Tuesday, January 30, 2007
Posted by Alan Childress
Peter Henning (Wayne State, and coeditor of the White Collar Crime Prof Blog) has posted on SSRN an article, "Lawyers, Truth, and Honesty in Representing Clients." It is forthcoming in Notre Dame's ethics law review. Here is the money quote: "While truth and honesty are certainly related, they are not identical." His entire abstract follows:
To say that the rules governing lawyers do - or should - reflect a commitment to truth is a worthy goal, but it misapprehends how the professional standards should be applied. Many accuse lawyers of being liars with little devotion to the truth, while the law imposes on them a fiduciary obligation to put their clients’ interests ahead of their own. References to “truth” tend to obfuscate rather then clarify the role of the lawyer. The core of the lawyer-client relationship is trust, protected by the attorney-client privilege that prevents an attorney from being compelled - with limited exceptions - to reveal what a client communicated in the course of the representation. That privilege, of course, frustrates the search for the truth because the lawyer ordinarily may not reveal what has been learned during the representation of the client, even after the client’s death. Dedication to the truth cannot be the lawyer’s paramount goal when every attorney is equally compelled to keep the truth hidden, at least if it is in the client’s interest and there is no basis to avoid the protection afforded client communications.
Finding the truth is the object of the judicial system, but it is not the governing principle for the lawyer. Instead, the focus for the lawyer should be honesty in dealing with clients, opponents, and the system. The principle of honesty governs the attorney in all forms of representation, not just when he is acting on behalf of a client in the course of an adjudication. While truth and honesty are certainly related, they are not identical. In this article, I use honesty to cover assertions - both verbal and non-verbal - by the attorney on behalf of a client, such as expressions of fact, legal argument, or a negotiating position. While truth is focused more on determining the existence of an historical fact, honesty focuses on the accuracy and authenticity of the lawyer’s current assertions on behalf of the client. An attorney’s honesty will assist a tribunal in ascertaining the truth, yet that is not the core function of the lawyer acting on behalf of a client. Whenever a lawyer communicates, whether it is to the court, to an opposing party or attorney, or even to a client, that communication must be honest.
I do not offer honesty as a heretofore unrevealed agenda in the professional responsibility rules or as a curative measure for resolving every conflict among duties a lawyer can face in practice. Instead, the idea that lawyers must be honest when they offer information or take a position can provide a guide to understanding how to resolve some of the difficult issues in practicing law. Lawyers do not operate in a vacuum, and the professional responsibility rules and other guidelines that regulate attorneys provide only limited assistance in resolving difficult issues. The principle of honesty, rather than truth, can provide a further means, in addition to the lawyer’s own ethical judgment, to accommodate the dual roles of the attorney as an advocate for a client and an officer of the court.
January 30, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (1) | TrackBack (0)
Stephanie West Allen has this post on Idealawg about a conference--Feb. 9 in Minneapolis--on leadership, ethics and innovation taught from a narrative or storytelling perspective. Unrelated, I enjoyed the knock-down debate she posted between two legal writing teachers over the use of the passive voice and whether shorter is always better. The debate was enjoyed by me. [Alan Childress]
Texas Tech's Ann Graham, on our sibling Banking Law Prof Blog, reports here on several "expected" [bland or banal] watchwords for attorney-officers of the Oklahoma Bar Association (like "Live well. Laugh often. Love much.") that she came across in reading her recent copy of the Oklahoma Bar Journal.
But she wonders if a new motto is needed for the law firm that proclaims, "Calcitromus gluteas sordes vilis."
