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Monroe Freedman
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What I'm still hoping for, Dan, is that we can separate two issues. The first is your reference to ethics or the lack thereof. I think that issue has been dealt with. The second issue is piling on and its relationship to compassion. We're at the point now of considering compassion, including for two dedicated public interest lawyers whose careers have already been destroyed.
I would like to request that all reference to the Bronx Defenders and to the two dedicated public defenders, whose reputations have already been irreparably damaged, be deleted from this post and any others in the Legalethicsforum. As already noted, nothing is gained by piling on.
Understanding the rules of lawyers’ ethics is essential because so much turns on them. Wherever you practice in the United States, ethical rules will determine whether you can be a member of the bar and how you conduct your practice. Disciplinary sanctions against lawyers include private reprimands, public censure, suspension of the right to practice, and disbarment. In addition, although rules of ethics are drafted principally with a view to professional discipline, courts are increasingly turning to ethical rules as sources of law in litigation. One area of major importance is malpractice actions, in which lawyers can lose substantial fees or suffer compensatory and even punitive damages for conduct that falls short of professional standards. Also, motions to disqualify counsel from representing adverse parties are increasingly common. As a result, lawyers are being ordered to stop representing valued clients, sometimes in circumstances in which disqualification could have been avoided by taking appropriate precautions in accordance with the rules. The rules governing lawyers’ conduct also have a profound effect upon the rights of our clients. In some cases these rights run against us, the lawyers. If a client has the power to discharge a lawyer without cause, for example, the lawyer has lesser contract rights than, say, a construction worker who has been hired for the duration of a building project. Other obligations that we owe to our clients may have considerable effect on the interests of others. For example, a rule of lawyer-client confidentiality might prevent the lawyer from informing the victim of a client’s fraud when the lawyer has learned of the fraud from the client. Of course, if that rule were changed to permit the lawyer to help the victim to remedy the fraud, the client’s rights would be diminished and some clients might less willing to confide in their lawyers. A further reason for studying the ethical codes is to learn how to draft and analyze statutes. Some of the ethical rules deal with specific, narrow issues, like forbidding a lawyer to commingle her funds with a client’s or to talk with a judge about a case when the other party’s lawyer isn’t present. Others are the loosest of canons, forbidding conduct that “adversely reflects on [the lawyer’s] fitness to practice law” or that is “prejudicial to the administration of justice.” All the rules present questions of policy, drafting, and interpretation.
Multiple choice questions do not recognize and appropriately credit the student who has a good theory that the professor hasn't thought of - particularly if the answers are assessed by a secretary or teaching assistant.
There should be no adjustment of passing scores. Too many law schools are keeping their incomes up by admitting people who shouldn't be in LS at all. These students are then being carried by curve grading, and are then being certified by the LSs as competent to practice law. If passing scores on bar exams are adjusted, those who are moved on to practice law will be representing members of the public in criminal cases, deportations, child custody, etc.
Baker Hostetler was required to withdraw because of a conflict of interest. See the disagreement between me and Michael Tigar on this issue in App. A of Understanding Lawyers' Ethics (4th ed. 2010).
John, There are several cases below S.Ct. level that are yellow-flagged in WestlawNext, but none of them looks important to me. I should have added that the Bronston decision was unanimous. Also, I have to post through TypePad, and I don't know why they posted my reply as a separate post as well as a reply.
Bronston v. United States, 409 U.S. 352, 353 (1973) is a case in which a witness gave a non-responsive answer, thereby evading the truthful answer. The issue in Bronston was "whether a witness may be convicted of perjury for an answer, under oath, that is literally true but not responsive to the question asked and arguably misleading by negative implication." Bronston was involved in bankruptcy proceedings. Attorneys for his creditors were examining him, under oath, regarding his assets in various countries. During this examination,the following exchange took place: Q. Do you have any bank accounts in Swiss banks, Mr. Bronston? A. No, sir. Q. Have you ever? A. The company had an account there for about six months, in Zurich. The whole truth was that Bronston avoided answering was that he had had a large personal bank account in Switzerland for five years. Bronston was convicted of perjury, and his conviction was affirmed on appeal. In an opinion by Chief Justice Burger, the Supreme Court reversed, holding that if a witness gives a non-responsive answer, it’s the cross-examiner’s responsibility to ask follow-up questions to clarify the answer.
Dirks’s use of words like “civility,” “courteousness,” and “respect” are inappropriate as limitations on freedom of speech. I trust, however, that no one is supporting the use of physical abuse or threats of physical abuse as freedom of speech.
Toggle Commented Sep 15, 2014 on Free speech at Berkeley? at Legal Ethics Forum
ClydeLeland, If you were not so intent on condemning Israel, you might have noticed that my question is an important aspect of ethics. It is: "Does anyone think that Schabas is an impartial judge, or that the United Nations has shown impartiality in appointing him?"
