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Fred Zacharias acknowledged about his own “empirical study,” its sample was limited and its methodology was “somewhat unscientific.” He concluded, “I would be the first to caution against overreliance on [this] study” questioning the need for confidentiality. There are, though, some reliable studies that have been done by behavioral scientists, who are understandably concerned with the validity of responses to surveys about sensitive information. These are discussed in a book chapter by Robert F. Boruch titled, “On the Need to Assure Confidentiality and Privacy.” One study found respondents about five times more likely to admit to corporal punishment of their children when confidentiality was clear. Another study, which involved over three thousand servicemen, related to use of illicit drugs, racial attitudes, and racist behavior. Respondents were more than twice as likely to admit to undesirable behavior when the methodology assured confidentiality. In a Canadian study on the incidence of abortions, both legal and illegal, the authors concluded that less persuasive promises of confidentiality “could not obtain admissions of even all legal abortions.” Yet another study, of “leisure activities, including...intercourse, masturbation, and marijuana use,” found that “absolute assurance [of confidentiality] clearly increased the likelihood of response to sensitive, rather than innocuous, questions, relative to groups receiving qualified assurance or no assurance.” Moreover, according to Roman Catholic canon law, maintained for centuries, "The sacramental seal is inviolable; therefore it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason." Does anyone believe that penitents would confess as freely if confession were not held under that inviolable seal? There is reason to believe, therefore, that the conventional wisdom of the legal profession regarding confidentiality, based on the innumerable experiences of countless judges and lawyers, is indeed valid, and that it does not need rethinking.
Yes. And in the words of federal and state judges who are active in the professionalism and civility area, it also means "good manners or social grace," putting the interests of "brother lawyers" ahead of the lawful interests of clients, and avoiding "unseemly conduct."
John, I should have put a :) (I think that's how my granddaughters do it) to indicate that I wasn't serious about the second paragraph. This illustrates the point of my Commencement Address, titled “Shot from Canons: The Ethical Perils of Sardonic Humor,” which I gave at the Ringling Bros. Barnum and Bailey Clown School in Sarasota, Florida on April 1, 2008. It was published in the 2009 edition of the Official Program of the Ringling Bros. Barnum & Bailey Circus.
David is correct that discipline of lawyers who lie to their clients can be based on MR 8.4(c). Judge McKoski recognizes this, and he cites other MRs that can be used in that regard. His point is the modest one that if we need (or have) specific rules demanding truthfulness by lawyers in their communications with the court, third parties encountered in the course of representing a client, jurors, attorney admission and disciplinary bodies, and members of the general public, MR 1.4 would be improved by adding the sentence to it that he proposes. Consistent with David's point, though, since we have 8.4(c), we can eliminate the several rules that specifically require truthfulness in communications with the court, third parties, jurors, attorney admission and disciplinary bodies, and members of the general public.
My guess (based on significant empirical evidence) is that if you asked two dozen of those lawyers what they mean by "professionalism," you would get about two dozen different answers.
Andy, I'll stand by my earlier response to your question. I think we have pretty well exhausted the expression of our views.
I would have an in-depth discussion with the lawyer about the ethical problems and the risks to the lawyer of in-person solicitation. That discussion would include the advice that before offering the lawyer's services to the families, the lawyer should make sure that the families are willing to talk to the lawyer about legal representation. I would also explain that it could be useful to record the conversation, as long as the recording shows that the client is fully informed about the recording and has no objections. One way the lawyer could introduce herself to potential clients would be through making a presentation to any people interested in attending the presentation and hearing about the advantages of legal representation. In addition, clients could be called as witnesses in a disciplinary proceeding and asked whether the client was offended in any way by the lawyer's solicitation, and whether the client believes in retrospect that the lawyer took unfair advantage of the client in any way. If the client's responses to those questions is negative, the lawyer would have carried the burden of proof. The client would, of course, be subject to cross-examination by the disciplinary committee.
