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Stephen Gillers
Professor of Law, NYU
Recent Activity
Apropos Milan's post, what's the correct answer to the following hypo: A President issues an executive order which the AG believes in good faith and with good reason is clearly illegal. The AG will not defend it because she believes the defense will be frivolous, not because she disagrees as a matter of policy. Does she then have to resign? Her client is of course the US and she has a separate duty to the court. So what are her options? Alternatively, another lawyer or a new AG defends the EO and prevails. The AG was wrong as it turns out. Does that result have a retroactive effect on the propriety of the AG's conduct?
John, My point about EO1 v.EO2 is that I don't understand how the decision (and narrow "victory") on the second can fairly bear on an argument that Yates was wrong on the first. You did note that she acted on the first EO but then you read the court's opinion on the second to question her conduct on the first. Possibly unlike you, I read the "victory" for Trump as narrow at best. The court "reversed" only part of the lower court injunction. Let's not forget how much it left standing, which means that a majority did not see a likelihood of success on those parts, which is extraordinary given the presidential power you cite. Also, even on the portion of the order left standing, the court seems to think that by fall, the additional review the administration claims to need will have been completed and the case will be moot. It will be interesting to see exactly what changes are made in the interim and which could have been made in the last five months even under the injunction. Why not?
John, The PR against Mueller seems to be intended to cast doubt on whatever he does (as were the attacks on Starr). But the fact that this is the purpose of the anti-Mueller chorus -- by Gingrich et al -- doesn't translate into an objectively reasonable basis for a disinterested person to doubt Mueller's independence. (No more that Trump's tweets casting doubts on judges require their recusal.) Otherwise, the accusation becomes the proof. That some people may buy the argument does not satisfy recusal requirements. Also, it seems to me that the section 45.2 requirements you quote are absent here. In any event, unless Rosenstein decides now to 'fire' Mueller for a Comey connection, which he would have known beforehand and which is surely unlikely or it would have happened already, any effort to DQ Mueller would have to satisfy case law on disqualifying prosecutors, not 45.2. This is hard to do. I still haven't seen a case that could support a DQ of Mueller under law, not DOJ rules, and I've been researching prosecutorial disqualification. The burden would be on the moving party. And we still have no firm idea of the nature of the "friendship" between the two. "Friend" is an elastic word.
Toggle Commented Jun 30, 2017 on Why Mueller is Not Conflicted at Legal Ethics Forum
Another facet to the Mueller question is this: How would the disqualification issue arise? There is not now a case. If and when there is, there can be a motion by a party, presumably a defendant. Otherwise, someone who has received process (subpoena) from Mueller would have to go to court to quash it on the ground that Mueller is conflicted. That person would have standing, I assume. Based on the facts we now have, I believe that any effort to disqualify Mueller will fail and I doubt it will be made. The conflict allegations have the value of casting court on Mueller's investigation. That seems to be the purpose. There's no need to test the claim and indeed a loss would hurt the spin. Too bad. As a legal ethics teacher, and casebook author, I would appreciate the chance to discuss a DQ motion in class and the ability to include the opinion in the next edition. I hate to be persnickety but has anyone who has argued that Mueller has a conflict been able to cite any primary authority in support? Oh, right, authority. What an interesting idea!
Toggle Commented Jun 27, 2017 on Why Mueller is Not Conflicted at Legal Ethics Forum
Maybe I'm missing something, but isn't the following correct: 1. Yates took her position on the first, poorly drafted order, not the one before the Court, which obviously had the benefit of authors with legal training. .She was gone when the second order issued. 2. The Court did not "uphold" anything on the merits. It cut back in part on the preliminary injunction issued by the lower courts, which is not a "holding." It will address the merits in the fall and has suggested that the issues may be moot by then.
When you ask a lawyer to assist you in achieving a goal lawfully, there's an implied attorney-client relationship. You don't need a retainer agreement. What Giuliana said was that Trump asked him how "to do it legally." Trump turned to a lawyer and requested his aid to achieve a goal that would withstand a legal challenge. Unless there's something we don't know, that seems to me to create the relationship. I would caution a student who responded to such a request that he or she should assume as much.
