Saturday, December 23, 2006

Steele on DA Nifong and Kolber on Ethics Issues of More Open Westlaw

Posted by Alan Childress
Over on Legal Ethics Forum, John Steele wrote some insightful, detailed, and timely posts (especially here, here, and here) raising serious ethics questions (and disqualification issues) regarding recent actions by prosecutor Mike Nifong in the Duke lacrosse rape charges.  'Timely' in part because John was arguing for more attention to the ethics issues of the DA under settled and specific rules, for all lawyers and for prosecutors, before the case got national attention again yesterday [some linked here] by Nifong's decision to plug ahead with several serious charges while dropping the rape charge.  [UPDATE:  More on Nifong's "admitted critical ethical lapses" here.]

One of John's readers asks, Why do prosecutors seem to always get away with their own ethics issues?  The answer may be partly in the whipsaw reasoning nicely suggested by Monroe Freedman in this comment after one of John's posts:

What happens in practice is that the courts affirm the convictions, deferring to the disciplinary process for the prosecutorial misconduct. Then the disciplinary committees defer to the prosecutors' offices, who say that they police unprofessional prosecutorial conduct. And then the prosecutor avoids discipline (and, indeed, garners praise) because, after all, the conviction was upheld.

On the relationship between prosecutorial misconduct and convictions--and the institutional causes of such misconduct--John recommends the recent article by Wash U's Peter Joy (and our own earlier post on that is here).  John cites other useful articles on prosecutorial ethics here.

Meanwhile, at PrawfsBlawg, Adam Kolber is arguing for a more open and correctable Westlaw or LEXIS service, sort of like Wikipedia. But he noted that such an idea "also raises some interesting professional responsibility issues," and mentions billing the time used to help others by fixing errors, as well as confidentiality issues if adversaries and others can figure out who is doing the fixing.  Also at Prawfs here, and not really about the legal profession as such but the relevance will soon be apparent:  Syracuse's Jeremy Blumenthal argues that practice and the academy need to pay more attention to 'standards of review' -- and in the process sort of plugged and linked my treatise on the subject.  That's an unexpected and generous gift to me (and coauthor Martha Davis) this time of the year!  And when buying, do remember the pocket part for each of the little ones.  When rolled, they684754_presente fit in a stocking.  The pocket parts, I mean.

Even better gift ideas for members of the legal professoriat (we posted on some for lawyers here) are now found--if it's not too late--at this post by Orly Lobel on Prawfs.  To arm yourself for holiday table talk, here are linked several new "lightbulb" jokes [HT to], one of which is:

Q: How many art directors does it take to change a light bulb?
A: Does it have to be a light bulb?

The one on 'focus group members' totally rocks.  For lawyers, other commenters there offer two, the shorter of which is:

Q: How many lawyers does it take to change a light bulb?
A: How many can you afford?

The other one begins, but goes on for two screens, this way:

A: Whereas the party of the first part, also known as "Lawyer", and the party of the second part, also known as "Light Bulb", do hereby and forthwith agree. . .

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