Is Big Law Dying (redux)?

Noam Scheiber’s New Republic cover story on The Last Days of Big Law has received a great deal of attention in the press.  But it suffers from the over-reliance on nostalgia and lack of research on developments in Big Law practice that mark many similar pieces.  For example, Scheiber makes the assertion that “The overwhelming majority of [large firms] still operate according to a business model that assumes, at least implicitly, that clients will insist upon the best legal talent instead of the best bargain for legal talent.”  Research suggests, however, that this assertion is at best, over-stated, and at worst, simply false.  See, for example, David Wilkins’s excellent 2010 article, Team of Rivals:  Toward a New Model of the Corporate Attorney-Client Relationship.  Eli Wald and I are finishing an article for a Hofstra Law symposium explaining why the arguments regarding the Death of Big Law are so flawed and how Big Law can best address the challenges it faces.  If you would like to review a draft, let me know.

The Legal Profession is Still a Blue State

A reading in Chapter 8 uses the metaphor of the legal profession as a blue state discuss the way political philosophy has helped construct the evolving understandings of the lawyer’s role.  A recent study of the Presidential campaign contributions in 2012 shows that the legal profession is indeed a very blue state.  H/T Above The Law.

The Million Dollar Law Degree by Michael Simkovic, Frank McIntyre :: SSRN

OTHERWISE: The Million Dollar Law Degree by Michael Simkovic, Frank McIntyre :: SSRN.

Is law school “worth it?? We all wonder. I spent less for law school at Rutgers-Newark (a state school) than I did for a 1-year masters degree in `polisci ‘ at Boston University. That wasn’t “worth it” – if we count lost income and subtract earnings from a couple of years teaching as an adjunct at Rutgers night school. But I Learned a lot of American history, and social science methods, which informed my work later – especially in editorial writing, political work, and in handling social science evidence in a few appellate cases.
But here two economists compare getting a law degree to stopping at the B.A. [There is a power point and link to the full article at the site above.] Simkovic and McIntyre show that by that measure a law degree IS “worth it”:

The mean annual earnings premium of a law degree is approximately $53,300 in 2012 dollars. The law degree earnings premium is cyclical and recent years are within historic norms.
We estimate the mean pre-tax lifetime value of a law degree as approximately $1,000,000.

A White Perspective on the Zimmerman Verdict: Is American Justice Inevitably Unequal?

A few years ago, I wrote an article arguing that so long as lawyers and judges refused to acknowledge that people are not color blind, our legal system would inevitably treat Blacks unequally.   See White Lawyering: Rethinking Race, Lawyer Identity, and Rule of Law. The Zimmerman verdict is yet another tragic illustration of how the pretension of color blindness inevitably results in racial injustice.  The examples in the Zimmerman trial are manifold.  The Court permitted the defense to introduce evidence that a neighbor had been robbed by a Black man – to what purpose? To suggest that if one Black man was a criminal all were and therefore George Zimmerman was reasonable in profiling Trayvon Martin.  The defense lawyers constantly used tropes that assumed racial bias.  They argued, for example, that George Zimmerman was physically weak and a bad fighter in contrast to what? Without any evidence regarding Trayvon Martin, they implied that he was a good fighter and to be feared because he was Black.  This is a sad day for all of us, not just for Trayvon Martin’s family and for the State of Florida.  It’s a powerful reminder that all of us who are part of the legal system, including Whites like myself, have a responsibility to redouble our efforts to promote equal justice under law.   For an enlightening take on how the Zimmerman trial forces us to rethink discrimination laws, watch Maya Wiley’s comments on Up with Steve Kornacki.

George Zimmerman acquitted in killing of Trayvon Martin

OTHERWISE: Perils of overcharging.