Andy, In Edenfeld v. Fane, 507 US 761, 774, the S.Ct. explained Ohralik, saying that the holding in Ohralik was “narrow and depend[ent] upon certain unique features of in-person solicitation by lawyers *that were present in the circumstance of that case*.” Your cases are consistent with my view. In Universal Bldg. Products, there is no indication that the lawyers carried their burden of showing that no vexatious conduct was present. Confirming the vulnerability of the clients in that case, the court said: “In this case the prospective clients who were solicited were foreign creditors unfamiliar with our bankruptcy laws.... They are no less vulnerable to direct solicitation by someone on behalf of an attorney than an individual.” (659) In Falanga also, there’s no indication that the lawyers carried their burden of showing that no vexatious conduct was present. Confirming the vulnerability of the clients in that case, the court said that the lawyers “do not contact ‘prospective business clients’ ... Rather, most of their clients are poor and uneducated individuals.” (1340)
Andy, I’m still doing the additional research. In the meantime, you brushed aside the union cases as protecting only associations, and not individuals, but those cases have not been limited to 1st Amendment protection of people who happen to be in associations. United Transportation Union v. State Bar of Michigan was in 1971. At that time, commercial speech was wholly without constitutional protection, and United Transportation Union presented a case of commercial speech by lawyers in a classic (if not extreme) form of in-person solicitation. The facts were that the Union maintained a cadre of paid accident “investigators” (commonly referred to in the literature of solicitation as runners, cappers, or touters). Their job was to keep track of accidents, to visit the injured members, to make contingent fee contracts with them, and to urge the injured members to retain private attorneys who had been selected by the union. If the runners were unsuccessful in signing up victims, they were paid by the union for their time and expenses in transporting potential clients to the designated lawyers’ offices, where the lawyers themselves could induce the victims to retain them. In holding this conduct to be constitutionally protected, the Court did say that “collective activity to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment.” What is important to bear in mind, however, is that: (1) the attorneys were not in-house counsel for the union, but were private practitioners; (2) the attorneys earned substantial fees; (3) the cases were ordinary personal injury cases; (4) the attorneys were retained as a result of the activities of runners paid by the union to find out where accidents had occurred, to visit the victims as promptly as possible after the accident, to “tout” the particular lawyers, and, if necessary, to take the victim to the lawyers’ office so that the lawyer, in person, could solicit the victim to sign a retainer agreement. As you say, Andy, the union cases happened to involve legal services provided by associations, and there are therefore references in those cases to the right of association. However, the cases also recognized “the right of individuals” to be represented in lawsuits (Brotherhood of Railroad Trainmen v. Virginia, 377 U.S.1, 7 (1964)) and the right of individuals to obtain “meaningful access to the courts.” (United Transportation Union, 91 S.Ct. at 1082). This makes sense because the aggrieved person who has no association or union to turn to (perhaps because she has no job) is even more in need of information about her rights than one who has the advantages of association. Recognizing this, the Supreme Court has held that the “[u]nderlying … concern” of Button and the union cases was that “the aggrieved receive information regarding their legal rights and the means of effectuating them.” (Bates, 433 U.S. 350, 376 n.32). This concern, the Court added, “applies with at least as much force to aggrieved individuals as it does to groups.”
Andy, I haven't kept up with subsequent cases, but I'll check and get back to you. In the meantime, do you have any cases in which 7.3 has been applied in which a court refused to permit a lawyer to carry the burden to show that there was no vexatious conduct? I should have mentioned earlier that it's the difference between a rule that is unconstitutional on its face (not applicable re 7.3) and one that is unconstitutional as applied to a particular person.
Steve, See Republican Party of Minnesota v. White, 122 S.Ct. 2528 (2002), applying strict scrutiny to a limitation on judges' speech.
Andy, I gave the citations in my post. The authorities, with analysis, are all there. Perhaps your library has ULE (4th ed., 2010). If not, maybe they'll order it.
