Saturday, April 14, 2007
A county circuit court judge was suspended without pay for 30 days by the Oregon Supreme Court. The judge repeatedly admonished defense counsel in a criminal trial both in and out of the presense of the jury, improperly limited her cross-examination of a prosecution witness, and by "words, expression and tone of voice" indicated bias and prejudice against counsel. After he declared a mistrial on his own motion, the judge attempted to undermine the defendant's confidence in counsel and encouraged the defendant to discharge her. The judge had a prior admonishment for similar behavior. (Mike Frisch)
The Louisiana Supreme Court denied admission to an applicant who had taken and passed the bar examination. The basis for the denial on character and fitness grounds was five arrests for driving while intoxicated. (Mike Frisch)
The North Dakota Supreme Court adopted new Rule Of Professional Conduct 4.5, which requires an attorney who receives a mistakenly sent document to notify the sender of the error. An interesting aspect of the new rule is that the lawyer need not either notify her client of the receipt of the document or abide by the client's instruction regarding the issue. The rule applies in circumstances where the lawyer knows or "has reason to know" that the transmission of the document is inadvertent. (Mike Frisch)
An expert witness does not have an attorney-client relationship with the lawyer or client who retains her, according to a recent ethics opinion of the Legal Ethics Committee of the District of Columbia Bar. Thus, conflict of interest provisions do not apply to experts except to the extent that the retention may affect loyalty to existing clients of the expert. The nature of the relationship must be made clear to the client of the lawyer who has hired the expert. (Mike Frisch)
The Washington State Bar Association has issued a recent informal opinion concluding that it is impermissible for a lawyer to include a provision in a contingent fee case that obligates the client to pay litigation expenses advanced by the lawyer if the client rejects a reasonable offer of settlement. The opinion views such a provision as a violation of the otherwise unrestricted authority of the client to accept or reject an offer embodied in Rule 1.2(b). (Mike Frisch)
Posted by Alan Childress
Joan Krause (U. Houston--Law) has posted to SSRN her article, "Ethical Lawyering in the Gray Areas: Health Care Fraud and Abuse." It is also in 34 Journal of Law, Medicine and Ethics 121 (2006). Here is her abstract:
Few areas of health law practice present as many quandaries for the ethical health lawyer as health care fraud and abuse. While the importance of complying with these laws is clear, the application of the broad provisions to many real-life health care arrangements is not. This article argue that when exercising judgment in advising clients on these matters, the ethical health lawyer must balance the expansive langugage of the fraud prohibitions with detailed knowledge of relevant case law and other predictors of how the government is likely to apply them to the activities in question.
April 14, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)
Friday, April 13, 2007
The AP has the story here. Apparently today's hearing only dealt with the charges stemming from the withholding of exculpatory DNA evidence, not other pending ethics charges on lying and prejudicial publicity. The story says: "Nifong, who apologized to the three cleared players in a statement issued Thursday, could be disbarred if convicted. His ethics trial is scheduled to start in June." [Alan Childress]
An attorney who had been disbarred in Missouri received identical reciprocal discipline in Colorado. He allowed a person with whom he was romantically involved to have access to his office and client files. The paramour used this access to steal the drivers license and birth certificate of a client. Thereafter, the lawyer paid off the ensuing credit charges and failed to advise the client of the identity theft. Missouri found that the lawyer had violated Rule 8.4(c) (conduct involving dishonesty, fraud, deceit and misrepresentation). The lawyer did not contest the imposition of reciprocal discipline, but did offer to retire or surrender his license to save the Colorado court the time and trouble of proceeding against him. The court declined the offer. (Mike Frisch)
The Oklahoma Bar Association Legal Ethics Advisory Panel affirmed an opinion holding that a lawyer may not advise both a state agency that issues bonds and a local governmental entity regarding borrowing funds generated by the same bond issue. The opinion looks to Rules 1.7(b) and 1.8(b) of the Oklahoma Rules of Professsional Conduct in concluding that the risk of significant conflicts outweighs any potential benefit of joint representation. (Mike Frisch)
Posted by Alan Childress
Gregory Sisk (St. Thomas--Law), pictured right, has posted to SSRN his article, "Change and Continuity in Attorney-Client Confidentiality: The New Iowa Rules of Professional Conduct." It is also in 55 Drake Law Review 347 (2007).
