Category: Legal Ethics

11

Shunning Duke’s Faculty

listening_statement_p.jpgA little while back, former Judge, and law school Dean, Joseph Bellacosa (St. John’s) proposed that members of the public shun the 88 Duke faculty members who sponsored an advertisement in the early days of the Nifong investigation implicitly condemning the accused lacrosse players. Bellacosa argued that

[A]lthough the group [of faculty members] can’t technically be charged with crimes – though abandoning your young and endangering youth sure do come close to real definable crimes – there are ways these professors can be held accountable. The identities of the 88 professors should be posted in significant ways and places, including in the media and on the Internet, so that they may be known for what they have done.

The likely howls of protest from the tenure police, university guild apologists and free-speech absolutists notwithstanding, the professoriat should not be shielded from appropriate public condemnation for their misconduct. Their dormant consciences and sensibilities should be reawakened to the abhorrent nature of the actions they inflicted on their own students.

I am regrettably late commenting on Judge Bellacosa’s article, and so this post may be stale. But still. What the heck is going on here?

Finding the original ad put up in 2006 isn’t so easy. A follow-up statement by Concerned Duke Faculty member has dead links, and Duke’s African-American studies department has removed the page from its server. Fortunately, this blog post pdf’d the ad, which I’ve copied to the right. Unfortunately, Bellacosa doesn’t say, and I don’t understand, exactly what was so wrong about this statement. There are some rumors that the students whose voices are being spotlighted are composites. That would be bad, but not a deadly sin. And the heart of the ad – the statement by the professors themselves – seems to me to consist of a set of vague generalities that verge on truisms, and aren’t objectionable:

“Regardless of the results of the police investigation, what is apparent everyday now is the anger and fear of many students who know themselves to be objects of racism and sexism, who see illuminated in this moment’s extraordinary spotlight what they live with everyday.”

Regardless, we’re supposed to shame and shun the signatories to the ad. Why?

9

Should You Buy Divorce Insurance?

brokenheart1.jpgDivorce is catastrophic: it increases the rates of suicide and heart disease; can decrease overall well-being for both parents and children; and it significantly hurts the financial position of the parties, especially women.

But unlike almost all other catastrophic risks that we face, the costs of divorce can not be fully insured. Because of statutory requirements that limit insurance coverage to “fortuitous events”, and the perception that divorce is elected (at least by one of the parties to the marriage), you can’t buy a policy that will pay you for breach of the marriage contract. Such is the law.

I’m interested in this topic, and so I was quite intrigued to read about a new product being developed by an entrepreneur named John Logan, of the SafeGuard Guaranty Corporation: divorce insurance.

There has been significant enthusiasm for the concept. As some noted, you could imagine such insurance having a collateral-benefit: “risk matching” your perspective spouse (or even a first date) based on their premiums. But when you think about the concept a little bit, obvious objections present themselves:

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5

Why Do Lawyers Blog?

In response to my posts on the “flatness” and the “stagnation” of the legal blogosphere, I’ve received a number of helpful comments and feedback from practicing laywers who blog. See, e.g., Anne Reed, Eric Turkewitz and Scott Greenfield. One relatively constant response has been a rejection of the idea that all lawyer blogs “exist primarily to market the firm’s services.” Eric writes, in response:

Most blawgers, I think, do it simply for enjoyment, or to network with other attorneys for possible referrals, or perhaps hope a future client stumbles on the blog while looking for counsel. Trying to place a financial figure on such an indirect form of networking is not only impossible, but would completely miss any real benefits that might accrue based on new contacts and clients.

And Scott writes:

I’m just here to write and add my thoughts, for whatever their worth, to the body of thought that floats around the internet. It gives me purpose beyond making a buck.

These authors (and others who emailed me directly) suggest that I’ve gotten it all wrong. There is a “new wave” of small blogs, run largely by solo-practitioners. Unlike, say, practice-group blogs, these small shops are writing largely to express themselves. They are excited by the medium, and think that the potential untapped audience for their musings is pretty large. [Update: See Mark Bennett’s post on the Practical Blogosphere for a good taste of the commentary.]

