Legal Profession Blog

Parties, Interest Groups, and DOJ Are Lawyering Up for Elections

The New York Times reports, in "As Vote Nears, Parties Prepare for Legal Fights," about the mobilization efforts and prep nationwide for election lawyers on all sides.  The Dems have 7000 lawyers lined up.  Interest groups including the NAACP and People for the American Way are ready to go too, and the DOJ has 800 lawyers on the job--its highest number ever in a year without a presidency at stake.  They are going to 65 cities.

The Democrats perceived, as reported by the Times, they were underlawyered before all over, and in Ohio the chair says, “We’re not going to make the mistake we did last time, which was to wait until after the election for litigation.” 

UPDATE:  Also lawyering up for election day were Kevin Federline as well as Britney Spears. That will be covered on a post for Monday November 13.  [Alan Childress]

Nominate a Pro Bono Achiever to the National Law Journal

Here is a link to a description and procedure for the National Law Journal's call for nomination of lawyers for its awards in pro bono achievement for 2006:  The site notes, "Past winners include lawyers whose pro bono work has entailed significant financial sacrifice, has had a broad impact and, because of their clients' unpopularity, has exposed them to criticism."  Deadline: 11/16. No sophists, please. [Alan Childress]

Collins on Prosecutorial Practices in the Duke Lacrosse Case

Jennifer M. Collins (Wake Forest) uses her experience as a former D.C. prosecutor of homicide cases to good end:  to raise some great questions in an interesting post on Concurring Opinions called, Prosecutorial Practices and the Duke Lacrosse Case.  In her first post as a guest blogger, she does not shy from controversy.  She particularly wonders about the DA's decision not to interview, still, the complaining witness about the night in question, as well as the apparent under-use of the grand jury.  The readers' comments in reply to her post are also interesting and tease out differences between the grand jury in N.C. and D.C., to which Collins replies, "perhaps this case will serve as a catalyst for revisiting current thinking related to [N.C.] grand jury practice."  [Alan Childress]

Texas Law Firm Expands to China

Fulbright & Jaworski announced Thursday it has opened an office in Beijing.  It will be headed by the partner already running its Hong Kong bureau.  The new office will expand from 10 to 15 attorneys soon by hiring more lawyers from China, and plans to service such firm clients as China National Petroleum Corp. and  International Finance Corp.  A report on the expansion can be seen in the Texas Lawyer, which further notes that some other big Texas law firms (Vinson & Elkins, Baker Botts, and Andrews Kurth) already have offices on the Mainland.  My guess is that F&J was the Houston law firm 'to be named later' in the original trade for Yao Ming.   [Alan Childress]

Lawyer Career Tracks, Disparities, and Other Stats in Western PA

Over on Empirical Legal Studies blog, William Henderson (Indiana) posted this interesting summary of the Allegheny County Bar Association's comprehensive study and survey of its members.  It echoes some great earlier work with data sets from Chicago lawyers and both University of Michigan and Indiana law grads.  He notes that "[s]ome of the most significant findings involve large gender disparities."  A few highlights, quoted or paraphrased from his post:

• Education. Fully 38% of respondents attended the two local Pittsburgh law schools (Pitt and Duquesne).
• First employment. The most common first employment was at a smaller firm, though women were more likely to start at larger firms (consistent with earlier findings from above studies).
• Fulltime or part-time. 87.5% of the members work full-time; 7.9% part-time (women are twice as likely to be part-time); 4.7% not currently employed.
• Practice setting. Women are more likely to start in private practice, but also more likely to eventually move into a non-private practice setting. 
• Choice of employment. Respondents reported type of practice was the most important factor in choice of employment, with work/life balance and independence/flexibility coming in second. However, female attorneys were more likely to favor work/life balance while male attorneys were more likely to prioritize compensation and prestige.
• Billable hours. 28% of respondents reported a billable hour requirement in their current setting. The mean billable hours was approximately 1900 hours.
• Income. 20% of male attorneys and 5% of the females earned over $250,000 per year; at least some of this was driven by age differences.
• Job satisfaction. Females are also twice as likely to be dissatisfied with their employment situation (earlier studies contained similar but more nuanced findings).  Female respondents reported higher incidents of job discrimination and lower pay for similar of-counsel work.
• Personal household duties. Female attorneys reported more hours devoted to household chores (10.5 hours/wk for females versus 8.55 hours/wk for males).
• Enter practice again.  70% percent of the men versus only 54.7% of the women stated that they definitely or probably would practice law again.

