Information Filled Under 'LPO Models' Category
Recusal standards for Justice Kagan? Tuesday, May 11th, 2010
Ok, maybe I'm jumping the gun on “Justice Kagan,” but the only ethics angle I've seen is this looming issue (not a big issue or one that's likely to drive the process) about the standards for recusal when she steps across the well from the bar to the bench.
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Recusal standards for Justice Kagan?
Recusal issues likely will be discussed extensively in the Kagan hearing. I would say that she should recuse from those cases in which she has represented the United States or any other client. The more difficult question involves other cases that would/could determine the outcome of the cases in which she has represented the United States. If any of these cases are also affected, which ones? Just about any case could have some possible impact on any other, yet that cannot possibly be the test or no lawyer could become a judge. Thoughts?
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Recusal for US Solicitor General going on the Supreme Court
The article below says that the Deputy White House Counsel was working against the nomination of Elena Kagan, a faculty member from the same law school, for the Supreme Court. http://abovethelaw.com/2010/05/more-clues-that-it-will-be-kaganjudge-wood-learned-yesterday-that-she-isnt-the-nominee/ I have no idea if this is true. In fact I suspect that it is not true because professors on leave from universities should not get involved in government personnel matters concerning other professors (whether or not also on leave) who teach at the same University. See generally 18 USC 208. This is an ethics issue worth considering given the number of professors going into government while retaining ties to their institutions (a practice that is normally forbidden for government employees coming from the private sector who are required to sever all ties)
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Recusal for Law Professors on Leave in Government?
Several newly posted SSRN articles caught my eye. This one is an informal book chapter by Professor Stephen Pepper , the author of numerous classic articles on legal ethics. According to the abstract, it ” provides an introduction to practical ethics for working executives and professionals.” It includes an informal summary of important practical problems, such as ethical fading . The second article , authored by Maya Steinitz, offers a comprehensive discussion of the increasingly hot topic of third party litigation financing. This issue is one of many being considered by the ABA's 20/20 Commission . Finally, Doug Richmond offers this article, entitled ” Professional Responsibilities of Co-Counsel: Joint Venturers or Scorpions in a Bottle?” The article examines a variety of ethics issues that arise in the context of co-counsel relationships.
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Articles of Interest
A judge from Zimbabwe's highest court calls for heightened professionalism among lawyers and includes this example, “If, for example, a murderer comes to you and confesses that he or she murdered someone but wants you to plead not guilty in court on his or her behalf, you should be candid enough to decline to represent such a client if you are ethical,” said Justice Makarau. .
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odds and ends (May 7, 2010)
In today's NYT David Brooks has an article on the shift in the US Army's approach to fighting counter insurgency. He argues that the capacity of the army to do so arose from the fact that its leadership was both academic and actually engaged on the field, with the result that it was both able to write critically about what was happening and knew what it was writing about. Brooks suggests that this approach would be beneficial across many endeavors, but that it was not institutionally possible most of the time (he lists business schools as an exception)
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Practitioners one month, academic observers the next?
Wade Goodman had a remarkable report on All Things Considered tonight. The gist is this: Workers who survived the oil rig explosion were kept off shore at a hotel after being evacuated, apparently incommunicado, and were presented with documents to sign and initial which had them admit that they were not injured and did not see anything concerning the cause of the explosion. Now, their lawyers are challenging these statements
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The Gulf Oil Spill and the Lawyers: Thinking About 1.13(f) and 4.3
We've been covering this issue for some time, but now comes news from WSJ Law Blog that the high court in New York has approved a class action suit about the efficacy of the public defender system there. Opinion here . UPDATE; Here is the amicus brief by a variety of groups, including legal ethics profs.
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Class action over New York’s public defender system
Charles Geyh , a leading scholar on judicial ethics, has posted this article . (nod to Legal Theory Blog , where Larry Solum touts the article but also takes issue with it.) Abstract: According to a Renaissance myth, the ermine would rather die than soil its pristine, white coat.
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Charles Geyh, "Judicial Politics, the Rule of Law and the Future of an Ermine Myth"
He's attaching a provision to the Wall Street reform bill. Story at WSJ Law Blog . Would that mean that law firms effectively must contribute each time a corporate client engages in securities law fraud, whether or not there's a showing that the firm actually knew or should have known
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Sen. Specter tries to revive Stoneridge liability for law firms
Above the Law reports that an “asset management company” is seeking lawyers for full- or part-time IP work. The company is asking the lawyers to pay $300 per month in administrative fees for the privilege of joining the venture as “partners.” Why would a lawyer agree to do this, aside from sheer desperation? The founder (who is a California lawyer) explains: [This] is a “management services company” not a law firm. “So our partner attorneys can come up with ideas for possible legal services for companies,” he said. “Our company is not bound by the solicitation and advertising restrictions on lawyers.
