Legal Profession Blog

A Matter Worthy Of Further Investigation

The District of Columbia Rules of Professional Conduct prohibit discrimination in employment with the following language:

Rule 9.1—Nondiscrimination

      A lawyer shall not discriminate against any individual in conditions of employment because of the individual’s race, color, religion, national origin, sex, age, marital status, sexual orientation, family responsibility, or physical handicap.

The prohibition, so far as I am aware, has never resulted in public discipline against a member of the D.C. Bar. The rule came to mind as I reflect on the report of D.O.J. Inspector General Glenn A. Fine finding employment discrimination in the Department of Justice honors and intern programs. By its language, discrimination based on inferred political  leanings or affiliations would not appear to violate the letter of the rule. However, to the extent such discrimination constitutes criminal or otherwise improper conduct (such as violation of Department regulations), it might well violate D.C. Rule 8.4(b) (criminal conduct that reflects adversely on honesty, trustworthiness or fitness to practice in other respects) or (d)(conduct that seriously interferes with the administration of justice).

A web search (apparently a favorite tool for detecting political persuasion not apparent from a resume) for information about the two attorneys who were found to have discriminated reveals that both have left the Department of Justice and one is a practicing member of the D.C. Bar. I would expect the District of Columbia Bar Counsel to open a confidential investigation of this attorney in light of the Inspector General's findings. The Bar Counsel has the authority (and, in my view, the obligation) to proceed even without a formal complaint under the following Board on Professional Responsibility Rule:

An investigation may be initiated on the basis of a complaint or on the basis of any alleged ground for discipline coming to the attention of Bar Counsel or the Board from any source whatsoever.

Whether or not such an investigation goes anywhere remains to be seen. I have always favored open access to matters that result in dismissal so that the public could understand the basis of a Bar Counsel  decision not to institute charges. I doubt the present rule (D.C. App. R. XI, section 17) that accords confidentiality to dismissal letters will change in the foreseeable future. (Mike Frisch)

Real life imitates episode of Shark (well, sort of)

According to today's New York Times (here), one of Morgenthau's prosecutors says that he intentionally threw a case because he was convinced that the defendant wasn't guilty. In the recently canceled CBS series Shark, James Woods's character Sebastian Stark throws a case because he's convinced that his client IS guilty (see here). Guess what, folks? Throwing a case is unethical, even if you're convinced it's the morally correct thing to do. (Nancy Rapoport)

Tx Ct Crim App denies appeal of death row inmate who alleges that judge & prosecutor slept together during case

OK, here's a first for me.  Charles Hood is set to be executed tonight because the Texas Court of Criminal Appeals has denied his appeal, which alleged that the judge and prosecutor on his case were sleeping together at the time that he was being tried.  The appeal was denied on procedural grounds.  More...

According to an email that I received, Hood's allegations were bolstered by an affidavit by

a former assistant district attorney in the Collin County District Attorney's Office . . . testifying that "[i]t was common knowledge" that Judge Holland and District Attorney O'Connell "had a romantic relationship" for several years, including at the time of Mr. Hood's trial and death sentence.

Isn't this type of situation a clear ground for recusal at trial? I'm stunned.  If you want to read my take on this, go here (the post includes a phone number for calling the person inTexas Gov. Perry's staff in charge of the Hood case).  [Nancy Rapoport]

Rule 3.3 Requires Candor to the Tribunal. But...

Posted by Alan Childress

An actual motion filed last year in federal court within the Sixth Circuit, shown in full here at Legal Antics (and hat tip to The (New) Legal Writer blog, inspiring this title), states:

Comes now the Appellant, by counsel, and moves the Court to reschedule the Oral Argument currently scheduled for August 1, 2007. The grounds for this motion are that undersigned counsel will be out of town in Oregon, on a 350-mile bicycle trip from July 30 through August 4, 2007, for no other reason than to please his wife. Counsel assures this panel that Oral Argument would be more enjoyable than the aforementioned bike trip.

Elsewhere, Ray Ward's writing blog also comments on the word usage and obscure vocabulary of Judge Bruce Selya of the First Circuit, and on the potential lawsuit Coyote v. Acme.

Local lawyer in Vegas does the right thing

There's a lovely article in the local Las Vegas paper about a lawyer who, after discovering that his boss had stolen $200K from her client trust accounts, repaid each and every client for the theft. (See here.) For my take on it, see here. (Nancy Rapoport)

Griffith Univ. and Univ. of Queensland (Aus.) To Hold International Ethics Conference Mid-July 2008

"The Third International Legal Ethics Conference will be held on Australia's beautiful Gold Coast on 13-16 July 2008. ... The primary aim of the conference is to provide a forum for informed and lively debate within the various conference themes."  Detailed Information, speakers, and a call for papers are linked here.  Our prior link here to the colorful and printable conference schedule.

Notably for LPB readers:

The conference will be designed to cater for both scholars and legal practitioners, with a designated "practitioners’ day" which will include papers, presentations and discussions of particular relevance to practising lawyers.

The conference themes embrace international perspectives, and will provide delegates from Australia and abroad with opportunities to hear and share ideas and arguments that have implications for "lawyering" across jurisdictions.

[Alan Childress]

Maybe a Little Meta-ethics Wouldn't be Such a Bad Thing. . .