Something of a contrast to Josiah Quincy's practice and marketing in 1763, though by 1768, with business down a tad, he too had to bring the Latin. [Alan Childress]
Posted by Alan Childress
Daniel Coquillette (B.C.--Law) has posted this article to bepress's NELLCO collection: "The Legal Education of a Patriot: Josiah Quincy Jr.'s Law Commonplace (1763)." It will appear in Arizona State Law Journal, sum. 2007. The paper can be downloaded (free and without subscription) from this site. Here is the abstract:
This article is based on the exciting discovery of a never before printed Law Commonplace, written by the 18th-century lawyer and patriot, Josiah Quincy, Junior. Quincy was co-counsel with Adams in the famous Boston Massacre Trial, a leader of Committee on Correspondence and the Sons of Liberty, and author of the first American law reports. His Law Commonplace provides an exceptional window into the political, racial and gender controversies of the evolving American legal system, and profoundly challenges our conventional views on the origin of American legal education. In certain areas, particularly jury trial, it also has present constitutional significance, as compelling evidence of the state of the law referenced by the Seventh Amendment.
Professor Coquillette discusses the advocacy of Quincy and Adams, and relates it to Cully Stimson's controversial comments, in this Boston Globe op-ed.
Posted by Jeff Lipshaw
Rick Garnett (Notre Dame, left) has a neat post over at PrawfsBlawg reacting to a Wall Street Journal op-ed piece about the purported failures of legal education in training students to be problem-solvers.
The part to which I am most sympathetic, given my eclectic background and orientation, is Rick's reaction to the suggestion that we'd turn out better lawyers if we stopped accepting English majors, and started accepting more mathematicians and economists. Rick has responded to this better than I could - and it would just start me another Dennis Miller-like rant anyway.
What I liked best was Rick's epigram about lawyering being moral philosophy at the retail level. That's absolutely the right way to look at it. Indeed, the irony is that the legal academy has a scientific/reductionism bent, which lends itself to thinking that issues are not only problems to be solved, but that all issues are merely problems. Some issues are in the nature of polarity or paradox, and inherent unsolvable, and only, at best, manageable. I speak from experience when I say that those are issues that can flummox mathematicians and engineers and economists in real life: "the function doesn't work! the model doesn't work? what do we do?" The application of wisdom - which may include law, or functions, or models, or may not - to real problems is, as Rick says, moral philosophy at the retail level.
Which is consistent with another characterization - this being my own - that law professors have this wonderful license to be social philosophers, or applied philosophers. I suppose we could say that is moral philosophy at the wholesale level, which means that we intervene between the retail stuff, and the moral philosophy at the manufacturing level, which must be all that epistemology and ontology stuff that you have to have a Ph.D. to practice.
Posted by Alan Childress
A follow-up to yesterday's LPB post about lawyer misconduct in argument and the courts' [increasing?] response to and policing of it: Here is a recent example from Nevada in which its highest court rebuked insurance defense attorney Phillip Emerson for arguments he had made before the jury in four cases, comments which seemed to be inappropriately personal or "vouching"--intentionally so, the court added. The decision was noted and helpfully linked today on How Appealing blog here.
Writes the Las Vegas Review-Journal in "Court Ruling Might Yield Caution Among Lawyers," the December opinion of the Nevada "Supreme Court concluded that Emerson's arguments amounted to misconduct because they 'encouraged the jurors to look beyond the law and the relevant facts in deciding the cases before them.' The court imposed monetary sanctions and referred Emerson to the State Bar of Nevada for disciplinary proceedings." The story quotes UNLV's Jeff Stempel (nationally known for his work on civ pro and ethics) that "he expects the decision to have the dual effect of empowering judges 'to run a little tighter ship' and of making lawyers more reluctant 'to edge toward making arguments based on evidence outside the record.' "
Posted by Alan Childress
We welcome new product information from any company or author related to the teaching of (or practice in) legal ethics or, more broadly, the legal profession and its responsibilities. West just sent a general email and link which announces the second edition of the casebook Ethical Lawyering by Paul Hayden of Loyola-L.A, right. It is available early March for adoption this summer or fall, with a teacher's manual to come. A list of features and comp-copy or contact information is below the fold.