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A sign of the (desperate) times . . .
Article here . Abstract: This article briefly discusses the barriers that exist to learning about professional ethics in the law school environment. It considers the possible approaches to teaching legal and mediation ethics to new and experienced practitioners.
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Paula Young, "Teaching Professional Ethics to Lawyers and Mediators Using Active Learning Techniques"
I highly recommend spending some time with the new issue of the Fordham Law Review , which is devoted to the papers from the symposium, “The Economic Downturn and the Legal Profession.” Mitt Regan and Palmer Heenan (a Georg etown 2L) contributed a particularly strong paper , Supply Chains and Porous Boundaries: The Disaggregation of Legal Services . One quote stands out, in my view, as capturing the crux of the problem faced by firms and by new attorneys. Rio Tinto's managing attorney explained the company's standard for sending legal work to a legal process outsourcing company in India: “If you had a junior associate sitting next to you, would you hand the assignment to that junior associate? If the answer is 'yes,' it can probably go to India.” But don't stop at the provocative quote — read the whole thing.
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Regan and Heenan on the Disaggregation of Legal Services
In an interesting blog post , Robert Wechsler analyzes how the legal ethics rules were applied in the matter of the government lawyer involved in the Kwame Kilpatrick affair. Wechsler writes: A government official's obligations are far stronger than a lawyer's.
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Robert Wechsler, "Legal Ethics vs. Government Ethics"
I'm on a 20/20 working group charged, among other things, with dealing with issues that arise from the lack of uniformity of ethics rules among US (not to mention foreign) jurisdictions. As we know, the rules largely imagine a single prototype of client and the rules are the rules for all clients, although “sophisticated” clients are treated differently in limited circumstances.
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A Treaty for Conflicts
Legal Profession Blog covers the story, which is a variation on the third party payor situation. You can let a third party payor pay for the legal fees, salaries, etc., as long as you don't let the third party control the exercise of legal judgment or usurp the client's prerogatives. Of course, at some point the payor may not want to pay anymore, which is where things can get sticky
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Law school clinics under attack by state legislatures
Article here . Abstract: The development of large-firm pro bono programs over the past fifteen years has reflected the dual imperatives of public service and professional interests. As pro bono has become institutionalized, an increasing number of firms have demonstrated their commitment to the public interest by hiring pro bono counsel to coordinate the delivery of unpaid assistance to underrepresented constituencies
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Scott Cummings & Deborah Rhode, "Managing Pro Bono: Doing Well by Doing Better"
I write about lawyers' obligation of fidelity to law, by which I mean the law as it ought reasonably to be interpreted. This is meant to exclude the exploitation of loopholes from ethical lawyering. Of course, I am always having to articulate criteria for what constitutes a loophole, as opposed to a reasonable interpretation of the law. I'm curious, does anyone think the following is NOT a loophole: Recent federal legislation prohibits the use of the word “census” on a mailing that is actually a soliciation for funds. Specifically, here is section (b) of H.R. 4621, the Prevent Deceptive Census Look Alike Mailings Act: Matter Soliciting Information or Contribution of Funds– Section 3001(i) of title 39, United States Code, is amended– (1) by inserting, in the matter preceding paragraph (1), `; or which bears the term `census' on the envelope or outside cover or wrapper' after `such matter by the Federal Government' After this legislation took effect, the Republian National Committee sent out another wave of fundraising mailings labeled “census document.” The rationale? The word “census” is not on the envelope or outside cover — rather, it is visible in a clear glassine window through the envelope (h/t TPM). One assumes a lawyer was asked whether this mailing complies with the law. Would it be ethical to advise the client, the RNC, that the mailing did not violate the new legislation? (I'm writing a paper about good faith legal advising, so I ask this question entirely seriously.) [Edited to add response to comments.] John's comment is very helpful in clarifying what I take to be the standard lawyer's response to this sort of problem. I don't mean that pejoratively, by the way, only that it represents the way lawyers tend to think about these issues. What it shows is the way legal realism is deeply rooted in the way we think about legal ethics. This isn't an original point with me — David Wilkins and David Luban have both made it powerfully — but it still goes relatively unappreciated. What I mean is this. John's move is to deny that the law really bans the mailings with the clear windows, and to fall back on (1) prudential considerations — the Postal Service is going to be pretty annoyed, and (2) the likelihood of sanctions being low. The implication being that the client can then conduct a cost-benefit analysis, determine whether the payoff from the mailer is worth attracting the ire of the Postal Service, and from there decide how to proceed. For legal realists, that's all that “compliance with law” means. But does the law really permit the mailers with clear windows? Is Andy right that there's sufficient uncertainty in the law that there's a good faith argument available that the mailings are permissible? I don't think so. True, the plain language of the statute says “outside” the envelope, but can there be any doubt that the statute was intended to prevent any visible representation that the mailing contains official census documents? You can be a textualist and reach this conclusion, because words have to be read in context, and the context includes the title of the bill, the “Prevent Deceptive Census Look Alike Mailings Act.” (I'm surprised no one figured out how to make a title that turns into an acronym, like CAN-SPAM or USA-PATRIOT.) All sophisticated modern textualists — John Manning, et al.
