Information Filled Under 'LPO Models' Category
New legal malpractice blog – Texas Lawyers’ Insurance Exchange Thursday, April 22nd, 2010
Blog here . In a similar vein are blogs from Hinshaw & Culbertson, The Ethical Quandary (which covers ethics and LGL), one by Andrew Blueston, New York Attorney Malpractice Blog and Legal Malpractice Law Review .
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New legal malpractice blog – Texas Lawyers’ Insurance Exchange
In a 5-4 decision released this morning, the Supreme Court reversed a $4.5 million fee enhancement awarded to attorneys who successfully represented a class of 3,000 children in challenging the conditions of the foster-care system in two suburban Atlanta counties. The opinion in Perdue v.
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Court reverses $4.5 million fee enhancement
Minnesota recently added its voice to the mix ( here ), concluding that lawyers generally should have the discretion to engage in metadata mining. My sense is that there is now a trend in this direction, which seems like a good development to me . Nevertheless, there is still plenty of disagreement among bar authorities and scholars. For a nice overview of the current state of the law, check out this useful chart from the ABA. It compares the various approaches to the issue, though it does not yet reflect the recently released Minnesota opinion.
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Minnesota on Metadata Mining
Over at PrawfsBlawg , Professor Jack Chin has posted a link to a new article that he authored with Margaret Colgate Love , Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction . They include an interesting discussion about the lawyering implications of the Padilla v. Kentucky decision . You can download the article here .
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Lawyering implications of the Padilla v. Kentucky decision
The Conglomerate blog is running a forum, ” Minding Our Business ,” about how changes in the business of law might affect (or should affect) law schools. There are a lot of interesting views, including from the Adams Drafting Blog . The discussion focuses mostly on teaching business law and transactional skills, but it is relevant to how we might teach legal ethics as well.
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The Conglomerate’s "Minding Our Business Forum"
The disappointing result is discussed here . The Texas state court system sent the matter back for a new penalty phase, but, as we've discussed on this blog the guilt and penalty phases involved a judge and a prosecutor who were either in or had just concluded an intimate personal relationship and didn't disclose it.
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US Supreme Court declines to take up Charles Hood appeal
Q: When does a lawyer's ordinary negligence, judged in hindsight by the client's enemy, constitute actual fraud? A: When the Federal Circuit is applying the “inequitable conduct” doctrine against patent prosecutors
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IP Profs: Inequitable Conduct doctrine needs rethinking
In the current Arizona real estate market there is confusion about a homeowner’s liability to the lender for a home that is “upside down,” i.e., the home is worth less than the amount of the loan on the home. The following are five general observations of current Arizona real estate law that should be helpful in clarifying this issue
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Protection for Arizona Homeowners Who Default on Mortgage Loans Secured By Their Home
Over at Conglomerate , Gordon Smith comments on this NYT interview with a would-be whistleblower who says that the SEC is overlawyered — that lawyers lack the technical competence in finance that is essential for sound regulation. The post ties together two themes you often hear these days: that we over rely upon lawyers to make decisions that ought to be left to technical experts and that the law school of the future is the interdisciplinary school that graduates lawyers with deep knowledge of non-law field.
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Overlawyered at the SEC?
In the wake of the OPR report on John Yoo, we discussed whether the counselor/advisor rule (2.1) was too “thin” or if it might be read holistically.
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Paula Schaefer, "Harming Business Clients with Zealous Advocacy: Rethinking the Attorney Advisor’s Touchstone.”
Richard Painter has forwarded this post: In their rightful condemnation of a thoughtless vilification campaign, defenders of the DOJ lawyers who previously represented detainees point in their letter to a famed representation by John Adams “The American tradition of zealous representation of unpopular clients is at least as old as John Adams’s representation of the British soldiers charged in the Boston massacre.” Nobody could reasonably question John Adams' patriotism because he represented these clients –Captain Preston and his men — in what was a capital case of murder. As I point out in my casebook with Judge Noonan, however, there were conflicts of interest that compromised the quality of the representation.
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Richard Painter: "The John Adams Analogy"
In a letter to the New York Times today, Richard Painter, my friend and co-author on a law review article, argues that lawyers in the Justice Department who had represented accused terrorists in private life should not work on terrorism matters – apparently at all – at Justice. They “should work on other matters.” Why? Because the “government has stated that most of these people are acting in concert, and that information obtained from interrogating one detainee has led to the apprehension of others.” In effect, having worked for one, a lawyer will have worked for all because the terrorists act in concert.
