Category: Legal Ethics


Price Discrimination in the World of Medicine

The WSL had an article today about drug pricing and the power that big purchasers have with the drug manufacturers. The article got me thinking: Am I the only one who cares that small retail pharmacies (to the extent that they still exist) get the short end of the stick with drug manufacturers (or have historically, anyway)?

A nice example, albeit dated, deals with birth control pills. Most colleges sell to their students birth control pills at somewhere around $10 per package. The colleges get their birth control pills for perhaps . . . $5 per package. The retail pharmacy on Main Street, however, gets the pills for $14 per package, and it sells the package for $19 to the person with insurance and $38 per package to the person without insurance. How is that fair? There is no way the retail pharmacy can ever compete with the University pharmacy (or the Wal-Mart pharmacy, that likely gets a similarly significant discount).

The birth control pill manufacturers typically evade antitrust scrutiny b/c they maintain that they are giving the university a “volume discount.” Last I checked, however, most antitrust lawyers agreed that the true volume discount in situations like that was nowhere near the discounts universities, Wal-Marts, etc. were actually being given. The discounts given were far larger than the discounts that could be justified on a basis of costs saved due to volume purchases. Yet nobody squawks.

On a related note, why is it that I have to pay $75 for my doctor’s appointment if I miss it and don’t call to cancel, but, if I had actually gone to the appointment, my insurer would have only been billed $48 or some such? I realize that my insurer has negotiated better prices with my doctor than have I, but why is that not price discrimination in violation of the Robinson-Patman Act? Where are our antitrust lawyers? I cannot believe that the volume discount math really works out in this case – my gut instinct is that the doctors are just caving to the insurers and sticking it to the poor individuals when insurance does not apply.

In my pursuit to be like Harvey Goldschmid, I have long wanted to teach antitrust, but Richmond could not really afford to have me give up a corporate class to teach antitrust. Hopefully, if I were teaching antitrust, I could answer my doctor’s appointment question myself.


Your Honor Your Father

A Wyoming trial judge stepped into the role of father to a troubled teenager whose case he’d handled, and he stayed in that role for years after the young man left prison — paying his bills, giving him advice, finding him living quarters, helping him get financial aid and health care — all the while signing his letters “Dad.”

The young man died recently of a drug overdose. His real father is now complaining that the judge’s involvement with the young man was unethical.

An odd case to think about on this Father’s Day.


The Government Tries to Play Hardball With KPMG

First things first: Thank you, Dan & Co., for inviting me to guest blog. I am very excited to be here, and I look forward to an interesting visit.

Second thing second:

In theory, my first post out of the starting gate here should be strong, hard-hitting, and compelling, in the hopes of impressing the audience. That was my plan, anyway. But, as I took a break from drafting the hard-hitting and compelling post, I surfed, and I found an article that just baffled me. Stumped me. So much for the hard-charging start. (Just to be clear, I read the words in the article, and I understood their meaning, but I have been waffling for the past half hour on where I come out on the substance of the article. I am baffled about the “right” side of the argument at issue. )

The article, titled KPMG Case Sets Up Key Ruling on Legal Fees, notes an interesting and likely significant issue currently before Judge Kaplan (SDNY).

Summary: The government is prosecuting 16 former KPMG executives who are accused of marketing fraudulent tax shelters. Defense lawyers for the executives are complaining that the federal prosecutors are pressuring KPMG to cut off legal support for the 16 former executives, presumably to make the 16 defendants cave (my phrasing). It appears (to the defense lawyers) that the prosecutors on the case are hoping that KPMG will cut off support to the executives to curry favor with the prosecutors (or at least be viewed as “cooperating with the government”) and thereby avoid prosecution itself. It seems to the defense lawyers (as best I can tell) that the prosecutors are trying unscrupulously to get KPMG to basically “give up” its former employees in order to save themselves.

