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Thanks, Richard. I'm now getting two a day.
Just a technical question. I know that some states have slightly different variations on what counts as a confidence, but once you've represented a criminal defendant and he has not publicly admitted guilt, isn't your conclusion that he was guilty almost necessarily based upon client confidences? It has to be based upon information related to the representation, right? And isn't it a breach of the duty of loyalty to publicly declare your former client guilty? I don't have a partisan dog in the fight here. From a legal ethics perspective, I was just disappointed in what she said and in the almost irreverent tone she took in the interview. (I recall my Dad saying about one of his criminal defendant clients (against whom the evidence was rather strong), "my client has always asserted his actual innocence" and leaving it at that.)
Michele, your last sentence reminded me of an exam question I drafted many years ago, but which seems fresh given the GM situation: 2.4: In-House Corporate Lawyer (Prior Exam Question) You are General Counsel at The Parts Supply, an automotive and trucking parts company. You often meet with Mike Morris, the Midwest Regional Vice President, who in addition to running legal issues by you, chats with you about everything from the weather, the local schools, and Hoosier basketball. In June 2002, Morris walked into your office, slumped down in a chair and nervously lit up a cigarette—a habit you’d thought he’d kicked. He asked if taking a government purchaser out on hunting trips would be considered commercial bribery. You said that anything of value can be a bribe. He asked about the jail time a briber might serve. You told him that bribery can result in five years in prison. He asked if it mattered that he began his hunting trips with the purchaser when they were in high school together. You told Morris you couldn’t give good advice if he dripped out the facts one by one. You asked Morris to trust you with the whole story. Here’s what he said. “Jason Spencer, my old high school buddy, works for the City and County of St. Louis purchasing car and truck parts for the various municipal fleets. I took Spencer on several hunting trips over the past year. My treat. Spencer never paid. Sometimes we just drove out to the country, but sometimes we’d stay at upscale hunting or fishing lodges. “Back in May, Spencer signed a policy allowing the County to purchase parts that aren’t certified by the National Automotive Parts Laboratory. NAPL is a national testing agency, and most everyone requires NAPL certified parts. Spencer also signed a technical specification permitting County trucks to be outfitted with smaller, less powerful brake assemblies. I had lobbied Spencer for both changes, because The Parts Supply carries the non-certified, smaller brake assemblies. They are cheaper for the County, and we are glad to sell them. Spencer and I briefly discussed the changes during one of our hunting trips." “In late May, the County published a Request For Bids on a large contract for a variety of parts, including quite a few brake assemblies. Because prices on the other parts are largely uniform, The Parts Supply used its price advantage with the non-certified parts to make a great bid. We won the Request. We already shipped some parts, and will make additional deliveries over the next two years." “Just before the final bids were submitted, the manufacturer of the brake assemblies called about some safety concerns. Ten brake failures have been reported nationwide. He said that no recall was currently contemplated because it seemed that the assemblies had failed only when they were installed on trucks that were too large for the parts. He wanted me to report any potential problems." “Well, bad things are happening. A County truck plowed through a storefront last week. We don’t yet know what caused the accident, but I think his truck had the small brake assembly. I just heard one hour ago that another County truck crashed at the bottom of a downgrade. I don’t want to call Spencer or the manufacturer and highlight the problem." “Yesterday, I saw one of my competitors at a hunting goods store. He asked me, ‘Hey, Morris, are you buying more goodies for your pal, Spencer?’ That’s why I’m talking to you. Look, Spencer’s cost-saving policies are perfectly justified. But if people find out about what’s happened, everyone will think the worst and I’m going to jail for five years—or worse--if people are killed.” You told Morris that you need to begin a thorough investigation and that you need to talk to others at the company. Morris screamed at you. He said that you can’t tell anyone about the facts. He said that you are his attorney, and that he is trusting you. *** How does the law governing lawyers affect your behavior in this situation? ***
Monroe, I will continue my speculations by suggesting that if we there is a conflict of the type you suggest, an informed client like GM could choose K&S nonetheless and K&S could choose to do the assignment.
Liz, I assume that the contents are relatively safe, but I was told by a criminal defense specialist that the government scans the face of all hard mail. Can anyone confirm that?
Patrick, there is an ABA rule that is often referred to as a "superior orders" rule. You can find it here:
Monroe & Patrick, my attempt to get an accurate description isn't a normative endorsement of overcharging, which I condemn. Btw, a white collar defendant is trying to release to the public the PowerPoint slides the DOJ used when coercing him to settle. Supposedly the slides will starkly illustrate how over-charging works. If the slides are released, I will try to post them here.
Ben, I have the same skepticism as you, but to interpret the court's action most charitably, they might have felt that the employee lawyer was standing in the shoes of the disciplining court and hence the sarcastic tweets impugned the court's legitimacy.
Just as an aside to Doug's statement of the general rule, out here in California, the fee agreement itself can be privileged. Our Business & Professions code provides, "6149. A written fee contract shall be deemed to be a confidential communication within the meaning of subdivision (e) of Section 6068 and of Section 952 of the Evidence Code." Section 952 is our attorney client privilege law. I don't know why California took that approach. Does anyone out there know?
Laurel, do you mind if I elevate your query to a post?
Patrick, I think I'll add one more thought. PR is one of the very few courses that's mandatory at every law school. Yet I've seen lots of lists like Posner's that don't include PR at all. I get the feeling that in certain quarters PR doesn't count as a real course. That's the reason I made this post.
That's a powerful argument against requiring 3Ls to take that sixth semester of law school. (And against the fifth semester, for that matter.)