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I'm going to have a longer response, but now I'd say that bringing in Holocaust denial comparisons is way out of bounds but that Merritt's observations are right on the money.
Richard, I'm sure that's part of it. But looking at what happened during the DOMA litigation, it seems probable that large firms also feared being identified and boycotted on law school campuses, etc. (Charles Silver's new draft article has a lot of the history of that incident.) Maybe that's a good thing?
Laurel, thanks. I read that interview and if I had been asked by that lawyer for advice, my advice would have been, "say much, much less."
Congrats to Susan and Texas A&M.
Toggle Commented Apr 8, 2015 on Susan Fortney to Texas A&M at Legal Ethics Forum
Andy, I'm trying to work up some thoughts on this. I think it's a very useful exercise in terms of defining what roles mean.
Liz, good question. Does the article suggest that suspension happened previously and the disbarment happened only recently? If so, how did she get a job with the IRS with a suspended license? I will dig around a little.
David, yes, the RRC said that the basic plan is to do the revisions in one package by 2017, but did carve out a path for possible fast tracking of rules that needed to be changed immediately. A sub-committee was formed to propose a standard for such exigencies and to propose whether the rule on prosecutorial ethics should be fast tracked. The sub-c will report in May, at the LA meeting. The letter, which I didn't see, apparently mentions 3.8 as an illustrative example. The letter was not the one from August 2014, as I understand it.
Stephen, what I printed is the existing rule and, yes, it is weak to say the least. I will edit the post to clarify. The news of a possible fast track is a "wow" because the RRC just might fast track a modern, full rule that has standards and teeth. If it's not clear from my post, let me say that I'd love to see a good new rule -- but it's not clear to me that it should be put on a fast track.
Kevin, thanks for posting. I read every new post at your blog, Lowering the Bar. I find your issue to be the toughest one. At the risk of sounding incoherent, my view, expressed in the earlier comments, is that competent lawyers don't file that particular brief, but that the lawyer shouldn't be disciplined for filing it. I also agree that if the lawyer sought my advice, I'd advise the lawyer to draw a line in the sand and be ready to fire the client. Still, I wouldn't say that discipline is warranted on that point. The court has done plenty with its actions. It might even have struck the brief outright rather than file an OSC. For any readers who aren't familiar with Kevin's blog, check it out:
Dennis, I didn't either. Overall, I found his article quite helpful but I didn't quite follow his argument that Shipley "clear[ly]" assisted UPL. Maybe there's UPL on that fact pattern, but it doesn't match the UPL fact patterns I'm familiar with. Btw, if the inventor were a just an individual, we'd know 100% there's no assisting UPL, right? Here the inventor essentially ran the company named after himself, but the client was technically an organization.
Stephen, Thanks. That helps. Once you have a continuing ACR, you have a bunch of duties. Most importantly, there is a duty to "abide" by the competent client's choice of lawful objectives and a duty to "consult" as to tactics (1.2; 1.4). (Unless I'm mistaken, the rules don't quite say that the lawyer has 100% control over tactics and don't quite say what happens if, after "consulting" as to tactics, the lawyer and client still disagree.) You also have a duty to communicate with the client about that and about the ethical and prudential limits of the lawyer's actions (1.4; 1.16). The lawyer could persuade the client to change his objectives or to limit or alter the tactics he desires from the client, and if the client consents the lawyer may reasonably limit the scope, the objectives, or the tactics. If the lawyer doesn't reach a point where the client's objectives and desires about tactics match the lawyers, then the lawyer should resign the matter. It strikes me that if the lawyer found the client's edits repugnant, the lawyer should have "consulted" on that point and either agreed to them, convinced the client to alter them, or resigned. And after having read your response I still don't see what the breach of the ethics rules is (as to the rhetoric issue).
