Archive for the ‘Legal Ethics’ Category
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.
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.
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.
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.
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).
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!
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.)
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.
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.
posted by Jenia Turner
At the end of May, the Extraordinary Chambers in the Courts of Cambodia (ECCC), a hybrid court composed of national and international judges, issued a warning to a defense lawyer for offending the court and obstructing the proceedings. The lawyer was Jacques Verges, a French attorney who has made a career of representing notorious clients and taking on politically charged cases. At the ECCC, he represents Khieu Samphan, Cambodia’s former Head of State, who is accused of committing crimes against humanity and war crimes during the horrific era of the Khmer Rouge. Verges was reprimanded for using delay tactics and implying that the court’s judges are corrupt. The decision raises the question of how far an attorney may go in raising questions about the integrity of an international court.
Verges made the remarks during a pretrial hearing concerning his client’s request for release from detention. During the hearing, which the court had postponed twice to accommodate Verges’s schedule, Verges made no comments on the merits of the motion, but instead hinted at the possibility of the tribunal’s corruption:
…Firstly, I shall be silent because it is not for me to be more concerned about your honour than you yourselves are. If you consider that corruption should not be discussed, I am not going to force the discussion on you. I shall be silent because I understand your caution in this regard and I think that the presumption of innocence that you sometimes deny the accused may be of some benefit to you. And I shall be silent because the Head of State which hosts you has stated publicly that he wishes you to leave, making of you, in a moral sense, squatters. I shall be silent also because a member of the Government of the country that hosts you stated that you were obsessed only by money, thus confirming the charge-be it grounded or not-of corruption, which blights the tribunal.
In response, the court warned Verges that if he continued along these lines, he would be sanctioned. The court also forwarded a copy of the warning to the Cambodian and French bars.
What makes the situation at the ECCC complicated is that there have been numerous allegations of corruption involving ECCC court staff. These allegations have come from inside staff members, human rights NGOs, and the UN itself, whose Office of Internal Oversight Services investigated allegations of corruption and delivered a report to the Cambodian government implicating specific individuals (the Cambodian government has not revealed or followed up on this report). Both defense attorneys and victims’ attorneys have called on the court to investigate the question further. So far, the allegations focus on kickbacks that ECCC staff members may have paid to Cambodian officials in return for their positions at the court. The allegations appear to implicate only the Cambodian staff and not any of the judges. But motions by other ECCC defense teams have argued that even corruption among court staff could affect the fairness of the trial. As one motion states: “if staff members entrusted with sensitive tasks are willing to engage in graft, those individuals may be equally willing to follow improper instructions, such as the manipulation of evidence to support a preordained political outcome.”
Verges’s comments to the court might be read to stop short of any direct accusation of the judges, but they certainly hint at the possibility of improper motives. Perhaps more relevant for purposes of the warning is that his comments were raised during a hearing on a motion to release his client from detention, distracted from the merits of the motion, and did not appear to be reasonably calculated to advance the legal interests of his client. Trying accused war criminals from the terrible era of the Khmer Rouge remains the ECCC’s primary business. As long as this mandate remains, the ECCC judges cannot allow the trial of every defendant, and every related motion, to be turned into an argument about the court’s own separate problems. ECCC judges were therefore correct to warn him that they would be prepared to take more serious measures to ensure orderly and speedy proceedings.
Still, while Verges’s statements may have justified the warning in this case, the ECCC should be cautious in reprimanding lawyers simply for raising the question of corruption at the court. The issue is too important to the court’s legitimacy, as some of the international judges themselves have acknowledged. It would be unfortunate if the only measure that the court takes in response to allegations of corruption is to reprimand defense attorneys for raising the issue.
July 9, 2009 at 10:43 am Tags: Corruption, Extraordinary Chambers in the Courts of Cambodia, Jacques Verges, Legal Ethics Posted in: International & Comparative Law, Legal Ethics Print This Post 2 Comments
posted by Andrew Taslitz
In an earlier post, I noted that two recent books had important things to say relevant to the ethics of government lawyers. That first post reviewed one of those books. This post reviews the second, H. Jefferson Powell’s beautifully written and spiritually uplifting new book, Constitutional Conscience: The Moral Dimension of Judicial Decision (2008). Despite what the book’s title might suggest, Powell’s lessons concern the ethics that should guide all constitutional decisionmakers, not only government lawyers. Indeed, his lessons explicitly apply to such lawyers as well, including a chapter-length illustration. Here I simply summarize his ethical theory, leaving it to the reader to imagine applications.