The extent to which professional discipline is appropriate for private misconduct was addressed in a recent decision of the Maryland Court of Appeals. The attorney had submitted false documents to the Motor Vehicle Administration to avoid paying sales tax and having the car inspected. The attorney also had engaged in practice related lack of diligence in failing to record a deed transferring title to real property. The Court looked to the ABA Standards for Imposing Lawyer Sanctions as well as prior Maryland cases in determining that indefinite suspension was the appropriate discipline. (Mike Frisch)
I am prepping for what at Tulane is known as Contracts II, the required course in the second semester of the first year in which we teach Articles 2 (Sales) and 2A (Leasing) of the Uniform Commercial Code, and the United Nations Convention on Contracts in the International Sale of Goods. I decided to switch books, and am using Daniel Keating, Sales: A Systems Approach (on which the jury is still out). One of the points in the book's favor is its attempt to place sales law within a real-life business context, and it does so in part by relating interviews with real lawyers about their use of the various provisions of the law.
We will begin discussion of the UCC's version of the statute of frauds (Section 2-201) next week, just after I finish completing bamboozling them with the "battle of the forms" (interested pedagogues may write in for my handy-dandy 2-207 flow chart!). Here's what stopped me in my tracks. The first couple pages of the assignment discuss why it is that many businesses do not bother with written agreements, notwithstanding Section 2-201's general rule that any contract for the sale of goods of more than $500 ($5,000 in the revision), subject to certain exceptions, must be evidenced by a writing sufficient to indicate there is a contract, including a quantity term, and signed by the party against whom the contract is asserted. In many cases, the cost of putting it in writing exceeds the value obtained, or non-legal or relational remedies (like not doing business with somebody who reneges) suffice.
Of course, there are responsible opposing views. This is the one that gave me pause:
"Although our contracts to purchase clothes from wholesalers or manufacturers are probably formed on the phone, we insist that our purchasing people always follow with a signed written purchase order for at least two reasons: first, for purposes of our internal record-keeping, and second, because it makes me feel comfortable as a lawyer to think that we have something in writing."
Is it just me, or is there something odd here? Why would "comfort as a lawyer" be relevant? Is that because lawyers are naturally anal-retentive, slightly obsessive-compulsive nitpicking butt-coverers? Or it because "lawyer comfort" is shorthand for some actual value in the world? Do this lawyer's business people also feel more comfortable to think they have something in writing? Or are they doing their own internal cost-benefit analysis to try to understand what planet this person is coming from? And has the lawyer ever advised his people that, being on the purchasing side of the purchase order-invoice boilerplate battle, if there's a performed contract, there IS an exception to the statute of frauds, and all the remedies of the UCC, including consequential damages run in the purchaser's favor?
I would agree, as a purchaser, that sending a form saying nothing more in the boilerplate than "PURCHASER RESERVES ALL RIGHTS AND REMEDIES UNDER THE UNIFORM COMMERCIAL CODE, AND THIS PURCHASE ORDER IS EXPRESSLY CONDITIONED ON SELLER'S ACCEPTANCE OF THIS RESERVATION" would achieve precisely the stalemate than any competent UCC lawyer ought to achieve for a purchaser. But if the industry custom is not to use any paper at all, you don't need it. And you certainly don't need it for your own comfort.
Of course, that's just my opinion. I could be wrong.
Here are the top ten papers in the SSRN Legal Ethics & Professional Responsibility Journal (edited by the intrepid Brad Wendel), as measured by downloads in the last sixty days.
1. How an Instrumental View of Law Corrodes the Rule of Law, Brian Z. Tamanaha, St. John's University - School of Law
2 The Challenge to the Bench and Bar Presented by the 2005 Bankruptcy Act: Resistance Need Not Be Futile, Jean Braucher, University of Arizona, James E. Rogers College of Law
3 An RSVP to Professor Wexler's Warm TJ Invitation: Unable to Join You, Already (Somewhat Similarly) Engaged, Mae C. Quinn, University of Tennessee - College of Law
4 When the Lawyer Knows the Client is Guilty: David Mellinkoff's 'The Conscience of a Lawyer', Legal Ethics, Literature, and Popular Culture, Michael Asimow, Richard Weisberg, University of California, Los Angeles - School of Law, Cardozo Law School
5 Young Associates in Trouble, David T. Zaring, William D. Henderson, Washington & Lee University - School of Law, Indiana University School of Law - Indianapolis.