Posted by Jeff Lipshaw

That was nice of Alan, and I too recommend Brad Wendel's post on the subject it most precisely dissects - when does a piece of legal advice stray so far from a description of what the law could be so as to reflect on the advice giver's competence as a lawyer, apart from her political views?

American patience with "meta" anything went out the window when, in his half-drunken stupor, Humphrey Bogart mocked Ingrid Bergman's explanation why she stood him up at the train in Paris, beginning with the slurred words "I meta man once..." But Brad's assessment is exactly the kind of thinking about thinking that, in its process rather than its conclusion, as far as I can tell, is the only common denominator among all those reasonably ethical people who aren't at the far ends of the bell curve.

I've been writing about this for a long time. In many ways, it's the hardest question out there because it hasn't been resolved in the several thousand years people have been thinking about the source of ethics. Every resolution depends ultimately, whether the thinker believes it or not, on a kind of faith, whether at one extreme, that the idea of the right comes from some transcendental source, or at the other, a la Joshua Greene, that it is only a matter of time until we discover that every moral choice is really just a naturalistic pre-determined operation of our biological wiring.

Maybe I'm just a glass-half-full kinda guy, but a good dose of reflective equilibrium about the source of the good and the right, taken with a couple vitamin C pills and some chicken soup, in the midst of moral decision-making that goes on for more than a couple seconds, couldn't hurt. Even if it doesn't change the outcome, it provides time for either the patient or the doctor to supply a courage enema.

Maybe a Little Meta-ethics Wouldn't be Such a Bad Thing. . .

Posted by Jeff Lipshaw

That was nice of Alan, and I too recommend Brad Wendel's post on the subject it most precisely dissects - when does a piece of legal advice stray so far from a description of what the law could be so as to reflect on the advice giver's competence as a lawyer, apart from her political views?

American patience with "meta" anything went out the window when, in his half-drunken stupor, Humphrey Bogart mocked Ingrid Bergman's explanation why she stood him up at the train in Paris, beginning with the slurred words "I meta man once..." But Brad's assessment is exactly the kind of thinking about thinking that, in its process rather than its conclusion, as far as I can tell, is the only common denominator among all those reasonably ethical people who aren't at the far ends of the bell curve.

I've been writing about this for a long time. In many ways, it's the hardest question out there because it hasn't been resolved in the several thousand years people have been thinking about the source of ethics. Every resolution depends ultimately, whether the thinker believes it or not, on a kind of faith, whether at one extreme, that the idea of the right comes from some transcendental source, or at the other, a la Joshua Greene, that it is only a matter of time until we discover that every moral choice is really just a naturalistic pre-determined operation of our biological wiring.

Maybe I'm just a glass-half-full kinda guy, but a good dose of reflective equilibrium about the source of the good and the right, taken with a couple vitamin C pills and some chicken soup, in the midst of moral decision-making that goes on for more than a couple seconds, couldn't hurt. Even if it doesn't change the outcome, it provides time for either the patient or the doctor to supply a courage enema.

Maybe a Little Meta-ethics Wouldn't be Such a Bad Thing. . .

Posted by Jeff Lipshaw

That was nice of Alan, and I too recommend Brad Wendel's post on the subject it most precisely dissects - when does a piece of legal advice stray so far from a description of what the law could be so as to reflect on the advice giver's competence as a lawyer, apart from her political views?

American patience with "meta" anything went out the window when, in his half-drunken stupor, Humphrey Bogart mocked Ingrid Bergman's explanation why she stood him up at the train in Paris, beginning with the slurred words "I meta man once..." But Brad's assessment is exactly the kind of thinking about thinking that, in its process rather than its conclusion, as far as I can tell, is the only common denominator among all those reasonably ethical people who aren't at the far ends of the bell curve.

I've been writing about this for a long time. In many ways, it's the hardest question out there because it hasn't been resolved in the several thousand years people have been thinking about the source of ethics. Every resolution depends ultimately, whether the thinker believes it or not, on a kind of faith, whether at one extreme, that the idea of the right comes from some transcendental source, or at the other, a la Joshua Greene, that it is only a matter of time until we discover that every moral choice is really just a naturalistic pre-determined operation of our biological wiring.

Maybe I'm just a glass-half-full kinda guy, but a good dose of reflective equilibrium about the source of the good and the right, taken with a couple vitamin C pills and some chicken soup, in the midst of moral decision-making that goes on for more than a couple seconds, couldn't hurt. Even if it doesn't change the outcome, it provides time for either the patient or the doctor to supply a courage enema.

Maybe a Little Meta-ethics Wouldn't be Such a Bad Thing. . .

Posted by Jeff Lipshaw

That was nice of Alan, and I too recommend Brad Wendel's post on the subject it most precisely dissects - when does a piece of legal advice stray so far from a description of what the law could be so as to reflect on the advice giver's competence as a lawyer, apart from her political views?

American patience with "meta" anything went out the window when, in his half-drunken stupor, Humphrey Bogart mocked Ingrid Bergman's explanation why she stood him up at the train in Paris, beginning with the slurred words "I meta man once..." But Brad's assessment is exactly the kind of thinking about thinking that, in its process rather than its conclusion, as far as I can tell, is the only common denominator among all those reasonably ethical people who aren't at the far ends of the bell curve.

