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John Steele
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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.)
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.