6 Open Access, Law, Knowledge, Copyrights, Dominance and Subordination, Ann Bartow, University of South Carolina - School of Law
7 The View from the Trenches: A Report on the Breakout Sessions at the 2005 National Conference on Appellate Justice, Arthur D. Hellman, University of Pittsburgh School of Law.
8 Lawyer Satisfaction in the Process of Structuring Legal Careers, Ronit Dinovitzer, Bryant G.Garth, Bryant G. Garth, University of Toronto, American Bar Foundation, Southwestern Law School
9 Genetically Modified Rules: The Awkward Rule-Exception-Right Distinction in EC-Biotech, Tomer Broude, Hebrew University of Jerusalem - International Law Forum
10 The Relationship Between Prosecutorial Misconduct and Wrongful Convictions: Shaping Remedies for a Broken System, Peter A. Joy, Washington University School of Law
January 30, 2007 in Weekly Top Ten: SSRN Legal Ethics & Professional Responsibility | Permalink | Comments (0) | TrackBack (0)
Monday, January 29, 2007
[This is excerpted from information sent by UGA in Athens. This conference is free to most registrants, and open to students/profs/practitioners. Note that the link so far provides only 2006 information (and says it is "closed," but it is not), so watch it fresh for updated registration and hotel info for 2007. Athens housing may be free for students attending on a road trip. Sounds like a great idea. --Alan Childress]
The University Of Georgia School Of Law cordially invites you to attend the Second Annual "Working in the Public Interest: Challenging Poverty through Law " conference on March 30-31, 2007.
The conference commences on Friday, March 30 with our keynote speaker, Stephen B. Bright, President of the Southern Center for Human Rights. On Saturday, March 31 we will have an entire day of panels and roundtable discussions with speakers drawn from all parts of the country.
This year we will be offering CLE credits for a small registration fee. We can also arrange free housing for student attendees who would like to stay with other students here in Athens.
Panel discussions include:
"What is Public Interest Law and Why Do We Care?" (Plenary)
"Universal Health Care: Political Priority or Pipe Dream?"
"Sheltering the Poor: Solving the Affordable Housing Crisis Through Government and Community Initiatives"
"The Immigrant Narrative: Day to Day Struggles of Legal and Illegal Immigrants in America Through the Lens of State Social Services and Health Care Access, Labor Laws, and the Scope of Legal Aid"
"Juvenile Delinquency Prevention and Responses: What Works?"
"Felon Disenfranchisement: How States are Mandating Change and Restoring Voting Rights"
"Are Labor Unions Obsolete?" (Workers' Rights Panel)
Roundtable topics include:
Public Defenders and District Attorneys
Governmental service and the public sector
Grassroots organizations and faith based charities
Pro bono work in the private sector
Financing a public interest career
Non-traditional law practice
Impact litigation and lobbying
....Registration will be available online in a few weeks, at our website: www.law.uga.edu/wipi.
Posted by Alan Childress
Paul Tremblay (Boston College--Law) has posted on SSRN--Law & Soc'y: Legal Prof. his review essay, "Critical Legal Ethics." It will be published in the Georgetown Journal of Legal Ethics, vol. 20. His abstract is:
In this essay, Professor Tremblay reviews the book Lawyers' Ethics and the Pursuit of Social Justice: A Critical Reader, edited by Susan D. Carle and with a foreword by Robert W. Gordon, published by New York University Press in 2005.
Legal ethics should be far more than a set of rules on professional responsibility; they can serve as a means for changing power relations, empowering the disenfranchised, and advocating progressive social change. Lawyers' Ethics and the Pursuit of Social Justice broadens the discussion on legal ethics by first introducing the historical and theoretical background and then connecting it to real world issues while addressing lawyers' ethical obligations to work for social justice.