I've been writing about this for a long time. In many ways, it's the hardest question out there because it hasn't been resolved in the several thousand years people have been thinking about the source of ethics. Every resolution depends ultimately, whether the thinker believes it or not, on a kind of faith, whether at one extreme, that the idea of the right comes from some transcendental source, or at the other, a la Joshua Greene, that it is only a matter of time until we discover that every moral choice is really just a naturalistic pre-determined operation of our biological wiring.

Maybe I'm just a glass-half-full kinda guy, but a good dose of reflective equilibrium about the source of the good and the right, taken with a couple vitamin C pills and some chicken soup, in the midst of moral decision-making that goes on for more than a couple seconds, couldn't hurt. Even if it doesn't change the outcome, it provides time for either the patient or the doctor to supply a courage enema.

Maybe a Little Meta-ethics Wouldn't be Such a Bad Thing. . .

Posted by Jeff Lipshaw

That was nice of Alan, and I too recommend Brad Wendel's post on the subject it most precisely dissects - when does a piece of legal advice stray so far from a description of what the law could be so as to reflect on the advice giver's competence as a lawyer, apart from her political views?

American patience with "meta" anything went out the window when, in his half-drunken stupor, Humphrey Bogart mocked Ingrid Bergman's explanation why she stood him up at the train in Paris, beginning with the slurred words "I meta man once..." But Brad's assessment is exactly the kind of thinking about thinking that, in its process rather than its conclusion, as far as I can tell, is the only common denominator among all those reasonably ethical people who aren't at the far ends of the bell curve.

I've been writing about this for a long time. In many ways, it's the hardest question out there because it hasn't been resolved in the several thousand years people have been thinking about the source of ethics. Every resolution depends ultimately, whether the thinker believes it or not, on a kind of faith, whether at one extreme, that the idea of the right comes from some transcendental source, or at the other, a la Joshua Greene, that it is only a matter of time until we discover that every moral choice is really just a naturalistic pre-determined operation of our biological wiring.

Maybe I'm just a glass-half-full kinda guy, but a good dose of reflective equilibrium about the source of the good and the right, taken with a couple vitamin C pills and some chicken soup, in the midst of moral decision-making that goes on for more than a couple seconds, couldn't hurt. Even if it doesn't change the outcome, it provides time for either the patient or the doctor to supply a courage enema.

Fairness, Efficiency, and the Reliance Interest in Law Review Article Placement

Posted by Jeff Lipshaw

As I continue to get rejections from law review articles editors based on the expedite request I sent out with a deadline date two weeks ago, and having since accepted a publication offer, I have been going through a little thought experiment (read: fantasy) about how to deal with a tardy offer coming from, say, a "top fifteen" law review.

Would you abide by your commitment to the first one?

I can imagine this conversation:

Professor:  "Hello, EAE from East of the Rockies Land Grant University Law Review."

EAE:  "Hello."

Professor:  "A funny thing happened on the way to class today."

EAE:  "Yes?"

Professor:  "You know that piece of mine you accepted three weeks ago?"

EAE: "Yes?"

Professor:  "I just got an offer from the Founded in the Eighteenth Century East Coast University Law Review."

EAE:  "And?"

Now here we have a divergence:

(A): Professor Shavell and Kaplow Disciple:  "The utility I will gain from disavowing my acceptance far exceeds the cost to you.  This is an efficient breach.  See ya."

(B)  Professor Fried Discipline:  "I am morally bound to my promise to you.  I just wanted to let you know while I weep quietly."

(C) Professors Fuller and Perdue Disciple:  "Have you started cite-checking yet?"

(D) Professor Lipshaw:  "I am legally and morally bound to you.  Would you, however, release me from the obligation?  What can I offer you for the release?"

Tune in later for my views on another (from my perspective) fantasy:  the curse of the "top five" law review "short decision window" strategy.  To paraphrase Tevye:  "May the Lord smite me with it, and may I never recover."

What do needles and vials in Vegas have in common with Jeff Skilling's appeal?

(Posted by Nancy Rapoport) There's a local scandal a'brewin' in Las Vegas, where several medical centers stand accused of having reused needles and single-use vials in an effort to cut costs--see, e.g., here. Unfortunately, the reuse of needles and vials carries with it the risk of such diseases as hepatitis C and HIV. Here in Las Vegas, several of us have been asking ourselves how health professionals could possibly have gone along with orders to reuse needles and vials, knowing the potential health risks involved. Now Jeff Skilling's lawyers are alleging that the Enron prosecutors deliberately withheld potentially exculpatory evidence during his trial (see, e.g., here, here, here, and here). If these allegations are true, why would the prosecutors do something so obviously dumb and ultimately counterproductive? Personally, I think it's because our parents were right: we tend to play follow-the-leader, especially when we're under pressure. Group norms are a lot more powerful than we tend to pretend that they are, and rules (ethics rules, caselaw, even the fear of sanctions) are not as powerful as deterrents as peer pressure is as a motivator for action. Peer pressure acts in the now, and deterrents are for a later time and place. If the suppression of exculpatory evidence was on as large a scale as Skilling's brief contends, then it wasn't a one-shot action by a rogue prosecutor; instead, it was a team effort to cheat the justice system. As long as we're talking about group behavior, let's throw a little cognitive dissonance into the mix as well: perhaps the prosecutors, having worked so hard on these prosecutions, really wanted to ensure the win, so they talked themselves into withholding exculpatory evidence "for the greater good" of getting a conviction. All of this is conjecture on my part. We don't know enough yet to know what really happened, although things look pretty bad for the prosecutors. My point is that people are good at fooling themselves into doing things that they know are wrong, and groups of people are very good at egging each other on to turn these individual bad decisions into new, and very bad, group norms. From those incrementally bad decisions, we get convictions that may get overturned and people walking into health care facilities hoping to get screened for illnesses and walking out with serious and incurable diseases. All for what? For the sake of saving short-term costs without thinking of the larger, long-term ones. Hey, wait: wasn't that the problem with Enron in the first place?

