Archive for the ‘Legal Ethics’ Category

Stanford Law Review Online: The Iraq War, the Next War, and the Future of the Fat Man

posted by Stanford Law Review

The Stanford Law Review Online has just published an Essay by Yale’s Stephen L. Carter entitled The Iraq War, the Next War, and the Future of the Fat Man. He provides a retrospective on the War in Iraq and discusses the ethical and legal implications of the War on Terror and “anticipatory self-defense” in the form of targeted killings going forward. He writes:

Iraq was war under the beta version of the Bush Doctrine. The newer model is represented by the slaying of Anwar al-Awlaki, an American citizen deemed a terror threat. The Obama Administration has ratcheted the use of remote drone attacks to unprecedented levels—the Bush Doctrine honed to rapier sharpness. The interesting question about the new model is one of ethics more than legality. Let us assume the principal ethical argument pressed in favor of drone warfare—to wit, that the reduction in civilian casualties and destruction of property means that the drone attack comports better than most other methods with the principle of discrimination. If this is so, then we might conclude that a just cause alone is sufficient to justify the attacks. . . . But is what we are doing truly self-defense?

Read the full article, The Iraq War, the Next War, and the Future of the Fat Man by Stephen L. Carter, at the Stanford Law Review Online.

  January 16, 2012 at 1:13 pm  Tags: anticipatory self-defense, Current Events, drones, iraq war, president bush, president obama, targeted killings, UAVs  Posted in: International & Comparative Law, Law Rev (Stanford), Legal Ethics, Military Law, Technology   Print This Post   5 Comments

Law Professors, Petitions and Kristallnacht

posted by Kyle Graham

Not long ago, I was asked to sign a petition, circulating among law professors, that condemns the recent pepper-spraying of protesters at the University of California-Davis. This invitation rekindled my interest in the origins of these petitions.

Law professors qua law professors have become engaged in topical public controversies since the early 1900s. Some law professors spoke out about the Sacco-Vanzetti trial, and many professors took well-publicized positions on Franklin Roosevelt’s court-packing plan. I am unfamiliar with any widely distributed petition as to either event, however. (Although the AALS did initiate, only to abandon, a poll of law faculties designed to gauge their support or opposition to FDR’s plan.)

The first petition I have found that specifically requested the support of American law faculties circulated almost exactly 73 years ago, in early December 1938. This petition was prepared and distributed by telegram shortly after the Kristallnacht pogroms, and read as follows:

Faculty of Law [Institution, Location]

The Faculty of Law of the University of Amsterdam invites you kindly to inform them by telegram before December ten whether your Faculty of Law would be willing to second the following resolution. The invitation being wired today to all Faculties of Law in the British Empire, United States of America, France, Netherlands, Belgium, Switzerland, Finland, Denmark, Sweden, Norway, Iceland. The Faculties of Law of the Universities mentioned below noting with sorrow and dismay that in some countries innumerable people are being persecuted and tormented on account of their faith, race or political convictions and that particularly in the so called Concentration Camps innocent people are without legal procedure subjected to inhuman treatment considering that the basic principles of justice are thus insufferably violated voice their protest against this violation in view of their duty to uphold the principles of justice and the rights of man appeal to the conscience of mankind to support them in this protest and decide to publish this resolution and to communicate it to their respective governments.

The telegram, which on its face requested the support of each contacted institution (as opposed to the endorsement of individual professors) met with a range of responses. Some American law faculties (including those at Yale, the University of Chicago, the University of Michigan, the University of California-Berkeley, and the University of Colorado) signed on to the petition. At Harvard, it was agreed that individual professors could endorse the petition, if they so chose, but that no such backing would come from the general faculty, speaking as a whole and for the institution generally.

Today, it’s assumed that individual professors, as opposed to the institutions where they work, represent the proper signatories of a petition such at the one circulated by the University of Amsterdam law faculty. Were assumptions different, one presumes that there would be a lot fewer petitions in circulation. Plus faculty meetings would become much longer.

  December 2, 2011 at 4:09 pm   Posted in: Current Events, History of Law, Legal Ethics, Teaching   Print This Post   No Comments

Judicial Plagiarism

posted by Gerard Magliocca

I’m curious to know what folks think of this hypothetical.  Suppose somebody writes a law review article with an insightful and original analysis of an issue.  When that issue comes before a court, the court adopts the logic of the article and closely tracks its reasoning in the opinion (in a way that’s pretty obvious), but does not cite the article.  Is that wrong?

