Information Filled Under 'LPO Models' Category
Lawyer publicly opposes real estate project he had helped client with; suit against lawyer dismissed Thursday, March 4th, 2010
Opinion here . We all know that the duty of confidentiality survives the attorney client relationship, but the extent to which the duty of loyalty survives when it doesn't impact confidentiality has always been an interesting question. Here, the lawyer wasn't attacking his own work product on behalf of another client; he was engaging in public speech.
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Lawyer publicly opposes real estate project he had helped client with; suit against lawyer dismissed
Paul Caron reports on the NALP data showing that hiring is way down — although the numbers vary some by region and area of practice. When the firms were flush, summer hiring was often seen as a tentative permanent hire 2-3 years in advance, which was a crazy way to do business.
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Is there a law school bubble, revisted. (and is it now popping?)
… is apparently the name being given by Liz Cheney's group Keep America Safe to unnamed Justice Department lawyers who represented detainees before joining the DOJ. (Hat tip TPM) As our own Stephen Gillers points out, allegations of a conflict of interest are entirely bogus. Unless the lawyer participated personally and substantially in the same matter while in private practice, there is no conflict of interest if that attorney works on detainee issues in the Justice Department — see MR 1.11(d). But everyone who knows anything about the law of lawyering knows that. The point of this line of criticism is not to raise a technical conflict of interest issue, but to question the patriotism of lawyers who represent accused terrorists. In this way it is reminiscent of the attack by Deputy Defense Secretary Charles “Cully” Stimson, during the Bush Administration, on law firms who represented detainees pro bono. Stimson recommended that corporate clients fire law firms whose lawyers did pro bono work for detainees. Interestingly, the suggestion was not only a flop (to my knowledge, no clients retaliated against their firms for doing detainee representation) but provoked clear condemnation from the right and the left. Charles Fried, for example, wrote an op-ed in the Wall Street Journal reminding readers, for the umpteenth time, of the honorable tradition of lawyers representing unpopular clients. Evidently Cheney and other conservative media outlets (e.g., the Weekly Standard, the National Review, Michelle Malkin) think the critique will have some traction this time. I have no idea why they think this, unless the allegation of a conflict of interest gets people's attention. So, just to be clear (and to underscore Gillers's point), there is no conflict of interest here — this is a pure guilt-by-association argument.
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The al-Qaida Seven
The Ethics Across the Profession Initiative at University of the Pacific – McGeorge School of Law (directed by Paul Paton) is presenting a symposium entitled Judicial Ethics and Accountability: At Home and Abroad . The symposium will consider the following themes: What does it mean to be an ethical judge?
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Judicial Ethics Symposium
The 83 page report, finding that Samuel McCargo committed professional misconduct, is here. Download Mccargo News article here . (Thanks to Peter Henning , of Wayne State and the NYT White Collar Watch Blog .)
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First result in ethics probe of text messaging scandal surrounding Detroit mayor Kwame Kilpatrick
This will be of limited interest to those outside California, but I had an interesting conversation today and wanted to post something having no possible connection to the OLC memos, so here goes: Suppose you represent a client in a civil case and the client perjures himself at his deposition. You remonstrate but he doesn't care. Under the CA rules you may not disclose his perjury. Now suppose you are heading to trial and the client gives every indication of planning to repeat his perjury. You remonstrate; he doesn't care. You go to the judge and say “for ethical reasons I want out.” The judge says “no.” You remonstrate some more; same result. May you put on the case and allow the client to testify in the narrative (as we do out here), avoiding any use of the perjured testimony, or is that procedure only applicable to criminal cases? I had thought it would be OK to use the narrative approach in a civil case (so long as the court played ball with the narrative testimony, but that is probably discretionary), but some pretty well-informed people think otherwise. My view was that the ethical prohibition is on introducing or using the false testimony and that prohibition applies equally to civil and criminal cases; the criminal part is relevant only insofar as it heightens significantly the accused's interest in testifying. I think the text of the rules point this way but I don't believe I have seen this come up on the civil side in CA. Thoughts, CA mavens? DM
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Perjury by a CA client in a civil case
LEF readers may (or may not) be interested in a new blog I've helped launch titled Law, Religion, Ethics: A multi-faith dialogue . The “ethics” will likely focus more on philosophical and theological understandings more than the ABA version, but with legal ethics scholars such as Bob Cochran, Russ Pearce, Sam Levine, and Marie Failinger in the mix, we may even bring the Model Rules into the conversation from time to time.
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New blog of interest
The DC Bar's ethics committee issued Opinion 353 , which addresses “whether a lawyer representing a client with diminished capacity can seek the appointment of a substitute surrogate decision-maker when the current surrogate decision-maker is making decisions for the client against the advice of the lawyer.” (nod to Legal Profession Blog ) .