Ethical Duties of Prosecutors in White Collar Cases: The Enron/Skilling Example of the Value of Full Disclosure (or, Here's the Story of a Rule Named Brady)

Posted by Alan Childress

On White Collar Crime Prof Blog, Ellen Podgor has recently posted on the social value (here) and on the ethics rule requirement (here) of full discovery disclosure by prosecutors -- the Brady rule as legal ethics and as applied to white collar prosecutions beyond typical drug cases.  The issue arises from allegations in Jeff Skilling's brief that the government did not turn over all of the Fastow notes (initial FBI interviews of Andy Fastow which painted a much more innocent picture than his trial testimony).  See also the WSJ article here, unfortunately just a preview.  And the Letter of Apology Blog finds the non-disclosure to be "striking" and "troubling," here, with further links to blogging on the issue.

Update :  The Skilling Supplemental Brief is also linked in this commentary by Houston blogger-lawyer Tom Kirkendall.

Is "I Will Sue You Into Bankruptcy" a Permissible Coda to a "Govern Yourself Accordingly" Letter?

Posted by Jeff Lipshaw

The Wall Street Journal Law Blog reports that the lawyer for Denver Nuggets Coach George Karl sent a "govern yourself accordingly" letter to a fan running the firegeorgekarl.com blog.

While the Law Blog focuses on the merits of the question whether anything on the blog is actionable, notwithstanding New York Times v. Sullivan, I have a different question.

The letter concluded:  "As Coach Karl’s counsel I am putting you on notice that I will sue you into bankruptcy should you cross the boundaries of permissible speech."  I assume that the lawyer does not know how much it would take to sue this blogger into bankruptcy (maybe the reason he has so much time to blog is that he's independently wealthy).  Having never used this phrase, nor been the recipient of a letter using this phrase, I'm not sure off the top of my head whether anything in the Model Rules prohibits this particular hyperbole.

Comments?

"Ethical Codes and the Commercial Mediator"

Posted by Alan Childress

The relatively new ADR Prof Blog, now a member of the LPB Network, has a post by the above title which points to a powerpoint presentation recently made at an AALS Section meeting on the subject.  The presentation was by Ellen Waldman of Thomas Jefferson and by Dwight Golann, a colleague of Jeff's at Suffolk.  Welcome to the Blogosphere, then, to ADR Prof Blog.

When the Real Cost of Litigation is Part of the Marketing Budget. . . .

Posted by Jeff Lipshaw

The WSJ Law Blog has a story up on the remarkable decision by Judge Richard Matsch (previously best known for his no-nonsense - cf. Judge Ito - conduct of the Timothy McVeigh trial) to overturn a $51 million IP verdict in favor of Medtronic with an attendant award of attorneys' fees to other side, upheld on appeal by the 10th Circuit, as a result of "overzealous" conduct by Medtronic's lawyers, McDermott, Will & Emery.

A faculty colleague who I respect and admire immensely asked me several weeks ago if, in my long practice experience, there were really were serious cases that companies pursued for reasons that did not involve the merits of the lawsuit itself.  After chuckling for a minute, I said "absolutely, and the best example is patent litigation."  It's because the fact of the litigation casts a cloud on the allegedly infringing product.  And while the IP lawyers tell me that it is abuse of patent to let the sales people tell customers that the other product infringes, (a) you can't monitor that in any effective way, (b) the pleading have a qualified privilege, and (c) the fact of the litigation and the possibility of an injunction is often enough to sway a customer away from the alleged infringer.

Indeed, dollar for dollar, it may be one of those instances in which legal fees really do bring some bang for the buck in terms of the top line. 

So it's nice to see that a well-respected judge has used the only effective tool there is to regulate this - a finding under Rule 11.

I'd also agree with a number of the comments to the WSJ Law Blog that patent litigation seems to be particularly fraught with over-the-top zealousness.  I used to swear that in some of our patent cases the lawyers for both sides had a "nasty discovery dispute letter" quota that they had to fill by way of useless but colorful letters sent by e-mail, overnight courier, and regular mail accusing the other side, variously, of document withholding, destruction, delay, sodomy, bad breath, and unsightly wax build-up.

Confessions of a Super Lawyer

Posted by Jeff Lipshaw

Over at Legal Ethics Forum, David Hricik has a link to an update on one of the great social issue legal proceedings of our time, right up there with Arlen Specter's investigation into taping of pro football practices: the New Jersey proceeding on whether advertising that you are a "Super Lawyer" is a deceptive and misleading practice.