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Loopholes
Quote here — ” Long, thoughtful pauses followed by rambling non-responsive answers can easily devour half of a member’s allotted questioning time” – from Above the Law . I wrote a paper on witness preparation, with specific examples, and had a section on game playing.
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How to prep a witness for testifying before Congress
Stephen Gillers posed an interesting question a few weeks ago. He wondered whether a lawyer can disclose confidential information in order to protect herself against a former client’s unfair or inaccurate descriptions about the lawyer in the media. The issue came to mind as I read this story about Dimitrios Biller, the former in-house lawyer for Toyota who is suing the company for wrongful termination and accusing the company of burying discoverable information
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Responding to a Former Client’s Public Griping About the Representation
Interesting interview with Don Gifford over at Concurring Opinions. His book says that the tobacco litigation was a failure in terms of public health (albeit a huge win for plaintiff's lawyers) and he questions the wisdom of the shift from legislative strategies to litigation strategies
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Don Gifford on the tobacco litigation
The Court opened the 2009 term with a lawyering case , so it only seems fit that the Court is winding down this week with another lawyering case, this one involving the award of attorney fees under a fee-shifting statute. Hardt v. Reliance Life Insurance Co .
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Court winds down term with a lawyering case
Presumably these four words made Ebenezer Scrooge a radical because he presumed that taking care of the poor was an obligation of the government rather then himself (one will recall that he was turning down a charitable solicitation on Christmas Eve). Had he lived today, Scrooge would have been a dangerous addition to the federal judiciary. He might have made up government welfare rights for poor people. So goes the ongoing crticisism of Goodwin Liu's nomination to the Ninth Circuit. Liu clearly has a more expansive view of the government's obligation than did Mr.
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Are there no workhouses. . .
New here, from Patently-O . This is good news for patent prosecutors, as the Federal Circuit has loosened the doctrine of inequitable conduct to the point that mere negligence, viewed in hindsight, can be deemed fraud.
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Federal Circuit to rehear Therasense en banc
Today's Washington Post takes a closer look at Howrey's new model for associate training and compensation. It seems to me that paying associates less money for more training (training made possible by lower billable expectations and lower billing rates) holds great promise for the long-term viability of Big Law, provided that partners are willing to forego some revenue. I'm not sure if a single firm would have the long-term commitment necessary to withstand the pressure of lost revenue and (perhaps) lost hires, but perhaps there will a critical mass of firms following Howrey's lead?
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Is Howrey’s model a quaint idea or a harbinger?
A letter from the North American South Asian Bar Association (NASABA) has come my way. Download Letter to Judge Folsom-ED of Texas (NASABA) (A0165235) . It draws attention to a recent closing argument in a patent case in the Eastern District of Texas. Plaintiff's counsel stated: Remember what Dr.
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A Message That Needs Sending
Oliver Wendell Holmes drew an analogy to dueling to justify what is now called Rambo lawyering. Lon Fuller analogized lawyers’ ethics of advocacy to various baseball tactics, like a catcher “pulling” a pitch into the strike zone. Abbe and I use analogies to tennis in ULE and to baseball in our review of Markovits’s book. The NYT had an article on 4/22/10 titled, “Fouling to Protect a Lead: Debated but Rarely Done.” Does it raise analogies to advising a client to commit an “efficient breach” of contract, or providing information to a client regarding the unlikelihood that a questionable deduction with be audited by the IRS, or otherwise giving advice so that a client can make a cost-benefit analysis of whether to break the law? Or does it suggest an analogy to violating MR 3.4(e) by alluding in trial to inadmissible evidence? Here’s the beginning of the NYT article: “The first-round playoff series last year between the Boston Celtics and the Chicago Bulls was a memorable montage of overtimes and clutch shots. Celtics Coach Doc Rivers remembers it for another reason.
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Lawyers’ Ethics and Sports Analogies