If true, this would be pretty exciting. Of course, it is hard to generalize from a few comments, however informed and heartfelt. I also think that lurking in the background of the “we’re not about marketing” is the Bar’s onerous marketing rules, which complicate and restrict lawyer blogging. However, I thought it would be useful to inform this discussion with another informal survey. Please take it only if you are a practicing lawyer who blogs.

Why Do You Blog?
Primarily to market my firm to clients
Primarily to market myself to clients
Primarily to serve as an expressive outlet
Predominantly marketing, some expression
Predominantly expression, some marketing
Purely for fun (or, because I’m bored)
Primarily to generate referrals
Predominantly referrals, some expression.
Predominantly expression, some referrals.
Other
  
Free polls from Pollhost.com

3

Outsourcing Law

economicalservices.jpgI recently received an email from an Indian firm advertising certain legal services. It raised a number of issues I hadn’t thought about before, so I’ll publish it after the jump and then offer a few comments.

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17

Law Clerks and Book Proposals

There’s a fairly disturbing (at least to me) book proposal making its way around the e-mail universe, disturbing not because of the subject (the current debate over habeas and the war on terrorism), but because of the occupation of the authors/editors — two current D.C. Circuit law clerks. Indeed, the proposal itself harps on this fact, suggesting that the two clerks “are uniquely suited to moderate this debate,” having “spent a year in the legal trenches, as it were; each serving as law clerks on the Court of Appeals for the District of Columbia Circuit during a year that saw several landmark detention decisions likely to end up before the Supreme Court.”

My initial reaction is that this rubs me totally the wrong way. Wholly separate from the prospect of law clerks speaking to reporters about their jobs after their clerkships are over is clerks using their position as a ground for a book deal. If I remember right, the relevant provision of the Code of Conduct for Judicial Employees is Canon 3D, which provides:

A judicial employee should avoid making public comment on the merits of a pending or impending action and should require similar restraint by personnel subject to the judicial employee’s direction and control. . . . A judicial employee should never disclose any confidential information received in the course of official duties except as required in the performance of such duties, nor should a judicial employee employ such information for personal gain. A former judicial employee should observe the same restrictions on disclosure of confidential information that apply to a current judicial employee, except as modified by the appointing authority.

So I guess there are three questions here: First, is using your current position as a law clerk to promote a book deal in effect (if not actually) employing “confidential information received in the course of official duties . . . for personal gain”? Second, even if not, aren’t we opening a can of worms if clerks start using their position to hawk book deals? Third, although we’ll probably have no sense of the answer, does their judge know, and if not, shouldn’t s/he?

UPDATE: I should be clear, as some have noted in the comments, that the proposal is for a volume of essays from multiple contributors, and that the clerks do not appear to be planning to write anything themselves. There also does not appear to be an actual book deal; the e-mail referenced in the post is effectively gauging interest for possible contributors. I’m not sure that changes the issue, but wanted to clarify the original content.

22

The Death of Fact-finding and the Birth of Truth

magnififying.jpgToday’s Supreme Court decision in Scott v. Harris is likely to have profound long-term jurisprudential consequences. At stake: whether trial courts, or appellate courts, are to have the last say on what the record means. Or, more grandly, does litigation make findings of fact, or truth?

The story itself is pretty simple. Victor Harris was speeding on a Georgia highway. Timothy Scott, a state deputy, attempted to pull him over, along with other officers. Six minutes later, after a high-speed chase captured on a camcorder on Scott’s car, Scott spun Harris’ car off the road, leading to an accident. Harris is now a quadriplegic. He sued Scott for using excessive force in his arrest. On summary judgment, the District Court denied Scott’s qualified immunity defense; the Eleventh Circuit affirmed.

Justice Scalia, writing for the majority, noted that the “first step is . . . to determine the relevant facts.” Normally, of course, courts take the non-moving party’s version of the facts as given. [Or, to be more precise, the district court resolves factual disputes in favor of the non-moving party.] But here, the videotape “quite clearly contradicts the version of the story told by respondent and adopted by the Court of Appeals.” Notwithstanding a disagreement with Justice Stevens on what whether that statement was accurate (“We are happy to allow the videotape to speak for itself.” Slip Op. at 5), the Court proceeded to reject the nonmoving party’s version of the facts. To do so, it relied on the ordinary rule that the dispute of facts must be “genuine”: the Respondent’s version of the facts is “so utterly discredited by the record that no reasonable jury could have believed him.” (Slip Op. at 8).

