Yesterday, on September 16, 2015, in the New York State Supreme Court in Manhattan, the jury began deliberating whether the three former executives of the now defunct law firm of Dewey & Leboeuf conspired to manipulate the finances in an effort to defraud investors and bank lenders. In a daring move, defense lawyers chose not to call any witnesses and rested their case. For more detailed information about the trial, it is reported that one legal newswire, Law360, has been live blogging the event. Warning: the testimony “has often been dull and focused on arcane accounting treatments.” Latest news of the trial can be found here. Prior posts can be found here and here.
A new ethics opinion on confidentiality by the Indiana State Bar Association Legal Ethics Committee reaches some puzzling conclusions. The committee considered whether Indiana’s mandatory reporting statute for suspected child abuse or neglect required a lawyer who learns of such abuse or neglect while representing a client must report it. While acknowledging that the Indiana Supreme Court is the final authority on both the law and ethics in Indiana, the committee concluded that a lawyer was not required to report the suspected abuse unless the lawyer believed it necessary to prevent reasonably certain death or substantial bodily harm. While that seems reasonable on its face, the committee made several leaps in reasoning to get there and may have provided some ill advice to lawyers in Indiana.
Unlike some other states, Indiana’s reporting statute does not exempt lawyers from the reporting duty. That means, unless the Indiana Supreme Court would step in and decide that the state’s Rule 1.6 trumps the state law, a lawyer who follows the opinion could be prosecuted for failing to report. In addition, the committee fails to acknowledge that Indiana’s Rule 1.6, like the ABA Model Rule, contains that confidentiality exception “to comply with other law or court order.”
Next, the committee inexplicably reasoned that because of the mandatory reporting law a lawyer must report suspected abuse or neglect “to prevent reasonably certain death or substantial bodily harm” even though the exceptions to confidentiality in Indiana’s Rule 1.6, like in the ABA Model Rule, state that a lawyer may reveal information relating to a client’s representation in order to prevent reasonably certain death or substantial bodily harm.
The ethics opinion may state a good policy position, but the committee goes out on limb by creatively trying to reconcile a lawyer’s ethical and legal obligations in such a situation. As it stands now, there is a direct conflict between the mandatory reporting law and the ethics rules, and the ethics opinion does not resolve this quandary for lawyers in Indiana.
An exemplary lawyer. The first Black woman to be editor of the Columbia Law Review, clerk to Judge Constance Baker Motley, member of the legal team in Furman v.Georgia. – gwc
by David Stout
Judge Richard Posner exhibited an extraordinary passion for justice when he wrote “It is heartless to make a fetish of adversary procedure if by doing so feeble evidence is credited because the opponent has no practical access to offsetting evidence.” The prolific 7th Circuit judge was writing in Rowe v. Gibson. The court reversed the grant of summary judgment and dismissal to defendant prison officials who were alleged to have been deliberately indifferent to plaintiff’s medical condition in violation of the cruel and unusual punishment clause of the Eighth Amendment. Rowe claims prison officials callously withheld and administered the medication necessary for care of his reflux esophagitis – GERD.
Like his colleagues Posner found Rowe’s claims sufficient to reverse grants of summary judgment. Posner disputed the credentials of credentials of the prescribing physician – a defendant who testified as an expert in his own defense, in a field not his own. To reach and support his conclusions – and doubtless fueling his anger – Posner conducted his own independent research about the drug commonly known as Zantac. Posner gathered materials from the drug’s manufacturer GlaxoSmith Kline, and widely relied upon authoritative sources such as the National Institutes of Health, the Mayo Clinic, Web MD and Wikipedia in discussing the pro se plaintiff’s physical condition and legal claims.
Posner’s efforts were sharply criticized by his colleague David Hamilton. He took exception to Judge Posner’s reliance on the sources, finding them to be investigations of fact, beyond the scope of what is permitted of a neutral magistrate. – gwc
Those of you who are teaching Chapter 6, Part II (Duties to Third Parties and to the Law) may want to refer to the ongoing criminal trial of three former executives of Dewey & LeBoeuf, who are being tried for larceny, fraud and falsifying business records. The trial began in late May and the defense team plans to formally rest its case on Tuesday without calling a single witness. Prosecutors working under Manhattan district attorney Cyrus R. Vance, Jr. have called more than 40 witnesses to support the prosecution’s case. Recent update on the case can be found here. Prior blogpost can be found here.