OTHERWISE: Meet David Bruck’s Defender // The Marshall Project.
Representing an avowed racist, a champion of racial justice
By ANDREW COHEN
Officials in Washington and South Carolina are still figuring out who will try Dylann Roof first for the Charleston church shooting on June 17. Local prosecutors quickly brought capital murder charges against the self-proclaimed white supremacist, and the Justice Department announced last week that it would bring a broad capital case against Roof centered around the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, the federal hate crime law.
The South Carolina case likely will go to trial first — the feds typically defer to local prosecutors except when terror-related charges are involved (and, pointedly, none were brought against Roof). But with this case, the federal trial judge and the first-chair federal defense attorney have already been determined. David Bruck, a 66-year-old, Canadian-born capital expert, who graduated from the University of South Carolina law school, will return to the Palmetto State to tackle yet another challenging assignment representing a high-profile defendant.
The Wall Street Journal reported this afternoon that a series of emails between two lawyer-friends may impede a $6 billion class-action antitrust settlement between Mastercard, Visa, and millions of merchants. The facts are a “twist,” as the Journal calls them, in the merchants’ price-fixing case against the credit card companies that began a decade ago.
While a partner at Wilke Farr representing Mastercard, attorney Keila Ravelo exchanged emails with former-colleague, friend, and attorney Gary Freidman, who was representing a group of merchants in the class action. (Interestingly, Wilke Farre discovered the emails while investigating Ravelo and her husband for theft of funds from Wilke Farre, among others.) The merchants in the settlement are alleging inadequate representation based on the disclosure of allegedly confidential information in these emails between Ravelo and Freidman.
My PR students frequently struggle with when screening a disqualified lawyer may work, as well as which screening Rule applies. I put together this infographic for my current summer class. Feel free to us the link, or email me if you’d like a pdf version.
Lawyer Screening: Who, When, How
The Faculty Lounge has a lengthy post discussing the recent Second Circuit decision reversing the FRCP 12(b)(6) dismissal of a potential class action lawsuit by a contract lawyer doing document review for Skadden. (The story also appeared in a recent ABA e-Journal article.) The blog post – and comments – are worth reading. (As of this morning, however, I didn’t think the 11 blog comments sufficiently addressed the relationship between UPL laws and the UPL safe harbor provision found in Rule 5.5 and which view of UPL would “trump,” given the fact that in many states, these two stem from different branches of government).
Just what is a reasonable feeas required by RPC 1.5? How is it determined in practice? In the BP Gulf Oil Spill Compensation cases MDL – in which $5 billion has already been paid out, the “common benefit” fees to the Plaintiffs Steering Committee and those who bore the brunt of the litigation are not yet payable. Fees must, of course be reasonable. Judge Carl Barbier here lays out a road map and establishes guidelines for review of fee applications.
Torts Today: Judge Barbier establishes Common benefit fee committee and guidelines in BP Spill.
Judge Barbier Establishes Common Benefit Fee Committee and Issues Guidelines in BP Spill Economic and Medical Compensation Case
PRETRIAL ORDER NO. 59
(Appointment of Common Benefit Fee and Cost Committee and Guidelines for Common Benefit Attorneys’ Fees and Costs Reimbursement)
Even though a formal petition for an award of common benefit attorneys’ fees and reimbursement of costs (“Aggregate Fee and Cost Petition”) likely will not be filed in this litigation until 2016 or later, it is important at this time to begin the process of creating a structure, establishing guidelines, and setting a timetable for the eventual presentation to the Court of an Aggregate Fee and Cost Petition and a subsequent recommendation regarding allocation of the Aggregate Common Benefit Fee and Costs Award among eligible Fee Applicants “Allocation Recommendation”).