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Let Markets Help Criminal Defendants

ballandchain.jpgDan’s interesting post on plea bargaining made explicit the informational inequalities faced by criminal defendants and their lawyers. Indeed, one of the advantages public defenders have over private defense counsel is that they can more easily share information internally about the informal norms that “really” govern the system (judge sentencing practices; which cops tell what stories; which labs are sloppy; etc.) But even so, the instruments of law and order almost always will know more about the facts and the law than the defense, at least until the eve of trial and probably throughout the process.

That there are exceptions (Enron; OJ) proves the rule that informational asymmetry is a significant part of the prosecutor’s arsenal – indeed, this asymmetry justifies constitutional attempts to remedy the problem through mandatory discovery procedures. But I’m skeptical that legal rules alone are a panacea to structural problems. Why not try markets?

To be more concrete, the major decision that criminal defendants face is whether or not to plead guilty. The decision depends on a prediction about what will happen at trial. Assuming that defendants are risk averse, they will take pleas when rational actors would not, but generally will go to trial when the expected time served post-trial is less (by some margin) than the actual time proposed in the plea agreement. The problem is that (1) defendants are unsophisticated; (2) defendants’ lawyers are incented to push pleas; and (3) neither defendants nor their lawyers have as much information as prosecutors about likely verdicts.

If I were running a public defender service, I’d consider setting up an online prediction market for the conviction of my clients. Prediction markets did a fantastic job in the Enron trial. At the beginning of the trial, the odds of conviction were about 50% for each defendant; by the end, the odds were significantly higher. Now, I can understand why neither defendant would have pled facing a coin-flip’s chance at conviction. As I argued at the beginning of the trial:

I’d guess that the reason Skilling and Lay have not pled and Fastow has is demographics. Fastow is a young(ish) man, who can serve significant time and still emerge with earning power. Lay and Skilling don’t have the years left to do the time that the government (apparently) would find appropriate.

But for most criminal defendants, 50% odds would translate into a pretty hefty expected sentence that might make a plea more attractive. And, assuming that such markets would be sufficiently liquid, the predictions generated by traders ought to be both more accurate and less prone to bias than defense counsel’s odds. I imagine that the result would be a net decrease in pleas, and in the long term, as prosecutors reacted, less net jail time. That is, the current system is biased by risk aversion and agency problems – as others have observed – toward more jail. This effect may serve the forces of law and order, but it doesn’t necessarily serve the search for truth. Why not try something different?

Obvious objections: (1) the idea is “”utterly repugnant to a civilized society“; (2) thin markets are prone to manipulation; (3) incentives would increase to violate the attorney-client privilege; (4) it would look like public defenders are selling out their clients. Of these objections, I’d be most worried about #3.

Incidentally, if you are interested in thinking more about criminal law and the Enron trial, the Conglomerate is hosting what promises to be a great forum on the topic for the next two days. Check it out!


Setting the Bar, and the Limits of Empirical Research

Larry Ribstein and Jonathan Wilson are debating the merits of a strong, exclusionary, state bar.

Wilson’s position is pro-Bar:

Deregulating lawyers as punishment or retribution for a profession that has lost its way would be a recipe for disaster. Deregulating the practice of law would open the floodgates to fraud of every conceivable variety and would only compound the problems that the readers of these pages see in our civil justice system.

Ribstein, naturally, is pro-market:

Big law firms provide a strong reputational “bond” . . . Lawyers can be certified by private organizations, including existing bar associations, which can compete with each other by earning reputations for reliability. . . .We could have stricter pleading rules, or require losers to pay winners’ fees. Or how about this: let anybody into court, but adopt a loser pays rule for parties that come into court represented by anything less than a lawyer with the highest possible trial certificate . . . Even if only licensing would effectively deal with this problem, the licensing scheme should be designed specifically to protect the courts. Instead of requiring the same all-purpose license to handle a real estate transaction and to prosecute a billion-dollar class action, we could have a special licensing law for courtroom practice, backed by tight regulation of trial lawyers’ conduct – something like the traditional barrister/solicitor distinction in the UK.