Stephen, my sentence was intended to be as question begging as the one I quoted from you. Iow, I wanted to point out that "the question remains." As I understand it, the possible violations in this matter fall into two groups: (1) the unorthodox, jargony, idiosyncratic rhetoric; and (2) the footnote suggesting that the client authored much of the brief. As to the latter, I haven't tracked this down to source documents but Clement suggests that the ethics "rule" is found non-binding guidelines. If that's correct, the court could have simply struck the brief, citing the guideline, or could have given the amicus a chance to re-file a conforming brief. As for the idiosyncratic rhetorical style, let's start not with the ethics rules but rather with prudence, common sense, etc. If such a lawyer called me, I'd advise the lawyer to have a frank conversation about the lawyer's views and the lawyer's independent control over tactics and if following such a conversation there wasn't a good match, then I'd advise the lawyer to just withdraw from the representation. Iow, I agree completely with your suggestions about client control and withdrawal. But as for an ethics breach, with professional discipline, I guess I'd like to see such a finding grounded on a clear rule of ethics. AFAIK, the lawyer didn't cite false evidence, conceal controlling authority, etc. There may be such a true ethics violation here, but I haven't seen it yet. I seem to recall that USDC's sometimes strike oddly phrased briefs because the procedural rules ask for a "plain" statement of the client's position or something like that. Assuming that the rhetoric in the SCOTUS matter doesn't violate a specific ethics rule, the SCOTUS could have struck the brief on two grounds (rhetoric and attribution), with references to the guidelines/rules, and that in itself would have been a powerful signal to this lawyer and the entire SCOTUS bar. Finally, as to the larger point, I still view the issue as one where the duty to the client is balanced against the duty to the tribunal. Clement's brief addresses that and, imho, the other pundits I've cited don't quite struggle with that. The ethics rules give the lawyer several leverage points to manage the balancing when a client is pushing for something imprudent (e.g., 1.2(a); 1.4; 2.1; 1.16) or even close to or over the line, and I suppose we all agree the lawyer should have done more of that here. If there really is no clear ethics rule on point (counter-arguments, anyone?), then I'm hoping the SCOTUS will trust that its message has been sent.
Thanks, Tigran. I read that post and the more recent one by Howard Bashman. ( I don't find that either one does a careful balancing of the lawyer's duty to the client and the duty to the tribunal. I may or may not have struck the balance exactly where Clement's brief does, but I believe that he has a better handle on the issue than Denniston or Bashman. Stephen, with all respect, your formulation seems to beg the question. Of course there is no duty to "violate the Court's ethical rules." But did the brief really "violate" the rules? (And note Clement's assertion that the attribution issue is found in a precatory, non-binding set of guidelines that don't rise to the level of ethics rules.) And, as we balance the duties to client and to the tribunal, we have to concede that there is no duty to weaken the client's rights when the ethics rules don't require that. So the question remains.
(1) I've often said here that I wish Scalia would show lots more discretion and the same goes for RBG. At times it seems like she thinks she's taking a victory lap in front of audiences that agree with her. (2) But is it over the recusal line? What she said wasn't quite as clearly wrong as what Scalia said about the Pledge case, imo. I'd advise her not to recuse but also to be more circumspect.
Stephen, yes my summary of Solin was too summary, given that the plaintiff in the suit at bar had allegedly sought advice from O'Melveny. But in addition to Solin, we have McDermott, Will & Emery v. Superior Court (2000) 83 Cal.App.4th 378, which rejected a non-client's claim where the law firm would have to defend with privileged information. That principle does not bar all third party liability under California law. For example, third parties can sue lawyers for fraud (Vega v. Jones Day; Favila v. Katten Muchin, etc.) and for other claims if there is an exception to the Agent's Rule. But I do believe that it may be more restrictive of some non-client claims than one finds in other jurisdictions.
Here's a link to the ABA opinion. Here's a portion of cmt. [10] to 1.6: "The lawyer's right to respond arises when an assertion of such complicity has been made. Paragraph (b)(5) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend also applies, of course, where a proceeding has been commenced." Fwiw, I've always wondered if the ABA, through its comments and opinions, isn't trying just a little to have it both ways. That is, the comments to the rule allow a lawyer to defend herself even when informally threatened. Opinion 10-456, in the context of IAC challenges, nudges up the standard just enough to opine against the lawyer defending herself in some situations that are even more threatening. I might be wrong about that, but that's my reading. If I'm wrong, let me know. If I'm right, I imagine that the ABA's motives were honorable. Finally, I don't think the discrepancy, if it does exist, changes the outcome of this case.
Toggle Commented Jan 22, 2015 on more on Christeson v. Roper at Legal Ethics Forum
As I've hinted to above, I imagine that the law governing this issue will not be the ethics rules but rather will be the existing law (Rule 11 and state counterparts) on pre-filing inquiry. Regarding "Lincoln's Rule," I am curious about the swiftness with which the lawyers sued Prof. Dershowitz. From a distance, I too question the wisdom of giving him that vehicle, but if we were looking for rational reasons to file the suit, perhaps (1) they thought it gives them quicker and more direct discovery over Dershowitz or (2) they have some hole cards that haven't been played yet. Either way, at a CLE I gave yesterday, we had a great discussion of the case. There's a lot to talk about.
Stephen, assume that state and federal courts have well developed bodies of law on the required amount pre-filing investigation. Would you agree that the Model Rules do not require more than that?
Leaving that specific matter aside, what is the standard for being able to believe your client? Or believing your investigator? Is there a comprehensive law review out there?
Can't wait to link to it.
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. 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.") 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.