I note one preliminary point: while much constitutional law scholarship is depressing, either foolishly pretending law to be a mechanical enterprise divorced from politics or a cynical one masking politics, Jeff Powell offers a third, happier way ignored by fools and cynics alike: that of virtue. Those embracing the first two approaches may see Powell’s way as hopelessly idealistic, but Powell himself sees it as highly realistic, and his extended examples, which I do not have space to recount here, strongly support the pragmatic viability of his suggestions. Read the rest of this post »
posted by Brian Kalt
I have enjoyed my visit at Concurring Opinions, but alas, my time is up and this will probably be my last (and maybe least) post.
I am one of those who is irked by the Timothy Geithner and now the Tom Daschle tax controversies. Geithner avoided paying tens of thousands of dollars in self-employment taxes. Then he paid back the part that he was forced to. Then, when his nomination as Treasury Secretary loomed, he paid the rest of it. And he wasn’t straightforward about his reasoning for the timing of all of this. Wags took the opportunity to argue that we need to reform the tax code, to make it simple enough that even the Treasury Secretary can follow it. Geithner was confirmed, apparently because none of the candidates who paid their taxes correctly were good enough for the job.
Now, Tom Daschle is facing similar issues. Nominated for Secretary of Health and Human Services, he amended his last three years’ worth of tax returns. Upon further reflection, he realized that he had failed to report hundreds of thousands of dollars in income, and that he shouldn’t have claimed some of the deductions that he took. He wrote a check for $140,000 and is now hoping for the best. It apparently wasn’t very challenging to get it right the second time around; why couldn’t he have had his “people” be equally careful in the first place? The most obvious reason is that nobody was watching then.
I agree with the idea that you can gauge how ethical someone is by how they behave when they think nobody is watching. Given the difference between how Geithner and Daschle behaved before and after people were watching, I think that they both fail the test.
I’m in a self-righteous mood about this right now, because I am doing my taxes this week and I found some old mistakes.
posted by Nate Oman
I’ve been reading Richard Posner of late, and it strikes me that there is an odd analogy between the his vision of the pragmatic judge and the position of the judge under the classical usul al-fiqh of Islamic law. It seems to me that ultimately Judge Posner’s theory of adjudication rests on a radical rejection of the ex post perspective. On his view all judicial decisions are — and ought to be — forward looking, focusing solely on the consequences for the future that will come from deciding one way rather than another. Of course, a concern for future consequences needn’t preclude a certain respect for past practices, expectations, and rule of law values, but none of this stuff has any force in and of itself. It only matters in so far as it impacts the future. One of the implications of this theory is that the judge can never hide behind the “the law” as a way of distancing him or herself from moral responsibility for her decisions. The law does not dictate particular results in any case. Rather, it is always a matter of the judge making an individual — albeit practically constrained — judgement about what would — all things considered — be best. One doesn’t get any sense that Judge Posner spends much time thinking about the personal moral status of the judge, but it seems to me his theory makes the judge into a radically responsible moral agent. If the consequences of one of Judge Posner’s decisions is really bad, it really is Judge Posner’s fault.
Where Judge Posner’s theory of law is radically ex ante, the theory of law (usul al-fiqh) proposed by the classical Islamic jurists purported at any rate to be radically ex post. In theory, all human legislation is a denial of the sovereignty of God, a kind of blasphemy. Rather, a righteous society follows God’s law. This law, however, is finished and complete, indeed according to the dominant theological approach in Islam it is uncreated, a co-eternal emanation of the divine mind. The task of a jurist is to discover the divine law as revealed in the Qur’an and the example of the Prophet Muhammed. Put in more concrete terms, the classical Islamic jurists claimed that every rule necessary for the proper government of society could be discovered — not deduced from or promulgated in accordance with — with the sacred texts of Islam. At this point in their theory, however, the jurists came up against the ultimately unsystematic and ad hoc nature of the Islamic revelation. The Qur’an is not a legal code. Rather it is a collection of “recitations” — often in the form of religious poetry — given by God to the Prophet, often in response to concrete questions or problems raised by the early Islamic community. It was only in the generation after his death that these “recitations” were collected into the Qur’an. Not surprisingly, it takes some nimble exegetical gymnastics to transform this religious ur-stuff into a functioning body of substantive law. What haunted the classical jurists was that they might be wrong in their exegesis. As Marshall Hodgson has written, for a Muslim “every person, as such with no exceptions, was summoned in his own person to obey the commands of God: there could be no intermediary, no group responsibility, no evasion of any sort from direct confrontation with the divine will.” Hence, there was no sense in which a jurist could hide behind some abstraction like office or “the law” to shield himself from full responsibility for his judicial decisions. He was to apply the law of God, and if he got it wrong he was responsible for that mistake.