I think we’d all agree that if a student or an academic did this, it would be plagiarism.  True for a court as well? One reason I ask is that courts often lift passages from briefs without attribution (John Marshall famously did this in M’Culloch v. Maryland) and nobody seems to care.  Likewise, I don’t know of any examples of “judicial plagiarism” where the professor in question complained and got a court to amend its opinion and acknowledge that a particular idea that was passed off as original was, in fact, not. More broadly, one might say that all that matters is that the law gets stated correctly, not who gets the credit, especially as the professor can always write another paper that takes the credit.

  July 18, 2011 at 11:09 am   Posted in: Legal Ethics   Print This Post   12 Comments

Online CLE

posted by Sarah Waldeck

Depending on whom you speak with, CLE is either: (1) a necessary means of ensuring that lawyers remain current on the practice of law or (2) an endeavor primarily designed to generate revenue for state bar associations.  Do proponents of the latter description have more ammunition because most state bars allow attorneys to earn at least some percentage of required CLE via video that streams to a personal computer?  At least one state requires lawyers to click at regular intervals, but in many others lawyers just stream and then print a certificate at the end of the video.  To quote one site that sells online CLE, the format is advantageous because it is “available 24/7,” “eliminates travel and travel-related expenses,” and can be “viewed from the couch.” 

Is it too cynical to suggest that the format also allows attorneys to cook dinner while the video is streaming to an empty room upstairs?  Of course lawyers who are sitting through a live presentation can find plenty of ways to distract themselves, but social conventions usually dictate that they cannot make themselves entirely absent, either actually or metaphorically.  Does the decision to allow online CLE demonstrate the faith that state bars have in their attorneys to do what is right, or is it an indication that providing education is secondary to the bars’ other concerns?

  June 28, 2011 at 1:35 pm   Posted in: Legal Ethics   Print This Post   2 Comments

Technology Musings

posted by Taunya Banks

Recently the New York Times carried a front page story about an eighth grade girl who foolishly took a nude picture of herself with her cell phone and sent it to a fickle boy – sexting. The couple broke up but her picture circulated among her schools mates with a text message “Ho Alert” added by a frenemy.  In less than 24 hours, “hundreds, possibly thousands, of students had received her photo and forwarded it. In short order, students would be handcuffed and humiliated, parents mortified and lessons learned at a harsh cost.”  The three students who set off the “viral outbreak” were charged with disseminating child pornography, a Class C felony.

The story struck a nerve, not only with the affected community, but with the Times’ readers as well.  Stories about the misuse and dangers of technology provide us with opportunities to educate our students, and us. In a Washington State sexting incident, for example, the teen charged had to prepared a public service statement warning other teens about sexting to avoid harsher criminal penalties.  But the teen’s nude photo is still floating around.  Information has permanence on the internet.

Few of us appreciate how readily obtainable our personal information is on the internet.   Read the rest of this post »

  April 3, 2011 at 2:43 pm  Tags: academia, Google, Law School  Posted in: Culture, Google & Search Engines, Law School (Teaching), Legal Ethics, Privacy (Gossip & Shaming), Social Network Websites, Uncategorized   Print This Post   No Comments

Volunteering in a Recession

posted by Michelle Harner

I heard an interview today with a representative of a nonprofit organization that matches volunteers with organizations in need—a sort of match-maker in the volunteer context. Interestingly, the representative reported an increase in the number of available volunteers during the recession (see also here and here). She attributed this trend to two things: people who had lost their jobs wanting to keep up their skills while searching for new employment and people generally wanting to help others in need.

The report piqued my interest regarding whether the recession was having a similar, positive effect on the provision of pro bono legal services. I suspected that more people were in greater need of legal assistance as a result of the recession, which in fact turns out to be the case (see here and here). I did not know, however, whether lawyers were meeting this increased demand. I like to think we are, but the profession’s record on this point is not necessarily encouraging (see, e.g., here).

The results appear mixed. Some reports suggest that the level of pro bono activity has remained the same or increased slightly in the past few years (but see here). (For interesting perspectives on the recession and the legal profession, including pro bono legal services, see here and here.) Nevertheless, even these increased activity levels fall woefully short of the reported need. So, given high lawyer unemployment rates and the desire to better train new lawyers, why does this gap exist?