Toggle Commented Aug 19, 2014 on United Nations' Impartiality at Legal Ethics Forum
Patrick: You have made extensive responses to David, but have thus far broken your earlier promise to answer me. Here is a summary of the fuller comments that I have made. 1) There already is a Palestinian state. Jordan is about twice as large as the territory called the West Bank, including the sliver that is Israel. In 1948, the Jordanian population was about two-thirds Palestinian. 2) The West Bank territory, about half the size of Jordan, is largely Palestinian. The overwhelming majority of these Palestinians are cynically being denied admittance to Jordan and to other Arab countries. 3) Palestinians sometimes contend that they want to return to the 1967 borders so they can establish a state. In fact, for almost two decades, from 1948-1967, the Palestinians had the 1967 borders, and did not create what would have been the second Palestinian state in the region. 4) Israel turned over control of Gaza to the Palestinians there, removing Israeli settlements by force. To rule Gaza, the Palestinians elected Hamas, which was and continues to be expressly dedicated to the total destruction of Israel. Instead of taking steps to create a state, Hamas built an intricate web of tunnels for smuggling weapons and for terrorism against Israel, and has stockpiled the weapons in hospitals, religious sites, and crowded residential areas, from which it fires multiple rockets into Israel. On July 17, the UN reported that it had found 20 rockets stockpiled in one of its schools in Gaza. 5) The biased pro-Hamas, anti-Israel reporting from Gaza is inevitable. Any reporter who reported the full truth would be expelled from Gaza, if not killed.
When you do, Patrick, I trust that you'll include my comment. Also, please note as well that Lisa Hajjar is not a reliable historian. For example, she ignores that Palestinians had the 1967 borders for nineteen years and made no effort to create a state. Please include also the following accurate history. There Already Is a Palestinian State Jordan is east of the Jordan River. It is about twice as large as the territory called the West Bank, including the sliver that is Israel. In 1922, Jordan was called Tranjordan, and the League of Nations approved closing it to Jewish settlement in September of that year. In May of 1923 the Hashemite kingdom of Transjordan became a semi-autonomous state, later to become the independent state of Jordan. In 1948, the Jordanian population was about two-thirds Palestinian. The West Bank territory, about half the size of Jordan, is largely Palestinian. These Palestinians are being denied admittance to Jordan. Even the then king of Jordan explained in 1960: "Since 1948, Arab leaders have approached the Palestine problem in an irresponsible manner.... They have used the Palestinian people for selfish political purposes. This is ridiculous and, I could say, criminal." (AP interview with King Hussein, reported in the Beirut Daily Star, Jan. 19, 1960). Palestinians sometimes contend that they want to return to the 1967 borders so they can establish a state. In fact, for almost two decades, from 1948-1967, the Palestinians had the 1967 borders, and did not create what would have been the second Palestinian state in the region.
Mr. Adler, I think if you reread my post, you'll see that we agree completely. Monroe
Mr. Adler, I think if you reread my post, you'll see that we agree completely. Monroe
In 1968 Ralph Nader led a group of my GW Law School students in picketing the law firm of Wilmer, Cutler, & Pickering, criticizing the lawyers for defending General Motors’ right to pollute the air that we all breathe. In a debate about the picketing with Mike Tigar, I took the position that lawyers shouldn’t be vilified for their choice of clients because it would make it difficult for unpopular clients and causes to get representation. Tigar disagreed, arguing that it was entirely proper for the demonstrators to challenge lawyers at the firm to ask themselves: “Is this really the kind of client to whom I want to dedicate my training, my knowledge, and my skills as a lawyer? Did I go to law school to help a client that harms other human beings by polluting the atmosphere with poisonous gasses?” “What I am proposing,“ he added, “is a moral decision. Many of the people in that firm say that they believe in certain things, and I think that it is all right to ask them whether in fact their conduct belies the assertion that they believe in those things.” I later came to realize that Tigar was right. Lawyers have always been vilified for taking unpopular cases, even by other lawyers and judges, and lawyers have nonetheless been found to represent the most heinous of clients. In the face of the harshest invective, lawyers have represented “The Meanest Man in New York” (whom I represented) and American Nazis, to advocate their constitutional right to march in Skokie, Ill., and Guantanamo prisoners. The issue is not whether General Motors should be represented. Of course they should, and there will always be someone who will do it. The real issue for each of us is: Should I be the one to represent this client, and if so, why? The defense of a lawyer who is criticized for representing a criminal defendant should not be based on limiting the First Amendment rights of the critics. Rather, we should seize the opportunity to explain publicly why it is important for lawyers to represent even the worst criminal defendants. For arguments, see, e.g., Smith & Freedman, How Can You Represent Those People?; Freedman & Smith, Understanding Lawyers’ Ethics, App. A (the Tigar-Freedman debate) (4th ed., 2010); Id., Chapter 3 (“The Lawyer’s Virtue and the Client’s Autonomy”).
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.