Category: Legal Ethics


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.


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).


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!


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)


Scandal and Conflict of Interest in Formula One

10238_renault_f1A 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.


David Gray on “Publishing Ethics”

dgrayToday, 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.

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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.


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


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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