Bill has more details and links on this and similar previous studies.  I would add that the "household duties" statistic is proof that males are significantly more likely to overreport their weekly time devoted to household chores, possibly by defining the watching of Lifetime Channel or HGTV as housework.  [Posted by Alan Childress]

Beale on Tax Ethics and Privilege

Posted by Alan Childress

Linda M. Beale (now at Wayne State, Law) has posted her article on SSRN Law & Socy: Legal Prof. entitled, "Tax Advice Before the Return: The Case for Raising Standards and Denying Evidentiary Privileges."  It was also published earlier this year in the Virginia Tax Review, vol. 25.  The abstract:

 Abusive tax shelters have shone an unappealing light on tax lawyers. Some commentators suggest that these abusive shelters are the work of a small tax shelter bar. This article argues that the same practitioner norms, interpretive approaches, and tax standards that make possible the role of the so-called tax shelter bar in designing mass-marketed shelters also encourage aggressive loophole exploitation in customized tax planning by the regular tax bar.

Recent changes have set the stage for a paradigm shift in tax compliance. A new reportable transaction regime increases transparency. The 2004 Jobs Act's stiffer penalties and heightened standards for penalty protection, at least in the context of reportable transactions that have a significant tax avoidance purpose, move the target towards better compliance. Significant changes to the rules governing practice before the Internal Revenue Service add momentum.

This article argues that the best way to stymie socially wasteful tax planning is to accelerate the paradigm shift. The statutory and ethical standards for positions taken or advised on returns should be raised. A taxpayer should not be able to take a position on a tax return, nor an advisor advise a position, unless it is considered to have a greater than fifty percent likelihood of success on the merits if litigated. To make returns fully transparent and facilitate enforcement, Congress should amend the law to eliminate the applicability to pre-return tax planning advice of the common law attorney-client privilege and work product protection.

Fee Cap Waivers

by Mike Frisch

The Supreme Court of Florida has entered an order that permits plaintiffs in medical malpractice cases to agree with their retained attorney to waive limits on contingent fees that had been adopted by Florida voters as a Constitutional amendment. The written waiver, which must be detailed and set forth the fee limits that the client waives, will not be subject to judicial oversight. The new Rule is grounded in the view that a client should be free to hire a lawyer of her own choosing and to knowingly waive a right that exists for the client's own protection.  The order is linked here. 

As we have seen a number of jurisdiction impose fee caps in a wide array of cases, it will be interesting to watch for developments similar to the Florida approach.

Where Have All the Law Clerks Gone?

A little while back, I asked where those law review editor/Coif/Supreme Court clerks types were going, if they weren't going into academia.  Accordingly to Law.com today, they are going to Latham & Watkins.

[Jeff Lipshaw]

South Texas Law Review Symposia: On Prosecutorial Ethics and Roscoe Pound's Vision in 1906

South Texas College of Law's Law Review held its 12th annual ethics symposium last year, this one on Prosecutorial Ethics.  Here is a link to the Table of Contents and contact information for its summer 2006 issue.  The Foreword is by Catherine Greene Burnett (S. Tex.), plus Bennett Gershman (Pace, right) writes on Brady error.  Other articles touch on double jeopardy, the Art of War, and "supernational" prosecutors. 