This story seems to be much less explosive than first reported. Not nothing but not what the press first reported. See I don't know why fast is good. So what if paper X scoops the Times. I may not afford paper X the same presumption of credibility anyway. And if the Times continues to believe that speed matters in order to be the very first, readers will suspend their credibility about its scoops, too. Some stories require speed -- hurricane warnings; health warnings -- but this one certainly did not.
Joe Nocera, as have others, makes the strong case that the Atticus of WATCHMAN is simply not the same person as the Atticus of MOCKINGBIRD. Harper Lee wrote the Atticus character in WATCHMAN and then wrote a different ATTICUS character in MOCKINGBIRD when Lippincott refused to publish WATCHMAN. Her goal was to write a "race novel." The first one didn't sell so she wrote a different one. We're dealing with a fictional character and it would therefore, in this view, be a mistake to argue that the 1930s ATTICUS grew into the 1950s ATTICUS, as we could do if these were histories of a real town and real people. Lee just wrote a different novel with a different character she also named Atticus. Any "connection" is one we invent. Attributing the racism of the 1950s Atticus to the 1930s Atticus presumes, incorrectly, that Lee intended to tell us what the younger Atticus was like twenty years later -- or rather what the older Atticus of WATCHMAN was like twenty years earlier, because WATCHMAN was written first. Since for the next 55 years, Lee did not publish WATCHMAN, the notion that she meant to tell us about the same character at an earlier time is a story that we, not she, are telling. We, not she, have decided to make the two Atticuses the same person, for which the only basis is the name and our imagination of what Lee intended in her second effort to publish.
We must not let disagreement with the merits of the majority opinion (those of us who may disagree on the merits) cloud the issue about how to talk and write as a judge or at the bar. They are unrelated. Chief Justice Roberts wrote a powerful dissent, well within the tradition of powerful dissents, arguing the opposing position without stooping to insult.
Wow, is that last comment ever beside the point. The question is not whether a judge can "take it." I'm sure Kennedy can take it. We don't ask for civility in law practice and on the bench to spare people's feelings. We ask for it as a recognition that what matters are ideas and arguments, which of course can be strongly criticized. Belittling the speaker with sarcasm and derision as a way to challenge ideas and arguments hurts the administration of justice, whether it comes in practice or on the bench. Nor is this at all about the First Amendment. That's totally beside the point. Schoolyard insults are protected speech. So what? The issue is not whether such talk can be sanctioned. The issue is how lawyers and judges -- and especially judges whose behavior sets a national example for the bar and the public -- should and should not speak. Can you imagine if all nine Justices routinely used Scalia's kind of language toward each other? If judges on all appellate courts did so? If appellate judges described trial judges that way? We would not, I hope, say, " Hey, it's their First Amendment right and if the targets can't 'take it,' they should find another line of work." And all this is entirely unrelated to the merits of the decision or the dissent. Roberts -- who did not sign Scalia's opinion -- wrote a strong dissent that avoided derision. Asking "who do we think we are" is directly on point and not of a caliber with Scalia's mockery.
But that was a shareholder derivative claim and California does not recognize the Garner v. Wolfinbarger "fiduciary" exception. The shareholders were suing in the name of the corporation. Most third party claims are not fraud claims but negligent misrepresentation claims, which California does allow, doesn't it?
Actually, isn't Solin much narrower. The non-client plaintiff there was a lawyer who sued a law firm, claiming that the defendant firm misadvised him in connection with the plaintiff's representation of two clients. To defend itself, the law firm would have to reveal the privileged information of the plaintiff's clients, which the plaintiff had revealed in order to get advice. The case depends on the attorney-client relationship of the plaintiff lawyer and protection of his client's confidential information. The case does not hold that a non-client cannot sue a lawyer even if the lawyer's ability to defend himself would require use of that lawyer's client confidences. A contrary ruling could end third party liability as we know it.
Richard, What you are seeing is a product of the Republican generated, democracy-killing 5-4 Citizens United opinion and indeed, we may now be moving toward two (or more) Rich People's Caucuses, replacing the (comparatively) democratic primary and convention process. Or at least stacking the deck. But money is speech so here we are.