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Richard Painter’s Curious Letter to the NYT
Noeleen G. Walder, Media Watch, 03-15-2010 In rejecting the bulk of New York's content-based restrictions on attorney advertising, the U.S. Court of Appeals for the Second Circuit today held that a ban on the use of nicknames like “Heavy Hitters” or client testimonials about pending cases violates the First Amendment.
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NY Lawyer Advertising Restrictions Invalidated
Article here . Abstract: This symposium article examines the fiduciary duties of law firm associates. After applying agency principles to the firm-associate relationship, the article analyzes specific duties and discusses cases involving alleged breaches of fiduciary duties by associates
Need for 2nd Level Legal Offshoring Friday, March 12th, 2010Everybody thought the growth of legal outsourcing would multiply but it didn’t grow as it was expected. In the first level of legal outsourcing, eyes were set on cost cutting. Despite excellent projections it couldn’t come out of its infancy stage.
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Need for 2nd Level Legal Offshoring
Last year, a former Toyota in-house lawyer, Dimitrios Biller, brought a well-publicized wrongful termination action against Toyota ( here and here ). At the time, the publicity was focused on Biller's claim that Toyota had failed to turn over damaging information in the context of rollover litigation. Here's a story just published at cnn.com that concerns the potentially devastating information that Biller appears to have about the company's litigation practices more generally. (Thanks to Suffolk's Jeff Lipshaw for sending me the link.) According to sources quoted in the story, Biller's information reveals that Toyota was aware of more problems with its vehicles and for a longer period of time than the company has acknowledged. What caught my eye, however, was this section of the story concerning Biller's conduct: So why, if Biller knew a judge had ordered all information produced, didn't he produce it
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Toyota’s Alleged Litigation Misconduct
Critics of Liz Cheney's silly campaign have emphasized that lawyers should not be criticized for representing unpopular clients. For example, ABA President Carolyn Lamm cites ABA Model Rule of Professional Conduct 1.2(b), which states that a “lawyer’s representation of a client does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” In my view, the issue is a bit more complicated. Although it is certainly true that a lawyer's representation of a client does not — and should not — be considered an endorsement of the client's views or behavior, I don't think we can say that a lawyer's client selection decisions are completely devoid of value judgments, particularly in the pro bono context. The problem with Liz Cheney's ads is not that they make value judgments about the so-called “al-Qaeda 7;” it's that they make the wrong value judgments. We should explicitly acknowledge and embrace the idea that lawyers who represent unpopular clients are endorsing a particular set of values. Those values happen to include (among others) safeguarding foundational procedural protections, the need for quality representation in an adversarial system, and ensuring that the government pursues its important work within the bounds of the law. Lawyers who endorse those values should be praised, not criticized. In fact, those lawyers are ideally suited to work in a government department that is supposed to be committed to the cause of justice. Liz Cheney, therefore, is right about one thing: the work of the “al-Qaeda 7″ lawyers does reflect their value judgments. By criticizing those lawyers, however, Liz Cheney is really criticizing the values that those lawyers embraced. And by criticizing those values, which are so foundational to America's system of justice, Liz Cheney (ironically) is the one who appears to be endorsing anti-American ideals.
