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One of the difficulties with this discussion is the absence of concrete metrics. What's the difference between a "structural shift" and a "substantial market correction"? What would we measure that would enable us to decide that it's one and not the other?
Richard Z: Here is footnote three of the opinion: "While the analysis and conclusions of this opinion are not limited to a pro bono representation context, other contexts would require discussion of fee sharing and of third-party prescreening. This opinion does not address these topics."
Patrick, I wonder if human beings aren't always aware of what is really driving them. I wonder, too, if lawyers sometimes forget that litigation is a second best solution to social problems. Pair those observations and you can get some lawyers monetizing marginal or meritless claims and yet thinking that they are doing great justice. (And, I suppose, some lawyers know full well they are abusing the system.)
Toggle Commented Dec 10, 2014 on Monetization of FOIA requests? at Legal Ethics Forum
That video is very hard to watch. Consider two more things. First this article with an ex-cop about whether NY police have been trained to generate revenue and aggressively regulate the street lives of citizens. http://nymag.com/daily/intelligencer/2014/12/qa-an-nypd-officers-real-talk-on-garner-case.html Then consider Garner's last words: "Get away [garbled] ... for what? Every time you see me, you want to mess with me. I'm tired of it. It stops today. Why would you...? Everyone standing here will tell you I didn't do nothing. I did not sell nothing. Because every time you see me, you want to harass me. You want to stop me (garbled) Selling cigarettes. I'm minding my business, officer, I'm minding my business. Please just leave me alone. I told you the last time, please just leave me alone. please please, don't touch me. Do not touch me. [Video of the arrest shows four officers wrestling Garner to the ground and restraining him.] I can't breathe. I can't breathe. I can't breathe. I can't breathe. I can't breathe. I can't breathe. I can't breathe. I can't breathe."
Richard Zitrin wrote: "A key issue to me, then, is why the pro forma indictments of the poor, minority accused and the thorough all-evidence GJ presentation for a cop? " Yes, that's the key question. The skeptical answer is: cops get special treatment they don't deserve. The charitable answer is: when you don't believe you have enough to convict but the public and media are clamoring for an indictment, you send it to the GJ and let them draw that conclusion. That's an old and established practice, right? And it's a technique not reserved for cops, even if we stipulate that cops do get better treatment. (I was quickly able to find this example, about NASCAR star racer Tony Stewart who ran over and killed a fellow driver. As the LAT reported, "Sending the case to the grand jury 'means the prosecutor already made the determination that there's enough evidence to charge someone with a felony,' said Lauryn Gouldin, an assistant professor of law at Syracuse (N.Y.) University.") http://www.latimes.com/sports/sportsnow/la-sp-sn-nascar-tony-stewart-grand-jury-20140916-story.html In other words, it's not impossible that cops get better treatment AND that this was a case where reasonable people concluded that there is insufficient evidence to convict.
Richard, as a fellow Carmody (through my mom's side, which has had, at latest count, 6 Carmody lawyers and 18 Carmody-related lawyers overall), I second with your sentiments.
Richard, you are correct to suggest that we use a precise terminology. I suppose we can all them the “1989 RRC” and the “Revived RRC” (which I had called the “second RRC”). Soon we’ll have the “All-New RRC.” The 1989 rules should have followed the ABA structure—which would not have precluded California from preserving its own wrinkles and spins within the text of particular rules. Although I’m not as focused as you are on assigning historical blame, I sure wish the 1989 RRC and the 1989 Supreme Court of California (SCOC) had taken the more sensible route. Instead, we headed down a path to the chaos we now have. Given the mess that existed before the Revived RRC was created, it doesn’t make sense to say that the Revived RRC created the mess. And, as I understand it, the Revived RRC had to be prodded in 2009 to take the ABA structure seriously, which they then did. If the Revived RRC was slow, or too cautious, at least they did finally get a good set of comprehensive rules to the State Bar and on to the SCOC. (I will try to write another post about your objections to them. Your group is right on some issues, wrong on some, and some are issues where reasonable people disagree.) The good news in your posts is the suggestion that we not give up on the possibility that the All-New RRC and the SCOC will get us close the ABA-style comprehensive structure. I’d be very glad if you were right about that. But the letter from the Clerk of the SCOC instructed the State Bar to develop a minimal set of disciplinary standards with little commentary. That’s not the ABA structure or approach. As I’ve spoken to others in our community, that seemed to be their senses too. (Look, for example, at David Cameron Carr’s comment in this thread; “The Supreme Court clearly isn't going to adopt a comprehensive set of ethical rules ….”) I’ve been trying to boil down my main argument. Here it is, in four propositions: (1) I believe that California’s law of lawyering should be set forth in comprehensive rules that are accessible to the public, to clients, and to lawyers. (2) I believe we currently lack that. (3) I believe that using the ABA structure would go a long way to accomplishing Proposition (1) without precluding California from maintaining any distinctive approaches to the law governing lawyers within the text of particular rules. (4) I believe that the drafting of a minimal set of disciplinary rules, with little commentary, would not be in the best interests of the public, the clients, the lawyers, or the legal profession.