I admit I'm biased, because for a short time in my life, I was voted by my peers, whoever the hell they were, as one of Indiana's Super Lawyers, and I have the certificate to prove it (see left).  It didn't do me a whole lot of good, because I was the general counsel of a company, and wasn't looking for clients.  In fact, the other way around.  I think I got nominated because lawyers around Indianapolis were looking for business.  Now there's a question worth investigating.  Is it a violation of the ethical strictures to solicit business from a company by nominating its general counsel as a Super Lawyer?  Does it make a difference if you don't really believe the general counsel is a Super Lawyer?

Here are some other more troubling questions.  For some reason, I stopped being a Super Lawyer after 2004.  This may have something to do with the fact that I didn't have any business to award after 2004.  If I were to advertise myself as a Super Lawyer, would I have to say that I used to be a Super Lawyer, but I'm not one anymore?  Or would that be self-evident from the fact that I'm now a law professor?  The article to which Professor Hricik links says: "The Federal Trade Commission weighed in last year with an amicus brief saying the ads weren't deceptive and that the prohibition restricts the flow of information to consumers. The FTC said the court could solve the problem simply by requiring disclaimers." I assume, in my case, the maxim "those who can, do; those who can't, teach" would obviate even the need for a disclaimer.

Well, At Least the Clinton Camp Didn't Call Obama a "Shameless Extrovert" and an "Acknowledged Thespian"

Posted by Jeff Lipshaw

Reading the accounts this weekend of the Clinton camp's allegations that Obama is a "plagiarist" called to mind some of the nastier accusations (whether real or hoaxed) in past political campaigns.  I learned this morning that George Smathers in fact did not accuse Claude Pepper of being a "shameless extrovert," a "thespian" and a lifelong celibate to backwoods Floridians in that infamous Democratic senatorial primary  (it was a hoax made up by a reporter).  But there's little question Richard Nixon smeared Helen Gahagan Douglas (left, as a star in 1920's Hollywood) as a Communist "fellow traveler" in his first run for Congress in 1948.

I won't get into legalisms whether two friends, sharing a common speech writer, using the same relatively innocuous speech lines about "words" can be accused of "plagiarism," which at its core is the false claim or implication of original authorship.  Joe Biden had a real plagiarism issue in his past, which surfaced in connection with his lifting speech lines from Neil Kinnock, but recall that Michael Dukakis ended up firing campaign staff over their involvement in the "leak."

No, the question to Senator Clinton is "why?"  Here's a theory.  In Law as Rationalization, 37 U. Tol. L. Rev. 959, 969 (2006), I argued that it does not take much self-deception about one's ends to move from ethical debate to legal argument to rationalization, and cited the Bernard Nussbaum's advice to the Office of the First Lady as a prime example.  If one's end is winning, it doesn't take much rationalization to get to a decision that one's campaign is in enough trouble to resort to "Pink Lady" arguments.

I think Hillary Clinton is eminently qualified to be the next President.  This stuff starts from the top, and it's what bothers me about her.

New Works on Ethics - "Deal with It!"

Posted by Jeff Lipshaw

The rage now in ethics, if you judge by the number of times it has shown up in the popular press, is experimental philosophy, and particularly what is rapidly coming to be known as "trolleyology."  The basic hypothetical tests the limits of utilitarian thinking by positing, on one hand, the circumstance where you save five people, but allow one to be killed, by throwing the switch to redirect the runaway trolley, and on the other, where you are able to throw one very fat person in front of the trolley in order to save five.  The experiments seem to show that people would sacrifice the one person to save five in the first case, but not in the second, there seemingly being something morally different (and less benign) about the action taken in the second.

First, I want to give credit where credit is due.  Even though Marc Hauser published a book on the subject called Moral Minds, and even though the New York Times ran a Sunday magazine article a couple weeks ago by Stephen Pinker on "The Moral Instinct," the person in legal academia who was out ahead of the curve on this issue is John Mikhail at Georgetown.  But when you pick up your New York Times Book Review section sometime between now and tomorrow morning, you'll see a favorable review of another treatment on the same issue by the well-known philosopher Kwame Anthony Appiah, Experiments in Ethics.  I haven't read the book yet - only the review - but my intuition accords with what appears to be Professor Appiah's take on all the experimental work:  the experiments are ultimately going to fail to capture the complexity of moral decision-making in our lives.

Second, in my usual unambitious way, I have fixated recently on the concept of justice, at least in the mundane kinds of non-life-and-liberty-threatening contexts I've spent most of my professional life dealing with.  There's a line from the book review that appeals to me.  Appiah says, "In life, the challenge is not so much to figure out how best to play the game; the challenge is to figure out what game you're playing."  The reviewer, Paul Bloom, a Yale psychology professor, says in response, "This is bad news for those who hope for a simple and elegant account of moral life, which includes many of us engaged in experimental philosophy."  I continue to be intrigued by the way moral philosophy spins endlessly around unresolvable paradox, full account of which takes us either to a priori truths that precede experience (and hence testable scientific theory), or scientific conclusions about instinct that themselves seem so close to the a priori that the conclusions are barely testable.  (My friend, Frank Pasquale, has dipped into this from time to time as well!)

