum, you're playing with fire.")
And we're now learning the the revelation of the targeting was done very carefully with a planted question at the ABA conference rather than directly to the Congress. Were any lawyers aware of that?
Finally, Lanny Davis has begun to ask questions about the role of White House counsel. President Obama says that he first learned of the situation from the news, just like ordinary Americans. Given that so many people knew the IG's report was imminent, the way the president learned is surprising (because, as Lanny Davis suggests, it's not good to leave the president surprised on big developments) or perhaps not surprising (if some people thought that insulating the president was in the president's best political interests).
Alberto Bernabe passes on this news about meet-ups there.
For those of you planning to attend the upcoming ABA National Conference
on Professional Responsibility in San Antonio, I would like to let you
know of two activities organized by the Professional Responsibility
section of the Association of American Law Schools.
First on May 30th at 12:05, we will get together for lunch. Please gather at the main entrance of the Hilton Hotel from where we will go to the restaurant. If you would like to attend PLEASE contact me at email@example.com before May 21st. We need an accurate count to make the reservation.
Second, on May 31st at noon, Carol Needham will be moderating our annual Scholarship Roundtable. This will be an opportunity to get together to discuss works in progress or recent articles. Please refer to the conference schedule for more details.
I am looking forward to seeing you in San Antonio!
According to this story, Secretary of State Clinton’s closest advisor at the State Department, Huma Abedin changed her status to part time and became a special government employee (SGE) when she went on maternity leave (this is understandable, particularly when her husband former Congressman Anthony Weiner is busy running for mayor of New York). Abedin also began working for several outside employers including the Clinton family and the Clinton Foundation (this raises separate conflict of interest issues because Secretary Clinton was still her superior in the State Department) and a political intelligence firm Teneo, co-founded by former Bill Clinton advisor Doug Band.
More on Teneo here:
It is not clear what services Abedin provided for Teneo and whether she conveyed any information to Teneo that she learned in the course of her employment at the State Department as a full time employee or as a SGE. Nonetheless, it is shocking that the Legal Advisor’s office at the State Department or the Office of Government Ethics would allow a government employee in such a sensitive position to simultaneously work for a political intelligence firm.
I have previously commented on the political intelligence industry and the need to address “leaks” of confidential government information that is then used for trading in securities markets.
An obvious first step would be for high ranking officials, including the Secretary of State, not to allow their full-time or part-time staff members to moonlight for political intelligence firms. The President should issue an executive order barring all federal employees -- full time and part time -- from working for political intelligence firms while they are working for the government. These steps would have been taken a long time ago if the government had been making ethics a priority.
The research reported here uses information from the admissions files of lawyers admitted to the Connecticut bar from 1989 to 1992 to compare those who were disciplined with those who were not disciplined. It analyzes information reported during the bar admissions process that may predict later lawyer misconduct including, inter alia, prior criminal history, problem credit history, prior employment history, academic misconduct, substance abuse, and psychological history. The study reveals that many of the responses on the admissions application are statistically associated with an elevated risk of future discipline. Nevertheless, these variables nevertheless make very poor predictors of subsequent misconduct. The explanation for this seeming paradox is that the overall baseline likelihood of discipline is so low (only about 2.5% of the 6,159 lawyers in our cohort). Thus, even if some variable (e.g., having defaulted on a student loan) doubles the likelihood of subsequent disciplinary action — a very strong effect — the probability of subsequent discipline for someone with a student loan default is still only 5%. It seems highly unlikely that any regulator would be comfortable denying admission to an applicant who had only a 5% chance of subsequent discipline. Put differently, even knowing that an applicant has a substantially elevated risk of future discipline is probably not sufficient to justify some kind of corrective or preventative action, given the low baseline risk.
Just because a lawsuit is weak – with no precedent to support it – does not mean a plaintiffs’ lawyer won’t try to bring it. It is a miscarriage of justice when any defendant must spend money defending a frivolous lawsuit, but the harm is even greater when the defendant is a church or other charitable organization. Litigation over marriage ceremonies that churches perform or refuse to perform could potentially add to this problem.
Ever since legal restrictions on divorce and remarriage disappeared decades ago, churches and other religious organizations have sometimes refused to celebrate marriages recognized by the civil authorities. Same sex marriage – now recognized in Minnesota and eleven other states – makes it even more important to distinguish between civil marriages on the one hand and religious marriage rites on the other.
What would happen if a church or member of the clergy were to be sued for refusing to celebrate or allow the church sanctuary to be used to celebrate, a second, third or fourth marriage between a divorced man and a -- sometimes decades younger -- woman or a same sex marriage. Such a lawsuit would ultimately fail anywhere in the United States because courts understand that the right to a civil marriage recognized by state law does not create an entitlement to particular religious services celebrating that marriage. Forcing someone to participate in such religious services or to allow their church sanctuary to be used for such services would be directly contrary to the First Amendment right of free exercise of religion.