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odds and ends (March 1, 2010)
I'm still working through the draft reports, responses by Yoo and Bybee, and final report released by the Justice Department last Friday. But for now I wanted to comment on what I think is the most important aspect of this whole controversy — namely, whether or not we believe the law is capable of possessing (relatively, or moderately) determinate meaning apart from what a clever lawyer can make it mean. I would talk about “objectivity” but for some reason that term gives everyone the heebie-jeebies; I don't mean anything mysterious by it, however, only that there is something apart from the interpreter (lawyer, judge, scholar, critic, et al.) that makes a legal interpretation better or worse. In other words, legal objectivity is what we presuppose when we argue that a court or lawyer got it right or wrong in its reasoning. I don't think this is mysterious, because this is what I and my colleagues do all the time when we teach class or grade exams. If we didn't believe that law could have meaning apart from what interpreters wanted it to mean, then teaching and grading would be a charade — an exercise of raw power dressed up as something more noble. Anyhow, that's what I think is important in the torture memos controversy: Do we believe it's possible to judge the arguments of Yoo and Bybee with reference to something other than first-order policy preferences or political ideology? Readers are probably rolling their eyes right now — didn't we hash this out in the 80's and 90's? Haven't we had enough of CLS and Stanley Fish telling us that the law wishes to have a formal existence (whatever that means)? As I've argued, however, the debates over legal indeterminacy have come back in connection with the torture memos, only with the sides reversed. Now it's the left that wants to claim that the law can have moderately determinate content apart from the efforts of interpreters, and it's the right arguing that we can't really say that a lawyer is distorting or twisting the law because, well, the law can be made to mean pretty much anything at all. This was feeling all very down-the-rabbit-hole to me, and then I read Jack Balkin's post on the “hall of mirrors” quality of the OPR report. Balkin at least returns to his crit roots, with his argument that the debate over the soundness of the Yoo/Bybee arguments has an endlessly self-referential quality: The relevant professional responsibility rules in this area depend on criteria of legal objectivity. The rules are violated only when lawyers make arguments that are very bad, so bad that we conclude that the lawyers can't have believed them. However, the question of whether lawyers have made arguments that are so bad that they can't have believed them turns out to be a question on which lawyers themselves disagree
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Legal Indeterminacy and the Torture Memos
The National Organization of Bar Counsel (i.e., the state bar discipline lawyers) have chosen their Case of the Month to be a vehicle for paying tribute to Don Lundberg for his years of service to the Indiana discipline system. (not to Legal Profession Blog ) .
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Around the web: Don Lundberg honored with NOBC "Case of the Month"; Abnormal Use blog interviews Professor Virzi; should private firms…
Texas threw out the death penalty in the Charles Hood case due to a faulty jury instruction — and not because of the intimate relationship between the judge and prosecutor. I wonder if my initial reaction was too cynical: this Texas panel ruled that way to protect the state's judiciary from the embarrassment that would ensue if the US Supremes got ahold of the issue of judicial bias.
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Charles Hood case: death penalty thrown out — but not because of relationship between judge and prosecutor
Howard Bashman has the details about the controversy among Second Circuit judges who ultimately denied a request from convicted lawyer Lynne Stewart that her unsuccessful appeal be heard en banc. Some of the potshots the judges take at their colleagues are pretty good zingers. Opinions here .
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Update on Second Circuit’s denial of en banc review in Lynne Stewart case
I just thought this was interesting and so will pass it along. In my Internet law course this morning, we were talking about downloading songs, movies, etc. The students, to a person, stopped downloading when they started law school because the consequences to them went up — the risk of getting caught was still low in their view, but the practical consequences to the bar examination process made the costs outweigh the benefit. They had made the same conclusions about speeding, driving after drinking, and other topics. Interestingly, when I asked whether it was because of a greater sense of morality or professionalism instilled into them by law school, they did not think so, attributing it instead to becoming more conservative (i.e., risk averse). Anyhow, I thought it was an interesting discussion worth passing along for that reason alone
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Interesting Conversation with Students about Downloading and Other "Accepted" but Illegal Things
The GOP continue s to push the idea that there are improper conflicts within DOJ because lawyers who formerly represented Guantanamo detainees now represent the United States on related issues. But as far as I can tell, the DOJ was careful in its staffing decisions and walls. .