Where does this all take us?  I wish I knew.  Notwithstanding the efforts of Plato, Aristotle, Hume, Rawls, Del Vecchio, and a host of others, all of whom are stacked up on my desk right now, nobody (not surprisingly) has nailed the issue.  My own inclination, apparently like Appiah, is that there is something permanently unresolvable and non-algorithmic about any judgment, much less moral judgment, and the correct answer to the theorists seeking either a non-testable truth or a reductivist solution goes like this:  "deal with it!"  And, much to my great pleasure, on the subject of "deal with it," my very occasional but very important (whether she knows about it or not) intellectual mentor, Susan Neiman (pictured above), has a new book coming out in May, a follow-up to Evil in Modern Thought, entitled Moral Clarity: A Guide for Grownup Idealists.  Here's a taste from the preface:

Looking back at traditional uses of moral concepts is not a search for foundations. I believe most of the interesting things philosophy can say about that search were already said by Immanuel Kant, who argued that the validity of our concepts cannot possibly be proved from outside experience, since they shape the possibility of experience itself. Not even this much can be said of moral concepts, since Kant held they were not about truth at all: truth tells us how the world is; morality tells us how it ought to be. Those who were dissatisfied with his answer spawned a small but tenacious industry devoted to proving our concepts are legitimate, the dominant business of twentieth-century philosophy. It may be possible to continue examining the problems with foundationalism or the nature of relativism forever. But for anyone more likely to be moved by Dylan than Descartes, the hour is getting late.

In short, as to the concurrent unprovability yet apparent decidability of moral issues, "deal with it."

UPDATE:  Susan Neiman also has an op-ed in today's Sunday NYT on the nature of the Holocaust memorials in Germany.

ABA Journal's Top 10 Legal Ethics "Traps"

Here is a link to a useful ABA Journal story (they are reprising at year end) that's rounding up the top ten traps that practitioners can fall into, in terms of legal ethics.  Its story also provides a link to a downloadable CLE program on the topic.  [Alan Childress]

Caught Between the Infinite Regress of Rational Choice and Psychological Determinism

Posted by Jeff Lipshaw (cross-posted at Concurring Opinions)

I neglected to mention, in my original commentary on the Cerberus opinion over at Concurring Opinions, that I am indebted to Frank Pasquale (the real one!) for directing me to Paradoxes and Inconsistencies in the Law, edited by Oren Perez and Gunther Teubner.  I'm now doubly indebted to Frank because he pointed out another blog post that makes for an interesting counterpoint about practical reason - how we decide (particularly as lawyers) what to do.

In his introductory essay to Paradoxes, Oren Perez (Bar-Ilan) makes a point about rational calculation, in the context of the Learned Hand formula for negligence, that had never occurred to me, and which seems to make sense.  (I invite anyone to explain why it is wrong!)  This has broad application because it gets at the heart of the core relationship between the ex post outcome of cases (like Cerberus' "lessons" on eliminating ambiguities in drafting) and the ex ante calculation in respect of that outcome that lawyers (those most rational of actors) are supposed to make.

Perez's argument goes like this.  The potential tortfeasor, informed by the case holdings, knows that she will be liable for the injury she causes if the cost of precaution is less than the probability of an accident times the magnitude of the accident.  For the model to work, it has to assume that potential tortfeasors and judges are perfect welfare maximizers with perfect information.  But information and deliberation are not costless.  So maximizing actors need to make a decision about whether to invest costs in obtaining the necessary information and spending the time deliberating about the choice.  That decision is itself not costless; one needs to gather information about whether gathering information and deliberating is a fruitful way to spend one's maximizing time.  And so on to the infinite regress. This appeals to my intuition in the same way as, and seems to be related to, at least analogically, the idea that rules cannot determine their own correct application.  (If there were a rule for the application of a rule, then what would the rule be for the application of the rule for the application of a rule, and so on to the infinite regress.) 

Perez's conclusion is that this is why we have rules of thumb for deciding what to do - they sit somewhere between unsatisfying calculation and pure intuition.

But wait.  Maybe we don't calculate or intuit.  Maybe we just frame, conform, and comply.  That's a thesis proposed by Sung Hui Kim (Southwestern) over at The Situationist, a law and psychology blog affiliated with the Project on Law and Mind Sciences at Harvard Law School. In Part II of a series speculating on why lawyers acquiesce in the frauds of their clients, Professor Kim says:

Inside counsel, as employees of the firm, are inclined to take orders and accept the “definition of the situation” (a phrase coined by Milgram) from their superiors.  These superiors happen to be a cohort of non-lawyer senior managers vested with the authority to speak on behalf of the organization and entrusted to give direction to inside counsel.  They create the reality for inside counsel: they define objectives, identify specific responsibilities for inside lawyers and, ultimately, determine whether an inside lawyer’s performance is acceptable. And accepting management’s “definition of the situation” means accepting management’s framing of the inside lawyer’s role and responsibilities.

This framing provides that compliance responsibilities be segmented.  Although inside counsel’s duties include a prominent role in corporate compliance, it is business management that jealously guards the right to decide whether to comply with the law, which is seen as the ultimate risk management decision.  For inside counsel to challenge management’s decisions or management’s authority to make decisions would then amount to clear insubordination. Obedience in the corporate context will be substantial, so we should not be surprised by the banal tendency to listen to superiors.