BP has agreed to pay up to $600 million in common benefit attorneys’ fees, costs, and expenses, as awarded by the Court.1 Under the Fee Agreement, “[a]ny common benefit Class Counsel fees and costs awarded by the Court will not be deducted from Class Members’ recoveries, but will be paid by BP in addition to other class benefits.” In re OIL SPILL by the OIL RIG “DEEPWATER HORIZON” in the Gulf of Mexico, on April 20, 2010, 295 F.R.D. 112, 126 (E.D. La. 2013), appeal dism’d in part, No. 13-30221 (5th Cir. Feb. 11, 2014).
As the ABA Journal reports, the U.S. District Court for the Southern District of New York has dismissed a complaint brought by law firm Jacoby & Myers challenging Rule 5.4’s ban on nonlawyer partnership & outside investment in law firms. This follows a remand from the Second Circuit. Lawyers for the plaintiffs have said they plan to appeal the decision to the Second Circuit. The suit, which raises 1st and 14th Amendment arguments, cited ideas discussed by casebook author Renee Knake.
Outside investment in law firms, which is sometimes referred to as alternative business structures or ABS, is available in England and Wales and Australia (and is under consideration in parts of Canada) but remains controversial. For example, the ABA Commission on Ethics 20/20 circulated a discussion paper on the topic, but in the face of negative reaction announced that it would not consider the issue further. (See here for my article on the work of the Ethics 20/20 Commission).
For many years `lockemup and throwawaythekey’ was the refrain of everyone who sought electoral office. There has been a shift – left and right – as we realize the tragedy we have created: the world’s most punitive society. Being one of the most racist societies in history has created a culture that generates violence and perpetrates it, that creates a harsh attitude toward criminal justice. Barack Obama, the first President to visit a prison(!) discusses the issues at the NAACP annual meeting.
Lawyers and judges have managed America’s criminal justice system, feeding its huge prison archipelago.Of course the voters have been a driving force. Lawyers and judges have, in the main, implemented the system created by elected representatives. Have we fulfilled our duty to follow the law? Or have we been derelict in our obligation to seek justice? – gwc
OTHERWISE: Obama, at NAACP, highlights harshness, racial disparities in criminal justice.
A recent ethics opinion from the California State Bar Committee on Professional Responsibility, Formal Op. 2015-193, outlines how even an experienced lawyer can breach duties of competence and client confidentiality by engaging in e-discovery without the assistance of someone with e-discovery expertise. In this opinion, a hypothetical Lawyer entered into a joint agreement with Opposing Counsel permitting Opposing Counsel’s vendor to search the Client’s computer system for discoverable electronically stored information (“ESI”) using agreed upon search terms. The joint agreement contained a clawback provision to permit Client to clawback any inadvertently produced ESI protected by attorney client privilege or work product.
After all the ESI is produced, Lawyer receives a letter from Opposing Counsel accusing Counsel’s Client of destroying evidence and/or spoliation, and threatens motions for monetary and evidentiary sanctions. Lawyer hires an e-discovery Expert who reviews the produced ESI, and tells Lawyer that potentially responsive ESI has been routinely deleted from Client’s computers as part of Client’s normal document retention policy, revealing gaps in the document production. Expert also states that due to the breadth of the agreed upon search terms, both privileged information and proprietary information about the Client’s important new product were revealed to the opposing party, Client’s chief competitor. Expert advises Lawyer that an IT professional with litigation experience would have identified the over-breadth of the search terms and would have advised Lawyer not to agree to such a far-reaching joint agreement.
The committee analyzes the facts, and concludes that the hypothetical Lawyer has violated the duty of competency and may have violated client confidentiality. The committee states that competency requires a lawyer who lacks expertise in e-discovery in a case to do one of the following: either acquire sufficient knowledge and skill before e-discovery begins, or consult a technical expert or associate with competent counsel, or decline the representation. The committee also cautions that even when a lawyer engages an expert or associates with another to assist with e-discovery, the lawyer still has a duty to supervise the work and is ultimately responsible for the work of others.