The 13th annual ethics symposium will be held next week, Nov. 9, in Houston, and its program and registration link are here.  The theme is a centennial reflection on Roscoe Pound's 1906 ABA address.  The speakers are an all-star line-up including Fifth Circuit Judges Caroline King and Tom Reavley, District Judge Lynn Hughes, and such noted professors as Charles Geyh (Indiana), Ed Sherman (Tulane), Hanson Lawton (S. Tex.), Luke Bierman (Albany), and Jim Alfini (dean at S. Tex.).   [Posted by Alan Childress]

Zealous Advocacy Meets Fantasia: A Response to Professor Donohue

Posted by Jeff Lipshaw

John J. Donohue III (Yale) has a column in The Economist's Voice (Berkeley Electronic Press) entitled The Discretion of Judges and Corporate Executives:  An Insider's View of the Disney Case.  To be accurate, Professor Donohue's "insider" status derives from the fact that he was an expert witness for the plaintiff shareholders in the shareholder derivative litigation claiming that Disney officers and directors breached their fiduciary duties and wasted corporate assets.  So it turns out Professor Donohue wasn't a fly on the wall when Michael Eisner and his general counsel, Sanford Litvack, were trying to decide what to do about the very highly paid executive Disney had recently hired, and who was turning out to be one of the great hiring errors in recent corporate history.  Like the rest of us, Professor Donohue was an after-the-fact commentator on the cold record of documents and depositions, taking (hey, that's what we're paid to do) a pot shot, albeit learned, at their decision.

It's pretty clear Professor Donohue does not hold himself out as an expert on Delaware corporate law; he has a distinguished background as a legal academic and economist, and according to his biography on the Yale Law School website "has used large-scale statistical studies to estimate the impact of law and public policy in a wide range of areas from civil rights and employment discrimination law to school funding and crime control. Before joining Yale Law School, he was a chaired professor at both Northwestern Law School and Stanford Law School. He recently published Employment Discrimination: Law and Theory." 

A real insider might have been somebody like Senator George Mitchell (right) who was on the board of Disney at the time, and who took over as the interim chairman of Disney when the board relieved Michael Eisner of that title.

Extended reaction below the fold.

First, Professor Donohue's column has the implicit disclaimer, at least in the description of the author, that he had some emotional stake in the outcome of the case, and that certainly would account for the vituperative attack on the Disney executives as well as the Delaware judiciary.  I also want to issue a disclaimer.  I was a general counsel, often making ex ante decisions like Litvack's, and my sympathy to a general counsel in that position is a matter of public record.

One further disclaimer:  hell hath no fury like a litigant scorned, particularly when the litigant has an academic outlet for the fury.  In my prior life as a general counsel, I was a two-time loser - well, I guess I shouldn't personalize it - in the Delaware courts in the same case:  Great Lakes Chemical Corp. v. Monsanto.  (Kind of like Brandon Inge committing two errors on the same play in the World Series, but we digress.)  The first loss was in the federal court on the issue whether the LLC interest the company bought from Monsanto (before my tenure, by the way) was a "security" for purposes of Rule 10b-5.  In retrospect, I think we deserved to lose that issue, and I hold no animus with regard to Judge McKelvey's well-reasoned opinion.  (The only "animus" - :) - I hold is to Professor Bainbridge, who took the case out of the new edition of his business associations case book, depriving me of the priceless credibility of teaching my own bad decision to litigate an issue out of somebody's else book.)  The second loss, which I take more personally, was the state court decision (where we refiled after being dismissed in federal court) holding that as a matter of law we had failed to state a claim for common law fraud in view of an anti-reliance provision of the kind I am now addressing in a work in progress.  I confess that my view is in part shaped by my own experience, and I wouldn't mind seeing a change in Delaware contract law on the subject.  But I still think the Chancery Court is at the top of the list as a place to have business issues decided if you really have to litigate.

But now to the (red) meat of Professor Donohue's beef.  He excoriates Disney's management and board, and the entire Delaware judiciary (but in particular Chancellor William Chandler who was the fact-finder) for what he sees as an egregious waste of corporate assets - the roughly $140 million (in 1996 dollars) that Disney paid to Michael Ovitz in severance upon his termination just fourteen months into his five year contract.  This, says Professor Donohue, was waste.  The board made an uninformed decision, without "an evaluation of the legal rights of the company and the costs and benefits of" choosing NOT to pay under the non-fault termination provision, and instead litigating the issue whether, under the contract, Ovitz had committed "gross negligence or malfeasance."

