My apologies to Steve. The introduction makes it clear that the book is not a treatise, but, in a way more interesting. It is a "conversational, personal, and accessible" "reflective introduction to the major and minor rules and themes in the law and ethics governing the behavior of American lawyers."

Sometime in the early '80s, as I recall, the Senate Judiciary Committee was considering a recommendation that the Congress adopt comprehensive federal rules of lawyers' ethics. My recollection is that I was the only one who testified for it, and that the ABA and a representative from the Reagan DOJ testified against it.

A relatively uniform set of ethical rules is particularly desirable when we have so much interstate law practice. Some years ago, when there was less uniformity, I advised a law firm in a case that might have been governed by substantially different (indeed, conflicting) rules in DC, NY, and CA, all of which had significant contacts with the transaction.

If so, then what's the point of the question?

Coincidentally, I will be speaking at St. Thomas Law School on November 3 about Lawyers' Ethics and the Constitution. The thesis is that scholars in lawyers' ethics too often give inadequate attention to the constitutional aspects of our field. My outline has nine major topics and several sub-topics.

A significant part of this issue could have been avoided if the ABA had adopted the following proposal from the American Lawyer’s Code of Conduct, Rule 2.5 (1980) (as they have belatedly adopted several other ALCC rules): 2.5. A lawyer representing a corporation shall, as early as possible in the lawyer-client relationship, inform the board of directors of conflicts that might develop among the interests of the board, corporate officers, and shareholders. The lawyer shall receive from the board instructions in advance as to how to resolve such conflicts, and shall take reasonable steps to ensure that officers with whom the lawyer deals, and the shareholders, are made aware of how the lawyer has been instructed to resolve the conflicts of interest. A paraphrase of the comment is: Rule 2.5 requires the lawyer to take the reasonable steps necessary to avoid the situation in which the lawyer has awkward information, and cannot either disclose it or keep it confidential without betraying someone’s reasonable expectations of trust. That situation occurs because the lawyer has failed to inform the board of readily foreseeable conflicts of interest and to receive guidance in advance. By getting the board’s instructions at the outset, the lawyer can make sure that each interested constituency is properly informed and can act accordingly. For example, the board might prefer to maximize candor between its officers and the lawyer, and therefore instruct the lawyer to honor the officers’ confidences, even in reporting to the board. The shareholders would then be in a position to approve or disapprove that policy, or to relinquish their shares. In the alternative, the board might prefer to know everything the lawyer knows (perhaps only in some specified circumstances). In that event, the officers would be on notice that in some circumstances they might want to consult with personal counsel before deciding whether to disclose certain information to corporate counsel.

It's good to see lawyers' ethics playing a significant role in such an important area. I have also provided advice and affidavits to several of them, including Major Mori, who is mentioned in the article.

Thank you, John. This is an excellent and important article.

I agree that the First Amendment doesn’t resolve the issue. I raised it because of the opening discussion of the campaign finance case and other references to the fact that corporations are artificial persons. The suggestion is, of course, that corporations can properly be treated differently from individuals in important contexts like those referred to. I'd genuinely like to be convinced that that is so.

I am deeply troubled by the power of large corporations to influence and even control public policy, and strongly sympathetic with limiting the power of large corporations. However, I'm troubled by the fact that no one has mentioned here, much less dealt with, the argument that a corporation is an association and therefore within the protection of the First Amendment. Simply saying that a corporation is an artificial person, or does not have the dignity of an individual human being is not enough. Any association -- including the League of Women Voters -- could be defined as not a "person" or not having the dignity of an individual human person. But the First Amendment doesn't stop there. I would very much like to be persuaded otherwise.

I should add that in my experience, even members of the public who are otherwise sophisticated (including lawyers) can truly be remarkably dependent and unsophisticated when they are in the position of clients or would-be clients.

1) I disagree with the Restatement in a case in which the officer reasonably believes that the lawyer is representing her individually as well as the corporation. 2) Do you see a difference (as I do) if the context is not the lawyer-client evidentiary privilege in a courtroom, but whether the lawyer is forbidden to communicate the client-officer's information to the board of directors? I would say that the lawyer (who has implicated himself in a conflict of interest) should withdraw from representing both the officer and the corporation, and maintain confidentiality regarding the information received from the officer.