According to one Muslim legal aphorism, “For every three judges, two are in the fire.” The fire in question here is the hell reserved by God for judges who do not apply His law. Indeed, there are stories of great classical legal scholars who fled from Baghdad at the prospect of being made an actual judge by the Caliph. The reason was that once one moved from exegetical speculation to deciding actual cases, one’s eternal soul was on the line. I don’t think that Judge Posner is much worried about hell fire, but ironically his radically ex ante approach leaves him in a similar moral position personally to the radically ex post approach of the ulema.
posted by Dave Hoffman
[Updated and bumped, for update see below]
Readers may recall the case of GMAC Bank v. HTFC Corp. GMAC is infamous because of an opinion by E.D.Pa. Judge Robreno discussing the deposition of HTFC CEO Aaron Wider, in which Wider profanely abused plaintiff’s counsel Robert Bodzin. If you need to see it, and are in environment where lots of cursing isn’t going to get you in trouble, hit play and shudder at the decline of civility in American life:
In his opinion, Robreno also sanctioned Wider’s attorney Joseph Ziccardi for failing to restrain his client and even (allegedly) snickering at the bad conduct. Ziccardi was stripped of his pro hoc admission, fined $29,000 (equally with his client) and referred to the Bar.
Ziccardi has filed a motion for reconsideration. I found it quite persuasive. In the memorandum in support of the motion, and the reply, Ziccardi provides evidence that he didn’t snicker at Wider’s profane conduct but instead tried to stop it off the record. The evidence was purportedly not submitted earlier because Ziccardi was still representing Wider and lacked notice that the Court was considering sanctioning him under the discovery rules as a co-offender. Ziccardi has provided affidavits from (among others) himself and Wider. The latter in particular is a must read. Wider falls on his sword for his former lawyer, stating that Ziccardi had repeatedly cautioned him not to act out and worked to prevent his outbursts behind the scenes. (Oddly, based on this document, I’m not sure that anyone is currently representing Wider. The affidavit is very much not in his interest, but sounds like it was a lawyer-generated document. Ziccardi’s conflict is quite acute at this point, as he realizes, and I wonder how he handled that communication.)
posted by Alice Ristroph
Readers of Larry Solum’s Legal Theory Blog might have noticed yesterday abstracts for several new papers from heavy hitters in the legal academy. My favorite of these April 1 abstracts was the Cass Sunstein-Adrian Vermeule paper on “Unrestricted Interrogation of Minors Not Yet Shown to Have Engaged in Culpable Behaviors.” “Given our assumptions, there is a moral obligation for the state to engage in the torture of innocent children.” Download that while it’s hot!
A good April Fool’s joke has to be plausible, and I think this abstract fits the bill. The same arguments that have been advanced to argue that executions might be morally required and that torture is at least permissible, if not required, can be used to require torture for tots. All you need is the right hypothetical.
And yet, I think Larry Solum is right that torture for tots is a proposal that most will view as a joke. Indeed, it’s a prospect that might help test the claim that we torture when, and if, and only if, necessity demands it. In a seminar discussion a few months ago, I suggested that contemporary support for torture might be driven by a presumption that those who are tortured deserve to be treated thus. Some of those present resisted this characterization, claiming that the arguments were based strictly on necessity, so I offered a hypothetical in which the only way to find the location of the ticking bomb is to torture the terrorist’s innocent young child. As I recall, none of my fellow seminar attendees wanted to defend torture under those circumstances.