We need to peel this artichoke a little to understand just what constitutes the gravamen of Professor Donohue's view of the sin here.  It is not the original decision to give Ovitz a contract that upon termination was worth that much money.  (Indeed, I have just finished teaching the Disney case to my Business Enterprises class.  Granted that I am a superb (?) advocate, and there was no opposing view, after my fifteen-minute history of the hiring, my subsequent request for a show of hands whether the Disney board was wrong in executing the contract produced no takers, and this from a class that had gasped at the amount before we started.)  The sin was also not in the decision to fire Ovitz.  One presumes that it was legitimate for the board and management to have said "what is done is done, and we cannot unring the bell, but we must fire Ovitz."  No, the sin, according to Professor Donohue goes to the professional lawyering issue that I previously pegged as the one not really discussed so far in the academic world:  Sanford Litvack's determination that trying to fit Ovitz's conduct within the "gross negligence or malfeasance" standard of the contract was a "no-brainer" (i.e., it didn't fly), and the Board's acceptance of that conclusion.

And we need to peel even further.  Professor Donohue does not address the fact that the board was entitled under Delaware law (Section 141(e)) to rely on the opinions, reports, or statements presented to the corporation by any of its employees, or by any other person as to matters the board reasonably believed were within that person's professional or expert competence and who had been selected with reasonable care by the corporation.   Whatever else one thinks, Sandy Litvack was a lawyer on whose opinion a board member could reasonably rely.  (NB: the opinion points that Eisner himself checked with all the lawyers he knew and got the same answer - conduct that is completely consistent with my experience in dealing with CEOs who do not like the answer given to them by their general counsel, as much as the CEO may love and respect the general counsel.)  He was certainly reasonably hired. 

So Professor Donohue's argument really boils down to the following propositions:  (a) Litvack was wrong (even if wrong in good faith) in applying the contract standard for a termination for cause to Ovitz's conduct; (b) even if there were a colorable basis for such a position, Litvack did not zealously represent his client by recommending that Disney pursuing the "for cause" claim; (c) as general counsel, Litvack was not entitled to make that decision - the board, and not the lawyer, had the duty to practice law - that is, to draw the appropriate legal conclusion from a set of factual circumstances (a board member without a law license doing this out of her home office for a client would no doubt have some issues with the local bar association); and (d) the board should be liable, without the benefit of the presumptions of the business judgment rule, for what, in effect, was either its or Litvack's alleged malpractice of law.

Wow.  In fact Professor Donohue is no more an insider to this particular decision than I.  But I have been inside on decisions that may well have involved as much money as the $140 million, and I am bothered terribly by the advocacy of what appears to be the "zealous advocacy" model of a general counsel's duties. As I asked in the earlier post, if Litvack concluded that Disney could pass Rule 11 muster (or the straight face test), did he have an obligation, moral or otherwise, to all the uninformed stakeholders (i.e. the shareholders) to pursue the claim, even if as nothing more than bludgeon to knock ten or twenty or thirty million dollars off the pay-out?  Is it like zealous advocacy when defending a client for a capital crime?  Are we general counsels obliged to employ EVERY means at our disposal to win?

To paraphrase the earlier comment, that was always the toughest kind of call for me as a general counsel.  Like Litvack, I would conclude that contesting a particular issue was a "no brainer" because in my judgment we had no case.  But I always wondered in those instances:  was I too nice?  or too ethical?  Somebody could cobble together enough of a position to cause some grief for the other side (because it seemed like people were always taking marginally ethical positions against us, and finding lawyers who would sign the pleadings!) If I reached a legal conclusion and expressed it to the board, it was the rare case that anybody would question it.   In essence, my sense of ethics or my moral judgment, as the GC, became the moral judgment of the corporation.  And I always told the board when my legal judgment overlapped either my moral judgment or my business judgment (which often overlapped each other - as my business judgment was pretty utilitarian).  I have a hard time believing (and here I confess I do not know the record as well as Professor Donohue) that Litvack never had that same conversation with the Disney board.