That Constitutional right, however, will not prevent a plaintiffs’ lawyer from filing such a suit to harass a church or its clergy, arguing perhaps that as service providers they are no different from a hotel or restaurant that under anti-discrimination laws cannot refuse a room or a table to the honeymooning couple. Never mind the fact that the Constitution includes no provision protecting the freedom to run boarding houses and taverns, whereas there is a First Amendment protecting the free exercise of religion. Plaintiffs’ lawyers might sue and worry about such niceties as the Constitution later.
Such suits are extremely rare because they ultimately will fail. In the pantheon of frivolous lawsuits they would rank toward the top. But such suits could occur and the universe of potential plaintiffs has expanded with the advent of same sex marriage. Clergy who disapprove of a marriage -- whether between a man and a woman or a man and a man-- could be threatened with a lawsuit.
This possibility of frivolous litigation is now even more remote in Minnesota, however, thanks to a critically important amendment introduced two weeks ago by State Representative David FitzSimmons.
His amendment to Minnesota’s same sex marriage statute expressly states that the Minnesota statutes refer only to “civil marriage.” The plain meaning of the language is clear -- civil marriage is not religious marriage. A legal right to a civil marriage does not create a legal right to a marriage in any church or other religious institution. A civil marriage in Minnesota means that two people are legally married under the laws of the State of Minnesota; it has nothing to do with whether the couple is legally married under the canon law of the Catholic Church or in the eyes of any other religious organization. The parishioner who asks his priest to officiate at his wedding has no legal right to anything other than a civil marriage. And this means that the priest can tell him where to go to get his civil marriage (city hall). The priest can even tell the parishioner exactly where he will go ultimately if he makes this choice to enter into a relationship that the priest believes to be morally wrong. Civil marriage is the domain of the State of Minnesota; religious marriage is the domain in which the priest and his parishioners discern for themselves a definition of marriage that they believe conforms to the will of God.
The FitzSimmons Amendment is welcome relief for Minnesotans of faith in an age when plaintiffs’ lawyers run rampant with frivolous lawsuits and government agencies sometimes run roughshod over our religious freedoms (the Obama Administration’s brazen attempt to force Catholic institutions to include birth control in employee health plans is the most recent example of infringement on religious freedom). Representative FitzSimmons had made himself a hero for the cause or religious freedom by confronting this long standing problem head on in Minnesota marriage laws, rather than taking the easy way out of requiring the State to withhold its recognition from some civil marriages because some churches do not recognize those same relationships as religious marriages.
Professor Joshua M. Silverstein at the University of Arkansas at Little Rock argues yes in his article, A Case for Grade Inflation in Legal Education. The article has been reported in the Wall Street Journal Law Blog and the ABA Journal online. Here's the article abstract from SSRN:
This article contends that every American law school ought to substantially eliminate C grades by settings its good academic standing grade point average at the B- level. Grading systems that require or encourage law professors to award a significant number of C marks are flawed for two reasons. First, low grades damage students’ placement prospects. Employers frequently consider a job candidate’s absolute GPA in making hiring decisions. If a school systematically assigns inferior grades, its students are at an unfair disadvantage when competing for employment with students from institutions that award mostly A’s and B’s. Second, marks in the C range injure students psychologically. Students perceive C’s as a sign of failure. Accordingly, when they receive such grades, their stress level is exacerbated in unhealthy ways. This psychological harm is both intrinsically problematic and compromises the educational process. Substantially eliminating C grades will bring about critical improvements in both the fairness of the job market and the mental well-being of our students. These benefits outweigh any problems that might be caused or aggravated by inflated grades. C marks virtually always denote unsatisfactory work in American graduate education. Law schools are the primary exception to this convention. It is time we adopted the practice followed by the rest of the academy.
Attorney General Eric Holder testified that he was recused from the leak investigation that ended up gathering telephone records about AP reporters, but that there is no writing to memorialize the recusal. Are there any experts out there who can explain whether that's normal? It strikes me as odd. If only to protect the recused person, I'd expect a writing. And to protect the DOJ from allegations of conflict of interest down the road, I'd expect a writing. Recusing the AG himself seems like a pretty major event. (This issue brings to mind the way that the Model Rules can disqualify a government lawyer who formerly worked in priviate practice but can do so without the need for a screen, which always struck me as odd.)
Over at Overlawyered, Walter Olson debunks an argument from the Daily Caller that a particular biglaw firm is tied to both President Obama and the IRS scandal, because the IRS official at the center of the story is married to a partner at a firm that has had a few ties to the Obama campaigns (and an equal number of ties to the GOP). I agree with Walter that the argument lacks an understanding of how law firms work.
long been taken as gospel that attorney advertising drives down the
cost of legal services. The Supreme Court assumed it when first
permitting attorney advertising in the landmark First Amendment case,
Bates v. State Bar of Arizona. And, in the decades following Bates,
courts, commentators, the ABA, and the FTC have followed suit,
frequently touting advertising’s ability to cut consumer costs. The
price effect of attorney advertising is thus both seemingly settled and
also deeply embedded in its judicial justification.