In concluding that Lawyer may have breached client confidentiality, the committee stresses that the Lawyer agreed to release the ESI to Opposing Counsel without first reviewing the ESI to determine if any material was subject to the clawback provision as being subject to attorney client privilege or work product. A prior review would have also revealed the highly confidential proprietary information and Lawyer could have taken measures to protect Client’s interests.
This opinion is instructive of the need for all lawyers, even very experienced lawyers, to understand new technology or seek the assistance of qualified persons to assist them before using new technology. The opinion also demonstrates how failure to be sufficiently competent in new developments, such as e-discovery, may also violate the duty of client confidentiality.
The New York Times describes how the practice of providing of medical advice, including the prescription of medicine, through the internet is expanding, and at the same time meeting resistance from some doctors. Although law firms already provide advice to businesses and wealthy individuals through video communication, could internet video calls become a common way for lawyers to meet, and provide services to, middle income clients and small businesses? These developments raise issues relating to creation of the lawyer-client relationship, competence/malpractice, confidentiality, conflicts, and future directions for business and technology of legal practice.
This spring, the Texas Supreme Court held that there was nothing “substantively unconscionable” about a lawyer-client services agreement specifying that the client and firm will arbitrate disputes that arise between them, except for claims made by the firm for recovery of its fees and expenses. Royston, Rayzor, Vickery & Williams, L.L.P. v. Lopez (2015 WL 3976101). The Court of Appeals had sided with the client in finding unconscionability in this “one-sided agreement,” concluding that the contract facially favored the law firm by giving it the right to litigate claims for its fees and expenses while requiring the client to arbitrate all disputes, including malpractice. The Court declined to require lawyers to explain such provisions, noting that prospective clients who sign such contracts “are deemed to know and understand the contracts’ content and are bound by their terms on the same basis as are other contracting parties.”
The fundamental flaw in our capital punishment practice is arbitrariness in administration. We have noted that race is an arbitrary determinant But the untouchable has been prosecutorial discretion. The result of that is that a handful of prosecutors seek the death penalty. County by County disparity prevents like cases from being treated alike. Leigh Bienen (Northwestern) developed this point comprehensively in her 1988 study for the New Jersey Office of the Public Defender The Reimposition of Capital Punishment in New Jersey: The Role of Prosecutorial Discretion. The state’s Supreme Court responded with a long term program of proportionality review. That sincere but failed effort was rigorous but fundamentally flawed by the failure to confront the issue of statewide disparity of outcomes inevitable where each county prosecutor could make his/her own choice of when to seek the death penalty. Mark Graber at Balkinizaton discusses the case of Richard Glossip, an emblematic example of the dangers of unfettered prosecutorial discretion. – gwc
OTHERWISE: Richard Glossip- likely innocent – faces execution.
by Mark Graber
In sum, Richard Glossip is likely to be executed because capital punishment enhances prosecutorial power to secure unreliable and arbitrary death sentences.
A Womens Donor Network Study reported in the New York Times finds that “Sixty-six percent of states that elect prosecutors have no blacks in those offices, . . . 95 percent of the 2,437 elected state and local prosecutors across the country in 2014 were white, and 79 percent were white men.” At the same time, “white men make up 31 percent of the population of the United States.” This study is relevant to a number of topics in the course, including the responsibility of lawyers for ensuring that the legal system provides equal justice for all and the special duties of prosecutors.
When the Rules of Professional Conduct talk about zeal, diligence, loyalty, competence it is abstract. To see what it means in practice look at this account of five member firm defense lawyer Kevin Marino’s representation of Sergei Aleynikov against the United States, the State of New York, and Goldman Sachs. – gwc
Conviction of Former Goldman Sachs Programmer Overturned – Again
The CCBE, which represents the bars and law societies of Europe, issued a press release today announcing that “The District Court of The Hague has ruled that surveillance of lawyers by intelligence agencies constitutes an infringement of fundamental rights and orders the State to stop.” The press release includes links to a number of CCBE and other documents on this topic, which has been an issue of great concern in Europe.