This is the real danger of big numbers, like those in the Ovitz situation.  Ask your next class, completely out of context, if $140 million severance is too much after fourteen months work, and I guarantee you that the overwhelming majority will answer "yes" spontaneously with no knowledge whatsoever of the facts.  I probably would.  What we have here, it seems to me, is a populist attack on an issue of wealth distribution, in the guise of what purports to be an analysis of law.  And it is not a careful analysis of law or morality, as much as one expert's continued political advocacy of a position wholly rejected by the court.  It would be fair, at least, were it made explicitly on the latter basis.

Pro Bono Awardee in California Helps Cancer Patients on Law: The Affirmative Ethics of a 'Profession'

        Much is said, understandably, here and at Legal Ethics Forum about the "negative" side of professional responsibility--prohibitory rules authored by the ABA, disciplinary enforcement by state bars, sanctions imposed by judges, ineffective criminal defense under the Constitution, etc.  But it's easy to ignore the more affirmative side of legal ethics, those positive steps and sacrifices that are as much a claim to being a "professional" as mere compliance with negative Model Rules.  Ethics can't be just about what not to do.  It's about conduct as much as misconduct.  I find myself teaching the PR class with dreams of the time and attention span of students to get into this more affirmative angle on professionalism.  And I wonder how many law teachers out there have successfully incorporated it into their course. 
        Meanwhile, here is an example of the kind of professionalism I am talking about. L.A. attorney Christine Hayashi, at age 51, won the 'California Young Lawyers Association Award,' for her pro bono legal representation of cancer patients. [Here is her story in November's on-line California Bar Journal.]  Cancer patients don't just have tough medical problems; their legal issues include custody matters, insurance, and estate planning.  And sadly, "She’d get calls from cancer patients whose bosses wanted to fire them when they returned to work after medical leave."
        Another story in that issue covers all sorts of other pro bono award honorees on matters such as corporate law, representation of Muslims, prosecution of an Argentine war criminal, and Part D prescription rules.  The "newly admitted" winner, Nicholas Baran of S.F., is 54.  The solo-practice winner is 55, also as a second career.  One winner is 82.  Trend?
       State bars ought to do more to get out the public story on such people and worry less about advertising and blogging.  There is a positive, affirmative side to being a professional, and incidentally it is better press than picayune prohibitions and petty sanctions.  [Alan Childress]

Should Judge Recuse Himself in Mob Case After Seeing His Name on Hit List?

Prosecutors actually say "No."  As Newsday reported this morning (by staff writer Anthony Destafano), in "Basciano Prosecutors:  Keep Judge," the U.S. District Judge presiding over the upcoming re-prosecution of alleged mob captain Vincent "Vinny Gorgeous" Basciano (he's a hairdresser too, allegedly) is contemplating recusal.  This is because he was named on an alleged murder-for-hire hit list associated with the defendant.  (Prosecutors also disclosed transcripts of phone calls Vinny made to his wife and to his girlfriend--apparently two different people--which prosecutors interpret as showing that the defendant had been trying for months to engineer the Judge's recusal.)  Should the Judge pass on this case?  Seems like an ethical and Darwinian no-brainer to me, but the Brooklyn U.S. Attorney's Office's position is that the sting of the threat is "undercut" by the fact that it is now public, and all that might be left is that it shows "animus" to the Judge. 

My 2 cents:  even judicial awareness of that degree of "animus" may be plenty enough for a reasonable jurist to withdraw.  But as to the lack of remaining threat, I seriously doubt prosecutors are taking the position that there is no lingering danger to the three witnesses also named on the list.  Defendant has admitted to owning a hair salon.  [Posted by Alan The Homely Childress]

Pretexting

by Mike Frisch

The recent scrutiny arising from criminal charges in the Hewlett-Packard pretexting affair has focused attention on the use of misrepresentations in aid of an investigation conducted by a lawyer or under a lawyer's supervision. The potential defense of reliance on the expertise of others (lawyers and the investigators) that was recently rejected in the Massachusetts law clerk sting bar discipline case may be offered by the defendants in the HP case.  An excellent analysis of the issue appears in the October 18 edition of the Lawyers Manual of Professional Conduct authored by Joan C. Rogers. Rogers surveys cases and law review articles on the subject and discusses the pertinent Model Rules.