Apart from matters like misrepresentation, regulation of unauthorized practice is at best a waste of resources and at worst a restraint of trade and a violation of the First Amendment. Based on his account of what he is doing, it would be outrageous for the bar to go after him.

I would add that too often "respect for the various relationships that comprise professional life" comes to mean (not that Rob means this) putting the interests of what one court called a "brother lawyer" ahead of the legal interests of the client. Illustrations are given in ULE.

Isn't there a work-product issue lurking in the Costco case?

That’s a great question, Andy, and it makes me reponder my position. There are two kinds of cases that I have been assuming in drawing a line between ethical and unethical conduct. One is abandoned property, as in the crown-jewels case in which an investigator found privileged documents that had been consciously abandoned in a dumpster behind the opposing counsel’s office. I would distinguish this from a lawyer looking at documents that have been covered up with a blank piece of paper and left on a conference table during a break in negotiations. Those documents have not been abandoned, nor have they been directed to the other side, either purposefully or in error. The other is the lawyer who is the passive recipient of a fax or email that has been directed to her, albeit in error. In that case, the information has not been consciously abandoned. However, the receiving lawyer has done nothing to induce the error and, as the passive recipient of the information, should be allowed retain it. In your hypothetical, the lawyer who obtains the information has not been passive, nor has the information been consciously abandoned or even mis-transmitted to the other side. Rather the lawyer has purposefully planted spyware in an adversary’s computer to obtain information that has not been, and will not be, directed to him. He’s therefore not a passive recipient, but is more like a lawyer who surreptitiously sticks a transmitting bug under the conference table of his adversary. The lawyer who passively receives an email that has been purposefully directed to her, and who, after having received it, mines it for metadata, is certainly closer to the line (that is, my line). That lawyer has not acted to induce the error, nor has she planted any spyware (like a cookie or bug) designed to obtain the information surreptitiously. However, the information has not been consciously abandoned, and, in the act of mining the metadata, she has taken an active role in obtaining the information. It could even be said that she has engaged in a kind of after-receipt “spying.” Nevertheless, I’m satisfied with a distinction between after-the-receipt data-mining of a document that has been consciously sent to an adversary, and planting a bug or a cookie to obtain information that the adversary has not abandoned and has not consciously sent to an adversary who has been passive until after receipt of the document. Yes, I can think of some closer-to-the-line hypos too – a problem, of course, with every line-drawing. But I’m comfortable with this one, although I’m sure others (not unreasonably) won’t be.

Thank you, Andy. I'm somewhat reassured. As I think you know, I'm not very sophisticated about computer technology. However, I did note the following on Wikipedia: "Besides privacy concerns, cookies also have some technical drawbacks. In particular, they do not always accurately identify users [and] they can be used for security attacks...."

And after going into Typepad, I found eight more cookies.

Jordan, I think that clip should be paired with the discussion in ULE at pp. 358-370, which explains the positive side of solicitation, either by the lawyer or through a "runner," and why it has a degree of First Amendment protection.

Coincidentally, I just showed that episode of The Practice to my class today. It's Honor Code, Season 6, Episode 7. It introduces confidentiality, race as a tactic, interpretation of ethical rules, malpractice, lawyer autonomy vs. client autonomy, the duty to report unethical conduct, conflicts of interest, coaching witnesses, and morality vs. ethical rules. The Alton Logan case is a great way to raise the issue of confidentiality, and Abbe Smith and I use it at Georgetown. I'm not sure, though, that the case helps students to appreciate the stakes of the confidentiality rule, if that means that it shows that confidentiality is the enemy of truth in the system. As one of my students pointed out today, the client (or, at least, the in-house counsel of the client) would never have told the firm about the aneurysm if there had been an exception permitting disclosure of the information to the plaintiff. That is, the firm simply wouldn't have had the truth to tell. The student justified an exception in a death case by explaining that divulgence of the client's information in a death case would be so unusual that it wouldn't present a systemic threat, but that an exception for wrongful imprisonment (if lawyers acted on it) could become common enough to alert clients generally not to inform their lawyers about guilt. Thus, with a broad exception, lawyers would have less truth to reveal.