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Judging Liz Cheney’s Values
Predictably (yes, I'm referring to our commenter extraordinaire, Patrick O'Donnell), Liz Cheney's attacks on the DOJ lawyers who formerly represented detainees have generated a large backlash, including from conservative members of the bar, in defense of the role of lawyers. Today, we have a front page NYT story ; an op-ed from former Attorney General Michael Mukasey urging people not to condemn either today's DOJ lawyers or the ones who worked there during the Bush administration for representing their clients; a more sharply partisan piece by Marc Thiessen ; and a reply from David Luban at Balkinization arguing that his criticism of the torture memo lawyers was legitimate and Cheney's attack is illegitimate. Quote of the day, by John Yoo, regarding the DOJ lawyers, “What's the big whoop?” Yoo suggested that disagreement with the Obama administration's stance on terrorism should be channeled into policy and political opposition
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yet more op-eds and posts on the DOJ lawyers who represented detainees
In another string, I reiterated my position that the Bar has not done an adequate job of explaining the importance of the lawyer's role in fulfilling the constitutional rights of all of us. I welcomed the criticism by the Liz Cheney group because it might induce that kind of public explanation. That is happening. Prominent lawyers, including Kenneth Starr, have published a letter saying in part: “As attorneys, former officials, and policy specialists who have worked on detention issues, we consider these attacks both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications.” They added that “the American tradition of zealous representation of unpopular clients goes back at least as far as John Adams' defense of British soldiers accused of killing colonists in what became known as the Boston massacre.” Also, the Association of the Bar of the City of New York said that it “unequivocally condemns these attacks as an assault on our nation's most fundamental values and traditions and on the very notion of the rule of law itself. It is fundamental that all persons no matter how unpopular have a right to representation by counsel and that lawyers have a duty to provide such representation and to do so on a pro bono basis where such persons cannot afford counsel.” In addition, American Bar Association President Carolyn Lamm, issued the following statement: “Individuals and organizations conducting a witch hunt in order to name names of Department of Justice lawyers who earlier represented Guantanamo detainees are showing a profound disregard for a fundamental tenet of our justice system and our Constitution: that anyone who faces loss of liberty has a right to legal counsel.”
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Explaining the Importance of Legal Representation
The SCOTUS opinion is here (nod to Legal Profession Blog, and expect a fair bit of blawgospheric commentary). The news about the suit against Rumsfeld is here and the opinion is here .
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Updates: SCOTUS rules that bankruptcy law covers lawyers; torture suit against Rumsfeld proceeds to discovery
We've previously had discussions on whether a judge is like a baseball umpire. (I acknowledge that my views are in the minority.) Over at the Yale Law Journal Online , Aaron Zelinsky gives us a history of the metaphor (which I great enjoyed reading) and then suggests that a SCOTUS justice is really like the Commissioner of Major League Baseball (an analogy I don't like). So if this topic appeals to you, “play ball!” in the comments.
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Is the judge an umpire? Or maybe the commissioner.
How Should Lawyers Handle the Unintended Disclosure of Possibly Privileged Information , by Jim Fischer . Abstract: The inadvertently sent email that contains opposing counsel’s settlement strategy, the opposing party’s client opinion letter negligently included in a discovery response, and the opposing party’s work papers taken by a whistle blowing client all share a common theme – the materials were not intended to be disclosed by the opposing party to the recipient lawyer.
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Jim Fischer on unintended disclosures; Gregory Duhl on the ethics of contract drafting
Decision here in Coito v. Superior Court , disagreeing with existing California case law in Nacht & Lewis Architects, Inc
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California case: recorded statements from witnesses aren’t work product; are discoverable
Lawyers in Practice: Ethical Decision Making in Context Hosted by the Baldy Center for Law & Social Policy in Buffalo NY , and co-sponsored by the University of Connecticut , this one-day conference will address the following: How do lawyers resolve ethical problems in the everyday context of law practice? What issues commonly emerge in different practice specialties and what are the norms and rules for resolving them?
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Conference Announcement
Cyberspace is already full of excellent commentary about the torture memos, so I've been reluctant to add another two cents. I was struck, however, by John Yoo's recent live Q&A at the Washington Post's web site , where he said the following: At the Justice Department in the first months after the 9/11 attacks, we sought to define what torture was, as established by an Act of Congress, to make sure that the CIA did not carry out any interrogation methods that violated the law. If you were to read that work, you will see, in fact, that we indeed looked at the legal reasoning of other countries, specifically Israel and Great Britain.
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The Situationist Perspective on the Torture Memos
I was reading an article in the NYT about a new book on the Spitzer scandal ( here ) , written by his former employer/mentor/friend/employee Lloyd Constantine. The book details various incidents about Spitzer's downfall, and details of conversations with the then Governor at the time the prostitution scandal came to light.
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Book about Eliot Spitzer and Client Confidences
While researching confidentiality in the Rules and the Code for another reason, I came upon this textual issue. As we know, the text of the self-defense exception in the Rules is and was meant to be broader than the text in the Code. For example, it allows revelation of client confidences not only for defensive purposes but also to establish a “claim.” So an in-house lawyer can sometimes use confidential information to prove discrimination by an employer or to prove retaliatory discharge. The Rules also allow revelation of confidences “to respond to allegations in any proceeding concerning the lawyer's representation of the client.” It does not say the lawyer has to be a party or counsel in the proceeding
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Self-Defense: Rules v. Code, not what you think?