Posted by Alan Childress
After posting this on Rob Rosen's book chapter on anger in the practice of law and its embodiment in A Few Good Men, and after Nancy Rapoport further noted Judge Judy's role in this legal culture phenomenon, I came across a blog post here on a new book by anthropologist Peter Wood called A Bee in the Mouth: Anger in America Now. Anger is everywhere, and its newer forms and excesses are, the author argues, not just a passing phase. It is now seen as "authentic" and "empowering." You just are not keeping it real if you don't openly and viscerally despise your opponent.
The book is reviewed in detail by ethicist Stanley Kurtz on this National Review on-line site, who (like Wood to some extent) further blames the "us" that otherwise won Time Magazine's Person of the Year: "New Anger is nowhere more at home than in the blogosphere, where so far from being held in check, look-at-me performance anger is the path to quick success," writes Kurtz. Many of the examples and quotes by Wood and reviewer Kurtz seem to fit equally well to the law profession world decried by observers like Rosen and Rapoport.
Fair question (and background links) here from How Appealing's prolific Howard Bashman and the paper he quotes:
"A parking problem": The St. Petersburg Times today contains an editorial that begins, "Has it gotten to the point where it needs to be said that a judge who decides disability claims should not park his car in a handicap space using a permit issued to someone else?"
Posted by Alan Childress
UMKC's Nancy Levit kindly passed along this link to the ABA Journal's on-line story about a lawyer [and law professor] who was sanctioned some $17,000 by the Utah Supreme Court for offensive and disrespectful arguments about a lower court in his briefs and oral argument. But the court also dismissed the appeal without considering the merits (apparently acknowledging that the court below had erred, though not intentionally as the lawyer had implied) and affirmed the ruling against his clients. The court was also irked, relates the opposing attorney, by the prof's oral argument style, stating that justices expressed then that “they weren’t accustomed to being lectured in the Socratic method on the proper role of a certiorari court."
The additional decision to dismiss the case without deciding the merits is, to me, a poor choice. Focusing the remedy on the attorney himself is more appropriate. [UPDATE: Carolyn Elefant argued this point too, and first, here, and a commenter disagrees.] It reminds me of the [worse] example of this approach in which a Virginia court of appeals dismissed an appeal as "a nullity" because the lawyer filing it, unknown to client and even lawyer, fell under a 30-day bar suspension exactly during the appeal period.
Of course the courts have the power to treat lawyers as agents of the client in this unrelenting way -- to punish the client for the agent's acts. But they ought to temper that power to the extent possible by exercising their duty to decide. If the Utah court is really saying the party would have won had its representative asked nicer, then the decision comes across to distant observers like me as more protective of its sensibilities than its core functions. I am all for a court policing the temper and civility of its advocates, and support the ethics and good advice of using decorum in the courtroom. But policing it ought not come at the expense of parties who properly invoked its jurisdiction to judge.
The Fifth Circuit, by contrast, recently reversed a sanction of dismissal just because the attorney slipped: “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." Note that Judge Jerry Smith says "no party should lose...." Sounds right to me. And he adds, the dismissal “must appear to the casual observer to be judicial petulance.” Exactly.
The Seventh Circuit has an agenda to sanction attorneys left and right for barely incomplete jurisdictional statements (prompting Howard Bashman to wonder whether they've "gone off the deep end"), and thus appears to be overly "Socratic" in its own way. But at least it sanctions the attorney and decides.
Are such rulings prime examples of what Nancy Rapoport calls the Judge Judy-fication of Legal Ethics? Here we have, more directly, judges emulating her impatience by swatting lawyers' noses with newspapers -- or in the case of the Socratic professor, making him drink judicial hemlock along with his clients. Just like Judy would.
Maybe her influence extends so broadly since she is more successful via the American yardstick: she makes more money than all of them combined.