But there is a wrinkle. Though it appears advertising did drive down prices for routine legal services in the years immediately following Bates, in the intervening decades, there has been a decided, yet heretofore unexplored, shift. Contemporary attorney advertising is now mostly the province of the personal injury bar. Yet there is scant evidence that attorney advertising reduces the contingency fees personal injury lawyers charge. To the contrary, the best, most sophisticated, most comprehensive study of legal fees and attorney advertising ever conducted found that, unlike for most basic legal services (e.g., wills, personal bankruptcies, uncontested divorces), those who advertised personal injury legal services charged higher prices than their non-advertising counterparts. Other evidence likewise shows contingency fees have not dropped, even while personal injury lawyers’ ad expenditures have soared.
This fact has been all but ignored, though it is of enormous consequence for both the legality of attorney advertising and the delivery of legal services more generally. This Article aims to reopen and reorient the “settled” attorney advertising debate, in light of the particularities of personal injury practice and the changing nature of the market for personal legal services in the United States.
Job description here. (h/t Lisa Lerman) Excerpt:
The Office of General Counsel is seeking a highly qualified Ethics Counsel at the GS-13 to GS-15 level to join its exciting and challenging legal practice. The ethics practice at CIA provides the opportunity to work on challenging issues unique in Government while contributing to the Nation's security. Experienced ethics attorneys looking for an opportunity to serve our country are encouraged to apply. The successful candidate will have a minimum of three years of attorney experience in an Executive Branch agency ethics program. In your application, please include a summary of your experience providing ethics advice to current and former employees, reviewing financial disclosure forms, conducting ethics training, and liaising with Office of Government Ethics personnel.
This forthcoming essay argues that there is not one constitutionally recognized right to counsel, but two. There is a right to legal counsel and a right to extralegal counsel. The right to legal counsel applies principally to the formal domain of the criminal trial; the right to extralegal counsel applies exclusively to the informal domains of the plea bargain and guilty plea. To understand the distinction, consider the Court’s recent decisions in Lafler v. Cooper and Missouri v. Frye. An underappreciated feature of these rulings is the manner by which the Court has encouraged (and perhaps even constitutionally required) counsel to bargain “creatively” around substantive law. Specifically, the Court has signaled that prosecutors and defense attorneys — not legislators — are the system’s real policy makers, and that, accordingly, effective assistance of counsel ought to be measured against their conception of the “sound administration of criminal justice.” In the process, the Court has almost re-conceptualized the right to counsel as a constitutional entitlement to skirt legislative command — an entitlement that Justice Scalia derisively has termed a threat to the legality principle. It does not follow, however, that the Court’s two-track jurisprudential approach is misguided. Whereas the approach continues a troubling trend away from legislative and lay influence over criminal justice and toward professional executive control, it also may constitute the pragmatic (and even normatively compelled) best course in a second-best system of criminal justice that depends procedurally on horse trading and substantively on mandatory sentencing statutes that ill serve any defensible conception of proportionality or crime control.
UPDATE (5/17): The day this story broke, one week ago, it struck me as odd and troubling that the IRS revealed the news at an ABA conference. I had private correspondence about that over the weekend and made a post on May 11th and then made this post a couple of days ago. Today, it was confirmed in testimony that, indeed, the original revelation was very carefully crafted with a planted question delivered at the ABA conference by a private practice lawyer who had ties to the IRS. That is awful. (Think about that: it means that a private practice lawyer was drawn into the machinations before the Congress or the President was informed of the facts. To whom does the IRS owe its duties of disclosure if not the Congress and the President?) The IRS not only gave false information to the Congress, concealed the facts from Congress, and worked to suppress the falsity of its answer, but also carefully crafted a way of announcing the facts only when they could no longer keep them concealed. What follow is the post I previously made.
I earlier asked why the IRS announced their error at an ABA conference, of all places. Recall that the Congress of the United States had on several occasions asked about this issue and had received "exculpatory no" answers from the IRS. And note that the IRS knew the Inspector's report was soon to be released. One would imagine that within the IRS there was a lot of careful thought about when/where to release the information without confessing to serious error. According to news accounts, the big revelation was made in response in a fairly ordinary question-and-answer session at an ABA conference. Trying to bury the answer that way shows consciousness of guilt, in my view.