Read the rest of this post »

  January 31, 2011 at 10:35 pm  Tags: Current Events, financial crisis, Law School  Posted in: Legal Ethics   Print This Post   6 Comments

Teaching Professionalism

posted by Michelle Harner

One of my favorite courses to teach is Legal Profession (i.e., ethics and professionalism) because it truly is an “ah-ha” moment for many law students. I tend to believe that not many students consider the “profession” part of the “legal profession” prior to attending law school. Rather, I suspect they view law school as a means to an end—landing a lucrative job (or at least that was the case in days gone by; see here,  here and here). They probably give little thought to the fact that they are preparing to join a “profession.”

I know that many even inside the legal profession question whether it remains a profession or is now just a business and all about the bottom line. (For interesting discussions of this debate, see here, here, here and here). I am very traditional in this respect, and I hold dear the notion that the law is an esteemed profession. (I particularly like Roscoe Pound’s definition of the legal profession as “a group…pursuing a learned art as a common calling in the spirit of public service—no less a public service because it may incidentally be a means of livelihood.”) And I am proud to be a member of that profession.

For this reason, I stress the nature of the profession and what it means to be a professional in the early days of Legal Profession. I often quote the Preamble of the Model Rules of Professional Conduct to emphasize that a lawyer does more than serve clients. “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” I then use a series of hypothetical problems to work through what that triad of responsibilities means for lawyers. You can actually see the light bulb go off for some students.

Read the rest of this post »

  January 20, 2011 at 2:44 pm  Tags: Law School  Posted in: Law School (Teaching), Legal Ethics   Print This Post   2 Comments

Virtual Perils of Cyber Hate and the Need for a Conception of Digital Citizenship

posted by Danielle Citron

Although intermediaries’ services can facilitate and reinforce a citizenry’s activities, they pose dangers that work to undermine them.  Consider the anonymous and pseudonymous nature of online discourse.  Intermediaries permit individuals to create online identities unconnected to their legal identities.  Freed from a sense of accountability for their online activities, citizens might engage in productive discourse in ways that they might not if directly correlated with their offline identities.  Yet the sense of anonymity breeds destructive behavior as well.  Social science research suggests that people behave aggressively when they believe that they cannot be observed and caught.  Destructive online behavior spills offline, working a fundamental impairment of citizenship.

For instance, digital expressions of hatred helped inspire the 1999 shooting of African-Americans, Asian-Americans, and Jews in suburban Chicago by Benjamin Smith, a member of the white supremacist group World Church of the Creator (WCOTC) that promotes racial holy war.  Just months before the shootings, Smith told documentary filmmaker Beverly Peterson that: “It wasn’t really ‘til I got on the Internet, read some literature of these groups that . . . it really all came together.”  More recently, the Facebook group Kick a Ginger Day urged members to get their “steel toes ready” for a day of attacking individuals with red hair. The site achieved its stated goal: students punched and kicked children with red hair and dozens of Facebook members claimed credit for attacks.

Cyber hate can produce so much psychological damage as to undermine individuals’ ability to engage in public discourse.  For instance, posters on a white supremacist website targeted Bonnie Jouhari, a civil rights advocate and mother of a biracial girl.  They revealed Ms. Jouhari’s home address and her child’s picture.  The site showed a picture of Ms. Jouhari’s workplace exploding in flames next to the threat that “race traitors” are “hung from the neck from the nearest tree or lamp post.”  Posters included bomb-making instructions and a picture of a hooded Klansman holding a noose.  Aside from moving four times, Ms. Jouhari and her daughter have withdrawn completely from public life; neither has a driver’s license, a voter registration card or a bank account because they don’t want to create a public record of their whereabouts.

Search engines also ensure the persistence and production of cyber hate that undermines citizens’ capability to engage in offline and online civic engagement.  Because search engines reproduce information cached online, people cannot depend upon time’s passage to alleviate the damage that online postings cause.  Unlike leaflets or signs affixed to trees that would decay or disappear not long after their publication, now search engines index all of the content hosted by social media intermediaries, producing it instantaneously. Read the rest of this post »

  November 27, 2010 at 3:49 pm   Posted in: Anonymity, Cyber Civil Rights, Cyberlaw, Google & Search Engines, Law and Inequality, Legal Ethics, Legal Theory, Politics, Psychology and Behavior, Race, Social Network Websites, Technology, Web 2.0   Print This Post   3 Comments

Users of Online Intermediaries as Citizens

posted by Danielle Citron

Most naturally, social media providers and search engines see their users as consumers.  As commercial enterprises, they aim to reap profits, which users help secure with advertising and information revenue.  Yet they should also view their users as citizens.  Because intermediaries are designed to enable public discourse, they facilitate the formation of a citizenry.

