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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: http://www.loweringthebar.net/
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. (http://howappealing.abovethelaw.com/022115.html#060545) 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. http://www.sdap.org/downloads/ABAethics.pdf 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." http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information/comment_on_rule_1_6.html 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. 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.