Sisk notes that Iowa now makes some disclosures of client confidences mandatory, such as a serious threat of imminent bodily harm -- mandatory where the ABA Model Rules make disclosure a judgment call of the attorney. He thinks Iowa's rules make a good test case for study of disclosure requirements, confidentiality, and court discretion. His abstract is after the jump.
With all the blogging buzz right now (e.g., here and here) reacting to recent stories and proposals on codes of civility and conduct for bloggers, and possible legal liability of blogs, here is an organizing site that provides links and context to many useful sources on the issue. It's from the the Internet Scout Project of the University of Wisconsin, about which my GW colleague Phil Katz tells me: "In general, the Scout Report is one of the best compilations of good stuff available online." He adds: "There are a couple of interesting links at the Scout Report about blogging, not just on the narrow topic of ethics." [Alan Childress]
Posted by Alan Childress
Monroe H. Freedman (Hofstra) has published to SSRN his important new paper on criminal defense and the perjuring client under ABA Model Rule 3.3 and the Fifth and Sixth Amendments. It is called "Disclosing the Truth About Client Perjury." The full abstract, well worth considering and including dead-on historical background and the practical result of the Supreme Court's "knowing" versus "belief" standard for mandatory disclosure (in Nix v. Whiteside, 1986), is produced beneath the fold; the heart of it is here:
[T]here remains a critical policy issue under Model Rule 3.3, because there are still some occasions when lawyers conclude that their clients are lying and then betray their clients' confidences. Unfortunately, those lawyers are virtually always court-appointed attorneys representing criminal defendants who are poor and members of minority groups. This has produced a race- and class-based double standard, resulting in a de facto denial of equal protection of the laws.
Moreover, no court has ever considered the point that Model Rule 3.3 violates the Fifth and Sixth Amendments to the Constitution. The Supreme Court has held that the Sixth Amendment forbids an agent of the state to pose as a pretended friend of the client, to elicit unwarned admissions from the defendant, and then to reveal those admissions at trial. Nevertheless, that is what happens under Model Rule 3.3. The lawyer is required, on pain of professional discipline by the state, to deliberately elicit incriminating information from the client; at the same time, the lawyer is forbidden by the state to warn the client in advance that, if the client should testify falsely, the lawyer will reveal the client's confidences during the trial.
April 13, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)
The email West just sent around says: "Many law professors aim to probe deep ethical issues in class. But they need to cover the material that the Multistate Professional Responsibility Examination requires. The Rotunda Nutshell fulfills that need as it digests the Model Rules in an engaging, analytical, and often critical way."
Thursday, April 12, 2007
Fred Hagans (a Houton, Texas trial lawyer) has published in 25 The Review of Litigation 747 (U. Tex. 2006) an article entitled The Future of Litigation Ethics. Here is the journal's summary of the article:
Mr. Hagans elaborates upon the issues that were discussed at The Review of Litigation’s annual symposium, which took place on February 24, 2006. Mr. Hagans begins by discussing the central importance of ethical rules for those who hope to properly practice as a professional. He proceeds to write of his own perspective on the future of litigation ethics by looking at the current state of affairs; specifically the impact of the vanishing jury trial and the emergence of arbitration as an alternative. Mr. Hagans contends that arbitration has failed to become a more efficient and economic means of dispute resolution, and that consumers and taxpayers are being denied fundamental rights by the ubiquity of arbitration clauses—forced to sign away their traditional rights to pursue claims in the civil justice system. Mr. Hagans then offers a list of practical solutions that can be used by all lawyers hoping to better the system in which they practice as well as how to live by the ethical rules that are central to the profession of law. Finally, Mr. Hagans offers practical thoughts on how to be a better professional, how to be not only a litigator but a trial lawyer, and finally, advice on how to better mediate. Mr. Hagans concludes that litigation ethics are alive and well, and that their importance is essential in helping lawyers to understand that it is not only the results that matter, but also the process by which we get there.
April 12, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)
Posted by Jeff Lipshaw
Some random thoughts on cutting slack for people who get you results - out there in the real world versus in the academy. . . .
Don't get me wrong; I'm a alumnus of two companies that styled themselves to some extent in the General Electric school of leadership development, most of which was the work of Jack Welch, and I admire much of what that organization has added to the theory of enlightened management and leadership. Of course, one of the problems with living in the real world is that it's not just academic theory that sometimes fails to come through in reality; sometimes real world management theory doesn't either. One of the toughest calls is when you cut some slack for a performer.