Citizenship is not simply a matter of legal status enjoyed by members of a body politic, though it serves that crucial role.  It refers to one’s engagement in public life as well.  Public participation is often viewed as essential for members of a democracy to form a citizenry.  As John Dewey wrote, citizenship extends beyond the legal dimension to include “all of the relationships . . . involved in membership in a community.”  For John Stuart Mill, citizens are individuals who develop their faculties through active engagement in public life.  In this sense, citizenship “provides what other roles cannot, namely an integrative experience which brings together the multiple role activities of the contemporary person and demands that the separate roles be surveyed from a more general point of view.”

Online intermediaries provide essential tools for citizenship.  Individuals rooted in our national polity connect, debate, and pursue common interests on intermediaries’ platforms.  Seeing users as citizens is important for intermediaries interested in understanding what is at stake when they host and index cyber hate.  This leads to the question of how intermediaries impact citizenry in the Information Age, to which I will turn in my next post.

  November 26, 2010 at 3:15 pm   Posted in: Google & Search Engines, Legal Ethics, Politics, Social Network Websites, Technology   Print This Post   No Comments

Mandatory Pro Bono Down In Ole Miss

posted by Dave Hoffman

The Mississippi Supreme Court is considering whether to require the state’s lawyers to either provide “at least 20 hours of free service to the poor each year” or buy their way out of the requirement by donating “$200 to $500″ a year in fees.  The arguments for an against mandatory pro bono – whether in law schools or in practice – are familiar.  Lawyers in the Mississippi make them pretty well:

Don Lacy of http://en.wikipedia.org/wiki/Flowood,_Mississippi. . .  lambastes the proposal as “an unprecedented and unjustifiable unilateral extension of the authority of the court.”

“Other than perhaps the priesthood, I am unaware of any profession which requires its members, as a condition of their right to practice their craft, to contribute a portion of their income to charity,” Lacy said in a letter to the court.

There are supporters, however, and Will Bardwell, a Jackson lawyer in private practice for a little more than a year, is among them.

“I understand the argument, doubtlessly voiced by many of my colleagues, that no one should be required to provide what is, in essence, community service,” Bardwell said. “Fundamentally, I agree. But the fact is that attorneys are different. That distinction exists as both an honor, and sometimes, a burden.

For what it is worth, I’m with Lacy.  If the State thinks that there is a need for more and cheaper legal work for the poor, it should loosen restrictions on entry into the profession.  This proposal, which increases barriers to entry and to practice, may make the problem worse.

(But see SHG)

  September 23, 2010 at 12:32 pm   Posted in: Legal Ethics   Print This Post   One Comment

Bartering Legal Services for Sex

posted by Solangel Maldonado

Sometimes I think that lawyers unfairly get a bad rap. Most lawyers work hard, comply with all of the ethical rules, and respect their clients. However, there are a few that repeatedly violate the Rules of Professional Conduct, hurting their clients and threatening the public’s trust in the legal profession. Unfortunately, they continue to practice law.

Imagine an attorney who has been admonished, reprimanded, and censured four times in a 6-year period for failing to communicate with clients and for recordkeeping violations, and who is later held ineligible to practice law for 15 months for failure to pay into the state’s Lawyers’ Fund for Client Protection among other things.  Imagine that this attorney (who continues to practice law during this period of ineligibility) offers discounted fees to three female bankruptcy clients and to the daughter of another client in exchange for sexual favors. (He told the daughter of a bankruptcy client who could not afford his fee that he would forgive her father’s debt if she would meet him “in a hotel room for three hours.”)  You can read the rest of the stipulated facts here.