Let’s get a bias out of the way. At the Court’s suggestion, I watched the video. I lean toward Justice Stevens’ view: “This is hardly the stuff of Hollywood. To the contrary, the video does not reveal any incidents that could even be remotely characterized as ‘close calls.'” Such a dispute over a common story immediately highlights the most serious problem with the Court’s opinion: we all see what we want to see; behavioral biases like attribution and availability lead to individualized view of events. Where the majority sees explosions, Justice Stevens sees “headlights of vehicles zooming by in the opposite lane.” (Dissent at 2, n.1 – and check out the rest of the sentence for a casual swipe against the younger members of the court.) It brings to mind the Kahan/Slovic/Braman/Gastil/Cohen work on the perceptions of risk: each Justice saw the risk of speeding through his or her own cultural prism.

But even if I agreed with the majority on what the videotape shows, the Court’s opinion is disruptive to fundamental principles of American Law. Justice Stevens suggests that the majority is acting like a jury, reaching a “verdict that differs from the views of the judges on both the District court and the Court of Appeals who are surely more familiar with the hazards of driving on Georgia roads than we are.” (Dissent at 1). There are several problems with such appellate fact finding based on videotape that the Court ignores.

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1

Academic Detachment and Consulting Work

Today’s Boston Globe reports a story involving a lawsuit filed by eSapience, “a media and research entity that shapes the debate on issues that intersect law, economics, and policy,” against one of its former clients. eSapience is claiming unpaid consulting fees for a project to rehabilitate the public image of Maurice Greenberg, an insurance executive pursued at one point by Eliot Spitzer for alleged improprieties connected with Greenberg’s work at AIG insurance.

The interesting twist is that eSapience appears to have employed prominent academics, including U. Chicago Law Professor Richard Epstein, to write articles favorable to Greenberg. The Globe reports that “Their mission was ‘to change the public conversation about Maurice Greenberg ,’ according to a confidential plan summary. This was to be accomplished, in part, by organizing invitation-only events where ‘influencers’ would hear Greenberg weigh in on insurance issues and by penning papers, editorials, books, and other content aimed at putting the executive in a favorable light, the summary said.”

Assuming for the sake of argument that the Globe story is true, did these professors cross some line of academic impropriety? It’s certainly common for law professors to take on consulting projects or testify as expert witnesses knowing that they will advocate a certain position. However, if they took on certain “scholarly” projects knowing that their point of view was predetermined, that sounds a bit fishy. Granted, the opinions they ended up taking may have been the ones they’d have taken independently. However, it seems much more proper if academics fully disclose any financial interest they have in the positions they take.

p.s. Here are links to another Globe story and a PR Week story about the same matter.

3

A National Law Student Code of Conduct?

hammurabi.jpgReputation Defender is a new start-up that seeks to commodify internet self-help. According to yesterday’s WashingtonPost article on Xoxohth, the service will destroy harmful content about you wherever it appears on the World Wide Web, presumably through an escalating series of gentle reminders followed by hard nudges against hosts. As I blogged yesterday, the site is trying to make a public good out of this private remedy by “encourag[ing] law schools to adopt a professional conduct code for students.”

How is this different from the codes of conduct that currently govern law student behavior? Temple, to take an example I’m familiar with, has a broad-ranging student code that includes the following provisions of interest:

It shall be a violation of this Code for a TLS student knowingly to do or to attempt to do or to assist in . . . a course of conduct . . . directed at a member of the Law School community which would cause a reasonable person in the victim’s position severe emotional distress or which would place a reasonable person in the victim’s position in fear of bodily injury or death, provided that this provision shall not be interpreted to abridge the right of any member of the Law School community to freedom of expression;

[or] . . . engage in conduct, not otherwise covered by any other provision of the Code, involving dishonesty, fraud, deceit or misrepresentation with regard to activities or programs related to the Law School, which adversely reflect upon his or her fitness to remain a student at the Law School.