Josh Wright has picked up the thread of the discussion at TOTM, and suggests that empirical evidence would inform this debate. Unfortunately, as both Larry and he note, there is a paucity of useful studies on point:

If I recall, the Federal Trade Commission has recently been involved in some advocacy efforts in favor of limiting the scope of unauthorized practice of law statutes. My sense is that a number of states must have relaxed unauthorized practice of law restrictions (I think Arizona is one), or similarly relaxed restrictions on lawyer licensing, such that one could directly test the impact of these restrictions on consumers in terms of prices and quality of service. There must be work on this somewhere.

Solove and I have gone around on this question before (see here for the powerful pro-licensing position, and here and here for Solove’s “response”).

Generally, I like Josh’s intuition. It would be quite useful to look to Arizona, or other natural experiments, to help us to answer the problem of the utility of the Bar Exam and other licensing barriers. Surely, there is no reason in the abstract to preserve an ancient system that keeps lawyer fees artificially high, diverts millions of dollars from law students to Barbri, and causes no end of mental anguish simply because it provides a new jurisprudential lens!

But I’m quite skeptical that this is an answerable question, at least in the short term. My thinking is informed somewhat by the new Malcolm Gladwell New Yorker essay about basketball. Although Gladwell extols the virtues of statistical analysis (instead of anecdote, judgment, and valuing the joy of watching Allen Iverson triumph despite his height), the lesson I took from the piece was that:

Most tasks that professionals perform . . . are surprisingly hard to evaluate. Suppose that we wanted to measure something in the real world, like the relative skill of New York City’s heart surgeons. One obvious way would be to compare the mortality rates of the patients on whom they operate—except that substandard care isn’t necessarily fatal, so a more accurate measure might be how quickly patients get better or how few complications they have after surgery. But recovery time is a function as well of how a patient is treated in the intensive-care unit, which reflects the capabilities not just of the doctor but of the nurses in the I.C.U. So now we have to adjust for nurse quality in our assessment of surgeon quality. We’d also better adjust for how sick the patients were in the first place, and since well-regarded surgeons often treat the most difficult cases, the best surgeons might well have the poorest patient recovery rates. In order to measure something you thought was fairly straightforward, you really have to take into account a series of things that aren’t so straightforward.

I know how I would test the direct cost of legal service in Pennsylvania, and I’ve no doubt that it would go down if I (by fiat) abolished the state bar. But I have no good idea of how we can measure lawyer “quality”. To take something as obvious as criminal defense, some really good public defenders will lose every case for a year, but take comfort in having not lost on the top count of a single indictment. Saying that a public defender who went 0 for 50 in 2005 was a less “good” attorney than a prosecutor who went 50-0 would be a real problem. Facts drive litigation, and make empirical investigation of lawyer quality as a quantitative matter hard. And that is for attorneys who perform in public. How do you evaluate the relative strength of deal counsel on a gross level? Count the typos in the document? Talk with the business folks, and ask who got in the way less? [Obviously, deal counsel can be very good and very bad: the point is we need metrics that are easily coded by, say, research assistants.]

So here is the question for our readers. Can you design an empirical project that measures both litigation and transactional practice quality as a function of licensing?


On the Milberg Indictment

MW.gifI’ve been mulling over the Milberg indictment. Since I waited a weekend to post, I have the advantage of having read lots of other folks’ views. Quick summaries follow:

  • Michael Dorf: Kickback payments slaved the named plaintiffs to MW, bloating agency costs.
  • Steve Bainbridge:Kickbacks encourage “nuisance claims.” We may need criminal sanctions to crank the Hand formula to optimal levels, but only against individual lawyers.
  • Walter Olson:”[MW was] taking no chances on the watchdogs staying pacified: It threw regular chunks of raw liver into their cages.”
  • Larry Ribstein: Who cares? Lawyers are fungible.
  • Ed Morrissey: Bad for Democrats and ambulance chasers.
  • Christine Hurt: It’s high noon, and MW can’t blink.
  • And let’s not forget MW itself: It was just a referral! And the theory is overreaching! And our interests remained aligned!