Read the rest of this post »

  August 4, 2010 at 8:08 pm   Posted in: Feminism and Gender, Law Practice, Legal Ethics   Print This Post   8 Comments

Could You Cheat On an Open-Book Issue Spotter?

posted by Dave Hoffman

Claims of cheating by college students are increasingly common.  Law schools are not immune to the problem, though it is rarely talked about.  That’s true even though the likelihood of being caught is (probably) higher than in college (because one professor, not multiple RAs, do the grading) and the consequences are more dire (because cheaters, even if not expelled, should be reported to the Bar’s character and fitness board).  For exams where the “game” depends on quickly uncovering information — multiple choice exams, especially when questions are copied from previous years, or closed book essays — it is my sense that cheating is on the rise.  Similarly, plagiarism on long-form writing is cheaper than it used to be, and thus more common.  As compared to colleges, law schools are ill-equipped to deal with these sets of problems, as they lack a tradition of centralized pedagogical coordination, and thus the resources and know-how that might enable technological solutions of cheating.

That all said, I’ve always comforted myself that if you give an issue-spotting exam that is open book, even immoral maximizing students won’t cheat.  By making exams open-book, you prevent the easiest form of cheating – a student getting informational advantages over others by looking up cases or treatises.  All that is left is discussion between test takers, which is prohibited by the honor code and which is a form of cheating.  I tend to think that such coordination is quite rare.  Though two students working together might “spot” more issues than either alone, it’s just as possible that group think will revert them to the mean answer – the easiest to see issues.  Moreover, “A” answers are distinguished (mostly) not by spotting issues but by discussing them.  Two students together would run a terrible risk if their discussions looked alike to the grader.  Thus, open-book monster issue spotters are structurally difficult to game, and the best defense against cheaters – at least until we replace our current grading system with a computer.

  July 21, 2010 at 9:11 am   Posted in: Law School, Law School (Teaching), Legal Ethics, Uncategorized   Print This Post   11 Comments

The Posthumous Case for Impeaching Abe Fortas

posted by Tuan Samahon

Recall 1968 and the failed confirmation of Abe Fortas to be Chief Justice of the United States. President Lyndon Johnson had announced he was not seeking reelection; Republican presidential candidate Richard Nixon menaced in the wings. Chief Justice Earl Warren announced his resignation—contingent upon the Senate’s confirmation of his successor—and thereby auspiciously created one last vacancy for LBJ to fill. LBJ nominated Associate Justice Abe Fortas as the inside candidate. Homer Thornberry was nominated to fill Fortas’s to-be vacated seat.

Republican Senators (encouraged quietly by candidate Nixon) together with the Dixiecrats blocked the Fortas nomination in hopes that Nixon would fill the seat with a nominee of his choice. As grounds for opposing confirmation, they cited, among other grounds, the Justice’s unusually close relationship to LBJ—an open secret in official Washington.

Under oath, Fortas decided to put the allegations to rest with this testimony: “Let me say in the first place—and make this absolutely clear—that since I have been a Justice, the President of the United States has never, directly or indirectly, approximately or remotely, talked to me about anything before the Court or that might come before the Court. I want to make that absolutely clear.”

Except, that really wasn’t the truth—far from it.

Read the rest of this post »

  April 7, 2010 at 2:27 pm   Posted in: Constitutional Law, Legal Ethics, Politics, Supreme Court   Print This Post   One Comment

Book Review: Daniel Markovits, A Modern Legal Ethics

posted by Stephen Galoob

A Modern Legal Ethics, by Daniel Markovits.  Princeton University Press: New York 2008.  Pp. 361.  $29.95

Daniel Markovits’s A Modern Legal Ethics could change the way we think about legal ethics, although not necessarily far enough or in only the right directions.

The main argument is elegant and provocative.  Markovits contends that a central issue in legal ethics should be the “problem of integrity.”  Lawyers must be able to integrate their professional commitments into their moral lives.  This is the most important insight of the book.  Other commentators have noted the problem of integrity, but Markovits offers the most sustained and nuanced discussion.  His argument opens up new avenues for thinking about the rules governing lawyers.

On Markovits’s telling, the lawyer’s integrity is directly challenged by her professional obligations.  Good lawyering requires what, on ordinary morality, would be considered lying and cheating.  These “lawyerly vices” are endemic to the adversarial system, so they can’t be cured by tailoring the rules governing lawyers.  Neither is avoiding these vices an option, given their incompatibility with integrity.

For Markovits, there are better and worse ways to solve this problem.  Most theories of legal ethics utilize what he calls (after David Luban) the “adversarial system excuse,” or the consequentialist view that the lawyerly vices are justified as part of a legal system that is just overall.  Here, if the overall practice is justified, then the integrity issues fall away.  Impersonal approaches can only accidentally or incidentally resolve integrity problems.