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odds and ends (February 23, 2010)
Vietnam is a very attractive software outsourcing destination because : Firstly,in Vietnam,Labor is very cheap.One ordinary person earns average nearly $100 per month,and experienced senior developer earns about $600 per month.That is the example shows the everage salary for Vietnam IT professionals is 50% less than that of their counterparts in India.And even many Indian,Japanese and South Korean Software companies have outsourced work to Vietnam and hire Vietnam IT resources to use effectively the cheaper labor Secondly,the government is really willing to grow the Information Technology business.New
Two thoughts on Qualcomm II Tuesday, January 12th, 2010On Wednesday former outside counsel for Qualcomm will have their second opportunity to show cause why they should not be sanctioned for discovery failures in patent litigation against Broadcom. If I read the captions correctly, the court has set aside all or parts of three days for the hearing. At the last hearing counsel were not allowed to disclose confidential and privileged information in their defense. This time they are, and they have done so at length in their papers. The hearing therefore will provide a rare window into relations between sophisticated clients and their highly talented counsel. Judge Major was superbly prepared at the last hearing and no doubt will be again. The case is in very good hands.
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Two thoughts on Qualcomm II
A little while back there was some blawgosphere discussion about the GAO report that blamed US News & World Report for the increasing cost of law school. (Since then, we've received news of a report showing that increased costs inhibit socio-economic and other types of diversity in the profession.) More precisely, that GAO report said that the law school deans blamed the magazine. Here's an article arguing that the ABA accreditation standards are a more integral cause of the increasing costs than one might infer from reading just the GAO's parroting of the deans. By the way, this op-ed by Martin Greenbaum has been widely circulated.
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A different take on the GAO’s recent report on law school costs
We previously reported the murder of Jeffery Tidus, an LA lawyer specializing in legal ethics and professional liability. Here's the follow up stor y from the LA Times, which says, “Jeffrey Tidus, shot in the head in his driveway last month, was known for taking pro bono cases and donating to charity. But his work angered some 'very nasty' people.”
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LA Times follow up story about the murder of Jeffrey Tidus
(Nod to Walter Olson at Point of Law ) In the course of a contest to become lead plaintiffs counsel, a Florida firm was the target of anonymous allegations . Have law firms sued other law firms (or lawyers) for trade defamation
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Florida firm competing in "beauty contest" is target of anonymous critics
Firedoglake claims that the eight year statute of limitations under the Federal Torture Statute will soon expire for claims based upon the torture memos. .
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around the web: SoL on the torture memos?; Arizona on clients’ online access to documents; etc.
Article here , about a new study from Columbia Law School. Although the total number of law school students increased from 1993-2008, the total number of Latino/a and African-American students dropped slightly, reducing the ratio from 9.5% to 8.7%. According to the article, one of the prime causes is the cost of law school.
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New study on decreasing diversity is disappointing but not surprising
You may recall that the US Supremes, in the Stoneridge decision, shut down an expansive theory of aiding and abetting liability that would have been used to sue law firms when their clients committed securities fraud. George Conk , Kevin LaCroix , and Stewart Evans discuss the recent efforts of Sen. Dodd to reintroduce the concept through legislation
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Will Congress overturn Stoneridge and create "aiding and abetting" liability for securities frauds? (Biglaw would be a big target)
Politico reports that Neal Katyal, who successfully argued Hamdan v. Rumsfeld for Guantanamo detainees, will argue for the federal government against detainees held at the Bagram Air Base in Afghanistan. .
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Around the web; Katyal argues against detainees; OPR complaint; top changes in the legal profession
Article here . Abstract: In this article, I analyze recent case law in which applicants for admission to their State bar with prior criminal records were denied admission because the applicant was unable to demonstrate that he/she had good present moral character.
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Scott DeVito: "Justice and the Felonious Attorney"
There are a lot of cases (e.g., In re Pautler ) and scholarly articles (e.g., Doug Richmond's piece here ) concerning the extent to which a prosecutor can mislead a suspect during a criminal investigation. But since Pautler, I haven't seen a case quite as troubling as this one . In essence, a prosecutor appears to have approached a private attorney and asked him to meet with a suspect while the suspect was in jail. The private attorney agreed to wear a wire during those conversations, which revealed the suspect's vast criminal enterprise. Although there is some debate on this point, the suspect appears to have believed that the private attorney was representing him during the jailhouse conversations. In any event, the suspect is now being prosecuted, and he is trying to exclude the evidence. Take a look at the article, which contains a lot more detail, but at first blush, this case sounds an awful lot like Pautler
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Prosecutorial Deception During Investigations
As reported by SCOTUSblog's Lyle Denniston earlier this afternoon: False testimony case dismissed A case testing the immunity of prosecutors to damage lawsuits for obtaining and using false testimony ended in the Supreme Court Monday, with the two sides agreeing to dismiss it, without specifying reasons. The case was Pottawattamie County, et al. v.
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Prosecutorial Misconduct Case on Supreme Court’s Docket Dismissed
I previously posted questions from the fourth edition (1914) of Owen's “Quizzer Law Quizzer,” which was apparently a book to help people studying for the bar examination. (I bought the book for $8 at a used book sale.
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More questions and answers from "Owen’s Law Quizzer"