Incorporating Practice into Teaching - Welcome to Deb Ahrens at Prawfs

Take a click over to PrawfsBlawg where Deb Ahrens, a visiting assistant professor at South Carolina, is so recently removed from public defender practice that she is still getting appointed in criminal cases between her classes. 

Good stuff, and we look forward to more.

[Jeff Lipshaw]

Ecumenical Reactions to Sulentic on Catholic Social Thought as a Source of Ethics Distinct from Law

Alison Sulentic (Duquesne) has posted Now I Lay Me Down to Sleep: Work-Related Sleep Deficits and the Theology of Leisure (Notre Dame Journal of Law, Ethics and Public Policy, Vol. 20, p. 749, 2006) on SSRN.  I have some comments following the abstract:

This Article considers whether Catholic social thought can sustain public policies in favor of rest and renewal with a force comparable to the contribution it has made to other workplace rights. In particular, the Article traces the theological contributions of John Paul II and Josef Pieper. The Article provides an overview of the clinical knowledge concerning sleep deficits in relationship to current practices in scheduling shift work. Finally, the Article suggests that the right to rest is ill-protected by statutory laws such as the Americans with Disabilities Act. Moreover, relying on fear of tort liability as a tool to motivate employers to adopt rest-friendly policies is a strategy fraught with too many contingencies to seem entirely reliable. The practice of virtue, as understood in the Catholic social thought tradition, requires more of an employer than simply choosing business practices that meet minimum requirements of local law or that prove to be effective instruments to achieve a particular end. Instead, the values of Catholic social thought require employers to take a leap of faith by creating humane work schedules not because they are legal or useful but because they respect human dignity. In sum, while arguments grounded on the desire to avoid liability or to achieve efficient goals may prove persuasive, Catholic social thought supports these arguments by refocusing attention on the party on whom all work depends: the human person - someone, not something.

It's interesting to read the work of legal scholars explicating Catholic social thought, and there are quite a few, including Mark Sargent, Susan Stabile, Amelia Uelmen and Professor Sulentic.  It is, for me, a happy juxtaposition with the comments on my earlier post about teaching ethical argument. The title, taken from a post over at PEA Soup, did not reflect my own view whether a skeptical argument equals a sophistic argument.  But the substance of the comment, which appears to be defending a skeptical, anti-foundationalist approach to ethics generally, demonstrates the uncomfortable position in which I find myself, philosophically and ethically speaking.  For better or worse (but mainly because I grew up in a liberal Jewish tradition), I don't find intellectual satisfaction in as secure a source of ethics as those writing in the area of Catholic Social Thought, even if I am wholly sympathetic to the outcomes.  In Law as Rationalization, I tried to walk the line between dogma and skepticism, looking as much as possible for, as Dan Markel so kindly put it, a heterodox and secular acknowledgment of some foundation - some First Cause - out there somewhere that helps explain the different between law and ethics.  We pragmatic idealists can never satisfy the skeptics that we are not, at heart, religionists, nor explain to the religionists why we just don't take the last step and put a name to the First Cause.  But Professor Sulentic's abstract certainly appeals to the Kantian in me.

[Jeff Lipshaw]

No Sanctions for Putting Law Firm’s Name/Address on Wrong Part of Page

Posted by Alan Childress
          That sounds about right:  No sanctions for placing the firm name above the individual’s signature rather than ... two lines down.  That’s the rule made yesterday by the Fifth Circuit (link to opinion) in reversing a summary judgment.  One had been granted below against a plaintiff whose lawyer’s Opposition had been de-filed as a sanction for being “signed by the law firm,” as the district judge had prohibited in a scheduling order a year earlier {because lawyers get licensed, not firms, you see).  The Fifth Circuit reasoned that “it seems a basic principle of fairness and good judgment that no party should lose a case solely because his lawyer listed the name and address of a law firm above, rather than below, the lawyer's signature."
          The Fifth Circuit is not lying in wait for a lawyer to make a technical boo-boo just to sock him or her with sanctions (or affirm them from below as “discretion”). That attitude contrasts with a  Seventh Circuit sanctions order last week sternly showing it has had it [‘with you young man,’ you can almost hear] with lawyers who filed a Statement of Jurisdiction based on diversity by explaining all the parties are “citizens of different states” when the local rule (but not federal) clearly requires them to name those states. For shame.