Wow. Lots of words. So here is what I think.

First, I still don’t particularly understand the economics of outrage here. I’ve seen two arguments about why kickbacks are bad (apart from their being unlawful, which we’ll put aside briefly). First, I’ve heard the argument that they “capture” the lead plaintiff, making that person less able to monitor the lawyer’s work. As Dorf points out, however, plaintiffs in securities class actions are sort of like shareholders stockholders: they have deputized oversight and management to lawyers, in return for fiduciary duties. Some folks seem to have in mind a more active role for lead plaintiffs – something like a controlling stockholder(?) – but given the relatively low bonuses awarded in settlements for lead plaintiffs, why would anyone want to play that role? That is, you can’t have distributed, small-stakes, high-impact, governance by private actions and have plaintiff management at the same time. The capture argument is another way of saying that these types of claims are not in the public interest. But we don’t criminalize inefficient lawyering. Not usually.

The second argument I’ve seen is related to the first – it is Bainbridge’s – and it suggests that kickbacks encourage securities actions that are (on the merits) weaker. Yup, that sounds right. But that isn’t an argument against kickbacks, it is an argument that judges aren’t doing enough to raise hurdles to weak actions at early stages, as the PSLRA was designed to accomplish. To the contrary, I have found that judges are quite hostile to securities claims.

The argument that I haven’t seen on the blogs, but which is larded through the indictment, suggests that MW was, in effect, selling out the rest of the class to benefit the folks at the head of the line. And in a way, this is (for me) the strongest argument against the practice. If MW really did countenance paying referrals-as-kickbacks to named class members out of their portion of the settlement, then we know that dollars were being taken out of the mouths of the rest of the class pretty directly. On the other hand, one might argue that MW had to pay off the named plaintiffs to bring the cases in the first place – that it is a an expense like overhead.

Two additional aspects of the case trouble me. Obviously, indicting the entire firm feels excessive. I don’t agree with Larry R. that reputational effects won’t follow MW’s innocent lawyers. I know lots of counsel at MW – I litigated against them – and I thought they were incredibly hard working, tough, honest, passionate adversaries. One of my worst days as a lawyer came across a deposition table from an experienced Milberg partner: he taught me a great lesson on how to get one’s opponent to hang himself on the record. And I’d be shocked if more than a handful of lawyers at the firm had any knowledge of the activities charged. If the USAO is really indicting out of pique for failure to roll over as most corporations would do in response to a patently unreasonable discovery demand, well, many folks who think of themselves as white knights are going to be tarnished unfairly.

Second, I have some problems with the continued federalization of state practice ethical rules. Although the indictment doesn’t come out and say this, some of the illegality is premised on state fiduciary duty and referral laws. (Some, granted, is based on Rule 23.) Shouldn’t this type of prosecution be the job of Elliot Spitzer and his imitators? Which raises a question: why didn’t Spitzer get here first?


Why The Right To Choose Counsel Matters

Today the Supreme Court will hear argument in the case United States v. Gonzalez-Lopez. SCOTUS Blog has a nice summary of the issues here. The case involves a criminal defendant who, for various reasons related primarily to guild protection, was denied the chance to be represented by the attorney of his choice. The U.S. takes the position that even though this may have violated the defendant’s Sixth Amendment rights, he should lose his appeal unless the attorney he didn’t want was “ineffective”. The problem is that the Strickland v. Washington definition of ineffectiveness, as it has evolved, misses some core aspects of criminal lawyering. One of the critical problems with the Strickland analysis is its focus on strategic moves: trial skills, evidentiary choices, objections, and the like. Admittedly, the Court has begun to take seriously the importance of pretrial investigation in capital cases. Yet the attorney-client relationship – that (hopefully) large bundle of time and joint effort that occurs before trial – receives short shrift. And it often has at least as large an effect on overall case outcome. An attorney who successfully builds trust with her client can do a much better job for him. And a client’s decision to hire a particular attorney is a good first step in that process.