Reuters is now reporting that Congress is asking the same question. The intuition that prompted my original question: a candid, truthful answer is not flattering to the IRS, to say the least. That's the problem with not wanting to come clean. You're at the bottom of a hole and you feel you have to keep digging. I assume that at some point someone (or two) inside the IRS will decide to stop digging. The IRS should have offered its mea culpa first to the Congress.
UPDATE: Rick Cohen at NPQ asks the same question.
[edited since original posting]
Lawyers and journalists -- law and journalism -- have much in common. Obligations to the truth. Reliance on experts. Right to be heard. Etc.
Right now we see the media's outrage at DOJ's subpoena of the phone records (home, cell, office) of AP reporters. DOJ was looking into leaks of classified information, which could be a crime. The content of the communications were not seized but the call records were.
Now it is certainly possible, maybe likely, that DOJ overreacted. But like lawyers, journalists believe their mission is so essential to civil society and other deep values that any government intrusion threatens (if it does not destroy) democracy (or for lawyers, the rule of law). You occasionally hear this outcry from lawyers when an appellate court rejects a claim of attorney-client privilege or limits the freedom of criminal defense lawyers to zealously defend their clients as they see fit.
Since the media is reporting on this event, it is not surprising that a well-rounded exploration of the issues, and they are weighty issues, has not yet emerged in the few sources I have read or watched. David Carr in the Times may be an exception. Well, it's still early. I mean there is another side, at least in principle although perhaps not a persuasive one on the facts here (we don't even know what all the facts are yet, but that's another story).
Tonight the PBS Newshour (maybe the only reason to buy a television) had a lawyer for AP, a prominent NYC first amendment lawyer, who made a strong case for his client. DOJ refused to send anyone to take the opposite view, wisely I think, which required Judy Woodruff to channel Eric Holder's public statements. She did not seem truly comfortable in that role.
Was there no one out there in media law land to -- not take the opposing view on the facts here, which (did I mention?) we do not yet fully know, but to explain the competing interests and put the episode in legal and histrorical context? The answer must be yes.
The AP lawyer made statements that a knowledgeable second guest might have corrected and refined. For example, he made reference to the "rules" governing subpoenas of media records and how these rules were broken. They may have been broken or not depending on the facts. (Did I mention that we don't yet have them all?) But more important, the rules are internal DOJ rules, good rules but not binding, and they do not create a legal right in the media.
The AP lawyer also implied (I think said, but I don't have the transcript) that the government's subpeona intefered with the media's constitutional right to gather news. There is no such general constitutional right (there may be minor exceptions, such as the right to cover trials), which is why there is no federal reporter's privilege. The media lost that case 5-4, or given Justice Powell's engimatic concurrence, 4 1/2 to 4 1/2, as Justice Stewart mused in dissent. The Constitution provides strong defenses to liability for publishing news (Times v. Sullivan and all that), but not a right to gather news.
I love the 1st Am. as much as anyone who came of age in the 1960s, and certainly anyone who spent time on the UC Berkeley campus in the fall of 1964, but I also believe that the reporting here needs more context and attention to nuance, even if, especially if, it comes from the media.
ABA Journal carries the story about an appeal of a ruling that a lawyer's demand letter was extortion. The briefing is here and here. (We've carried lots of stories on this general topic over the years. Law is a low-grade form of social violence and the line between legitimate lawyering and extortion can be surprisingly difficult to draw in some cases.) A key excerpt from the letter in question:
"I have deliberately left blank spaces in portions of the complaint dealing with your using company resources to arrange sexual liaisons with ------------------ ," says Singer's letter. "When the complaint is filed with the Los Angeles Superior Court, there will be no blanks in the pleading.”
Bill signing today at 5 PM at the Capitol in St. Paul:
The State will no longer refuse to recognize marriages between persons of the same sex. This change has come about despite heated opposition from religious denominations that object to same sex marriage on theological grounds. Effective August 1, the State will not take sides in this theological dispute, and will recognize same sex marriages celebrated in religious ceremonies -- including in many of the churches to which our founding fathers belonged -- and in civil ceremonies. As has always been the case, no church, temple or other religious organization is required to perform a marriage between persons of the same sex, just as no church, temple or other religious organization is required to perform a marriage between persons of different religious affiliation, a second or third marriage, or any other marriage it does not agree with.
Congratulations to the many Minnesota lawyers, including Dale Carpenter of the University of Minnesota law faculty, who helped bring about this important reform of our State law.
Since late 2010, Washington, D.C. law firm Patton Boggs has been poking a sleeping tiger. It has filed three peculiar federal lawsuits -- in its own name, not on behalf of any client -- against Chevron, the third-largest corporation in the United States. These cases have fared poorly; two were quickly dismissed, and a federal magistrate judge recommended tossing the third in March.