A previously unreleased torture memo penned by John Yoo became available yesterday. Marty Lederman links to Part 1 and Part 2 and discusses the memo. David Luban addresses torture for tots, and other weaknesses of ticking bomb arguments, in a new paper available here. And in “Professors Strangelove,” available here, I offer some thoughts on torture, national security tough talk, and one of my favorite movies.
posted by Robert Ahdieh
An article in today’s New York Times, by Adam Liptak, reports on a forthcoming article in the Tulane Law Review, co-authored by Vernon Palmer (Tulane Law) and John Levendis (Loyola-New Orleans economics). As Liptak reports it, Palmer – a comparative law scholar – had long been struck by the ability of Louisiana Supreme Court justices to hear cases involving individuals who had previously made campaign contributions to them.
Quite reasonably, Palmer wrote a letter to each of the justices, recommending adoption of a rule mandating disqualification in such cases. Receiving no reply, he wrote again. Once more, no response was forthcoming. Some might have given up on the quixotic endeavor at this point. Being at academic, however, Palmer instead decided to recruit Levendis to help him do an empirical study of campaign contributions to the Court’s justices and relevant case outcomes.
Their basic calculations indicated the justices to have voted in favor of their contributors, on average, 65% of the time. (In the case of some justices, the level rose to 80%.) But the really interesting findings came when they used voting patterns in cases without contributors as their control. Liptak is worth quoting:
Justice John L. Weimer, for instance, was slightly pro-defendant in cases where neither side had given him contributions, voting for plaintiffs 47 percent of the time. But in cases where he received money from the defense side (or more money from the defense when both sides gave money), he voted for the plaintiffs only 25 percent of the time. In cases where the money from the plaintiffs’ side dominated, on the other hand, he voted for the plaintiffs 90 percent of the time. That is quite a swing. . . .
Larger contributions had larger effects, the study found. Justice Catherine D. Kimball was 30 percent more likely to vote for a defendant with each additional $1,000 donation. The effect was even more pronounced for Justice Weimer, who was 300 percent more likely to do so.
Not having seen the article itself, it’s hard to evaluate the quality of the authors’ empirics. If they’re even a little right, though, it seems like quite a finding. And perhaps quite telling, about justice and the elected justice.
posted by Dave Hoffman
A Rowan County District Court judge held a local attorney in contempt Wednesday for reading a men’s magazine during a court session, according to a contempt order filed in the Rowan County Clerk of Court’s Office.
Judge Kevin Eddinger found Salisbury attorney Todd Paris in contempt after he saw him reading a Maxim magazine with “a female topless model” on the cover, according to the order.
When Eddinger gave Paris a chance to respond he apologized and “stated in his view the magazine was not pornography, was available at local stores and that he did not intend contempt,” the order said.
Eddinger fined Paris $300, gave him a 15 day suspended jail sentence that remains in effect for a year and placed him on unsupervised probation, according to the order.
Although I can understand the judge’s ire, this seems like an overreaction to me. Is Maxim really so shocking so as to:
“interrupt the proceedings of the court and impaired the respect due its authority. In addition, the contemnor’s actions were grossly inappropriate, patently offensive, and violative of Rule 12 of the General Rules of Practice. Courtroom staff, law enforcement, members of the Bar and the general public shall be able to conduct courtroom business in an atmosphere free of the display of offensive material as demonstrated by the contemnor, thus necessitating this action.”
posted by Dave Hoffman
Tonight, I was reading “Why I am Not a Lawyer,” in Joseph Epstein’s In a Cardboard Belt!. Epstein wonders about the decline and fall of the American lawyer.
“[How did they go from] America’s natural aristocrats, from an almost priestly cast, to figures an increasingly large share of the population look upon as, chiefly, dangerously expensive to do business with, hopelessly pugnacious, and people for whom life is much better when they play no part in it. Something has happened to the practice of law over the past fifty years to cause it to lose its grandeur, and, in many quarters, even its dignity. To allow that one is a lawyer nowadays even gain[s] you the automatic contempt of strangers.”