First, there is the matter of plea bargaining. While plea bargains are usually available in criminal cases, they almost always require a modicum of attorney-client trust. Why? First, if the deal requires a defendant to cooperate with the goverment, the defendant must trust the lawyer to handle this sometimes dangerous transaction properly. Second, when a deal is available, many defendants will not accept it if they think their attorney has negotiated inadequately or, worse, is in league with the prosecution. The higher the stakes in the case – when a defendant is facing decades in jail, for example – the more a defendant must trust his lawyer.

There is also the matter of trial preparation. Defendants often have a great deal of knowledge that can help secure a better deal, or result in a better trial outcome. They know witnesses. They know the facts of their own crimes. They know their own personal history. But defendants are often reticent about sharing this information with lawyers they don’t trust.

Finally, there is the trial itself and, particularly, a defendant’s decision whether to testify. Defendants often want to tell their story. Defense lawyers often want them to remain silent. This decision ultimately rests with the defendant. If he doesn’t trust his lawyer, he is less likely to listen to her advice.

When a person selects his own counsel, he is taking the first step toward building a valuable relatioinship with his attorney. When that process is disrupted by courts, it will inevitably have real consequences. Even if the “show” looks identical – the cross-examination is great and the closing sublime – the process will have changed, and quite possibly for the worse. In recent years, the Court has sometimes shown a greater appreciation for the complex task of criminal lawyering. I hope that their decision in Gonzalez-Lopez reflects sensitivity to the fact that lawyers are simply not fungible.

Dedicated Ventilators?


Imagine that bird flu hits the United States, and you’re a doctor at a hospital filled with 700 infected patients who all need ventilators to help them breathe. You have 100 ventilators. How do you allocate them? To the sickest? the youngest? the oldest? the most likely to live? the ones most likely to die without one?

The choices would be unthinkable, as Bernard Williams and Martha Nussbaum have suggested. We should be doing much more to avoid them, or at least make them less stark. But as this article from the NYT shows, we are instead doing very little:

Right now, there are 105,000 ventilators, and even during a regular flu season, about 100,000 are in use. In a worst-case human pandemic, according to the national preparedness plan issued by President Bush in November, the country would need as many as 742,500. To some experts, the ventilator shortage is the most glaring example of the country’s lack of readiness for a pandemic.

Now aren’t you happy that market forces got rid of all that “excess hospital capacity” in the 80s and 90s? According to one doctor from the Mayo Medical School, “Families are going to be told, ‘We have to take your loved one off the ventilator even though, if we could keep him on it for a week, he might be fine.'”

Given various budgetary crises, we can’t expect much help from government. Is there any creative solution? I’d like to suggest one: Let individuals buy ventilators to dedicate for themselves and their families (at nearby hospitals), in exchange for their donation of one ventilator for each one they dedicate. Here’s some “figures”….

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Law Clerk Disqualification

There has been some to-do about this story concerning one of Justice Alito’s soon-to-be clerks. In brief, the article quotes some academics who have a problem with the selection of Mr. Ciongoli, who is a former clerk of then-Judge Alito and a former aid to then-Attorney General Ashcroft. The article reports that Ciongoli had a hand in creating “the Bush administration’s legal strategy after the Sept. 11, 2001 attacks.” As a result, some academics (Deborah Rhode is cited) question whether it is proper to have clerks who are perceived as “partisan” or who may be able to influence the way “his own work” is judged by the Court.