On the facts as I understand them from reports, the lawyers can carry the burden of showing that their conduct does not involve fraud, undue influence, overreaching, or other forms of vexatious conduct. The students are therefore wrong in their answer to the MPRE. The reason is that the lawyers' conduct is protected by the First Amendment. See ULE sec. 11.12 ("Solicitation of Clients and the First Amendment"), and sec. 11.13 ("Primus and Ohralik -- Two Different Levels of Constitutional Protection").
Issues of lawyers' ethics cannot be discussed properly without reference to relevant constitutional law. See, e.g., Bates and Gentile. I don't think the Code of Conduct for US Judges 3(A)(6) can survive Republican Party of Minnesota v. White, protecting the First Amendment rights of judges.
This case is noteworthy only if the lawyer was not court-appointed. It is not unusual for court-appointed lawyers to turn on their clients, without the client having any hearing regarding the lawyer's unverified belief that the client is lying. For a fee-paid lawyer to do this would be virtually unique.
This point is made in ULE sec. 4.08 (4th ed., 2010. See especially the discussion of Mark Stein, "Rule 11 in the Real World," 132 FRD 309, at ULE 92, and the discussion of MacPherson v. Buick Motor Co. as a "frivolous" case at ULE 94-95.
I agree, John. But don't you agree that the ultimate report will be impeachable, in public and/or in court, because of the COI?
There is a conflict of interest. The law firm's impartiality in conducting the investigation might reasonably be questioned because of the significant risk that they will seek to maintain the good will and therefore the business of GM ("currying favor"). Also, if they rely in their report on what they say is privileged or work product information (and therefore not revealed in the report), a reasonable person might question whether the information that is thereby covered up is really privileged and/or work product. In addition, as you suggest, their own work might be implicated.
David Singleton is the head of the Ohio Justice and Policy Center, which advocates on behalf of sex offenders. He has a fascinating essay about that experience, including his remarkable successes, in Smith & Freedman, "How Can You Represent Those People?".
There's nothing - nothing - that can be done to stop this and other surveillance abuses.
I agree, Mark. Trotsky, As clients become aware that their communications with lawyers are being overheard, then as a practical matter, it won't result in a loss of privilege. As clients become aware, they will stop communicating the very kinds of information that lawyers need in order to defend them. There is no way to remedy this. As I have shown elsewhere, our inalienable rights are gone, and there's no way to get them back.
You're right to be skeptical about the minimalization procedures, Kathleen. They're meaningless. At the Hofstra conference on How Can You Represent Those People?, a defense lawyer related that, having gotten top-secret clearance, he was given a key to a locked room in which there were audio tapes containing all of his communications with his client. He was forbidden to mention these tapes in court, and, of course, jeopardized his clearance by talking about them at the conference. In addition, NSA officials lie (including in testimony before Congress)about how extensive its surveillance practices are, and do so with impunity.
I certainly agree with you, Trotsky, about the beauty of Shakespeare’s (usually) rhythmic lines. In fact, hardly a day goes by that I am not rereading one of his plays (currently Henry IV, Part One), along with less exalted stuff. But we can both make lists, which would probably overlap considerably, of great writers who do/did not write in rhythmic lines. And in a brief, what may well make for persuasive writing might not be rhythmic at all. My own brief-writing preference is for short, punchy sentences. Others, I’m sure will have other brief-writing preferences, not all of which will require a rhythmic style.
I'm inclined to agree with you, Nicole. If we're discussing persuasive legal writing, we should focus directly on qualities like structure and logic. And comparing the creation of persuasive legal writing with composing music is like comparing Apples' and Blackberries.
This makes sense if we can agree it's beautiful or great music. But what about dissonant music, which some people find beautiful and others (like me) don't like? Or Vivaldi, which some people find beautiful and others (like me) find repetitious and tiresome? Or horror literature, which many people like, but others (like me)find unreadable?