Now I see the story on the Times website and assume it will be in the paper. Alan Dershowitz is not the sole target of the accusations -- of sex with teenage girls. Another is Prince Andrew. Dershowitz told the Times that the lawyers who filed the claim -- one of them former federal judge Paul Cassell -- "“are lying deliberately, and I will not stop until they’re disbarred." Anyway, I'm interested in the Rule 3.1 question, which may become prominent if Dershowitz pursues disbarment.
This is indeed sad given the work of so many lawyers for so long. But I notice in the Daily Journal report, this sentence: "The group's final package of 67 proposed rules ran several thousand pages, including extensive official comments for each rule, supporting documents and history from the commission's deliberations." Several thousand pages? Of course, I assume most of the pages were memoranda in the form of legislative history. Kutak produced a great deal of paper, too. But when it's all whittled down, was the text -- black letter and comment -- of manageable length or was it prolix? Most ABA rules are standards, which of course creates ambiguity, but with exceptions for certain kinds of rules, that would seem to be the wisest approach, leaving the rest to case law and bar ethics committee opinions to fill in the gaps,
The details here are important and the opinion is worth close study. The two claims the circuit upheld (reversing the district court) are for fraud and fraudulent concealment. The fraud claim essentially alleges that the defendant company and law firm lied in earlier litigations, which were brought by the putative class members and sought damages for asbestos exposure from a BASF product. The defendants cited the N.J. litigation privilege to absolutely protect statements they may have made in those earlier litigations, even if they amounted to fraud on the court, which of course they did not concede. (N.J. law applied, even though the underlying tort claims arose in several jurisdictions, because no one claimed otherwise. So the point was waived.) The court's discussion of why the litigation privilege does NOT protect the fraudulent conduct the plaintiffs allege merits analysis. The second claim the court upheld was for fraudulent concealment and is in some ways more interesting. The allegation is that the defendants destroyed or withheld evidence that would have helped establish BASF's liability for injuries from asbestos. The circuit looks at this claim through the lens of spoliation. The discussion focuses on what plaintiffs have to prove to establish that the spoliation caused them damage. We don't often see spoliation claims against a party's law firm as well as the party and of course these are only claims, not proof. The interesting angle is that the prospect of such liability is a backstop to criminal liability under federal and state obstruction statutes. Allegations of obstruction are usually leveled when the underlying matter is criminal. The obstruction charge may accompany the charge for the crime whose investigation was obstructed. Yet spoliation addresses the same conduct as obstruction -- concealment, alteration, destruction. So while civil lawyers may not fear a criminal obstruction charge for such conduct because it rarely happens, what this case warns is that they may face substantial damages if the allegations can be proved. It is a danger in addition to Rule 11 sanctions.
Thanks for these and keep them coming. You'll notice that all the works but Malcolm's are fiction or plays (and one misspelled poem). We're especially interested in fiction, although for a few years we assigned a book entitled A TRIAL BY JURY, about an actual murder trial in Manhattan state court told by the foreman of the jury, a Princeton professor, D. Graham Burnett (who came to the class). It worked well. I do recall Malcolm's quote about the judge, and the profile of the judge, a man before whom no defendant would ever want to appear in my opinion.
Toggle Commented Jul 26, 2014 on Law and Literature at Legal Ethics Forum
Doesn't it depend on what it contains? Scope of work, identity of client, and fee are ordinarily not within the privilege. But a retainer agreement could contain more, though this one may or may not. And of course, technically we're not talking about the privilege but confidentiality and the full agreement is within the protection of Rule 1.6, which the client has the option to waive.
Unless Christie is prepared to waive privilege, which I think is the litmus test of the cooperation claim.
Why won't Bochco put L.A. Law on DVD or the Web? Maybe we need a petition.
I think by "independence" is meant freedom from the influence of others who might sway the lawyer from his or her loyalty to the client. Structurally, those others would include nonlawyers with equity interests in a law firm or who have managerial authority over the legal work of lawyers in the firm. I'm not sure what else it includes.
Toggle Commented Aug 27, 2009 on The ABA's 20/20 Commission at Legal Ethics Forum