On Friday, the tiger awoke. Chevron (CVX) sought a federal judge's permission to bring counterclaims against the 455-lawyer firm for alleged fraud and deceit for its conduct in representing the Amazon Defense Front, which obtained a $19 billion environmental judgment against the oil giant in Lago Agrio, Ecuador, in February 2011. Chevron also seeks to charge the firm with "malicious prosecution" for having pursued its three lawsuits in bad faith. Chevron seeks to hold the law firm liable for any damages Chevron suffers from the Front's allegedly fraud-infested litigation, plus punitive and treble damages.
Less than a year after the Office of Special Counsel found that Secretary Sebelius violated the Hatch Act last fall, the New York Times reports that she is actively fundraising for a nonprofit group that supports the President’s political agenda.
Federal employees may not solicit charitable or other contributions from persons known to be "prohibited sources" -- e.g. those from whom they cannot personally receive gifts under the federal gift rules. Some of the entities being solicited – including insurance companies – are prohibited sources for HHS.
The reason for the rule banning such solicitation is obvious -- a regulator's solicitation of contributions from persons impacted by the regulator's official duties can amount to extortion. That is not what government is supposed to be about.
5 CFR 2635.808 provides:
“(c) Fundraising in a personal capacity. An employee may engage in fundraising in his personal capacity provided that he does not:
(1) Personally solicit funds or other support from a subordinate or from any person:
(i) Known to the employee, if the employee is other than a special Government employee, to be a prohibited source within the meaning of § 2635.203(d); or
(ii) Known to the employee, if the employee is a special Government employee, to be a prohibited source within the meaning of § 2635.203(d)(4) that is a person whose interests may be substantially affected by performance or nonperformance of his official duties;
(2) Use or permit the use of his official title, position or any authority associated with his public office to further the fundraising effort, except that an employee who is ordinarily addressed using a general term of address, such “The Honorable,” or a rank, such as a military or ambassadorial rank, may use or permit the use of that term of address or rank for such purposes; or
(3) Engage in any action that would otherwise violate this part.”
§ 2635.203(d) defines a prohibited source:
“(d) Prohibited source means any person who:
(1) Is seeking official action by the employee's agency;
(2) Does business or seeks to do business with the employee's agency;
(3) Conducts activities regulated by the employee's agency;
(4) Has interests that may be substantially affected by performance or nonperformance of the employee's official duties; or
(5) Is an organization a majority of whose members are described in paragraphs (d) (1) through (4) of this section.”
Globalization and technology have changed the practice of law in dramatic ways. This is true not only in the U.S. and Canada, but around the world. Global regulatory trends have begun to emerge as lawyer regulators have had to respond to new developments. In 2012, Australian regulators Steve Mark and Tahlia Gordon and the author, who is a U.S. academic, documented some of these global trends in lawyer regulation. See Laurel S. Terry, Steve Mark, & Tahlia Gordon, Trends and Challenges in Lawyer Regulation: The Impact of Globalization and Technology, 80 Fordham L. Rev. 2661 (2012). Their article concluded that regulators face issues in common regarding “who” is regulated, “what” is regulated, “when” and “where” regulation occurs, “how” it occurs, and “why” it occurs.
The current article examines Canadian lawyer regulation in light of the global trends Terry, Mark, and Gordon previously identified. The current article asks whether there is evidence in Canadian lawyer regulation of these same who-what-when-where-why-and-how issues. The article concludes that these trends are indeed present in Canada and explains why it is important for Canadian lawyers, regulators, clients, and other stakeholders to be aware of these global trends. The article also addresses the issue of whether these trends matter in a jurisdiction such as Saskatchewan that is not a global financial center on the order of New York, London or Toronto. The answer the article provides is “yes” – these trends are relevant to Saskatchewan and to jurisdictions throughout the world that care about lawyer regulation.
Many states have tried to impose laws that prohibit attorneys from using direct-mail to solicit employment from accident victims and arrestees. This Comment explores the harsh reality of the Texas client solicitation laws (Tex. Gov’t Code Ann. § 82.0651 (West 2011); Tex. Penal Code Ann. § 38.12 (West 2009)) and the uncertainties attorneys face because of the vague, and often unclear, interpretations of the laws. The Texas Criminal and Civil Barratry laws are unconstitutional because they violate an attorney’s First and Fourteenth Amendment rights to commercial free speech. This comment provides the following: (1) a brief overview of the laws that regulate an attorney’s ability to solicit business from clients; (2) court cases that address the current trends in solicitation laws across the country; (3) the difference between soliciting business from accident victims (in civil cases) and arrestees (in criminal cases); (4) the Texas Criminal and Civil Barratry Statutes and a description of the flaws in these laws; (5) an explanation of how the Texas Barratry Statutes violate the First Amendment; (6) policy reasons on why the statutes should be held unconstitutional, and; (7) suggestions on what attorneys should do until the issue is resolved.