          Hats off to the Fifth Circuit for showing respect for the working legal profession even if mistakes were made. The opinion is by Judge Jerry Smith.  He is, by the way, smart, fair, and humorous.  But he is no softy who can’t tell up from down.  Two decades ago he dissented from an en banc ruling allowing appellate jurisdiction, chiding the majority for reading the statutory requirement of an “express finding” as satisfied with an “implied” one. This situation is  different in five ways, I realize, and his point then was that Congress had meant this language--but it does make me chuckle in nostalgia for that slight irony.  And appreciate him and the other two panel members here (Judges Wiener and Owen) for their fairness.  Judge Smith has no hobgoblinesque little mind.  But what is up with the judge below and the Seventh Circuit panel that seem so impatient with human misunderstanding?   As Judge Smith wrote, the dismissal “must appear to the casual observer to be judicial petulance.”

Getting Famous in California

by Mike Frisch

The October 18, 2006 edition of the Lawyers Manual on Professional Conduct has an interesting report of two California decisions disqualifying state prosecutors from cases based on their involvement in related book and film projects. One had published a book with characters and a story that bore similarity to a case she was prosecuting (Haraguchi v. Superior Court, Cal. Ct. App. 2nd Dist., No. B191161). The other involves a prosecutor acting as a paid consultant on a film project about his pending capital case-- the defendant has the perfect name for a movie character- Jesse James Hollywood (you can't make this stuff up). The prosecutor gave the screenwriters file material about the case, which may have violated state law. (Hollywood v. Superior Court, Cal. Ct. App. 2nd Dist., No. B188550).

Perhaps these two can get their own cable show or at least get profiled on Court TV.

Top Ten - Legal Ethics & Professional Responsibility - Oct. 31

Here are the ten papers with the most downloads in the last sixty days, as reported by SSRN's Legal Ethics & Professional Responsibility journal, edited by Cornell's accomplished and very tall blogger (on Legal Ethics Forum), Brad Wendel (left).  Now it occurred to me that if you had been absent from the academic side of law for, say, twenty-five years or so, and you reappeared after the advent of SSRN, you would be in awe of those mysterious and iconic "editors" of the SSRN journals who keep sending you e-mails all the time:  Adler & Bix, Arterian & Paul, Black.  I can attest that Bernie Black is a real person - I was in an elevator with him at the Marriott Wardman Park once.  I'm pretty sure Brian Bix is a real person because I send him e-mails and he responds (with unfailing courtesy and kindness, by the way!) 

Not only is Brad Wendel a real person, but he entertained my son James and me on our trip through Ithaca (part of the college visitation trip from hell).  Here's the official bio (slightly edited) from the Cornell web site.

Brad got his B.A. from Rice, J.D. from Duke, and J.S.D. from Columbia.  He joined the Cornell faculty in 2004, after teaching at Washington and Lee Law School from 1999-2004. Before entering graduate school and law teaching, he was a product liability litigator at Bogle & Gates in Seattle and a law clerk for Judge Andrew J. Kleinfeld on the U.S. Court of Appeals for the Ninth Circuit. His teaching interests are in the regulation of the legal profession and torts, and his research focuses on the application of moral and political philosophy to problems of legal ethics.

Oh, yes.  The top ten.   

1 Therapeutic Jurisprudence and Readiness for Rehabilitation David B. Wexler, University of Arizona - James E. Rogers College of Law

2 The Paradox of Extra-Legal Activism:  Critical Legal Consciousness and Transformative Politics, Orly Lobel, University of San Diego School of Law.