Here's a section from Jack Welch and the GE Way by Robert Slater (McGraw-Hill Professional, 1999), and it's very similar to something in Noel Tichy's Control Your Destiny, also about Jack Welch's management theory.
In describing the four types of GE managers and assessing which one will ultimately succeed - and which ones won't - Jack Welch is essentially suggesting that the only way to last at General Electric is to get on board, to become a team player, to adapt oneself to the company's values and culture.
The first type delivers on commitments - financial or otherwise - and shares GE's values. Welch likes such leaders and will make sure they stick around. Their futures are an easy call: "Onward and upward."
The second type does not meet commitments (read "bring in a healthy balance sheet") and does not share GE's values. They are not Jack Welch's type of leader. Out the door they go: "Not as pleasant a call but equally easy."
The third type misses commitments but shares the values. Though many business leaders would find such a person totally unacceptable, Welch is not so unforgiving of this type. He cares more that a manager adheres to company values than meets the numbers - and will give this person every chance to succeed: "They usually get a second chance, preferably in a different environment."
The fourth type delivers on commitments but does not subscribe to GE's values. This person created the greatest quandary for the chairman: "They're the most difficult to deal with."
Why is this relevant to Don Imus? GE owns NBC Universal, Inc. According to GE's 10-K, NBC Universal's operations "include cable television networks, principally USA Network, Bravo, CNBC, SciFi Channel, MSNBC, the Sundance Channel and entertainment channels across Europe and Latin America." Imus himself has no employment relationship with MSNBC or GE, because MSNBC contracts with WFAN in New York to simulcast the radio show.
As a thought experiment, though, assume Don Imus were an NBC Universal executive. (I recall an article/interview about Matt Lauer, the Today show host, several years ago, and I am pretty sure he got GE stock options as part of his compensation.) Uttering an offensive racist comment when you are mainstream media (as Imus has become) is probably the one unforgivable act; one wonders if MSNBC dumped him because of GE values or because Staples and Procter & Gamble had pulled their advertising. I really wonder, if a GE executive had gotten up at a national sales meeting and said the same thing, if he would have been reprimanded, penalized, fired or what.
Unfortunately, this is an easy case, with our reactions to it affected, I think, by the availability heuristic in the same way we react to an airplane crash that kills 100 people in a day, but are inured to the same number of traffic deaths in the U.S. on the same day. Imus's predicament is an airplane crash, but his "performance" (i.e. results) were so outstanding (e.g. his ability to bring the power elite onto his show) that there was speculating about his getting cut some slack, at least over the weekend. But what about the more insidious problem of cutting slack for the character I like to call the Incremental A**h*** (versus the Quantum A**h*** who brings on an Imus-like train wreck). Under GE standards, the Incremental A**h*** is as harmful to the organization as the Quantum A**h***. Every quarter he/she brings in the financial results at a cost to values like teamwork and respect. I DO think GE weeds those people out, but the theory sounds a hell of a lot cleaner than the practice in fact looks.
A student heard me say something about Wittgenstein, and loaned me Wittgenstein's Poker, a neat little book exploring the only, and somewhat incendiary, meeting between Wittgenstein and Karl Popper, which occurred at the Moral Science Club at Cambridge in 1946. If you believe the characterizations, both Wittgenstein and Popper were intellectual bullies, but Wittgenstein had the added "benefit" of being an interpersonal nightmare. If you had the chance to have a Wittgenstein - somebody who is either an Incremental or Quantum A**h***, but will also be marked as one of the two or three greatest thinkers of his or her era - on the faculty, a tortured genius, on the faculty, would you do it? My intuition is that you would accept the flaws in view of the benefits.
I'm not sure what my intuition is about the law firm or corporate world. I have seen Incremental A**h***s tolerated, and I have seen them fired. For example, nobody seems to be denying, whether or not the specific offensive words were spoken, that the partners singled out in the Charney/Sullivan & Cromwell fracas were in fact somewhere on the scale between Incremental and Quantum A**h***s. Does a business or law firm, by the nature of the work, have less "space" for the gifted sociopath than the faculty hallway?