Interpersonal theories of legal ethics (which he calls “Kantian” approaches) don’t fare any better.  On these approaches, principles of legal ethics are acceptable only if they fulfill specified criteria (e.g., that they could be reasonably consented to, that they could not be reasonably rejected, etc.).  Yet, Markovits argues, concentrating on fulfilling such criteria raises the same problem as with impersonal approaches: any resolution to the problem of integrity is a byproduct, rather than an important end in itself.

Markovits thinks we must take the “lawyer’s point of view” in order to solve the problem of integrity in the right way, which requires a “first-personal” approach to morality.  Markovits calls his version “role-based redescription.”  If there were a distinctive, morally worthy role for lawyering, then the lawyer could preserve her integrity by redescribing her professional obligations to lie and cheat as requirements of fulfilling this role.

Read the rest of this post »

  March 3, 2010 at 11:12 pm   Posted in: Articles and Books, Book Reviews, Jurisprudence, Legal Ethics, Legal Theory   Print This Post   5 Comments

The “It Will Never Happen to Me” Mentality

posted by Michelle Harner

We started our spring semester today at Maryland, and I am teaching one of my favorite courses, Legal Profession. Having faced ethical dilemmas in practice (and unfortunately seen very talented lawyers disciplined, disbarred and jailed), I believe that this course is extremely valuable. I suspect, however, that most of our students disagree with me, which is why they typically wait until the last semester of law school to take this required course. In fact, the very first time I taught Legal Profession, I asked my class of 75 3Ls to raise their hands if they would “elect” to take Legal Profession if it was not required for graduation. Only one student raised her hand; I promptly commented that she was perhaps the smartest woman in the room. Since that first year, more students have raised their hands, but I attribute at least part of that increase to a note in prior students’ outlines to “raise hand when Prof. Harner asks . . . .”

Why the resistance to learning, understanding and appreciating the ethical rules governing lawyers’ conduct? Some students have the ill-conceived notion that the study of ethics is boring. (I actually happen to think the topic, particularly the hard questions in the grey areas, is really interesting, controversial and timely; ever watch an episode of Boston Legal?) But for many students, at least based on my conversations, their lack of enthusiasm for the course stems from the simple belief that they are moral individuals who would never act unethically. It is the old “it will never happen to me” mentality.

Unfortunately, I think individuals, including lawyers and business executives, fall prey to this mentality far too frequently. (For an interesting discussion of similar psychological traps, see here and here.) For example, a lawyer may be a moral individual but the pressure of the practice—client demands, senior partner demands, billables, family obligations, etc.—and even good old human greed can blur the line between right and wrong. Likewise, not all executives who get caught up in corporate scandals or pursue excessive risk are bad people; rather, these individuals often get trapped by the same pressures as lawyers. And the consequences can be devastating for the individual and those around her.

I do not know how we correct this mentality or if we can change this aspect of human nature. For my part, I try sensitize my students to the issue and help them decide what kind of person and lawyer they want to be before they enter the profession. I think the use of peer reporting and whistleblower provisions may help curb some of these human tendencies (in the lawyer context, consider Model Rules of Professional Conduct 8.3 and 1.13), but we need to stay focused on the human side of the problem as we continue to draft and amend rules and regulations to govern lawyers, business executives and others. (This side of the corporate risk management problem was thoughtfully raised in a comment to one of my prior posts. See here.) It is a difficult issue, but one worth tackling.

  January 19, 2010 at 9:15 am  Tags: Corporate Law, Legal Ethics  Posted in: Corporate Law, Legal Ethics   Print This Post   2 Comments

Acknowledging Failure at the Department of Justice

posted by Danielle Citron

Today, the Department of Justice announced its appointment of Andrew Goldsmith as the new national coordinator for its criminal discovery initiatives.  According to the press release, DOJ created the position to “improve its criminal discovery and case management policies and procedures.”  His responsibilities include creating an online directory of resources on discovery issues available to all prosecutors at their desktop, producing a handbook on discovery and case management, implementing training for paralegal and law enforcement agents, among other things.  A few paragraphs into the announcement comes an important, and revealing, note about a recent review of DOJ practices and policies: “That review determined that incidents of discovery failures were rare in comparison to the number of cases prosecuted.  However, the Department has instituted a number of steps intended to further ensure the Department complies with its discovery obligations.”

