Category: Legal Ethics

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How Far Can Lawyers Go in Criticizing the Court? An International Perspective

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.

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Ethics and Government Lawyers Redux: Jeff Powell’s Happy Constitution

     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 More

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Tim Geithner and Tom Daschle Are No-Goodniks

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.

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“For Every Three Judges, Two Are in the Fire”: Richard Posner and the Usul al-Fiqh

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.

Ulema.pngWhere 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.

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Sanctioned Lawyer Throws Himself on the Mercy of the Court

[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.)

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Torture for Tots

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.

UPDATE: My soon-to-be colleague Frank Pasquale points out this Salon piece, which includes a link to a fascinating Youtube clip on the question of torturing children.

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Measuring Justice(s) in Louisiana

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.

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More Things Not to Do in Court

A weekend treat:

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.”

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Bringing a Lawyer to a Gun Fight

englishlawyer.pngTonight, 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.

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An Ethics Puzzle

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.