Category: Legal Ethics

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Users of Online Intermediaries as Citizens

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.

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Mandatory Pro Bono Down In Ole Miss

Lawyering on the Chain Gang

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)

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Bartering Legal Services for Sex

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.

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Could You Cheat On an Open-Book Issue Spotter?

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.

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The Posthumous Case for Impeaching Abe Fortas

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.

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Book Review: Daniel Markovits, A Modern Legal Ethics

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.

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The “It Will Never Happen to Me” Mentality

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.

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Acknowledging Failure at the Department of Justice

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 d120px-Surrender_of_Cornwallisiscovery 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).

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Lawyers: Don’t Trade on Inside Information!

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!

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No Loyalty to Dead Clients?

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)