Those oblique sentences seemingly refer to the cases against the Blackwater guards and former Alaska Senator Ted Stevens that were dismissed or dropped out due to discovery mistakes by federal prosecutors.  While discovery failures might have been rare, they nevertheless packed a punch.  For instance, in the corruption trial of former Senator Stevens, the judge chastised federal prosecutors for letting a witness leave town.  Federal prosecutors got in trouble for submitting erroneous evidence and were reprimanded for failing to turn over key witness statements.  An FBI agent complained about the prosecution team’s alleged misconduct.  Attorney General Eric Holder asked the judge to drop the case after learning that prosecutors failed to turn over notes that contradicted testimony from their key witnesses.  A federal judge recently dismissed charges against five Blackwater Worldwide security guards accused of killing 14 Iraqi citizens in a shooting in a ruling that sharply criticized the tactics of DOJ prosecutors in handing the case.  The judge found that prosecutors and agent had improperly used statements that the guards provided to the State Department in the hours and days after the shooting.

The appointment of a National Coordinator for Criminal Discovery Initiatives sends an important message.  The DOJ has seemingly acknowledged its failures, despite suggesting their rarity.  It also expressed its commitment to excellence, though for some this may come a little to late.  This reminds me of the important work that my former colleague and now Michigan Law professor Sonja Starr is doing regarding prosecutorial misconduct, including her superb piece Sentence Reduction as a Remedy for Prosecutorial Misconduct, 97 Georgetown L.J. 1509 (2009).

  January 15, 2010 at 2:54 pm   Posted in: Criminal Law, Criminal Procedure, Legal Ethics, Uncategorized   Print This Post   One Comment

Lawyers: Don’t Trade on Inside Information!

posted by Lawrence Cunningham

In my corporations classes, I urge my students planning a career in corporate and securities law to resist the ubiquitous opportunities and occasional temptations to trade on the basis of material non-public information. I offer in terrorum encouragement by emphasizing that all trades are tracked and that enforcement authorities periodically review them for unusual patterns. Those are traced back to professional advisors, including law firms, having been involved in related deals. It is not difficult for authorities to catch these violations.

Along with dozens of others apparently caught up in the ongoing insider trading scandal at Galleon, today, an associate at the prestigious firm, Ropes & Gray, is alleged to have violated securities laws by using confidential information obtained from clients to profit in securities trades. Lawyers, as fiduciaries, who obtain material information through client representation, violate their fiduciary obligations and hence federal securities laws when they trade on it.  See United States v. O’Hagan, 541 U.S. 642 (1997).

Over at the Wall Street Journal blog, Ashby Jones is asking how common insider trading is among lawyers. This is obviously a difficult empirical question. I can add, however, that (a) in the four years that I practiced law at Cravath, Swaine & Moore, one of my fellow-associates engaged in this activity (with his brother) and authorities prosecuted him (in 1995) for it and (b) during the two years before that when I was a paralegal at Skadden, Arps, one of the associates for whom I worked did so (with his sister) and he was likewise caught (in 1990). 

In addition, the famous case embracing the so-called misappropriation theory of insider trading, United States v. O’Hagan, 541 U.S. 642 (1997), involved a lawyer—a partner at Dorsey & Whitney, representing Grand Met in its acquisition of Pillsbury, who generated nearly $4 million in unlawful trading gains from the knowledge.

I repeat to my students, past and present, and all lawyers: do not do this!

  November 5, 2009 at 3:50 pm   Posted in: Current Events, Law Practice, Legal Ethics, Securities Regulation   Print This Post   2 Comments

No Loyalty to Dead Clients?

posted by Dave Hoffman

I know that this is all perfectly kosher – there’s no disclosure of any confidence, and any potential representation has long-since lapsed.  But watch the following and tell me if you agree that this is  more than a little bit unseemly?  (My sense is someone is trying to avoid a malpractice suit.)