Posted by Alan Childress
In an unusual move, a federal district judge in a class action settlement against Shell (for too much sulfur in the gas) divided up the plaintiffs' class attorney fees (aggregated at $6.8 million for 79 lawyers) -- then sealed the order from everyone including most of the attorneys involved. They were told their own fee award but ordered -- subject to sanctions -- not to reveal their share to the others. The Times-Picayune story (via Nola.com) is Judge keeps attorney pay secret, then seals reason for ruling, and it is linked and discussed on an interesting blog post by Brian Privor called Sunbock for Lawyers. Brian writes, "Apparently the lawyers can't be trusted not to sue each other if they find out someone got a bigger slice of pie than they did."
Loyola ethics professor Dane Ciolino brought a motion to open the distribution to the public, but it was denied. The newspaper story quotes him: "Keeping the fee information closed to public view, Ciolino said, 'suggests to the public at large that lawyers in high-profile, class action cases have something to hide.' " Ciolino intends to appeal Judge Ivan Lemelle's ruling to the Fifth Circuit.
A former part-time magistrate was reprimanded by the South Carolina Supreme Court for conduct involving a motorist who had been arrested and appeared before him for a bond hearing. He asked her "whether her bra straps were clear or whether the whole bra was clear." She alleged that he remarked on her physical traits and suggested that she show her navel to a police officer. An officer in the court corroborated these allegations. He also telephoned another magistrate on the motorist's behalf and met with her to help secure the return of her car. She contended that he engaged her in discussion of the case and "offered to have the charges dropped in exchange for sexual favors."
Reprimand is the most severe sanction that can be imposed when a South Carolina judge no longer is in office. The court also enjoined him from holding future office in the South Carolina unified judicial system. (Mike Frisch)
Wednesday, April 11, 2007
Posted by Alan Childress
Tulane's Jelani Jefferson will start at the University of Kansas in the fall, teaching Criminal Law, Criminal Procedure, and Race and American Law. She is currently a Forrester Fellow teaching legal research and writing. I sort of discovered her and told her that the academy was for her, though just how hard is it to "discover" a Harvard J.D. formerly clerking for Judge James Dennis of the Fifth Circuit and Judge Eldon Fallon of the E.D. La.? Anyway, I was certainly the one to open her envelope, and I called her [as she says] "so quickly." Other faculty who reviewed her record and met her also seemed to act quickly, as I observed, and I recall Ray Diamond mentoring her about various opportunities in law teaching.
But all of this, though interesting to me, is not her most noteworthy claim to fame. Jelani is one of three former Fifth Circuit law clerks who were acknowledged in a published footnote: by a Judge. in a Fifth Circuit concurring opinion. in the en banc court. I had never heard of that before--nor had How Appealing's Howard Bashman, who commented on it here. It says a lot about Jelani and Judge Dennis, whose opinion discussed how he had come to change his conclusion from his panel opinion. Capital Defense Weekly noted the "shout-out" here and also wrote: "The lead opinion of Judge Carl Stewart is among the best dissections of Fifth Circuit & SCOTUS capital sentencing law I have seen. Judge Dennis’s pointed concurrence is a great read for his openness & judicial modesty in admitting he has made a mistake."
Congratulations to Jelani on this unusal feat and on her new position, and don't forget the little people.
Posted by Alan Childress
Robert Vischer (St. Thomas) has posted to SSRN his article, "Professional Identity and the Contours of Prudence," forthcoming in University of St. Thomas Law Journal, 2007. Here is the abstract:
This article was presented as part of a symposium on Catholic social thought, prudential judgment, and public policy. I use the virtue of prudence as a lens through which to analyze the relationship between conscience and professional identity, asserting that prudence requires a consideration of the context in which an actor's conscience is to be exercised. In many of our current disputes over conscience, our understanding of an actor's context will require an understanding of an actor's professional role. This article will endeavor to elucidate the relevance of prudence to professional role by comparing and contrasting the roles of judges and lawyers. In this context, at least, the contours of prudential judgment are informed by market dynamics: lawyers are market actors; judges are not. The professional's stance toward those whom they serve, and our evaluation of the way in which they serve, will turn on this distinction. The application of principles such as solidarity, subsidiarity, reciprocity, and the common good lead to sharply different conclusions regarding the prudent role of personal moral convictions in the work of a judge versus that of a lawyer.
April 11, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)