UPDATE: The Atlantic is focusing on chief counsel, too:
The focus will now become whether or not IRS commissioner Doug Shulman knew about the questions when he testified that no Tea Party groups were being targeted for unfair scrutiny in front of Congress in 2012. The report doesn't shay [sic] whether or not Shulman was informed about the Tea Party questioning, but it does show the IRS's chief counsel was. It's standard procedure for the counsel and commissioner to discuss this sort of thing before a Congressional hearing. Shulman's term as head of the IRS ended at the end of last year and he was appointed by President Bush. But Obama has yet to announce a replacement.
UPDATE 2: Apparently the Inspector General report has been leaked (here's the timelines) and here are the two key entries regarding the lawyer who knew something:
August 4, 2011: Rulings and Agreements office personnel held a meeting with Chief Counsel so that everyone would have the latest information on the issue.
August 4, 2011: A Guidance Unit specialist asked if Counsel would review a check sheet prior to issuance to the Determinations Unit. The Acting Director, Rulings and Agreements, responded that Counsel would review it prior to issuance.
Another thing I found odd was the IRS's decision to disclose its bad behavior at an ABA conference. I wonder who thought that that was the right time and place for revealing the abuse?
David Cameron Carr has been covering the developments at KafkaEsq. The Office of Chief Trial Counsel of the State Bar of California had sought two changes. First, it would place a dramatic "consumer warning" on the state bar website page for every lawyer once disciplinary charges were filed. Up to now, the warning have been used only when the lawyer was accused of misappropriating $25,000 or more or engaging in improper work on loan modifications. The Association of Discipline Defense Counsel (ADDC), of which I am a member, successfully urged the Board of Governors to send the proposal out for public comment. The OCTC didn't want that, but now it will happen.
Here is the consumer warning itself:
CONSUMER ALERTThe State Bar of California has filed disciplinary charges against this attorney alleging that the attorney engaged in a major misappropriation of client funds. You may read the Notice of Disciplinary Charges filed by the State Bar against the attorney, and any reply filed by the attorney. You may also learn more about the general nature of misappropriation of client funds. DISCLAIMER: Any Notice of Disciplinary Charges filed by the State Bar contains only allegations of professional misconduct. The attorney is presumed to be innocent of any misconduct warranting discipline until the charges have been proven.
The second proposal was to permit the OCTC to use more streamlined notice pleading. ADDC opposed that and at the hearing on the proposal the OCTC offered exemplars of its proposed form of pleading that the ADDC felt had more detail than the barbones pleading that the OCTC had originally proposed using.
need for increased civility has been a recurring theme in conversations
about lawyer professionalism in the United States and Canada over the
last several decades. In addition to having many advocates, however, the
civility movement has also been subject to criticism. In large part,
the critiques made to date have focused on the problems or risks created
when civility rules or guidelines are enforced against lawyers. This
article takes a different focus to provide a complementary, yet distinct
critique. The object of analysis is the discourse of the civility
movement. More specifically, the assumptions and concepts of lawyer
professionalism embedded in our conversations about civility are
Upon review, the discourse of the civility movement reveals a dominant narrative framed in terms of competing masculinities: the aggressive, testosterone fueled Rambo-lawyer is cast as the anti-hero to be vanquished against renewed calls for the return of the gentlemanly Atticus Finch. I argue that this ‘Rambo-Finch narrative’ is hostile to inclusive understandings of lawyer professionalism in three inter-related ways: (1) it renders women and other ‘outsider’ lawyers largely invisible; (2) it romanticizes past discriminatory concepts of lawyer professionalism; and (3) it reflects anxieties about the destabilization of traditional, exclusionary claims or modes of authority in the legal profession. The exclusionary understandings of lawyer professionalism contained in the Rambo-Finch narrative should be of concern to those interested with improving gender equity and diversity in the legal profession as there is good reason to believe that this discourse translates into ‘real world’ consequences in how ‘outsider’ lawyers are viewed and treated within the legal profession.
For a description of sacramental marriage rites still not permitted to be performed in Minnesota see: http://www.nationalcathedral.org/press/PR-60QF1-3I0018.shtml
A substantial number of Christian, Jewish and other houses of worship perform similar marriage ceremonies, all legally invalid in Minnesota. But perhaps not for long:
Meanwhile some lawyers and scholars want to continue the ban on marriage ceremonies that do not conform to their religious views. They argue that religious liberties are at stake:
Just about all of these arguments pertain to unrelated areas of the law – such as nondiscrimination laws. I will leave it to readers of this blog to determine the validity of these arguments and whose religious liberty is really at stake.
Life would be simpler if we all belonged to the same church and believed the same thing. But this is America. And the question remains: why should a marriage celebrated in my church be legally invalid because another church does not agree with it?