The acquittal on all counts of George Zimmerman is appalling, in my view. Also appalling is the conduct of the prosecutor – who had no evidence of Second Degree murder. The case should have been tried as a manslaughter case. From the moment the indictment was released it was plain that they did not have the evidence for second degree murder – as many observed. [See R.P.C. 3.8 The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause]
Instead the Prosecutor resorted to the improper – appearing at a press conference with a cross dangling from her neck babbling about praying with the Martin family and speaking of the “constitutional victim”. If they really wanted to overcome the presumption of criminality of the hoodie-wearing black teenage male they should have focused on the facts. That would have led them to a manslaughter case. Overcharging is like any other credibility issue. Every basic trial practice course tells you not to offer to prove what you cannot prove. The prosecutors of George Zimmerman neglected that basic rule. – GWC

Federal Prosecutors Battle Over Criminal Defense and Prosecution Ethics in Kentucky – But Why?

Is the U.S. Department of Justice picking an unnecessary fight about legal ethics?

This summer’s big criminal justice ethics issue pits the United States of America against the Kentucky Bar Association, whose Board of Governors issued an opinion on how the state’s ethics rules apply to criminal defense lawyers and prosecutors. Kentucky is unusual in that its Supreme Court allows “[a]ny person or entity aggrieved or affected by a formal opinion of the Board” to obtain state Supreme Court review of the bar’s opinion. The United States, acting through the two U.S. Attorneys of the state, has asked the Kentucky Supreme Court to review the opinion of the state bar.

I wonder why the government has standing to bring the case.  No one seems to have noticed, but the Kentucky Supreme Court’s interpretation of the state’s ethics rules would not have the force of law in federal court.  So even if the bar’s opinion has some force of law in state court proceedings, it is not binding as far as federal prosecutors are concerned.  Are federal prosecutors nevertheless “aggrieved or affected”?

Before getting to the “standing” question, here’s some background: Suppose that a defendant is arrested by the DEA on drug charges and his defense lawyer seeks to negotiate an agreement for the prosecution to drop or reduce some of the charges, or for the prosecution to make a lenient sentencing recommendation, if the defendant pleads guilty.  The plea bargain will be mutually beneficial, because a guilty plea saves the public the expense and burden of a trial.  But the guilty plea does not guarantee finality.  Although there are few grounds for appeal or other post-conviction challenges after a guilty plea, there are some.  A defendant may challenge the legality of the sentence.  If the defendant later has second thoughts, he may also seek to vacate the guilty plea on the ground that it was not knowing or voluntary or was the product of incompetent legal advice or assistance.  That’s what happened in Padilla v. Kentucky, where defense counsel did not accurately tell the non-citizen client of the immigration consequences of his guilty plea.

The prosecution, seeking to preserve resources further and to achieve greater finality, may require a defendant, as part of the plea agreement, to waive the right to appellate and other post-conviction review.  The prosecution may or may not provide additional leniency in exchange for this waiver.  Most courts honor these waivers unless the defendant can show that the waiver was ineffective because he was coerced into the waiver agreement or given misinformation that led him to accept it.  The principal significance of waiving post-conviction procedures is that the defendant will be forgoing the opportunity to challenge an unlawful or excessive sentence.  However, the defendant will also lose the opportunity to claim that the guilty plea was the product of incompetent representation in violation of the Sixth Amendment right to effective assistance of counsel.  For example, if the defendant pled guilty because his lawyer inaccurately advised him about the consequences or a plea or about the alternatives, the defendant will lose the opportunity to claim that he was denied competent representation as a result.

From a public perspective, these waiver provisions may seem offensive, because there is an interest in affording a constitutional remedy in the cases, however rare, where defendants enter ill-advised guilty pleas.  But for most defendants, giving up the right to bring a Sixth Amendment ineffective assistance of counsel claim is worth the benefit of a lower sentence.  Harsh sentencing, particularly in federal cases, has given prosecutors enormous power to extract waivers of rights in addition to those that are necessarily waived by pleading guilty.

Quite a few bar associations, including the Kentucky Bar, have examined the developing practices and concluded that there is an ethics problem insofar as defendants are being asked to waive the right to competent counsel.  Two problems, actually.