Full disclosure.  I spent eleven years of my career as an in-house lawyer, so it's entirely possible that I resemble that remark.  (Professor Kim can also call on real-world experience as outside and inside lawyer, and in fairness, her very thoughtful and interesting Fordham Law Review article on the subject, which I recommend heartily, is more nuanced than the blog post.)  But I'd be a lot more comfortable accepting this sweeping conclusion were it made on broad empirical evidence of actual in-house lawyer conduct rather than on what appears to be a combination of inference from the Milgram conformity lab tests and well-known examples of lawyers behaving badly.  I knew a lot of in-house lawyers, and while I can't say how they would have performed in the electric shock tests, and can't deny the impact of framing on decision-making, I sure saw a lot of thoughtful and courageous pushback to management on lots of legal and moral issues.  Indeed, my casual observations were that individual moral choice and leadership in context, while certainly more elusive in its measurement, showed up more than just from time to time.  I can't determine whether that was the exception or the rule.  Indeed, I applaud the coda to Professor Kim's bio: "I tell my students that there are two questions that every lawyer should ask when counseling a client about a proposed course of action. The first is: 'Is it legal?' The second is: 'Is it right?'" But how do you make that call? 

I struggle with the line between psychological "truths" and moral free agency.  I am willing to accept the conclusion that we are hardwired to seek and justify physical and material well-being, and hence, a natural inclination for people, not just lawyers, is to comply and avoid conflict.  I don't like, however, blanket statements about in-house lawyers doing this and that, and having this and that tendency.  If I may engage in another exercise of shameless self-promotion, the point of my piece, Law as Rationalization:  Getting Beyond Reason to Business Ethics, was to explore the difference between lawyers using reason to justify a desired material world outcome, and lawyers using reason as autonomous moral agents trying to discern ethical obligation.

The implication is that I don't think you can change things by incentives (more cheese for the rats).  My answer is there has to be personal engagement in a continuing struggle to ask questions with the hope of getting answers along the way.  To borrow from Robert Louis Stephenson, sometimes it is better to travel hopefully than to arrive.

My Embracery You

From the ABA Journal online is this story of a civil rights attorney in Virginia charged with the very old (Magna Carta era) crime of "embracery."  She is alleged to have tampered with grand jurors.  My punny title above is an homage to the titular style of Mike, who obviously has done the heavy lifting on this blog since summer.  Thanks, Mike.

Here is the original story from dailyprogress.com.  [Alan Childress]

Forum On Prosecutor Ethics

The Brookings Institution will hold a forum on prosecutorial misconduct on October 10. Here's a link to a description of the program from the web page of the District of Columbia Bar. (Mike Frisch)

Taking Advantage Of Inadvertant Disclosure Of Opposing Counsel's Notes

Howard Bashman's How Appealing blog has a link to an article that reports on an interesting appellate argument in a California case where the plaintiff's attorney received the notes of a defense lawyer (exactly how is in dispute but the trial court found no misconduct) and used the notes at trial without providing advance notice to the defense. Each side relies on prior California cases in support of its position. The ethics question is whether the duty to advocate on behalf of a client is either trumped or modified by a duty of fair dealing with opposing counsel. The decision in the case will likely provide a teaching tool for ethics professors. (Mike Frisch)

More On Metadata Mining

The D. C. Bar's ethics committee has issued an opinion on mining metadata from documents provided by an opposing party. It is improper to mine only when the attorney has actual knowledge that so doing will reveal confidential or protected information. Where uncertain, counsel should check with the provider of the document before subjecting the document to mining.

Note that D.C.'s version of Rule 4.4 varies from the ABA Model Rule, which impacts significantly on the analysis of this issue. (Mike Frisch)

No Legal Recourse For Honor Violation

A student at the University of Nebraska College of Law was dismissed after an honors committee determined that he had engaged in four instances of plagiarism. The papers at issue contained virtually no original work of the student and the committee found ample evidence that the student should have known that the papers were plagiarized.

The student filed suit under the Nebraska Administrative Procedure Act alleging discriminatory treatment. The Nebraska Supreme Court affirmed the dismissal of the suit, concluding that neither the honors committee or the law school dean was an agency, which is a necessary predicate to a suit under the APA.
(Mike Frisch)

Ethics of Alternatives to Billable Hours

Posted by Alan Childress

Lots of law blogs have bemoaned billable hours and the ethical implications of this payment system.  On our blog, and her own, Nancy Rapoport has nicely raised such issues for a while now.  Jeff and Mike have chimed in from time to time.  Now David Giacalone at his f/k/a blog here is asking to move the debate beyond billables and into the ethics and practicalities of the alternatives.  And he has a good round-up of and links to various blogs currently replying to Scott Turow's recent polemic on the subject in August's ABA Journal.

Two Aspects of Confidence

Posted by Jeff Lipshaw

There is, on one hand, a sinister connotation to the word "confidence."  It is the source of the term "con artist."  The con artist obtains your confidence under false pretenses and then stings you.

On the other hand, there is a positive connotation to the same word, and it is fundamental to a practicing lawyer's stock in trade - the ability to read people and make judgments about whom to trust.  Confidence is crucial to any skill that requires the crossing of a judgmental inflection point.  To make a physical analogy, when you ski, you traverse the hill by crossing the fall line, the line by which a ball would roll down the hill.  For a moment as you make the turn, you are potentially in free fall, and the way you succeed to have the confidence to make the turn, cross the fall line, and have the security of a traversed position.  To ski very well, you are so confident that you cross the fall line dozens of times in a very short of time and distance.  It seems to me anybody who vests trust in another person crosses an equivalent "fall line."

What happens to your self-confidence in the second text when you discover you have been taken - big time - in the first context?  I'm contemplating that about myself right now, and some background and thoughts are below the fold.