Stephen Gillers is quoted as saying that Ciongoli will likely be removed from working on cases that touch on his prior experience, as a way of mitigating the latter fear. I suspect that is in fact what will occur, but I don’t know that it should, or that if Alito were to ask for Ciongoli’s opinion he would be doing anything the least bit wrong. Is it unethical, for example, for a judge to ask for a clerk’s opinion on a case that was decided the prior year by the court on which the clerk was then working? Obviously the current practice (though not always the historical one) is for judges to recuse when they have participated on a case. (There have been many examples of Supreme Court Justices participating in cases interpreting laws they had a hand in drafting or implementing before assuming the Bench.) But isn’t the situation different when the only prior involvement is that of a clerk, and the judge would be able to evaluate his advice with a grain of salt?

I know of no statutory restrictions on the ability of clerks to participate in cases because of their prior experience. There is the danger of undue influence, but I think it is minimal, since (1) clerks see it as their job to advise their judges and not to deceive them or push for policy results, (2) judges retain the final decision, and (3) the chance that a judge’s opinion will be significantly different from his clerk’s is very small, at least as to an issue for which the clerk has developed a reputation.

I can see a large upside to allowing these clerks to participate in cases with which they are familiar. First, it eliminates a large amount of time that would be spent in gaining background information. Second, it is an inestimable advantage to have a clerk who has substantive experience in the field implicated by a particular case. Decisions are more likely to be correct and anticipate potential unintended consequences if the judge has the advice of someone who knows the field. Third, the prior experience is likely to alert the clerk to potential counter-arguments, so the involvement of the clerk may be as likely to fully inform the judge as to bias his understanding of the case.

All this is different, of course, from the situation where a clerk participates in a decision that may have an effect on the clerk’s future employment, for example if the clerk’s future firm is representing a party in the Court. If anything the problem is more severe in that circumstance, but there (to my knowledge) the involvement of the clerk is left completely within the judge’s discretion.


Justice Scalia’s CLE

I had the great privilege of attending the CLE that was the subject of this week’s ABC story. Justice Scalia led several of the discussions/lectures, a task which required him to be an active presenter for several hours each of the two days of the conference. Details of the conference are made clear in a letter Federalist Society President Gene Meyer wrote to the President of ABC News. I am floored that anyone thinks there is anything the least bit improper about Scalia’s attendance. Still more am I surprised that this passes as “investigative” reporting, given that the Federalist Society advertised Scalia’s attendance at the Conference and that the same was reported by the AP immediately after Chief Justice Roberts was sworn in.

Stephen Gillers, a professor at NYU, is quoted in the story as saying that Scalia should not have taken the trip for “several reasons,” including the Federalist Society’s “decided political-slash-judicial profile.” Few, if any, groups would fail to be disqualified from having a sitting judge speak to their members under this heretofore unheard-of test. Certainly the ABA and the ACLU have “decided political-slash-judicial profile[s]” and yet — properly — nobody has raised any question of the propriety of speaking to such audiences.

The public ultimately is much the better for groups’ opportunities to interact with Justices, barring extreme cases where the group in question is pursuing an ex parte contact in a case pending or about to be pending before the Court. This proposition, which has been accepted for decades if not forever, is all the more applicable for situations like the conference in question, because it was an opportunity for the participants to learn interactively about a subject interesting the Justice, as opposed to the more typical event where the Justice simply gives a speech.

Of course this is not the first time critics of Justices have fabricated ethical concerns as a way of encouraging opposition to Justices whose philosophies the critics oppose. Scalia himself was the target of such a campaign recently in the Cheney duck hunting episode, prompting criticism by Gillers among others, and ultimately resulting in Scalia’s release of an extraordinary memo defending his non-recusal in the case and pointing out that ethical rules had never before required refraining from the behavior for which he was being criticized. Similar questionable invocations of ethical concerns appear in the Haynsworth and Fortas confirmations, Fortas’s criticism perhaps less questionable than the others.

UPDATE: Here are two posts discussing the report: one from SCOTUS Blog and another from the VC.