David, thanks. In regard to our unique history, I recommend that people read Dave McGowan's new draft article. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2476085 California's Duty of Confidentiality: A Case Study in Code Interpretation Abstract: In 1850 David Dudley Field added some language to the Oath of the Canton of Geneva, which he copied into his draft Code of Civil Procedure for New York. His brother, future Justice Stephen Field, deliberately avoided adding this language to his revision of California's Practice Act, though for his own reasons rather than because of the language itself. California adopted Field's language in 1872. In 2014 California clings to a literal interpretation of this language in defense of the state's uniquely conservative rule of confidentiality. This article traces the history of Field's language: why he added it, how he and his contemporaries thought about confidentiality, how they viewed codes as opposed to statutes in general, and how they viewed interpretation of this language in particular. At the time confidentiality reflected the power lawyers gained when they learned their clients' secrets, and precepts of gentlemanly behavior, which served as a model for certain aspects of lawyers' conduct. At present, lawyers cling to strict standards of confidentiality to minimize the risk of third party suits and to retain a competitive advantage relative to other highly skilled service providers who might perform a large fraction of lawyers' work but who enjoy no legal privilege and who operate under the more liberal confidentiality standard of agency law. The history of this provision illustrates some important general points. California’s experience shows the risk of arid textualism (not all textualism is). All law is purposive and legal texts cannot be fully understood without considering the purposes texts express and embody. Those purposes are sensitive to time and other elements of context. To focus exclusively on a subset of those purposes is to misunderstand the text and thus to misapprehend the law.
I’m posting these responses to Richard Zitrin in a separate comment because I have little interest in “coming down out of the hills after the battle to shoot the wounded.” That is, I want to focus on what to do moving forward rather than haggle over historical blame for the process and results. Still, it might be worth mentioning my (perhaps imperfect) understanding of recent events. I do not have lots of direct sources on why the high court acted as it did. But many of us thought that the high court had signaled in 2009 that it wanted the new rules to be like the ABA’s unless there was a strong, California-unique reason to do otherwise and that it wanted a rule-by-rule explanation of any differences between the ABA rule and the new version that was being proposed by the RRC. That's what the RRC then did. The RRC’s final product was pretty good and I was hopeful that for the first time California would have a workable set of ethics rules. When the high court got the proposed rules, it apparently wanted more explanation of the divergence between the proposed ABA-like rule and the older California approach, rather than an explanation of the divergence between the proposed ABA-like rule and the ABA's current rule. The correspondence between the State Bar and the court suggests that the court couldn’t get those questions answered. That surprises me, because I imagine that there are dozens of legal ethicists in California who could have easily walked the court through that analysis. As I say, though, that post mortem is irrelevant for the decisions now facing the newest RRC and the court. I don’t imagine that it’s likely the court will make the wiser choice and decide (1) to adopt the structure and numbering of the ABA Model Rules, while (2) preserving within any particular rule any policy that is important to California’s law of lawyering. We may be stuck with inadequate guidance for a long time.
Richard, I’m glad we agree on so many important issues—namely, as you phrased them, “that currently in California there is too much reliance on appellate law instead of clear ethics rules; that the current rules are poorly organized; that Publication 250 and the ethics compendium are not easily usable; that the import of ABA rules under the current rules is unclear; and that the rules should provide lawyers with a ’basic counseling’ function.” Agreed. And those are not small complaints! Notice that every one of those problems existed before the second RRC was chartered. Because cause precedes effect, things that pre-dated the RRC can't be the RRC's fault. You then state, “Where John and I fundamentally disagree, however, is that this is the fault of our Supreme Court. Rather, the primary fault rests at the feet of the rules commission: badly formed, dysfunctional almost from the start, resistant to the court’s desire to square California and ABA rules – hardly the impression of the court John provides – and, ultimately, far too lawyer-protective and anti-client.” Actually, I didn’t blame our high court for the historical existence of the problems we both see. (Although, one might ask why out of 50 states, our ethics rules are such a shambles.) Rather, I blame the high court for its *recent decision* that our rules will continue to be a minimal set of disciplinary rules with little commentary. In so doing, the court has cemented in place all the significant problems you and I have enumerated. The Supreme Court of California has the final say about our ethics rules, and if it has chosen poorly, as I believe it has, it is fair to say so.
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.)