3 Politics, Office Politics, and Legal Ethics: A Case Study in the Strategy of Judgment David McGowan, University of San Diego - School of Law

4  Southwest Airlines:  Hedging and Shareholder Value  Michael R. Ingrassia, Georgetown Law Center, Victor Fleischer, University of Colorado School of Law

5 Judicial Opinions as Minefields of Misinformation: Antecedents, Consequences and Remedies Jacob Jacoby, New York University - Department of Marketing

6 Harry Potter, Ruby Slippers and Merlin:  Telling the Client's Story Using the Paradigm of the Archetypal Hero's Journey, Ruth Anne Robbins, Rutgers School of Law - Camden.

7 Plato, Hegel, and Democracy, Thom Brooks, University of Newcastle upon Tyne

8 The Images of Lawyers Fred C. Zacharias, University of San Diego - School of Law

9 The Legal Penalties for Financial Misrepresentation Jonathan M. Karpoff, D. Scott Lee, Gerald S. Martin, University of Washington - Business School, Texas A&M University - Department of Finance, Texas A&M University - Department of Finance.

10 Legal Hazard: Corporate Crime, Advancement of Executives' Defense Costs, and the Federal Courts Peter Margulies, Roger Williams University School of Law.

[Jeff Lipshaw]

 

Training Sophists?

Heath White (UNC Wilmington, Department of Philosophy and Religion) at PEA Soup has a post on why he is reticent about teaching ethics as a general matter.  His concern is that the methods of teaching moral theory cause ethical argument to trump ethical result:

What’s praised and blamed in the class is not the content of the answers students arrive at, but their methods and (even more) degree of polish in presenting them.  If I wanted to train eloquent sophists, this is more or less the method I would choose.

I liked the answer of one commenter:  "that most students come to the class as skeptics, relativists, or naive dogmatists. When they first encounter serious rational discussion of ethical questions, they end up finding vocabularies with which to articulate and defend their own moral beliefs."

Does legal training invoke this dissonance?  Isn't our primary focus, at least in the core 1L curriculum, on argumentation as much or more than substance?  Does that encourage a skepticism or relativism that is at odds with what students are expected to take from the implicit moral theory in legal ethics?

(That is a theme I have continued to explore over the past couple years.  I blundered through it in the 2004 article Alan has, inexplicably, decided to blog about today, without my knowledge, but our rule among co-editors is that we don't pull off other co-editor's posts.)

[Jeff Lipshaw]

Lipshaw on SOX and the Incomplete Explanation Game Theory Offers for Moral Action in Corporate Governance

Jeffrey M. Lipshaw (Tulane) has posted, on SSRN, his 2004 Wayne Law Review article entitled, "Sarbanes-Oxley, Jurisprudence, Game Theory, Insurance and Kant: Toward a Moral Theory of Good Governance."  Here is the abstract:

The governance rules mandated by Sarbanes-Oxley, and the SEC regulations thereunder, were in direct response to many of the specific misdeeds of the Enron, WorldCom and other scandals, leaving corporate lawyers scrambling to keep their clients in technical compliance, but wondering whether it would create better governance. In this paper, I contend first that the frustrations with Sarbanes-Oxley have their basis in the jurisprudence underlying Sarbanes - the presence or absence of articulated policies and principles underlying the specific rules. I assess the law under modern positivist and naturalist theories, and point out ironies in its ultimate application. Second, I contend there is a more fundamental issue. Neither the law, nor one of the most cogent theories of non-legal norms - Eric Posner's application of game theory and signaling to principles - accounts fully for the moral aspect of corporate board service and ethical decision-making. I critique the economic model with a real world example of a wealthy director's assessment of his potential gain versus potential exposure. I suggest there is a moral theory that explains compliance outside of law or economics, and that the directors operate simultaneously under moral, legal and economic dictates. Finally, I contend social policy and legal training that in turn fail to recognize the importance of moral bearing on corporate governance will very likely miss the intended objective of good governance: more thoughtful, independent focus by boards on their fiduciary obligations to corporate stakeholders.

More to be said about this very interesting article in posts to come.  For now, congratulations Jeff.  [Posted by Alan Childress, who was not put up to this.]