Such policies are fairly widespread, often with explicit stalking provisions. I think that any law student who posts the name of another student at their school, in a public forum with a hostile sexual or racial tone, and refuses to stop making such comments on demand, would face probable disciplinary sanction if they were identified. (I understand there are First Amendment implications here, somewhere, but that is an argument I’ll leave to folks like David Bernstein to make.) This conclusion holds even if the comments were intended in jest, so long as a reasonable person would feel threatened (in the language of most codes). I assume that law students read disciplinary codes when they start their education, or would not find them terribly surprising.

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0

The Godfather’s Connection to the US Attorney Scandal

Pat_McCarran.jpgI’m still trying to get my mind around the burgeoning US Attorney scandal. While I mull it over, it worth remembering that there is nothing new under the sun, claims about the non-partisanship of the USAO office notwithstanding.

Lyndon Johnson’s biographer, Robert Caro, relates a great story about LBJ’s attempt to win the support of liberal senators in his election as minority leader in 1952. (LBJ had the conservative Southern Democrats on his side, but wanted all the votes). According to Caro, LBJ looked to Nevada Senator Pat McCarran, who was then a target of an FBI investigation into his contacts with the Las Vegas mob. (In the Godfather movies, McCarran was morphed into Senator Pat Geary.)

McCarran wanted his friend, James Johnson, to be named the US Attorney by President Truman before he left office. The theory was that Johnson would protect McCarran by halting any further inquiries. But the President hated the Senator. By January 1 (before Ike’s January 20th inauguration) Truman still had not signed the necessary papers. (Shades of Marbury here!) As Caro reports, on January 13, LBJ went to the White House and begged Truman to support him, so that McCarran would support LBJ. Truman agreed:

“All right . . . I’ll give this to you, Lyndon. But if that old so-and-so doesn’t produce, you bring it back to me . . . As you know, I’m doing this under protest. It is your ‘baby’ from now on.”

Later that day, appointment in hand, LBJ secured McCarren’s support for his leadership bid (in return for the extra concession of a seat on the Government Operations committee.

Of course, this type of anecdote only shows that monkeying with the US Attorney’s office is a time-honored American political tradition. It doesn’t make the activity ethical, or lawful. It does mean that it isn’t unprecedented.

(Story Credit: Robert A. Caro, The Years of Lyndon Johnson: Master of the Senate 477, 500-501 (2002); Photo Credit of Senator McCarran: US Congress.)

1

Stimson (sort of) Apologizes

Cully Stimson has written a letter to the Washington Post. In full, it reads:

During a radio interview last week, I brought up the topic of pro bono work and habeas corpus representation of detainees in Guantanamo Bay, Cuba. Regrettably, my comments left the impression that I question the integrity of those engaged in the zealous defense of detainees in Guantanamo. I do not.

I believe firmly that a foundational principle of our legal system is that the system works best when both sides are represented by competent legal counsel. I support pro bono work, as I said in the interview. I was a criminal defense attorney in two of my three tours in the Navy Judge Advocate General’s Corps. I zealously represented unpopular clients — people charged with crimes that did not make them, or their attorneys, popular in the military. I believe that our justice system requires vigorous representation.

I apologize for what I said and to those lawyers and law firms who are representing clients at Guantanamo. I hope that my record of public service makes clear that those comments do not reflect my core beliefs.

CULLY STIMSON

Deputy Assistant Secretary of Defense for Detainee Affairs

Defense Department

This is a half a loaf of an apology. Last week, Stimson made two claims. The second, which this apology retracts, related to law firm motive: “Some will maintain that they are doing it out of the goodness of their heart, that they’re doing it pro bono, and I suspect they are; others are receiving moneys from who knows where, and I’d be curious to have them explain that.” But the first claim – which was the real problematic one – isn’t really addressed by the letter:

“I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.”

Maybe I’m reading into this too much, but I think the rest of the letter has the flavor of supporting lawyers for society’s Gideons, not its Hamdans. It’s true that half a loaf is better than nothing, and it reflects well on Stimson that he is willing to say he was wrong in a public forum. But he should have gone further.