Steve and I disagreed from time to time on Counsel Connect in the 1990s on issues of professional responsibility. One of those exchanges appears in App. C, pp. 393-414 of Understanding Lawyers' Ethics (3d ed., 2004).

I agree with you, John, on the discipline point. There's a lot more serious incompetence out there that is routinely ignored. I was responding to those who have assumed, without any qualification, that no candid advice was ever given, and then used that unsupported assumption as a justification for firing, disciplining, or prosecuting him. Incidentally, my question about the Yoo critics who omitted relevant information (including the possibility of private, confidential advice) in their attacks on him was not entirely rhetorical. For my own part, though, I wouldn't want to hire, or to work with, a lawyer who failed to give candid advice in a situation similar to Yoo's. And, although I wouldn't approve of yanking his tenure, in the different context of a hiring or contract-renewal, I would vote against having such a person as a colleague or as a teacher of law students.

As a supporter of zealous advocacy,I can't imagine how -- but with one observation. I have serious concerns about a prosecutor's office prosecuting one of its own adversaries. That is a power that is too easily abused, and that is precluded by conflict of interest rules. In any case in which a prosecutor's office believes that a criminal defense lawyer should be prosecuted, it should have the case handled by an independent prosecutor. Interesting question: How many times has a prosecutor's office initiated a complaint -- criminal, disciplinary, or requesting disqualification -- against one of the all-too-many incompetent defense lawyers, and how many times has such a complaint been made against a highly effective defense lawyer?

In my opinion, John Yoo is a despicable and immoral person. However, I have a great deal of difficulty with the idea that a lawyer or law professor can be professionally disciplined for taking a legal position that he or she genuinely believes in and that can be supported by a colorable legal argument. Richard Nixon was not the only lawyer-president who believed that “[w]hen the President does it, that means that it is not illegal.” Abraham Lincoln, agreed, at least when the president is exercising powers as Commander in Chief (a premise, I believe, of Yoo’s position). “To carry out his duties as commander-in-chief, [Lincoln] believed that he could exercise powers normally reserved to the legislative branch of government.” David H. Donald, Lincoln 303 (1995). This resulted in “the greatest infringements on individual liberties than in any other period in American history,” including suspension by Lincoln of the right of habeas corpus Id. at 304. Note that the power to suspend habeas corpus is in Article I, not Article II, of the Constitution, making it highly doubtful that the president can do that without congressional authorization. I also have concerns about disciplining a lawyer for incompetence in a memorandum, article, or opinion, as alleged by those who are hostile to the lawyer’s conclusions. If that were to be the standard for membership in the bar, or in legal academia, we would have very few, if any, lawyers or law professors, and certainly no judges. (Are those lawyers or law professors incompetent who have analyzed the same issue but who have omitted reference to Abraham Lincoln’s position on the issue? How about omitting the fact that at least four sitting Supreme Court Justices agree with Yoo?) Also, there is an assumption by some that Yoo or the OLC failed to give candid advice to the President. First, we do not know that to be the case. Private advice might have acknowledged weaknesses as well as strengths in the position. Second, we do not know that the President requested advice in the memo in question, as distinguished from a CYA memo (which lawyers frequently give to clients). In short, as despicable as Yoo and his views might be, he should not be disciplined by the bar or by his law school.

From a 1978 article and ULE: Suppose that you are going about some pressing matter when your arm is suddenly seized by an old man with a long gray beard, a wild look in his eye, and what appears to be an enormous dead bird hanging around his neck, and the old man launches into a tale of a bizarre adventure at sea. If he is a stranger and you are alone on a poorly lighted street, you may well call the police. If he is a stranger, but you decide that he is harmless, you may simply go on to your other responsibilities. If he is a friend or member of your family, you may feel obligated to spend some time listening to the ancient mariner, or even to confer with others as to how to care for him. If you are a psychiatric social worker, you may act in yet some other way, and that action may depend upon whether you are on duty at your place of employment, or hurrying so that you will not be late to a wedding--and in the latter case, your decision may vary depending upon whether the wedding is someone else's or your own. Surely there can be no moral objection to those radically different courses of conduct, or to the fact that they are governed substantially by personal, social, and professional context, that is, by role-differentiation. One simply cannot be expected, in any rational moral system, to react to every stranger in the same way in which one may be obligated to respond to a member of one's family or to a friend.