The legal profession, the academy, human rights, the church, and legal ethics--among many other constituencies and families--lost a great one yesterday with the passing of Professor Robert F. Drinan, S.J., of Georgetown. Obviously there is more to be said in time to come, but for this morning here are links to the University's tribute to Father Drinan, as well as to the law school's own announcement, which in turn helpfully links initial newspaper stories and other outpourings of thoughts, and has a place for readers' remembrances.
Update: Nice post and comments also found at WSJ law blog here. [Alan Childress]
Sunday, January 28, 2007
An account of the North Carolina State Bar prosecution of two lawyers who had withheld evidence of the defendant's innocence in a death penalty trial is linked here. The author is an attorney who was involved as defense counsel at the retrial who later attended the bar hearing. He takes the state bar prosecutor to task for what he suggests was a feeble regulatory effort. The reprimand may be read here. (Mike Frisch)
Posted by Jeff Lipshaw
Professor Seana Shiffrin's just published Harvard Law Review article, The Divergence of Contract and Promise, has received a flurry of attention, including from Larry Solum over at Legal Theory Blog and Ethan Leib over at PrawfsBlawg. It's hard for me not to be interested, in view of the fact that I published an essay a year or so ago entitled Duty and Consequence: A Non-Conflating Theory of Promise and Contract (not in the Harvard Law Review, by the way).
There's an interesting matrix that frames the various positions on the philosophy of contract. On one axis, we have business versus personal contracts. On the other axis, we have the justification of the law of contract by morality versus justification by efficiency. In recent years, the seminal "personal-morality" article is Contracts and Collaboration by Daniel Markovits (113 Yale L.J. 1417), and the seminal "business-efficiency" article is Contract Theory and the Limits of Contract Law (113 Yale L.J. 541) by Alan Schwartz and Robert Scott. By and large, the two camps, it seems to me, are ships passing in the night. Markovits expressly disclaimed any application of his thesis to business entities, and Schwartz and Scott limit their models not only to business entities, but to sophisticated business entities. (In addition, I am positive I heard Alan Schwartz at the AALS say words to the effect that issues other than efficiency could not possibly enter into a contract between General Motors and General Electric.) This is the primary point Ethan Leib makes in his essay on the subject.
Occasionally you see thinkers struggle with the "business-morality" and the "personal-efficiency" quadrants, and that is what is interesting about Professor Shiffrin's piece. What she rightly observes is that both justifications - economic efficiency and moral imperative - seem to influence why we think the law ought to enforce promises, even if neither on its own is wholly satisfactory. Certainly I won't do justice to her thesis in a blog post, but hers is another attempt to unify more broadly the reconciliation between law and morality within the microcosm of the relationship of private promising to private law. And I am wholly sympathetic to her underlying concern, which is that, if we advocate a justification for systems of law leaving no room for moral agency, we will get exactly the kind of amoral (or immoral) law we deserve.
I know the following statement is going to come across harsher than I mean it (particularly given my sympathy for Professor Shiffrin's project), but the efforts to articulate an all-quadrant-encompassing theory of contract always seem to highlight two things: (a) jurisprudential justification that barely peeks out of its hermetically-sealed universe, and (b) the over-simplification of the very complex world out there that seems to be the special province of the law professor. The particular culprit is the concept of efficient breach, and the idea that the law of contract is, and should not be, more lax than the equivalent moral principles inherent in promising.
How Professor Shiffrin's insight impacts my developing thesis comes below the fold.
Posted by Alan Childress
Of course most blogs are nonprofits, and maybe many law profs too, but this blawg is about nonprofits. A virtual "welcome wagon" from LPB to the new Nonprofit Law Prof Blog. Its second post particularly resonates with me.
Naturally the real Welcome Wagon would have shown up offering a bottle opener advertising the local shoe store before Wal-Mart hobbled it, plus a fly swatter proclaiming the Best Local Diner lacking self-awareness of the irony. We can't do that, but we wish the nonprofit profs good luck. They are David Brennen (Georgia [right]) and Darryll Jones (Pitt, visiting Stetson [left]). It too is part of the Law Professor Blogs Network, a/k/a The Empire.