Article here about Lynn Mather becoming a distinguised service professor at SUNY - Buffalo. Congrats! Excerpt:
Lynn Mather joined the UB faculty in 2002 as professor of law and political science, and director of the Baldy Center for Law and Social Policy. She previously held the Nelson A. Rockefeller Chair in Government at Dartmouth College and was a Dartmouth faculty member for more than 30 years,
A leading scholar in the field of law and society, she has published extensively on lawyers, legal professionalism, women in the legal profession, courts in popular culture, litigation against tobacco, trial courts and public policy, divorce mediation, plea bargaining and the transformation of disputes.
Her most recent books are “Lawyers in Practice: Ethical Decision Making in Context” (University of Chicago Press, 2012), co-edited with Leslie C. Levin, and “Private Lawyers and the Public Interest: The Evolving Role of Pro Bono in the Legal Profession” (Oxford University Press, 2009), co-edited with UB sociologist Robert Granville.
A former president (2001-02) of the international Law and Society Association, she continues to remain active in the multidisciplinary, scholarly association, contributing to its intellectual pursuits and mentoring younger colleagues in the field.
AUSTIN, Texas, May 6, 2013 /PRNewswire/ -- The Texas Center for Legal Ethics (TCLE) is proud to announce that Judge Patrick Higginbotham of the U.S. Court of Appeals for the 5th Circuit and Dallas attorney Nina Cortell of Haynes and Boone are being honored as the 2013 recipients of the Chief Justice Jack Pope Professionalism Awards.
TCLE presents the awards annually to one judge and one attorney who personify the highest standards of professionalism and integrity in the field of law. The award is named after former Texas Supreme Court Chief Justice Jack Pope , who was first to receive the honor in 2009.
People often question why tax shelters proliferate and why it is so difficult for the government to stop them. This Article explains, through examples, how tax shelters are structured to be a no-lose proposition for wealthy taxpayers. In a manner accessible to non-finance people, the Article sets forth the legal and financial tools underlying modern tax shelters and sheds light on how those tools are used to create technical tax shelters; i.e., tax shelters that work from an often hyper-technical tax perspective but are contrary to any reasonable legislative purpose. The Article then goes on to detail some of the most costly tax shelters in history, including Son of Boss, which the government estimates has cost taxpayers over $6 billion since the mid-1990s. The Article further explains how many shelters, including Son of Boss, evolved from a ninety-year-old tax avoidance technique called short-against-the-box. The Article concludes with a prescription, informed by ten years' experience in the tax shelter industry, for combating tax shelters.
This Essay argues that the Court’s effort to expand habeas review of ineffective assistance of counsel claims in Martinez v. Ryan will make little difference in either the enforcement of the right to the effective assistance of counsel or the provision of competent representation in state criminal cases. Drawing upon statistics about habeas litigation and emerging case law, the Essay first explains why Martinez is not likely to lead to more federal habeas grants of relief. It then presents new empirical information about state postconviction review (cases filed, counsel, hearings, and relief rates), post-Martinez decisions, and anecdotal reports from the states to explain why, even if federal habeas grants increase, state courts and legislatures are unlikely to respond by invigorating state collateral review. The Essay concludes that alternative means, other than case-by-case postconviction review, will be needed to ensure the provision of effective assistance.
Richard Epstein has published this review in the Wall Street Journal of Steven Harper’s provocative new book, The Lawyer Bubble. In a nutshell, Epstein believes that Harper’s criticisms and concerns are overblown, especially with regard to the future of “Big Law.” Here’s one notable section: “Ironically, Mr. Harper misses the most significant recent dislocation in the practice of law, which is at the consumer end of the market: the rise of low-cost online law firms like LegalZoom and RocketLawyer that aid clients in drafting standard partnerships, wills, leases and the like. These firms pose a mortal threat to sole practitioners, not to Big Law.”
I have a couple of problems with this passage. The first is pretty micro, but concerns an important matter of terminology: the definition of a law firm. If LegalZoom and RocketLawyer are “law firms,” they are clearly engaged in the unauthorized practice of law and violating Rule 5.4 of the Rules of Professional Conduct. Of course, LegalZoom has been the subject of UPL litigation, so perhaps a jurisdiction will eventually prove Epstein to be right. But I think it’s at least a debatable point. The problem is that we don’t have a meaningful definition of “law practice,” so we can't easily identify when a new entrepreneurial entity should be defined as a law firm and subject to the rules of professional conduct. Given the changing nature of the legal industry, this definitional issue is going to arise with greater frequency. (See, for example, this recent post and this one on whether Axiom is a law firm.)