(H/T: TNC)

  October 25, 2009 at 5:48 am   Posted in: Legal Ethics   Print This Post   10 Comments

Scandal and Conflict of Interest in Formula One

posted by Michael Kang

A major cheating scandal has erupted at the highest level of international auto racing. After an investigation by the Federation Internationale de l’Automobile (FIA), the ING Renault Formula One Team announced it does not dispute the FIA’s charge that the team illegally conspired with its driver Nelson Piquet, Jr. to aid his teammate Fernando Alonso’s victory at last year’s Singapore Grand Prix by crashing intentionally during the race. Piquet crashed on lap fourteen of the race, ending his day and requiring deployment of a safety car (race cars stack up in order, with passing prohibited) while stewards cleaned up the course. Piquet’s crash was incredibly well-timed for his teammate Alonso and vaulted Alonso to a race lead that he would never relinquish. Alonso had mechanical problems during qualifying and started the race in fifteenth position on a narrow street circuit where overtaking is difficult. Piquet’s crash came immediately after Alonso had pitted for fuel, but before the rest of the field had done so, and as a result, Alonso promptly assumed the race lead as the other cars pitted in turn during the caution period. The perfect timing of Piquet’s crash for another Renault driver was suspicious from the start: Safety cars are somewhat rare in Formula One, but Piquet’s crash occurred where the stewards couldn’t quickly remove his car, and what is more, Alonso’s race strategy to pit so early was unusual—most cars starting at the back of the field load up on fuel and pit as late as possible, while Alonso did the opposite in the improbable hope of exactly what happened.

Nothing would have come of suspicions about Alonso’s victory, except that Renault fired Piquet as a driver this August, about a year after the race. Immediately following his dismissal, Piquet launched a public campaign against Renault managing director Flavio Briatore and then confessed to the FIA that he had crashed intentionally at Renault’s direction. Piquet claims, and Renault no longer denies, that Briatore and Renault director of engineering Pat Symonds approached him before the race about whether he would be willing to crash intentionally early in the race. Piquet explains that he “was in a very fragile and emotional state of mind . . . brought about by intense stress due to the fact that Mr. Briatore had refused to inform [him] of whether or not [his] driver’s contract would be renewed.” As a result of this developing scandal, Briatore and Symonds have resigned, and it isn’t clear what penalties the FIA will apply against Renault and the various parties involved. The FIA disqualified McLaren-Mercedes outright from the constructor’s championship and levied a $100 million penalty following a similarly appalling scandal two years ago.

The additional wrinkle here is that the scandal features an astounding conflict of interest at its heart. Briatore, while acting as managing director of Renault, served also as Piquet’s professional manager through a separate company. In other words, Briatore sat on both sides of the table in Piquet’s dealings with Renault. To be candid, Piquet has always struck me as an immature, unsympathetic character living a charmed life in no small part because his father is a three-time Formula One champion as a driver. But a driver’s seat in Formula One is incredibly difficult to secure, and it isn’t surprising that even Piquet may have felt overwhelming pressure to compromise himself (as well as risk serious injury) for someone serving as both his personal representative and his boss at the same time. Indeed, Briatore’s conflict of interest is not unusual in the incestuous world of Formula One. Briatore’s company actually has a similar arrangement with Piquet’s replacement, Romain Grosjean, as well as some type of management relationship with virtually every F1 driver employed by Renault during the last decade, including Alonso. As far as I know, neither the FIA nor the Grand Prix Drivers’ Association requires certification for driver’s managers or representatives anywhere comparable to the standards set by the unions for professional athletes in American sports leagues. It appears that the Renault scandal may finally prod the FIA or World Motor Sports Council to action on the issue.

  September 18, 2009 at 9:25 am   Posted in: Current Events, Legal Ethics   Print This Post   2 Comments

David Gray on “Publishing Ethics”

posted by Danielle Citron

Today, I would like to share a post by my colleague and former guest blogger David Gray on publishing ethics.  Here is his post:

My thanks to Danielle for granting me this one-time-post-guest spot to pose a few questions to the Co-Op community about law review submission practices. What follows is from me, and should in no way be attributed to Danielle.

I am at best a neophyte, so apologize straight away if this is ground that has been covered elsewhere, but I have been thinking a lot lately about normative issues germane to the process for placing articles in law reviews. I have seen and read with great interest a number of blogs, websites, and SSRN postings relating to practical and strategic considerations, but have yet to see a sustained discussion of what, if any, rules of conduct or decorum we ought to respect along the way. After the jump I stumble through some of my sketchy thoughts and solicit views, advice, and anecdotes from authors, law review editors, and others in a much better position than I am in to inform this discussion.

Read the rest of this post »

  August 18, 2009 at 3:02 pm   Posted in: Legal Ethics, Uncategorized   Print This Post   10 Comments

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