Ten years ago, my wife and I built a vacation home in northern Michigan.  We hired a well-known architect who designed a beautiful house according to the parameters we had set, and he recommended four builders in the area from whom we should take bids.  Four bids came in, and the two lowest were within $10,000 of each other.  The second lowest was from a builder who continues to have a fine reputation up here even today.

But we met with the low bidder, and he seemed like a guy who really knew his stuff.  He was licensed.  He had references, and our architect checked them.  He had professional-looking contracts.  My wife and I made an instant judgment that he was trustworthy.  Nevertheless, I monitored his draw requests, stayed involved in the supervision of the project, had the architect do bi-weekly inspections, etc.

To make a long story short, he was either a crook from the get-go, or got in over his head and became one by the time our job was done.  My wife and I debated that issue frequently, because like all con men, he really had a great line of patter, and seemed like a really nice guy.  But doing a construction project with somebody you realize is marginal is like walking a knife edge, because if you fire him, you can make things even worse.  So you try to monitor very closely, demand lien waivers to make sure the subs are paid, and watch how much is being spent relative to the progress on the ground.  By the time the house was completed, however, he had closed up his shop and skipped town (as I understand it, abandoning his wife and child). 

Several months later, our architect sent us a news clipping from the Petoskey, Michigan paper that he had been arrested on the West Coast and extradited back to Michigan on a charge of having filed a false sworn statement on a draw request to one of the banks that was financing a project.  I believe he was convicted and spent time in jail.  The revocation of his builders' license (and that of his company) and the claims against the construction lien fund for unpaid trades, are also a matter of public record.

There were some minor things we had to do to the house, but based on our supervision of the project at its most basic stages, we thought we had survived okay.  Ten years later, the dry wall (all of which we had to rejoint and repaint because of the shoddy job) doesn't crack, telling us that the roof is solid and the house doesn't sag.  This summer, however, through a combination of diligence about maintenance and dumb luck, we happened to pull up a piece of concrete patio and discovered that there were rotting issues around the base of the wall sheeting, all of which were reparable, but at a substantial cost, and all of which would have been avoided with a modicum of construction due care (i.e., waterproofing and flashing).  Then we discovered that an entire thirty-five foot stone chimney was rotting from the inside out due to similar problems.

Nowadays you can run but you can't hide.  I found the guy on the internet running a construction business in Danville, California.  I went on line and found his builders' license on the California Contractors' State Licensing Board website.  Here's the funny thing.  He uses his real name on the website, but if you look at the name of the qualifying individual, the name is not his, but another name with precisely the same three initials as his own.  You make the inference!  I called the CSLB, spoke to a very helpful guy in the Public Affairs office, and reported my suspicions about him, and I'm hoping they investigated and protect their consumers out there.  I'm not going to comment about the prospect of my own legal claim against him here, but it's nice to know I have found him.

Here's the point of this long exegesis.  I have people doing the work now who I trust.  It is a trust borne of far more data than I had on this guy.  But how do you know?  And particularly how does it affect your own self-confidence in the ability to discern trustworthiness when you know you have been taken that badly?  I'm thinking about it.

Talking to the Man

I found this item blogged by Frisch below pretty interesting - its a DC Bar opinion describing when attorneys who represent clients before an agency can talk to agency personnel without going through the agency's GC. It is a contracts-type issue, and  I wonder how well it translates into other contexts. 

Is it an opinion we should only read as applied to government contractor disputes?  I'm not sure it is written that way. 

One issue that comes to my mind is what, exactly, an attorney must disclose when that attorney represents several discrete clients in similar matters.  That situation might be precluded by conflicts restrictions with representatives of contractors, but in other situations it seems to me the situation would be common. Expecially when matters are in their infancy, the fact of retention and representation can be pretty sensitive.  I would assume that counsel doesn't need to disclose representation of other discrete client matters, but is that clear from the opinion?

(Posted by Allison Hayward)

Pontification

By Allison Hayward

Greetings, readers of the Legal Professions Blog!  I want to throw out an issue of special relevance to me today.  As some of you may know, the Supreme Court released a significant campaign finance decision, and as I happen to be familiar with that area, I've been approached about my opinion.  As it happens, I did not work (formally or informally) on the case.

But suppose I did?  How much involvement in one of these big controversial decisions is sufficient before a pundit should disclose his or her ties?  I've been friends with Jim Bopp (counsel for the winning side) for at least 10 years.  That's clearly not enough - a disclosure of that would sound almost silly.  If he paid me to consult on the case, then I think as obviously I should tell people that - I'm part of the team and so people considering my views on the case should be able to take that into account.  There's a range of situations in between where it is hard to say whether disclosure is important, harmless, or invasive.  (For example, having attended a meeting about the case with potential amici.)   

I'd like to know what people think - not so much how the rules work, but where the line should be.

Massachusetts on Creating Client Relations By Linking an Email To a Website

Posted by Alan Childress

The Massachusetts bar has issued a new advisory opinion on the ethical implications (and duties to potential "clients") of having a website that links to an email address.  The story here from Goodwin Procter's Doug Cornelius, a real estate attorney in Boston, from his KM Space Blog.  Email sent via the firm's website creates duties of confidentiality different from purely-unsolicited emails, and may even disqualify the firm under conflict of interest rules.  Doug recommends a disclaimer.