Second, and more importantly, I disagree with Epstein’s claim that Big Law's avoidance of a "grisly fate" during the recent economic turmoil means that Big Law is sufficiently adaptable to thrive in the years ahead. In light of Epstein’s penchant for libertarianism, it is somewhat surprising that he overlooks another possible explanation for Big Law’s survival: existing rules in the U.S. largely prohibit competition from differently structured legal service providers. In every U.S. jurisdiction except D.C., Rule 5.4 of the rules of professional conduct prevents non-lawyer ownership of law firms, thus limiting the possibility of disruptive competition that might flow from liberalization. Of course, it may be true that Big Law could survive and thrive if (for example) PwC and Ernst & Young were permitted to practice law and compete with large law firms, but that seems far from clear. We will know more in the next few years as Australia and England have more experience with non-lawyer ownership of law firms. In the meantime, I think Epstein’s Big Law optimism rests, at least in part (and somewhat ironically given Epstein’s libertarian bent), on anti-competitive rules currently in place in the U.S.
Epstein’s optimism also underestimates the transformative effect that technology is having (and will continue to have) on the delivery of legal services. These changes are not just affecting sole practitioners and small firms, as Epstein contends, though the effects are probably being felt in those settings more dramatically and quickly. The reality is that technology is also transforming and commoditizing some Big Law services that traditionally generated revenue. This transformation is only in its infancy, so it is difficult to say what will happen when it matures. It may be that large law firms will be able to adapt and find other ways to generate revenue and maintain the status quo. Or it may be that technology will not be as transformative as prominent commentators like Richard Susskind and others believe. But it seems to me that existing trends involving technology and liberalization will bring about more dramatic changes to Big Law than Epstein's review predicts.
Article here. Our own Stephen Gillers is quoted. Key graf from the article:
"Right-wing media continue their relentless campaign to undermine the Labor Secretary nomination of Thomas Perez, pushing the baseless claim that he acted unethically in his involvement with a withdrawn Supreme Court case that could have undone decades of civil rights precedent."
The article links to a statement by Stephen, here. Key graf from that statement, reflecting (as I take it) a view that government lawyers have no different calling than lawyers representing ordinary clients:
Article. Abstract below.
This article mentions (at fn. 81) a book that might interest people who teach PR. It's Black Hills, White Justice, the story of a decades-long battle to compensate Native Americans for the taking of the Black Hills in violation of a treaty. I have to credit the hard work, skill, and intentions of the lawyers who handled that case for the Sioux Nation, but the story also shows how easily a lawyer can fall into the trap of paternalism and end up dis-serving the client's interests. Kirsten Carlson has written a new article about the case, Priceless Property.
Anyway, here's the abstract to the new article:
for groups, broadly defined as the legal representation of a client who
is not an individual, is a significant and booming phenomenon.
Encompassing the representation of governments, corporations,
institutions, peoples, classes, communities, and causes, lawyering for
groups is what many, if not most, lawyers do. And yet, the dominant
theory of law practice — the Standard Conception, with its principles of
zealous advocacy, nonaccountability, and professional role-based
morality — and the rules of professional conduct that codify it,
continue to be premised on the basic antiquated assumption that the
paradigmatic client-attorney relationship is between an individual
client and an individual attorney. The result is a set of rules and a
theory of law practice that often ill fit the practice of group lawyers.
This Article explores the theoretical and practical challenges of group lawyering through the study of lawyers for American Indian tribes. We believe that a focus on tribal lawyers furthers two important goals. First, the individualistic impulse of the dominant theory of law practice is so ingrained that it forecloses the possibility of challenging and imagining genuine group-based alternatives. In order to truly see the shortcomings of the Standard Conception and conceive of alternatives to it, one must start not with an abstract theory of group representation, but with a detailed study of the meaning, needs, interests, and realities of actual groups and build a corresponding theory from the ground up. Second, the story of tribal lawyers, an important narrative of both the legal profession and of tribes, is still largely untold. This Article thus aims to challenge the homogeneity of the Standard Conception of law practice and to begin the process of imagining group-based alternatives to it, while at the same time telling part of the story of tribal lawyers.
At The Atlantic, Conor Friedersdorf explores how progressive journalists "got Pigford so wrong." Pigford is the huge litigation against the federal government for discriminating against black farmers. Conservative bloggers and journalists claimed that the program had morphed from the processing of legitimate claims by victims of discrimination into a full-scale fraud on the tax payers. Recently, as I blogged about, the NYT basically confirmed that account. Friedersdorf (and many others) believe that progressive journalists downplayed or reject the story because their political biases got in the way.
More broadly, this is an issue that worries me. I've blogged about any number of legal ethics stories that have political valence -- Lynne Stewart, John Yoo, the allegations of UPL against Elizabeth Warren, the recusal issues swirling around SCOTUS justices, and other issues. I believe that the law of legal ethics is supposed to protect the legal system from ordinary politics. One of the upsides of being a case lawyer (as opposed to a cause lawyer) should be an increased ability to spot biases in others and correct one's own biases. At the same time, a case lawyer ought to always remain skeptical about his or her own ability to be free from bias.