How did this happen? Epstein suggests that we’ve lost some of our well-roundedness – he refers to Oliver Wendell Holmes Jr. as a shining model of the past. Holmes was “tremendously well rounded” “splendidly well read in all realms of civilized interest” and could “doubtless have served in the Department of Philosophy at Harvard with his friend William James.” (Heller ignores Holmes’ cold dislike for actual people.) Today, (Heller alleges by contrast) lawyers are “businessmen, entrepreneurs, operators, hustlers….”; they lack virtue because they are seen to be partisan; they lack loyalty because the have monetized their partnerships; and the law has lost “its old and grand mystique . . . it is [instead] business, an efficient form of moneymaking and not much more.”
There’s quite a bit here. But it’s worth starting with the observation – made in the context of today’s political debates – that politicians too are castigated for being partisan, but most risk-averse voters chose candidates who can withstand such fights with more ease. As a commentator on Talking Points Memo wrote (in evaluating the Clinton/Obama choice):
“I’m reminded of people who hate lawyers because they’re too contentious and sleazy and aggressive — but when they get sued, they insist on getting the meanest bull dog of a lawyer they can find.”
That is, in the old days, lawyers were gentlemanly, courteous, learned, but probably something less than zealous advocates for their clients. Lawyers today offer better – more sophisticated, thoroughly researched, and nuanced – arguments than lawyers in the past; their deals are more carefully worded. We’ve lost the public good of the Bar’s reputation, but we’ve (probably) improved client service. Or to put it most provocatively, I’d prefer to hire a team of attorneys at a mid-sized legal firm to the brilliance of Holmes or Brandeis. They’d work harder.
posted by Jeffrey Lipshaw
My friend and Suffolk colleague Andy Perlman has a neat little question in ethics and morals over at Legal Ethics Forum. I recommend it heartily. (Personally, I think this is an easy application of the Categorical Imperative, but decide for yourself!) But while you are over there, ignore the crass pandering for votes, and if by some chance you do click through to the ballot for best blog in the “Lawyers Behaving Badly” category, think about how much your support would mean to my Legal Profession Blog colleagues, Alan Childress and Mike Frisch.
posted by Dave Hoffman
We’ve been fairly called out for giving insufficient attention to the ongoing quiet revolution in capital punishment law. It is true: our criminal law coverage is underdeveloped. My excuse – as usual – is incompetence. DP law presents a host of complicated doctrinal problems: sounding off at random to the latest development is dangerous. On the other hand, no one said blogging was supposed to be safe.
Today, Doug Berman comments on the NYT story on capital punishment costs. The story offers anecdotal evidence that the judiciary has responded to underfunded capital defense units by shutting down prosecutions. If the trend continues, “states unwilling to pay the huge costs of defending people charged in capital cases may be unable to conduct executions.” Doug sums up:
Consequently, states that do not adequately fund capital defense get sub-standard efforts that lead to more costs on the back end during appellate review. Indeed, as the posts below highlights, any capital punishment system is necessarily a very costly endeavor.
My cynical response to these observations starts with the observation that stringent judicial review of capital claims hinges largely on Justice Kennedy’s continued status as swing Justice. The executing States would move quickly to reduce capital defense guidelines given even subtle signals from the Court that ultimate merits review would be unavailing.
Moreover, it seems odd to me to claim that the death penalty is expensive and therefore inefficient when, of course, it is expensive primarily as the result of a self-conscious litigation strategy by folks like Steven Bright and Brian Stevenson. The death penalty doesn’t have to be expensive: abolitionists have made it so on purpose. By setting ever-higher standards for effective capital defense through litigation and by example, abolitionists have made death penalty prosecutions more difficult for states to swallow. Of course, abolitionists can have mixed motives: a standard that increases cost will also likely reduce wrongful conviction in any individual case. But it is odd that the article spent so little time examining the possibility that costs aren’t a byproduct of the search for innocence but instead a direct result of what we might think of a litigation strategy to impose a constitutional tax on capital prosecutions. The article says – without further explanation – that “Lawmakers say [a particular judge] and the defense lawyers are deliberately driving up the costs to make sure that the death penalty is too expensive for the state.” Well, no kidding!
Increasing costs is good strategy if your only goal is to prevent executions. But it is a bad strategy – as least when compared to the innocence project – at increasing public support for abolition. And it is a worse strategy if your concerns are more broadly directed. Legislatures will resent being bootstrapped out of their preferred sentencing means. And it is unlikely that the death penalty funds taken from indigent defense organizations by spiteful legislatures will ever be restored.
(Image source: Wikicommons)