First, there is a problem for defense lawyers: A defense lawyer advising the defendant whether to accept the plea offer has a reputational interest in avoiding a future claim of incompetent representation.  This may lead the lawyer to overvalue the deal.  Whether the risk that the lawyer will give self-interested advice is great enough to trigger the conflict rule in all cases, without regard to the lawyer’s perception of whether a viable ineffective assistance claim might be brought, is subject to debate.  Most bar associations examining the question, including that of Kentucky, say that no defense lawyer can advise on the subject, even with client consent, although two bar associations take a case-by-case approach.  Although an ineffective assistance of counsel claim does not result in civil liability, some of the opinions also find by analogy that the waiver provisions offend the rule against lawyers limiting their malpractice liability.

Second, there is a derivative problem for prosecutors.  Assuming defense counsel will be acting unethically in advising the defendant about the plea offer, may a prosecutor extend an offer that includes a waiver of ineffective assistance of counsel claims?  The Kentucky Bar and some others have concluded that the prosecutor would be violating Rule 8.4(a), which prohibits inducing another to violate an ethics rule.

Enter the United States of America, which has asked the Kentucky Supreme Court to review and vacate the Kentucky state bar’s opinion.  But why?  Under Kentucky’s choice of law rule, the state court interpretations of the state’s ethics rule should not be binding in federal court.  They are, at most, advisory.

In Kentucky, under Rule 8.5(b)(1) a lawyer plays by the rules of the court in which the lawyer appears.  That means that a criminal defense lawyer in a federal criminal case in Kentucky must play by the rules of the federal court. Although the Kentucky federal courts subject lawyers to discipline for violating the professional conduct rules of the Kentucky Supreme Court, the federal courts do not have to interpret the rules in precisely the same way as the state court.  Kentucky’s federal courts evidently have permitted waivers of ineffective assistance of counsel claims, and implicitly the federal courts perceive no conflict of interest or other impropriety when prosecutors request these waivers and defense lawyers advise their clients about them.  If in fact the conduct is considered permissible by the federal courts under their interpretation of the professional conduct rules, then lawyers who negotiate for these waivers in federal criminal cases are complying with the rules of the applicable jurisdiction.

The McDade Amendment adds a wrinkle.  This is a federal law requiring federal prosecutors to comply with the professional conduct rules of the states in which they appear.  Arguably, federal prosecutors have to comply with the state rules as interpreted at the state level.  It’s not clear that the McDade Amendment means that, but even assuming it does, that’s not a problem here.  The Kentucky bar has said that under Rule 8.4(a), a prosecutor cannot extend a plea offer that would be unethical for defense counsel to advise the defendant about.  But this has no significance for federal prosecutors unless the Kentucky federal courts first agree that defense lawyers can’t give advice about waiving the right to bring an ineffective assistance of counsel claim.  If the federal courts decide that these waiver provisions create no impediment for criminal defense lawyers, then Rule 8.4(a) would not preclude federal prosecutors from including these provisions in their plea offers.

Now perhaps this is all just academic.  If federal prosecutors lack standing to seek review of the bar’s opinion, perhaps they will find a sympathetic state prosecutor to seek review.  But that may not be ideal from federal prosecutors’ perspective, since it is not clear that state prosecutors actually extract waivers of ineffective assistance claims or want to be able to do so.

One other question of note: Federal prosecutors sometimes argue on federal preemption or separation-of-powers grounds that state ethics rules do not apply to them.  By seeking judicial review of a state bar ethics opinion, on the premise that federal prosecutors are “aggrieved or affected,” is the Department of Justice implicitly conceding that state ethics rules, as interpreted by state authorities, apply to them?  Or can they have it both ways?

Bruce A. Green,

Director, Louis Stein Center for Law and Ethics

Fordham University School of Law

OTHERWISE: ABA Pressed to Boost Law Students’ Practical Training

OTHERWISE: ABA Pressed to Boost Law Students' Practical Training.

Does clinical education strengthen lawyers’ competence? Is it necessary? Is this good educational policy or special-interest pleading by a section of law school faculty?
“Should the American Bar Association require that all law students graduate with at least some practice skills training under their belts?A group of clinical law professors thinks so. They have asked the ABA’s Counsel of the Section of Legal Education and Admissions to the Bar to amend its law school accreditation standards to require that students complete 15 credit hours of real-world lawyering coursework.The Clinical Legal Education Association also asked that would-be lawyers complete at least one clinic or externship before they graduate.”