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John Steele
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The text was quite familiar to all of us. It ran 100 pages, with a big font. MR with some California tweaks. I wonder if anyone at our Supreme Court was familiar with this area of law. Anyone who was, and who saw the proposed rules, would have said, "oh yeah, I know exactly what this stuff is." I will post the draft in an update.
David, I'm gathering my thoughts but my initial reaction is disappointment. There is so little "law governing lawyers" in our current rules and there is so much LGL lawyers are hungry for -- and most of that already exists in the ABA MR and in the Restatement. We have a situation where California's countless gaps are already being filled by reference to the MR. Just look at how many times the Vapnek treatise has to fall back on the ABA approach. The current rules are also extremely litigation-centric. Business lawyers, compliance lawyers, and lots of other lawyers need more guidance. I'll stop for now ....
Amazing story, Stephen. Thanks for sharing it.
Toggle Commented Sep 16, 2014 on Free speech at Berkeley? at Legal Ethics Forum
I'd also say that the topic interests me w/r/t the duty of candor to the tribunal, even if flawed briefs aren't changing judges' minds.
Bill, your suggestion strikes me as very plausible.
I have to concur in the doubts expressed by David and Stephen. This seems to be a case of making a policy decision in the guise of ethics rules. I would have been ok with a court holding that as a matter of contract law and policy, pleas cannot contain IAC waivers. But to accomplish the result via ethics rules the court may have gone farther than was optimal for clients. I hope I'm wrong about that.
If you read the comments to the original post, this development might seem entirely predictable. To ask a more "meta" question, what would lead that ethics committee to have such a narrow view of the issue?
I really don't like the threat to report as a means of intimidating a witness. But as for actually reporting it without threatening it, isn't that squarely protected by the First Amendment? (Don't mistake where my sympathies lie.)
The back of a GM station wagon, circa 1965?
Toggle Commented Aug 4, 2014 on light blogging for two weeks at Legal Ethics Forum
Lester, thanks. But I think there is already a link up at the word, "Article" above.
and, as we all know, "learned friend" means, "the bozo 20 feet to my left." :-) [humor not to be taken seriously.]
PJF, thanks for the precise data.
I am still of the belief that if the non-lawyer CFO, CTO, or COO of a law firm in corporate form doesn't interfere with the exercise of professional judgment, then a sensible set of ethics rules shouldn't forbid the practice. No one is being misled and no interference with professional judgment is happening. (Lots of law firms have been doing this and to my knowledge no one has been harmed.) But as I re-read 5.4, I realized that there is a formal interpretation of the rule that would bar non-lawyer "officers" even if no one is being misled and no interference with professional judgment is occurring. In that case the work-around would simply be to call them "chief technology manager," "chief financial manager," or "chief operations manager." (If it helps assuage the more sensitive state bars, we could even add the word "non-lawyer" after the word "chief.") The simplicity and artificiality of the work-around highlights the trivial nature of the Texas opinion, imho. Btw, we have about 10-12 law firms with over $1 billion in annual revenue, and lots of firms with nine-figure revenues. I bet that clients are better off if lots of those firms have lots of non-lawyer CFO's, CTO's, and COO's.
As a blogger here, my comments should be welcoming (if engaging on the merits) and the comment I left was too snarky. My apologies. So I've deleted it and will try again. I believe our politics is way too partisan and there are way too many claims from too many directions that the "destruction" or end of our democracy is near. I don't think those claims help unless there really is an existential threat to our democracy. Imho, this 5-4 decision, based upon an unusual fact pattern, does not signal such a destruction.
Toggle Commented May 6, 2014 on Unsettled Legal Questions at Legal Ethics Forum
Just as a point of information, if (as I understand is the case) the taped phonecall included someone in California, the taping was a criminal act. (Our statute says that such evidence shall be excluded from court cases, but as Richard correctly suggests that does not limit what the NBA and the other owners may choose to do about the call.)
Thanks, Jack. And like Andy I want to thank our readers.
Toggle Commented Apr 16, 2014 on Blog Rankings at Legal Ethics Forum
I agree with Monroe's first paragraph. As for the second, there are too many nuances about how we interact with other persons and social systems (e.g., courts) to rely just upon 8.4.
@Stephen, my slide deck for the conference had the Posner issue (and the Sam Sheppard trial, the Wichita abortion protesters and Judge Kelly, the Microsoft trial and Judge Jackson, Scalia and the Newdow case, Judge Rakoff and his article urging more prosecutions for financial fraud, etc.). @Andrew: how closely something will affect proceedings isn't sufficiently stringent for regulating judges, imho. If that were the test, a USDC judge could go on cable news programs and offer partisan views about a case pending before SCOTUS. That wouldn't affect the fact that Justice Kennedy would still be the swing vote and would still vote as he pleased, but it sure would degrade public respect for the process. (Or am I being too traditionalist in my views?)
Richard, do you see a conflict on the grounds that the law firm's own work is implicated? I wonder (speculate?) if GM didn't feel it necessary to hire K&S because of its factual knowledge and will have Jenner involved to have fresh eyes draw conclusions. To try to answer your question, it seems to me inevitable that attorney client privileged conversations and even attorney work product need to be examined in the review.
Steve, the number doesn't seem huge. But it does seem partisan. What percentage of US citizens donate even $200 to presidential campaigns? According to Open Secrets, only 1 in 1,000, or 1/10th of 1%. According to the Washington Post, the "vast majority" of the lawyer's $6750 was donated in the last two presidential cycles. That makes the lawyer roughly 1 in 10,000, according to Open Secrets. (See, the Widow's Mite, etc.) The investigation should have been headed by someone else, imho. It's important that the investigation be respected. But to press my point again, leaving aside the partisan aspects, I would hope that everyone would find it awful if an agency intentionally deceived the Congress on an issue that members of Congress had been pointedly asking about for several years. Given that it was GOP members asking for the information that was being withheld, it was all the more important not to make the assignment the way it was made.
I haven't seen any direct ties to the White House. But there's no doubt in my mind about whether key IRS personnel intentionally deceived Congress. They did. I hate seeing that from agency officials. (Fwiw, the Wall Street Journal ran an op-ed today pulling together what the writer thinks is evidence that the IRS was reacting to speeches by the president and letters from Democratic senators. I have not pored over that yet and hence cannot support the the theory.)
Rick, quarters would be an improvement. This generation needs a more modularized form of learning.
Andy, I guess I have a different take than you. Partners in biglaw compete intra-firm for resources (including knowledgeable and skilled associates) with which to compete for demanding clients. They also have to justify the value-add of associates to skeptical clients. Hence the partners competing in those settings put huge premiums on the knowledge and skills that will help them win and keep demanding clients. (Fwiw, I was the hiring partner at a corporate firm and the results of that survey match my experience. But maybe that's just confirmation bias.) As for what clients want, as I noted in the post, if I were a student I would carefully consider those views (as well as the views of profs, judges, etc.). I assume there's data out there on what clients value. I'll warrant a guess/speculation that what those particular clients want is basically the same as that survey shows. Second, I agree that HLS isn't typical. But isn't it interesting how relentlessly practical and functional the courses were? If the survey is an accurate guide, wouldn't that suggest that at lower ranked schools there is all the more need for practical, functional courses?
William -- yes, it can be so painful, especially as the clock is running down.