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Patrick, I can't respond today but hope too soon. Thanks for the challenging counter-examples.
I wonder if Leland and O'Donnell account for Dan's argument. I have no doubt that Geller's actions were a direct cause of the homicides of the two attackers and the real possibility of violence was plainly foreseeable. (Why else have so many armed guards there?) But there's a big jump left to make before we get to moral responsibility for self-defense against would-be mass murderers. It's not clear to me that that case has been made.
It's not clear to me why there has been a recent eruption of discussion and argument about the types of information that law schools should be providing to applicants, students, and graduates. The American Bar Association finally acted, and acted correctly, in response to countless demands for more accurate information about the outcomes that law school graduates were achieving. The best of those demands came from the Law School Transparency project, which has consistently called for clear, accessible, and accurate information. Under the new regulations, there is very little room for mischief. Moving forward we can expect that the marketplace will receive reasonably accurate data. LST deserved enormous credit from the bar for what it has accomplished. So do the many professors and commenters who aided in that cause. Part of the recent debate is a rearguard argument about the historical practices that law schools engaged in. I'm surprised when I read the accounts written as if the law schools had not engaged in juking the statistics. Beginning in 2005, when this blog began, we have discussed any number of public statements by law schools that were misleading or even false. Some of them were done to manipulate the law school rankings. Others were done to make it seem as if law school outcomes were rosier than they were. As an aside, I want to add that in the mid-1980s, I worked at a plaintiff side law firm that prosecuted antitrust and business tort claims. The senior lawyers at that firm had been legal pioneers in bringing causes of action against entities that made government filings in deceptive ways. At that law firm, I learned the difference between the use of regulatory methods and the abuse of them. Strictly following a set of government regulations does not eliminate the ability to make misleading statements. To give just one example, I recall a case involving Small Business Administration set-aside contracts. Businesses were supposed to take their size each week and average them over the prior 52 weeks. But there was a regulation left on the books that apparently permitted businesses to take their size one week each quarter and average those four measurements. Certain businesses would "fire" employees for just that week each quarter, so as to manipulate their size and remain eligible for small business contracts. Those businesses later took the position that they were simply following government regulations. But it was fraud. One of the unfortunate side effects of the efforts by law schools to cook their books was that it taught the law students the wrong message. It taught them by example that adults cook the books. Even before 2005, when I discussed these issues with law students, they were often acutely aware of the games that were being played by the law schools. That is the worst kind of legal ethics education. Among law professors, there was and still its considerable discussion of the manipulation of statistical measurements in the context of law school rankings. Why would we expect any school engaging in that sort of conduct not to do the same with statistics about student outcomes? And, of course, they did. Sometimes it was outright lying. Sometimes it was shading the truth. Sometimes it was the use of literal statements that were too clever by half. For example, "95% of our graduates are employed nine months after graduation and the median firm income of our graduates was $125,000." Statements of that type could be made by law schools where half the students were not getting jobs as lawyers and where the large bulk of the students who reported their incomes to the schools were the small sliver of graduates who were employed by large law firms. So it would have been far more accurate for those law schools to say, "half our graduates don't get jobs as lawyers and among the 50% that do, the mean starting salary is $67,000." That was the information that applicants, students, and grads were asking about. Half-truths can be whole lies. The new revisionist argument is that law schools should be permitted to simply report the percentage of their students that are employed in any sort of job. (E.g., a job at Starbucks is a job at Starbucks, whether it is in the general counsel's office or on the front line serving lattes.) That is the method, we are told, that federal agencies employ. But that is not the question that all of us know the law school applicants, students, graduates are asking. One normally judges the honesty of a statement by the reasonable expectations of the listener. The good news is that the revisionist version does not suffice under the new ABA regulations. So, the hollow argument that reporting any sort of employment should suffice is one that simply does not suffice under the governing regulations. The fraud suits against law schools may have been unsuccessful but the critics have won the battle over the regulations. They have the positive law on their side. As I say, moving forward the era of "big fraud" should be over. But please do not let it be said that the law schools were honest. Fraud, clever half-truths, and puffery were commonplace. I recall being in the audience at a presentation by law school deans in which they scoffed at the notion that law schools were "hiring" their own graduates for short periods of time at very low wages so as to permit the law schools to report their graduates as being employed in law jobs. I sat there in the audience, incredulous. I sat with two professors who were likewise incredulous. Among the three of us, we had first-hand knowledge of multiple law schools that were engaging in that very practice.
David, I wish jury service were far more frequent and that it played the role of civic education that Tocqueville described. Suppose that by my age (54), I had served on 3-4 criminal juries and 3-4 civil matter juries. I would be a much better informed citizen and voter, I suspect.
Wow. Although normally the notion of a DQ stemming from pre-ACR communications isn't novel, intriguing, or complex, this fact pattern has so many facets -- and has star power to boot. I guess I wish for a mutually agreed upon resolution short of litigation, but a full-on DQ motion would be fun to see. And I'd say that Tigran's comment isn't necessarily unrelated. In my experience, regardless of what the rule and black letter law say, judges evaluating DQ motions often use their intuition to determine who they trust and don't trust. That Second Circuit case, if brought the attention of a trial court judge deciding a DQ motion, might flavor the result.
If "SL" is "Steve L" is "Steve Lubet, I agree that the analogy is a good one and it made me change my mind on whether I'd advise the justices not to preside over SSM in states where there was no challenge.
Toggle Commented Apr 30, 2015 on Politics and SCOTUS recusals at Legal Ethics Forum
Steve, for the record, I've long been critical of Scalia, Thomas, and Ginsburg for appearing too partisan in their speaking engagements. As for your gun ownership question, it's a good one and it makes me rethink my comment up above that I'd advise justices not to preside at SSM even where the legislature had fully enacted provisions for it. If there were laws in place permitting gun ownership in Virginia and if those laws weren't being tested, I'd see no issues with Scalia owning a gun in conformance with Virginia law even while Heller was pending. (Kagan, too, for that matter. It seems that she and Scalia go hunting together.) But suppose that the USDC for DC had struck down DC's zero-tolerance gun laws and the matter was wending its way up through the DC Circuit and potentially to the SCOTUS. In that case, yes, I'd advise Scalia not to violate the struck-down law while in DC and to wait for the dust to settle. (Likewise, I'd still advise justices not to preside at weddings if that particular SSM provision was being challenged.) And I'd still advise against heading down the proposed road, which to me is like handing a three year old a hammer.
Toggle Commented Apr 30, 2015 on Politics and SCOTUS recusals at Legal Ethics Forum
Steve, thanks for commenting. You and I may disagree, but I'd much prefer not having SCOTUS adopt a formal set of binding rules that would encourage that sort of attack/request/motion for recusal (from the right or the left). If the justices had asked my advice, I would have suggested that they not preside at any SSM weddings before the issues were resolved at the highest governing level -- and certainly not at any weddings that occurred within jurisdictions where SSM weddings were happening contra the views of the legislature or any initiative process. Assuming that in Maryland or DC the matter had been resolved, I still would have advised them as a matter of prudence not to participate before the reasonably anticipated issues reached the SCOTUS.
Toggle Commented Apr 29, 2015 on Politics and SCOTUS recusals at Legal Ethics Forum
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: 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.